Opposition Brief — Karsteter v. Graham Cos.

FILED

NOV 17 1988

(3) JOSEPH F. SPANIOL, JR.

No. 88-473 ~

in the

Supreme Court

of the

United States of America

OCTOBER TERM, 1988

CHRIS KARSTETER,

Petitioner

US.

THE GRAHAM COMPANIES f/k/a

THE SENGRA CORPORATION, a Florida corporation,

Respondent

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE DISTRICT COURT OF

APPEAL OF FLORIDA THIRD DISTRICT, REVIEW

DENIED BY THE SUPREME COURT OF FLORIDA

MALCOLM B. WISEHEART, JR.

WISEHEART & JOYCE, P.A.

2840 S.W. Third Avenue

Miami, Florida 33129

Telephone (305) 285-1222

Attorney for Respondent

THE GRAHAM COMPANIES

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TABLE OF CONTENTS

TAMLE OF AUTHORITIES.................

STATEMENT OF THE CASE...............

SUMMARY OF ARGUMENT ...............

ps PS Per eee eee Pere Pere ere

I. PETITIONER HAS FAILED TO DEMON-

STRATE ANY BASIS FOR JURISDICTION OF

THIS COURT TO ISSUE A WRIT OF CER-

TIORARI INASMUCH AS THESE PROCEED-

INGS ARE CLEARLY MOOT .............

A. THE PROCEEDINGS BELOW CONSIST-

ED OF AN ACTION TO DISPOSSESS

PETITIONER AND PETITIONER IS NO

LONGER IN POSSESSION ............

B. PETITIONER IS NOT ONLY OUT OF POS-

SESSION BUT AGREED VOLUNTARILY

TO SURRENDER POSSESSION, AND DID

SO, AFTER BEING GIVEN ADDITIONAL

EE ais ees eK

C. THE LEASE UPON WHICH PETITIONER

BASED HIS ALLEGED RIGHT OF POS-

SESSION EXPIRED ON SEPTEMBER 30,

SO Seed eae nn ea ea ee as

D. FLORIDA’S RENT DEPOSIT STATUTE

HAS BEEN CHANGED...............

E. THE PRESENT PROCEEDINGS DO NOT

FALL WITHIN THE EXCEPTION TO THE

DOCTRINE OF MOOTNESS KNOWN AS

CASES “CAPABLE OF REPETITION YET

Pek Pe 4 9 8 ella ee rare

TABLE OF CONTENTS—Continued

Il. THE PETITION FOR WRIT OF CERTIORARI

PRESENTS NO REAL OR SUBSTANTIAL

FEDERAL QUESTION .................

Ill. FLORIDA’S RENT DEPOSIT STATUTE IS

CONSTITUTIONALLY VALID AS A RA-

TIONAL MEANS OF ACHIEVING THE

VALID OBJECTIVE OF PROTECTING

PROPERTY OWNERS FROM UNDESERV-

ED ECONOMIC LAGS 2. cb ccci vs cegessees

CARING AAIGURIEN i + 6. dma ba eee ae

CERTIFICATE OF SERVICE ...............

il

Page

13

18

30

30

TABLE OF AUTHORITIES

Cases Page(s)

Abrams v. Van Schaick,

BE I TEE ook vec cca nceecaceves 13

American Surety Co. v. Baldwin,

RR 15

Allmer v. Andrews,

386 P.2d 705 (Sp.Ct.Colo. 1963)........... i)

Ash v. Dade County,

18 Fla. Supp. 2d 185

(Cir.Ct., App.Div., Dade Cty. 1986)........ 24

Barcom, Inc. v. Doll,

119 So.2d 544 (Ct.App.La., 1960).......... fe)

Bianchi v. Morales,

ee 14

Brownlee v. Sussman,

238 So.2d 317 (Fla. 3rd DCA 1970)........ 18

California Water Serv. Co. v. Redding,

ee 18

Class v. Carter,

624 P.2d 626 (Ct.App.Ore. 1980).......... 9

Davis v. Rental Associates, Inc.,

456 A.2d 820 (D.C. App. 1983) ........... 23, 29

Davies Warehouses Co. v. Bowles,

ET 29

DeFunis v. Odegaard,

kk can ss wae 0 ee 7

Department of Building v. Saltzer,

16 N.Y. 2d 701, 212 N.E. 2d 154 (1965).... 29

ill

TABLE OF AUTHORITIES—(Continued)

