Kac 2021-1, LLC, as Assignee for Johnny Smith v. American Homes 4 Rent Properties One, L L C

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

KAC 2021-1, LLC, as assignee for Johnny Smith,

Appellant,

v.

AMERICAN HOMES 4 RENT PROPERTIES ONE, LLC,

Appellee.

No. 2D2023-1384

October 30, 2024

Appeal from the County Court for Hillsborough County; James Salvatore

Giardina, Judge.

Brian K. Korte of Korte & Associates, LLC, Singer Island, for Appellant.

Jean M. Henne of Jean M. Henne, P.A., Winter Haven, for Appellee.

SMITH, Judge.

KAC 2021-1, LLC, as assignee for Johnny Smith, appeals the order

granting American Homes 4 Rent Properties One, LLC's motion to

dismiss KAC's amended complaint, which sought damages pursuant to

the Florida Consumer Collection Practices Act (FCCPA) when landlord

American Homes sought possession of residential property by first

posting, face out, a three-day notice of nonpayment of rent. See

§ 559.72, Fla. Stat. (2022). Because American Homes was required to

give a three-day notice prior to initiating an action for possession of the

residential property, American Homes engaged in protected activity

under the litigation privilege, and the trial court did not err in dismissing

the amended complaint. We affirm.

In its amended complaint, KAC sued as the assignee of American

Homes' former tenant Johnny Smith,1 seeking statutory damages related

to an alleged violation of the FCCPA. See § 559.77 (providing for actual

and statutory damages related to any violation of the provisions of

section 559.72). American Homes owns the residential property rented

to Smith. In its amended complaint, KAC alleged American Homes

violated section 559.72(5)2 by posting a three-day notice to the door of

the property, "as is required by statute when commencing an eviction

action." See §§ 83.56(3), (4), .59, Fla. Stat. (2022). Specifically, KAC

argued that by posting the notice face out, American Homes "disclos[ed]

to the world that the Tenant owed money, affecting his reputation when

there is no legitimate reason the world needs to know that the Tenant

owed money."

American Homes filed an amended motion to dismiss KAC's

amended complaint and a supplement to the amended motion to

dismiss, in which American Homes argued, in pertinent part, that its

1 The tenant, Johnny Smith, is not a party to this action and was

not a party to the underlying amended complaint.

2 Section 559.72 governs the collection of consumer debts and

provides that no person shall:

(5) Disclose to a person other than the debtor or her or

his family information affecting the debtor's reputation,

whether or not for credit worthiness, with knowledge or

reason to know that the other person does not have a

legitimate business need for the information or that the

information is false.

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actions were protected by the litigation privilege, which provides

immunity for actions that occur in judicial proceedings and for

publications that are necessarily preliminary to a judicial proceeding.

See AGM Invs., LLC v. Bus. Law Grp., P.A., 219 So. 3d 920, 924 (Fla. 2d

DCA 2017). A hearing was held, and the trial court granted American

Homes' amended motion to dismiss the amended complaint finding

American Homes is immune from liability due to the litigation privilege.3

We agree.

We review an order granting a motion to dismiss de novo. Syvrud

v. Today Real Est., Inc., 858 So. 2d 1125, 1129 (Fla. 2d DCA 2003) (first

3 The order granting the amended motion to dismiss provides the

trial court was "adopt[ing] the rationale and reasoning in the Order

Granting Motion to Dismiss with Prejudice entered by County Court

Judge Louis Schiff on February 27, 2023[,] in Case # CONO22008130

pending in Broward County, Florida." KAC was the plaintiff in the

Broward County case, and the facts and issues in that case, as relevant

here, were identical to those in this case. The order granting the motion

to dismiss in the Broward County case found the defendant landlord was

immune from liability due to the litigation privilege. That court also

made findings related to the rule of statutory construction that provides

that a more specific statute will govern over a general statute. See Read

v. MFP, Inc., 85 So. 3d 1151, 1154 (Fla. 2d DCA 2012). Finally, the order

noted that if the legislature intended for a three-day notice to be posted

backwards or face down, the legislature could so indicate in the statute.

We note that the order granting dismissal in the Broward County case

has been reversed on other grounds by the Fourth District in KAC 2021-

1, LLC v. Yoss Prashkovsky, LLC, 388 So. 3d 842 (Fla. 4th DCA 2024).

However, the court in Yoss reversed the order granting dismissal because

KAC's filing of a "notice of voluntary dismissal divested the county court

of jurisdiction to enter a subsequent order dismissing the case with

prejudice," and thus, the Fourth District's reversal in Yoss has no

bearing on our opinion here. Id. at 842.

KAC also raises in this appeal that the trial court erred in invoking

the specific-governs-over-general principle where sections 83.56 and

559.72(5) do not conflict. We do not reach this issue because our

holding that the litigation privilege applies is dispositive.

