               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



DANIEL WESNER, d/b/a FISH TALES,    )
                                    )
                 Appellant,         )
                                    )
v.                                  )                  Case No. 2D16-4646
                                    )
JMS MARINAS, LLC, d/b/a MAXIMO      )
HARBORAGE MARINA, a Delaware        )
limited liability company,          )
                                    )
                 Appellee.          )
___________________________________ )

Opinion filed August 25, 2017.

Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Pinellas County;
Thomas H. Minkoff, Judge.

Kathleen Sweeney Ford, of Ford & Ford,
P.A., St. Petersburg, for Appellant.

Samuel J. Heller, of Heller Goldberg, P.A.,
St. Petersburg, for Appellee.


SILBERMAN, Judge.

             Daniel Wesner, d/b/a Fish Tales ("Wesner"), seeks review of the partial

summary judgment awarding JMS Marinas, LLC, d/b/a Maximo Harborage Marina

("JMS"), possession of the leased premises that are the subject of this action for

eviction and related damages. We conclude that the trial court erred in granting
summary judgment because there is a genuine issue of material fact regarding JMS's

standing to seek possession of the leased premises. We therefore reverse and remand

for further proceedings.

               The underlying action arose from a dispute over the payment of

percentage rents under a commercial lease agreement. The lease was executed by

Wesner as tenant and Maximo Harborage Marina, LLC ("Maximo Harborage"), as

landlord. The lease requires the tenant to pay the landlord a base rent or percentage of

its gross annual revenues, whichever is greater. Wesner was current on the base rents,

but Maximo Harborage asserted that since January 2008, Wesner failed to provide

financial information necessary to calculate percentage rents.

               Maximo Harborage filed its complaint and a motion to determine rents in

July 2014. At that time, however, Maximo Harborage was not entitled to "maintain any

action, suit, or proceeding in any court" in Florida because it had not complied with

Florida's registration requirements. See § 865.09(9)(a), Fla. Stat. (2014). Maximo

Harborage eventually acknowledged this deficiency and was granted leave to file an

amended complaint substituting JMS as the plaintiff.

               The lease defines the landlord as "the current owner or owners of the fee

title to the Demised Premises or the leasehold estate under a ground lease of the

Demised Premises at the time in question." It also provides that in the event the

landlord transfers its title or interest in the property to a third party, the third party will be

recognized as the landlord. Both the original and amended complaint contain

allegations that the plaintiff is the landlord and owner of the real property that is the

subject of the eviction action.




                                               -2-
             Since the inception of the action, Wesner has been asserting that he is

unsure of the identity of the proper plaintiff. In his answer to the amended complaint,

Wesner denied the material allegations. Wesner also challenged JMS's claim that it

was the owner of the demised premises and raised the issue of the identity of the

landlord or its agent. Additionally, Wesner challenged JMS's assertions that it had

entered into a lease with Wesner and was entitled to maintain any action against

Wesner. Wesner tried to assert that JMS was not his landlord at a March 25, 2015,

pretrial hearing, but the court refused to allow the argument because it was not properly

noticed. And Wesner again questioned JMS's standing to sue in opposing JMS's

motion for partial summary judgment of possession.

             Wesner also filed a supplemental response to JMS's motion to determine

rents in which he asserted, among other things, that JMS was not the owner of the

property in question. Wesner asserted that original landlord Maximo Harborage

changed its name to Harborage Marina, LLC ("Harborage Marina"), and that Wesner

paid rent to Harborage Marina from January 2008 to June 2009. In June 2009,

Harborage Marina conveyed the real property including the demised premises to

Harborage Land, LLC ("Harborage Land"). Since that time, Wesner has been paying

rent to nonparty Harborage Land. Wesner also filed a certified copy of the warranty

deed in the record.

             At the June 16, 2015, hearing on JMS's motion to determine rents,

Wesner asserted, "I was hoping that the plaintiffs would clarify who exactly was suing."

The court responded, "That sounds to me like you're leading up to ground[s] we've




                                           -3-
hashed over at previous hearings, [counsel]. I think it's pretty clear who's suing your

client." The court prohibited Wesner from making any further standing arguments.

              In an apparent response to Wesner's assertions, JMS elicited testimony

from John Stanford Johnson, one of its owners, that JMS is the "successor landlord to

the entity that originally signed the lease." During cross-examination, Wesner inquired

into the basis for this assertion. Defense counsel showed Johnson a copy of the June

2009 warranty deed in which Harborage Marina (f/k/a Maximo Harborage) conveyed the

real property to Harborage Land. Johnson testified that the warranty deed was

executed when "we split the marina from the wet portion to—and the dry portion into two

portions that are in turn held by Harborage Marina, LLC. So you've got Harborage

Land, LLC. It split that off into a separate LLC." Counsel asked Johnson whether the

warranty deed conveyed all the land owned by Harborage Marina, but the court

interrupted and told counsel to focus on the amount of rents due.1

              Wesner placed the standing issue squarely before the court by filing three

affidavits challenging JMS's standing in response to the motion for partial summary

judgment of possession. In the first affidavit, Wesner himself asserted that JMS is not

and has never been his landlord. Wesner said that several years after he signed the

lease, the marina managers told him that Maximo Harborage changed its name to

Harborage Marina and directed him to pay the rent to Harborage Marina. Some years

later, the managers told him that the property had been transferred to Harborage Land

and directed him to pay the rent to Harborage Land. Wesner asserted that Harborage



              1
              The trial court seemed to believe that the standing issue had been
previously resolved, but it is evident from the record that the issue had not been fully
addressed in earlier proceedings.


