        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                        ANTHONY THOMAS ROWE,
                              Appellant,

                                      v.

    MACAW HOLDINGS I, LLC, a Florida Limited Liability Company,
                          Appellee.

                               No. 4D17-2645

                               [June 6, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Edward A. Garrison, Judge; L.T. Case No. 50-2016-CA-
014542 (AF).

  Michael J. Pike and Daniel Lustig of Pike & Lustig, LLP, West Palm
Beach, for appellant.

  Richard B. Warren and Michael L. Grant of Warren & Grant, P.A., Palm
Beach Gardens, for appellee.

GROSS, J.

   We reverse a default final judgment of eviction for the failure of the trial
court to hold the evidentiary hearing required by statute where there is a
dispute regarding the amount of rent to be posted in the court registry in
a commercial eviction action.

   Anthony Rowe (“Tenant”) entered into a commercial lease with Macaw
Holdings I, LLC (“Landlord”) to rent property for the purpose of operating
a gym.

   “Fixed rent” was defined in section three of the lease as “21,500 per
month, inclusive of [Initial Operating Expenses] + percentage share of
utilities and sales tax.” Relevant to this appeal, section 11 of the lease
governed partial destruction of the premises, and provided for a reduction
in fixed rent proportionately to the extent to which repair operations
interfered with the operation of the business:
      Partial destruction of the Premises shall not render this Lease
      void or voidable, nor terminate it except as specifically
      provided in this Lease. If the Premises are partially destroyed
      during the Term of this Lease, Lessor shall repair them when
      such repairs can be made in conformity with governmental
      laws and regulations, within 180 days of the partial
      destruction. Written notice of the intention of Lessor to repair
      shall be given to Lessee within 60 days after any partial
      destruction. Fixed Rent will be reduced proportionately to
      the extent to which the repair operations interfere with
      the business conducted on the Premises by Lessee. If the
      repairs cannot be made within the time specified above,
      Lessor shall have the option to make them within a reasonable
      time and continue this Lease in effect with proportional rent
      rebate to Lessee as provided for in this Lease. If the repairs
      cannot be made in 180 days, and if Lessor does not elect to
      make them within a reasonable time, either party shall have
      the option to terminate this lease.

(Emphasis added).

   Roof problems materialized early in the lease. The tenant said that
water damage occurred and debris from roof repairs damaged gym
equipment.

   The tenant made partial payments of rent. The landlord filed a
complaint for eviction and damages for nonpayment of rent. Multiple
times, the tenant asked for a hearing to determine the amount of money
he would be required to post in the court registry pursuant to section
83.232(2), Florida Statutes (2017), which provides:

      (2) If the tenant contests the amount of money to be placed
      into the court registry, any hearing regarding such dispute
      shall be limited to only the factual or legal issues concerning:

      (a) Whether the tenant has been properly credited by the
      landlord with any and all rental payments made; and

      (b) What properly constitutes rent under the provisions of the
      lease.

   The circuit court denied the tenant’s request for a hearing and required
the tenant to post the “fixed rent” of $21,500 per month less amounts paid
by the tenant and other credits to which the parties agreed. The tenant

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failed to make the required payment and the court entered a default final
judgment for possession.

   The circuit court erred in failing to hold a section 83.232(2) hearing.
Under the statute, a hearing is appropriate to determine “[w]hat properly
constitutes rent under the provisions of the lease.” The lease in this case
defined “fixed rent” in section 3; concerning a “partial destruction of the
premises,” section 11 states that “Fixed Rent will be reduced
proportionately to the extent to which the repair operations interfere with
the business conducted on the Premises by Lessee.”

   The lease thus describes the credit to which a tenant is entitled for
partial destruction of the premises as a reduction to “Fixed Rent.” This
case fell under section 83.232(2)(b), which contemplates a hearing on
“[w]hat properly constitutes rent” under a lease. The trial court was
required to make at least a preliminary determination of the reduction, if
any, to which the tenant was entitled regarding the deposit into the court
registry required by section 83.232. Like the findings in a temporary relief
hearing in a chapter 61 case, a finding at a section 83.232 hearing can be
modified after discovery and a final hearing on the merits.

    This case is similar to Double Park, LLC v. Kaine Parking 125, LLC, 168
So. 3d 278 (Fla. 3d DCA 2015). Like this case, Double Park involved a
factual dispute concerning the amount of rent due under the provisions of
a lease. The lease contained a provision that if the tenant subletted the
property, any amount the tenant received from the subtenant above the
“Annual Rent” defined in the lease became additional “Annual Rent” to
which the landlord was entitled. Id. at 280. As in this case, the trial court
denied an evidentiary hearing on the issue of what amount the tenant was
required to post into the court registry under section 83.232 as a result of
its sublease. Id. The third district reversed and remanded the case for an
evidentiary hearing as to “any additional or excess rental income” the
tenant may owe to the landlord “as a consequence of the [tenant’s]
sublease.” Id. at 282.

   Both this case and Double Park involve post-lease adjustments to “rent”
set forth in a lease. Where there is a dispute as to the amount of such
adjustments, section 83.232(2) requires an evidentiary hearing prior to an
order requiring the posting of the adjustments in the court registry.

   We distinguish this case from more common situations in which a
tenant, facing eviction, claims as a defense to the non-payment of rent that
the landlord breached some other lease provision not expressly tied to the
amount of rent set forth in the lease. Those situations are not controlled

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by today’s decision, which is limited to a lease provision describing an
event which expressly alters the amount of rent set forth in the lease.

    We reverse the default final judgment and remand to the circuit court
for a section 83.232(2) evidentiary hearing.

GERBER, C.J., and CONNER, J., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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