Cases Page(s)

DePaul v. Kauffman,

441 Pa. 386, 272 A.2d 500 (1971) ......... 29

Dinn v. Edmonson,

428 So.2d 286 (Fla. 4 DCA 1983), pet.rev.den.

440 So.2d 351 (Pia. 1963)................ 24

Doe v. U.S. Civil Service Commission,

483 F.Supp. 539 (U.S. Dist.Ct.S.D.

me ee ere 7

Doremus v. Board of Education of Borough

of Hawthorne,

et Se I ss oo oe nk be wow 10

Emray Realty Corp. v. De Stefano,

5 Misc. 2d 352, 160 N.Y.S. 2d 433 (1957)... 29

Farrell v. Drew,

19 N.Y. 2d 486, 281 N.Y.S. 2d 1,

ie ee Perr 29

First Sav. Bank F.S.B. v. Whittley,

751 S.W.2d 60 (Ct. App. W.D. 1987)....... 29

Grant Timber & Mfg. Co. v. Gray,

ge | ae ey ee 14

Herrell v. Seyforth, Shaw, Fairwheather,

491 So.2d 1173 (Fla. 1 DCA 1986) ........ 24

Hester v. Sammons,

126 S.E.2d 484 (Ct.App.Ga. 1962)......... 9

Hialeah Housing Authority v. Rodriguez,

25 Fla.Supp.2d 4

Cy. Ee Ce Tt) co ieee 21

In Re: Shambow’s Estate,

15 So.3a Go7 Gin. 1963)... .....---2neeee 25

iv

TABLE OF AUTHORITIES—(Continued)

Cases Page(s)

Johnson v. Kalliorinen,

16 Fla. Supp. 2d 86 (Cty. Ct.

Pein Bem Cl. TRO) oo ick cic ces cee wes 17, 21

K.D. Lewis Enterprises Corporation v. Smith,

445 So.2d 1032 (Fla. 5th DCA 1984) ..... 16, 23

Lane v. Williams,

455 US. 624 (1982) S.Ct. 1822........... 11

Lee v. Tollerson,

228 S.E.2d 595 (Ct.App.Ga. 1976) ........ 9

Leonard v. Vicksburg S. & P.R. Co.,

ee Se I x ch on aeaeee ne eens 18

Lindsey v. Normet,

Be ee CE ek os ota eedeeenoenes 6, 14, 15,

16, 27, 29

Lucky Ned Pepper’s, Ltd. v. Columbia Park

and Recreation Association,

494 A.2d 947 (Md.App. 1985) ............ 26, 27

McCowan v. Maryland,

re Sa Se EG bh 6s nok eee beaks 26

Mahdi v. Poretsky Management, Inc.,

433 A.2d 1085 (D.C.App. 1981)........... 23, 26, 29

Masser v. London Operating Co.,

34D Be. Fe ee. Te noc cece caswsinvar 18

Mihaley v. White,

15 Fla. Supp. 2d 57 (Cty. Ct.,

eee CEP. Tee 6 ae occ bsb epee e enews li, 2)

TABLE OF AUTHORITIES—(Continued)

Cases Page(s)

Milchman v. Rivera,

9 Misc. 2d 347, 240 N.Y.S. 2d 859,

app. dismd 13 N.Y. 2d 1123, 247

N.Y.S. 2d 122, 196 N.E. 2d 555 (1963)..... 29

Minneapolis, St. P. & S. Ste M.R. Co. v.

C.L. Merrick Co.,

ee St ee 18

Moore v. Ogilvie,

SOG Uk Ee CONE oc canscadtaaseeasases 11

Multach v. Snipes,

15 Fla. Supp. 2d 52 (Cty. Ct.,

Palm Beach Cty. 1986) ..............202. 25

Murphy v. Hunt,

455 U.S. 478 (1982)..................... 11

Nevins Drug Co., Inc. v. Bunch,

63 So.2d 329 (Fla. 1953)................. 18

Nickey v. Mississippi,

292 U.S. 393 (1934)... 0... cc ce wwe wees 15

North Carolina v. Rice,

OBE WE. BOG CEU so 66 0 ksne eek eceede ss 7,11

Oaks v. District Court of State of R.1.,

631 F.Supp. 538 (D.R.I. 1986) ............ 29

Officenters International Corp. v.

