IN THE SUPREME COURT OF FLORIDA (DCA 1DO2-4491) KEETON CORRECTIONS, INC., d/b/a JACKSONVILLE MINIMUM SECURITY SUBSTANCE ABUSE FACILITY.

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1 IN THE SUPREME COURT OF FLORIDA (DCA 1DO2-4491) KEETON CORRECTIONS, INC., d/b/a JACKSONVILLE MINIMUM SECURITY SUBSTANCE ABUSE FACILITY Petitioner, v. RJ & RK, INC., a corporation and KIMBERLY KEETON SPENCE, as Personal Representative of the Estate of Ronald G. Keeton, Respondents. JURISDICTIONAL BRIEF OF PETITIONER KEETON CORRECTIONS, INC., d/b/a JACKSONVILLE MIMIMUM SECURITY SUBSTANCE ABUSE FACILITY On Review from the District Court of Appeal First District, State of Florida Larry A. Bodiford HUTTO and BODIFORD Post Office Box 2528 Panama City, FL Telephone: (850) Facsimile: (850) Florida Bar # Thomas Beverly, Esq. 101 East Adams Street Jacksonville, Florida Telephone: (904) Florida Bar # Attorneys for Petitioners

2 TABLE OF CONTENTS TABLE OF CITATIONS... ii Page STATEMENT OF THE CASE AND OF THE FACTS SUMMARY OF THE ARGUMENT JURISDICTIONAL STATEMENT ARGUMENT The decision of the First District Court of Appeal expressly and directly conflicts with this Court s decision in Wagner v. Rice, 97 So.2d 267 (Fla. 1957), by holding that Florida Statute (2000), Ch. 83 Part 1 Nonresidential Tenancies, applies to an unwritten lease tenancy at will, Florida Statute (2000). CONCLUSION CERTIFICATE OF COMPLIANCE

3 i TABLE OF CITATIONS Pages Cases Wagner v. Rice 97 So.2d 267 (Fla. 1957)... 2, 3 Statutes and Rules Florida Statute , 4 Florida Statute Florida Statute ,3,4,5 Art. V, 3(b)(3), Fla. Const... 4 Fla. R. App. P (a)(2)(A)(iv)... 4

4 ii STATEMENT OF THE CASE AND OF THE FACTS A. Statement of the Case At issue here is whether Florida Statute (2000), Right to demand double rent upon refusal to deliver possession, applies to an unwritten unlimited tenancy at will, Florida Statute (2000), when the landlord issues pursuant to Florida Statute 83.03(2000) a notice of termination of the unwritten lease tenancy and the tenant does not vacate the premises by the declared date of termination. When the tenant, Keeton Corrections Inc., hereinafter referred to as KCI, did not vacate the premises as demanded by the landlord, RJ & RK, Inc., hereinafter referred to as RJ & RK, brought its complaint for eviction and double rent as damages. Following a bench trial in the circuit court for Duval County, the trial judge in the final judgment awarded RJ & RK double rent as a penalty against the tenant, KCI, for occupying the real property after the date of termination set by the landlord,

5 RJ & RK. (A-3) KCI appealed the final judgment to the First District Court of Appeal. (A-3) The First District affirmed the trial court finding the trial court correctly applied the applicable provisions of the landlord and tenant statute, in that the tenant held over in possession after the end of the lease and was therefore liable for double rent. This holding by the First District Court of Appeal that, KCI, 1....the tenant failed to surrender the property after the lease had come to an end. (A-5) directly and expressly conflicts with the decision of this court in Wagner v. Rice, 97 So.2d 267 (Fla. 1957) on the same question of law as to the passive end of a lease as contrasted to a declaration of termination of an unlimited tenancy at will. The First District wrote KCI s unlimited oral tenancy had expired by operation of law. (A-5) B. Statement of the Facts For some years prior to October, 2000, RJ & RK, as owner of the property and KCI as tenant had a landlord - tenant relationship based upon an oral tenancy at will. On October 14, 2000, RJ & RK gave written notice to KCI to vacate the property before