                                           -4-
Land was his current landlord. Wesner also claimed that Harborage Land had

contacted him to discuss his use of the property while the eviction proceedings were

pending. In the second affidavit, attorney Kathleen Ford confirmed Wesner's recent

contact with Harborage Land.

             In the third affidavit, attorney Martin Awerbach asserted that he had

conducted a title search which confirmed that Harborage Land was the current record

title holder of the property and that JMS had no interest in the property. He also

asserted that the Pinellas County Official Records and Sunbiz.org revealed that JMS's

only connection with the property is that it executed the 2009 deed as manager for

Harborage Marina, the grantor. These sources do not identify JMS as the manager of

grantee Harborage Land or as having authorization to act on its behalf.

             JMS filed a motion to strike Awerbach's affidavit as improper opinion

testimony and inadmissible hearsay. The court granted JMS's motion to strike

Awerbach's affidavit as inadmissible hearsay and entered an order granting JMS partial

summary judgment for possession. The court determined that Johnson's testimony at

the previous hearing on the motion to determine rents established that JMS "is the

'successor' to the record owner of the leased premises."2 Thus, the court concluded

that any facts suggesting that JMS was not the record owner were not material to the

issue of JMS's entitlement to a judgment for possession.




             2
               The court also found that Johnson's testimony was unsuccessfully
challenged on appeal of the order granting JMS's motion to determine rents. However,
as we stated previously, the issue of JMS's standing to sue was not fully argued or ruled
upon until it was raised in opposition to JMS's motion for partial summary judgment of
possession.


                                           -5-
              On appeal, Wesner first argues that the trial court erred in striking the

Awerbach affidavit. We conclude that the court properly struck the Awerbach affidavit

as hearsay based on the failure to attach certified copies of the public records on which

he relied. See Fla. R. Civ. P. 1.510(e) ("Sworn or certified copies of all documents or

parts thereof referred to in an affidavit must be attached thereto or served therewith.");

see also Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla. 2d DCA 1992); Coleman v.

Grandma's Place, Inc., 63 So. 3d 929, 933 (Fla. 4th DCA 2011).

              Wesner's second argument is that the trial court erred in determining there

was no genuine issue of material fact regarding JMS's entitlement to a judgment for

possession. This court conducts a de novo review of a summary judgment. Buck-Leiter

Palm Ave. Dev., LLC v. City of Sarasota, 212 So. 3d 1078, 1081 (Fla. 2d DCA 2017)

(citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.

2000)). Summary judgment is proper if the moving party establishes entitlement to

judgment as a matter of law and there is no genuine issue of material fact. Id. "In

reviewing a summary judgment ruling, we must consider the evidence in the light most

favorable to the nonmoving party, and if the record raises the slightest doubt that an

issue might exist, we must reverse the summary judgment." Id.

              We conclude that partial summary judgment was improper because, even

without the Awerbach affidavit, there is a genuine issue of material fact regarding JMS's

standing to seek possession. When the amended complaint was filed, the plaintiff was

changed from named landlord Maximo Harborage to JMS. There is nothing in the

record establishing the relationship between Maximo Harborage and JMS except

Johnson's testimony that JMS is the "successor landlord to" Maximo Harborage.




                                            -6-
               In opposition to JMS's motion for partial summary judgment, Wesner

presented evidence that Maximo Harborage changed its name to Harborage Marina

after the lease was executed. And Harborage Marina conveyed the real property

including the demised premises to Harborage Land in 2009. Under the plain language

of the lease, it is arguable that Harborage Land is the current landlord because it owns

the fee title to the demised premises. In addition, Wesner presented evidence that

Harborage Land had been acting as his landlord since 2009 by sending him rent

invoices and accepting his rent payments. Harborage Land also contacted him to

discuss his use of the property while the eviction proceedings were pending.

               We recognize that a landlord or its agent may file a complaint seeking

removal of a tenant. See § 83.21, Fla. Stat. (2014). However, JMS did not assert it was

acting as the agent of original landlord Maximo Harborage or any subsequent landlord.

Instead, it asserted that it owned the property and was the successor landlord.

               The evidence presented by Wesner thus raises a question of fact

regarding whether JMS has standing to seek possession as the landlord. Accordingly,

we reverse the partial summary judgment for possession and remand for further

proceedings.

               Reversed and remanded.



NORTHCUTT and SLEET, JJ., Concur.




                                           -7-