Interstate North Associates,

166 Ga. App. 93, 303 S.E.2d 292

(Ga. App. 1983) cert. denied 464

C5. We CUED 6c 6 eccscdcwbeaweeareceass 29

Rader v. Prather,

130 So. 15 (Fla. 1930).........0...0....... 18, 24

vi

TABLE OF AUTHORITIES—(Continued)

Cases Page(s)

Roe v. Wade,

I il eg So ae 11

Sanks v. Georgia,

ee ID Sos 56S unens @ a Va eR REO 8, 11

Sawyer v. Piper,

ee I Ss no a g-unit a De ea a bin 13

Schaeffer v. Montes,

37 Misc. 2d 722, 233 N.Y.S.2d 444 (1962) .. 29

Soileau v. Knighten,

423 So.2d 61 (La.App. ist Cir. 1982) ...... 9

Southern Pacific Terminal Co. v. ICC,

gO 8, ee ee 11

Super Tire Engineering Co. v. McCorble,

Se Se EE vies sek ht abe s seamen 11

Ten West 28th Street Realty Corp. v. Moerdler,

52 Misc. 2d 109, 275 N.Y.S. 2d 144 (1966). . 29

United States Parole Commission v. Geraghty,

eS vn a0 6065 osstaewdeuok< 7

United States v. Petrillo,

gO Ys SR ree oe 8

Vlahos v. Delong,

209 S.E.2d 12 (Ct.App.Ga. 1974) .......... 9

Wallace v. Shaw,

20 Fla. Supp. 2d 107 (Cty. Ct.,

Palm Beach Cty. 1966).................. . 7,21

Weinstein v. Bradford,

— pie So fer ea 11

TABLE OF AUTHORITIES—(Continued)

Page(s)

UNITED STATES CONSTITUTIONAL

PROVISIONS

ee rE ewan e eis eee 26

U.S. Const., Amend. XIV,

rr rr ee a 5 aad eo ae eile s 6, 13, 14,

15, 26

U.S. Const. Amend. XIV,

Equal Protection Clause.................. 6, 14, 26

FLORIDA CONSTITUTION STATUTES

Se Ya as we 25

SR oe ne Ee aa eae 17, 20, 21

FRE EAS th aA EN rll Pen BORE oe 21

BEN a any a anaes Wag Re ape A AS aN geome 30

inp aero ah pens Fears beer a 16

GR fe ata tite at FO re iin SPW ty pe ere ae 30

IN Ge Sa RRR i eR TB SE Alp ire ie ay ne aaa 18

AE NERS ty se ERNIE SPR UUs Bary am 23

RE eee on AR eS Faun Ae pepe eg 24

re Ti ee er et ie ada aa 18

or rn toes oe ee a ee 18

tha ces re Le ee eee a. ms

18, 19, 20,

21. 22. 23.

24, 25, 27,

28, 29

viii

a |

TABLE OF AUTHORITIES—(Continued)

Page(s)

FLORIDA RULES OF CIVIL PROCEDURE

I ro a ss os bdo Oe aoc aes do use 17, 21, 22

a rs ea 6 sys dak yt 21

MISCELLANEOUS

14 American Jurisprudence, Second Edition,

RS ar ae ena 7

Boyle, Landlord Remedies in Florida ......... 24

5 Corpus Juris Secundum,

Mppees G Barer S1DG8 . eee. 7

Monaghan, “Constitutional Adjudications:

The Who and When,” 82 Yale L.J. 1363,

IS oo os esa ee eer eee tes 7

STATEMENT OF THE CASE

The Respondent, THE GRAHAM COMPANIES,' a

Florida corporation, (“““GRAHAM””), is the owner of a duplex

apartment located in Miami Lakes, Florida, which was leased

to MIAMI LAKES INN ATHLETIC CLUB AND GOLF

RESORT, INC., a Florida corporation, (“MIAMI LAKES

INN’’), under a written lease agreement which commenced

October 1, 1985, and ended September 30, 1986, and which

specified a monthly rent of $730.00. (App. B-22). At all times

material, MIAMI LAKES INN used the leased premises to

house its employees. (App. K-19).