6 November 1, The letter advised KCI if it did not move out RJ & RK would seek double rent. KCI did not vacate the property and RJ & RK brought its complaint for double rent and to evict KCI. (A-3) The trial court, in its final judgment rendered July 18, 2002, found that RJ & RK was entitled to the monthly rent for October of 2000 of $18,389.87, and thereafter beginning November 1, 2000, and including May 1, 2002, a double monthly rent in the amount of $36, (A-3) KCI announced in open court it was removing itself from the premises before midnight May 31, RJ & RK thus obtained an order of eviction and a writ of possession. 2. SUMMARY OF THE ARGUMENT In Wagner v. Rice, 97 So.2d 267 (Fla. 1957)this court in addressing Florida Statute noted the statute allowing double rent was penal in nature and was to be strictly construed. The expression found in the statute, the end of his lease has reference to expiration of the term by efflux of time and not by a declaration of a forfeiture for default. The Wagner court said if the lessor elected to bring the term to an end, then the statutory penalty does not apply. The First District s decision in this case allows a lessor

7 to elect to bring an unlimited term to an end and the statutory penalty to apply. Because of this express and direct conflict on the construction of Florida Statute this court should exercise its discretionary jurisdiction to review the decision of the First District Court of Appeal. 3. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a District Court of Appeal that expressly or directly conflicts with a decision of the Supreme Court on the same question of law. Art. V 3(b)3, Fla. Const.; Fla. R. App. P (a)(2)(A)(iv). ARGUMENT The decision of the First District Court of Appeal expressly and directly conflicts with this Court s decision in Wagner v. Rice, 97 So.2d 267 (Fla. 1957), by holding that Florida Statute 83.06

8 (2000), Ch. 83 Part 1 Nonresidential tenancies, applies to an unwritten lease tenancy at will, Florida Statute (2000). The First District Court of Appeal s decision in this case expressly and directly conflicts with Wagner supra by ignoring this court s bright line test that if a lessor chooses to terminate a lease and resume possession of the premises for his own purposes, Florida Statute (2000) does not apply. This court expressly wrote in Wagner supra that a statute such as Florida Statute [is] penal in nature and should therefore be strictly construed. They are not to be extended by interpretation beyond the limits of the actual language of the Act. This court in Wagner supra distinctly held that before a 4. landlord is entitled to double rent for wrongful holding over, the language of the statute requires the tenancy to come to... an end by the passage of time. Wagner at page 270. The First District does attempt to harmonize its holding with this court s Wagner holding by reasoning if a landlord gives proper notice of termination of a tenancy at will then the lease expires by operation of law. (A-5)

9 There is compelling need for this court to resolve the legal conflict on the statutory construction of Florida Statute created by the decision of the First District. 5. CONCLUSION Uniformity of case law addressing statutory construction is a core matter that affects the State of Florida. This court has discretionary jurisdiction to review the legal conflict created by the decision below, and should exercise that jurisdiction to

10 consider the merits of Petitioner s argument. Larry A. Bodiford HUTTO and BODIFORD Post Office Box 2528 Panama City, FL Telephone: (850) Facsimile: (850) Florida Bar # Thomas Beverly, Esq. 101 East Adams Street Jacksonville, Florida Telephone: (904) Florida Bar # Attorneys for Petitioners 6. CERTIFICATE OF SERVICE

11 I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States Mail, this day of December, 2003, to: Albert Mickler, Esq. at 5452 Arlington Expressway, Jacksonville, Florida 32211, Lanny Russell, Esq. at First Union Bank Building, 225 Water Street, Suite 1800, Jacksonville, Florida 32202, Charles McCall, Esq. at 50 North Laura Street, Suite 3900, Jacksonville, Florida 32202, and Lawrence C. Rolfe, Esq. at 720 Blackstone Building, Jacksonville, Florida CERTIFICATE OF COMPLIANCE Larry A. Bodiford HUTTO and BODIFORD Post Office Box 2528 Panama City, FL Telephone: (850) Facsimile: (850) Florida Bar # Thomas Beverly, Esq. 101 East Adams Street Jacksonville, Florida Telephone: (904) Florida Bar # Attorneys for Petitioners I hereby certify that this brief complies with the font requirement of rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. Larry A. Bodiford

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