Opinion
Case No. 3D02-3314.
Opinion filed July 14, 2004.
An Appeal from the Circuit Court for Miami-Dade County, Paul Siegel, Judge, Lower Tribunal Case No. 00-7590.
Richard J. Lee, for appellant.
Richman Greer Weil Brumbaugh Mirabito Christensen and Lyle E. Shapiro and Mark A. Romance, for appellee.
Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
In this action for accounting and rent adjustment both the landlord, Miracle Center Associates [Miracle], and the tenant, Scandinavian Health Spa, Inc. [Tenant], appeal from the final judgment entered by the lower court after a non-jury trial. We affirm.
Beginning in 1989, the Tenant leased space from Miracle at the Miracle Center Mall. Under the 30-year lease, the Tenant was to pay a fixed monthly rental, plus a proportionate share of annual common area expenses. According to the lease, the proportionate share is the ratio of the gross floor area of the Tenant's space to the gross leasable floor area of the entire complex. The original lease entered into on April 23, 1986 included a three-sheet floor plan which showed the space leased to the Tenant as 20,000 square feet of interior space on the second floor, and a 31,941 square foot area on the roof of the shopping center which was to contain a swimming pool and a running track specially constructed for the Tenant. Subsequent lease amendments entered into in October of 1988, changed the size of the interior area to 20,198 square feet on the third floor, designated the roof as the eighth floor (omitting any precise square footage for the area), and authorized the Tenant to construct a 7,935 square foot mezzanine within its interior space, which mezzanine was to be considered leasable floor area. Unlike the mezzanine area, neither the original lease nor any of the subsequent lease amendments expressly identify the roof area as leasable floor area.
The procedure for payment of common area costs is set forth in Section 6.05 of the lease. Miracle was required to give the Tenant a written estimate of the common area costs prior to each rental period, which amount the Tenant was to pay in equal monthly installments. Within 90 days after the end of each calendar year, Miracle was to furnish the Tenant a statement detailing the actual costs for the preceding year, at which time adjustments were to be made if necessary. Each calendar year from 1989 through 1999, Miracle delivered to the Tenant written estimates of the latter's proportionate share of common area costs showing the gross floor area of the Tenant's space as 27,935 square feet, and the total leasable floor area of the center as 182,072 square feet. In accordance with the ratio formula set forth in the lease, the Tenant's proportionate share of the common area costs was calculated at 15.34%.
In 2000, the Tenant filed suit against Miracle claiming it was due a refund for certain incorrectly charged common area costs for the years 1995 through 1999. Miracle counterclaimed alleging that from 1989 to 1999, due to a computer-generated error, it had inadvertently failed to include the 31,941 square foot roof area in the proportionate share calculations. Miracle claimed that the correct proportionate share of common area costs for the Tenant should have been 27.99% and, therefore, Miracle was entitled to recover a substantial sum from the Tenant. During the course of the non-jury trial, the parties settled the Tenant's claim against Miracle, leaving only the counterclaim to be resolved.
Finding the contract to be unambiguous, the trial court concluded:
"Although [Miracle] had the right to charge [the Tenant] common area expenses for the entire demised premises including the roof-top pool area, it did not do so for the 11 years in dispute. It matters not whether the landlord mistakenly omitted the roof-top in calculating [common area expenses] or did so intentionally, with evidence to support both theories before the court, the result is the same. [Miracle] waived its right to include the roof-top pool area for the purpose of calculating common area expenses under . . . [Section 6.05 of the lease]."
The trial court further explained its reasoning by stating: "Section 6.05 of the lease is not unclear. If the landlord wanted to include the roof top pool area in calculating [common area expenses], it was required to do so within 90 days after the close of the calendar year." The trial court ruled that Miracle take nothing by its counterclaim.
Although Miracle challenges the trial court's ruling on various grounds we need only address one. This court has previously held that "[a]s a general principle of law, the doctrine of waiver encompasses not only the intentional or voluntary relinquishment of a known right, but also conduct that warrants an inference of the relinquishment of a known right." Singer v. Singer, 442 So.2d 1020, 1021 (Fla. 3d DCA 1984); see also Arbogast v. Bryan, 393 So.2d 606 (Fla. 4th DCA 1981). Under the parties' contract, Miracle undertook the duty to calculate and bill the Tenant's proportionate share of the common area costs each calendar year. Within a 90-day period, either party was entitled to challenge the costs and the calculation. Thereafter, the Tenant, in making its economic plans, was entitled to rely on the accuracy of the bill received. We affirm the trial court's judgment as to the counterclaim.
The Tenant cross appeals the judgment below because of the trial court's findings involving future billing for the roof area. The judgment includes statements such as the following: "However, for the remaining years of the lease, if the current owner of the shopping center . . . follows the clear terms of the lease in billing common area expenses, it will be entitled to receive from the Tenant a payment of common area expenses which includes all of the Tenant's leased premises in the calculations." These statements are not necessary to the trial court's holding that Miracle waived its right to recoup additional costs for 1989 through 1999 which was the sole issue before the court. We find these statements to be mere dicta, not binding on either party. They need not be addressed herein.
Affirmed.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.