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citing Ruiz v. Brink's Home Sec., Inc., 777 So. 2d 1062, 1064 (Fla. 2d DCA

2001); and then citing W.R. Townsend Contracting Inc. v. Jensen Civ.

Constr., Inc., 728 So. 2d 297, 300 (Fla. 1st DCA 1999)). The litigation

privilege has been recognized in Florida for well over a century. See

Myers v. Hodges, 44 So. 357, 361 (Fla. 1907) (adopting the absolute

privilege based upon the "overwhelming weight of authority" in the

United States). "The general rule concerning the litigation privilege is

that litigation participants should be absolutely exempted from liability

for conduct 'in the course of judicial proceedings' so long as the conduct

has 'some relation to or connection with the subject of inquiry.' " AGM

Invs., LLC, 219 So. 3d at 924 (quoting DelMonico v. Traynor, 116 So. 3d

1205, 1211 (Fla. 2013)). The privilege applies "not only to conduct

undertaken while litigation is ongoing but also to conduct that is

'necessarily preliminary' to judicial proceedings." Id. (quoting Fridovich v.

Fridovich, 598 So. 2d 65, 66 (Fla. 1992)). This "necessarily preliminary"

requirement "ensures that the conduct shielded from liability is really of

a kind that can be regarded as having been undertaken in the course of

a judicial proceeding and not conduct undertaken separately from it." Id.

In the instant case, while the three-day notice was posted prior to

the initiation of the eviction proceeding, the posting falls within the

litigation privilege's protection because American Homes was required to

give the three-day notice terminating the rental agreement pursuant to

section 83.56(3). Section 83.56 governs the termination of rental

agreements and provides in pertinent part:

(3) If the tenant fails to pay rent when due and the default

continues for 3 days, excluding Saturday, Sunday, and legal

holidays, after delivery of written demand by the landlord for

payment of the rent or possession of the premises, the

landlord may terminate the rental agreement. . . . The 3-day

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notice shall contain a statement in substantially the following

form:

You are hereby notified that you are indebted to me in the

sum of _____ dollars for the rent and use of the premises

(address of leased premises, including county), Florida now

occupied by you and that I demand payment of the rent or

possession of the premises within 3 days (excluding Saturday,

Sunday, and legal holidays) from the date of delivery of this

notice, to wit: on or before the ___ day of ___, (year).

(landlord's name, address and phone number)

(4) The delivery of the written notice required by subsections

(1), (2), and (3) shall be by mailing or delivery of a true

copy thereof, if the tenant is absent from the premises,

by leaving a copy thereof at the residence. The notice

requirements of subsections (1), (2), and (3) may not be

waived in the lease.

(5)(a) If the landlord accepts rent with actual knowledge of a

noncompliance by the tenant or accepts performance by the

tenant of any other provision of the rental agreement that is

at variance with its provisions, or if the tenant pays rent with

actual knowledge of a noncompliance by the landlord or

accepts performance by the landlord of any other provision of

the rental agreement that is at variance with its provisions,

the landlord or tenant waives his or her right to terminate the

rental agreement or to bring a civil action for that

noncompliance, but not for any subsequent or continuing

noncompliance. However, a landlord does not waive the right

to terminate the rental agreement or to bring a civil action for

that noncompliance by accepting partial rent for the period.

If partial rent is accepted after posting the notice for

nonpayment, the landlord must:

1. Provide the tenant with a receipt stating the date and

amount received and the agreed upon date and balance of

rent due before filing an action for possession;

2. Place the amount of partial rent accepted from the tenant

in the registry of the court upon filing the action for

possession; or

3. Post a new 3-day notice reflecting the new amount due.

(bold emphases added.)

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Section 83.56(3) requires delivery of the three-day notice, which

may be accomplished by "mailing or delivering" or "by leaving a copy

thereof at the residence." § 83.56(4). Subsection (5)(a) refers to that

delivery of the three-day notice as "posting the notice for nonpayment."

The term "post" is not defined in chapter 83, nor does the statute dictate

the manner in which the notice must be posted. However, KAC does not

take issue with the fact that the three-day notice was posted but instead

argues that American Homes should have "posted" the three-day notice

facing inward or, alternatively, placed the notice in an envelope and slid

it under the door, which KAC argues would comply with both the FCCPA

and section 83.56.

When a word used in a statute has not been defined by the

legislature, the courts look to the plain and ordinary meaning of the

word, which may be derived from dictionaries. Debaun v. State, 213 So.

3d 747, 751 (Fla. 2017).

The Macmillan English Dictionary defines "post" as "to

put information or a message where the public can see it."

Post, Macmillan English Dictionary (2d ed. 2007). The

American Heritage Dictionary defines "post" as "[t]o display

(an announcement) in a place of public view." Post, The

American Heritage Dictionary of the English Language (5th ed.

2016). In turn, "display" is defined as "[t]o present to view;

cause to be seen." Display, The American Heritage Dictionary

of the English Language (5th ed. 2016).

N.H. v. State, 358 So. 3d 477, 482 (Fla. 5th DCA 2023) (alterations in

original) (footnotes omitted). Based upon the plain reading of the statute,

American Homes' posting of the three-day notice with the content

displayed face out was in compliance with the statute. Moreover,

displaying the content face out—rather than placing the notice in an

envelope and sliding it under the door as advocated by KAC—assures

that a tenant, who is subject to an eviction, would be sure to see the

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actual content and act appropriately within that three-day period.

Because posting the three-day notice was statutorily required in order for

American Homes to pursue its eviction complaint for possession of the

property, its actions fall within the scope of the century-old litigation

privilege.

However, citing Delmonico, KAC argues that the Florida Supreme

Court is "backing away from any notion that Florida's litigation privilege

presents an absolute prophylactic bar against civil liability." See 116 So.

3d 1205. We recognize that in Delmonico the Florida Supreme Court

held that

Florida's absolute privilege does not extend to statements

made by an attorney during ex-parte, out-of-court

questioning of a potential, nonparty witness in the course of

investigating a pending lawsuit. In this narrow scenario, a

qualified privilege instead applies so long as the defamatory

statements are related to or connected with the subject of

inquiry in the underlying lawsuit. A qualified privilege

requires the plaintiff to prove express malice.

Id. at 1220 (emphasis added). The court was very clear in Delmonico that

its holding applies to a very narrow set of circumstances where "an

attorney steps outside of both the courtroom and the formal discovery

process to investigate a claim," and even then, a qualified privilege

applies "so long as the statements are relevant to the subject of inquiry"

in the underlying suit. Id. at 1218 (quoting Levin, Middlebrooks, Mabie,

Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins., 639 So. 2d 606, 607 (Fla.

1994)). Once that threshold issue is met, the burden shifts back to the

plaintiff who must then show that the statements were false and that

they were made with express malice. Id.

Contrary to KAC's portrayal of Delmonico, Delmonico poses no

stumbling block. The facts in this case fall well outside the scope of the

narrow set of circumstances laid out in Delmonico to which a qualified

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privilege applies. Instead, this case involves the posting of a statutorily

required three-day notice terminating the rental agreement—"the first

step in involving the judicial machinery of" an action for possession of

residential property under section 83.59. See AGM Invs., LLC, 219 So.

3d at 925. "Conduct of this type is quite plainly necessarily preliminary

to the commencement of a judicial proceeding." Id. Accordingly, the

posting of the three-day notice falls within the ambit of the absolute

litigation privilege.

To the extent KAC argues the trial court erred in determining that

the litigation privilege issue at the motion to dismiss stage is not a

factual issue related to an affirmative defense, we note that immunity

under the litigation privilege "may be raised in a motion to dismiss if its

applicability is demonstrated on the face of the complaint or exhibits."

James v. Leigh, 145 So. 3d 1006, 1008 (Fla. 1st DCA 2014) (citing

Fariello v. Gavin, 873 So. 2d 1243, 1245 (Fla. 5th DCA 2004)); see also

LatAm Invs., LLC v. Holland & Knight, LLP, 88 So. 3d 240, 245 (Fla. 2d

DCA 2011) (holding that trial court properly dismissed complaint where

"all of the allegations in [plaintiff's] complaint fall squarely within the

litigation privilege's protection"); Kidwell v. Gen. Motors Corp., 975 So. 2d

503, 505 n.2 (Fla. 2d DCA 2007) ("Although immunity is an affirmative

defense, it can be considered on a motion to dismiss if the complaint

demonstrates the existence of the defense." (citing Vaswani v. Ganobsek,

402 So. 2d 1350, 1351 (Fla. 4th DCA 1981)). In the instant case, the

face of the amended complaint provides that American Homes "posted a

3 Day Notice to the Tenant's door as is required by statute when

commencing an eviction action." The amended complaint clearly

demonstrates the privilege's existence, and the amended complaint was

properly dismissed at this stage in the proceedings. See AGM Invs., LLC,

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219 So. 3d at 926-27 ("[R]esolution of questions of litigation privilege at

an early stage of the litigation furthers the policies underlying the

privilege.").

In sum, we hold that the posting of a three-day notice pursuant to

section 83.56 is necessarily preliminary to an action for possession of the

property and is, as a matter of law, protected by the absolute litigation

privilege.

Affirmed.

SILBERMAN and BLACK, JJ., Concur.

Opinion subject to revision prior to official publication.

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