At the time of the execution of the lease, MIAMI LAKES

INN employed an individual named CHRIS KARSTETER

and permitted him to reside in the apartment during the

period of his employment. CHRIS KARSTETER is the

Petitioner herein and shall be referred to as “KARSTETER”’.

The terms of KARSTETER’s employment by MIAMI

LAKES INN were set out in a letter dated August 20, 1984,

and included a provision that MIAMI LAKES INN would

pay KARSTETER a salary at the rate of $37,500.00 per year

and would provide housing for him during his employment.

(App. B-16). Nothing in the letter of August 20, 1984,

however, or any other document, guaranteed a minimum or

fixed period of employment; nor did anything in the letter

or any other document provide that either GRAHAM or

MIAMI LAKES INN would provide housing for

KARSTETER after his employment was terminated.

On April 21, 1986, MIAMI LAKES INN terminated

KARSTETER’s employment and paid him a severance fee

'The Graham Companies, formerly known as the Sengra Company,

is a Florida corporation which has no parent company, affiliates or

subsidiaries except for wholly owned subsidiaries.

eT

of $10,000.00. (App. K-7). MIAMI LAKES INN agreed to

continue to pay rent for KARSTETER for the month of May,

1986, but advised him that. as of June 1, 1986, he would have

to pay the monthly rent to GRAHAM, as provided in the

Lease, if he wished to continue residing on the premises.

MIAMI LAKES INN did not make rental payments after

May, 1986. (App. L-24). KARSTETER refused to pay the rent

for June, 1986, and refused to vacate. On June 2, 1986,

GRAHAM served a statutory Three-Day Notice requiring

payment of rent or surrender of possession. (App. A-4).

Neither MIAMI LAKES INN nor KARSTETER paid the

required rent although KARSTETER continued to remain

in possession. (App. L-24).

GRAHAM then filed a complaint in County Court for

removal of tenant for non-payment of rent, naming

KARSTETER and MIAMI LAKES INN as defendants. (App.

A-1). Each defendant was served with a summons containing

the following “Cautionary Warning”:

CAUTIONARY WARNING

If this is an action for possession of a dwelling unit

based upon non-payment of rent and if you

interpose any defense to this action other than

payment of rent, you must pay into the registry of

the County Court the accrued rent as alleged in the

attached Complaint or as may be determined by the

Court and the rent which accrues during the

pendency of these proceedings when due. Your

failure to pay rent into the registry of the County

Court as stated above constitutes an absolute

waiver of your defenses other than payment and

the Plaintiff will be entitled to an immediate

default.

MIAMI LAKES INN filed an Answer admitting all of the

allegations of the complaint. (App. A-10-12). KARSTETER

filed an Answer and Affirmative Defenses contending that

KARSTETER should be permitted to remain in possession

of the premises, which had been provided to him as part of

his employment, until the expiration of the Lease between

GRAHAM and MIAMI LAKES INN, on September 30, 1986.

KARSTETER admitted that he had been discharged by

MIAMI LAKES INN but claimed that he should be allowed

to live to the end of the Lease rent-free; his claim was based

upon “his understanding” that he would be provided

employment on a “per annum”’ basis and that his housing

would be provided on a “per annum” basis as well. (App. N-4).

KARSTETER also filed a Counterclaim against

GRAHAM and a Crossclaim against MIAMI LAKES INN.

(App. B-5-14). KARSTETER’s Counterclaim and Crossclaim

are both currently pending in the Circuit Court of the

Eleventh Judicial Circuit of Florida and are to be tried before

a Jury. (App. L-1-2).

In the proceedings below, GRAHAM filed a Notice of

Demand of Payment of Rent Pendente Lite into the Registry

of the Court pursuant to Florida’s Rent Deposit Statute,

Florida Statute §83.60(2). (App. F-1-2). This Statute, which

has now been modified, provided at the material time as

follows:

In an action by the landlord for possession of a

dwelling unit, if a tenant interposes any defense

other than payment, the tenant shall pay into the

Registry of the Court the accrued rent as alleged

in the Complaint or as determined by the Court and

the rent which accrues during the pendency of the

proceedings, when due. The Court shall notify the

tenant of such requirement. Failure of the tenant

to pay the rent into the Registry of the Court as

provided herein constitutes an absolute waiver of

the tenant’s defenses other than payment, and the

landlord is entitled to an immediate default.

KARSTETER refused to deposit any monies into the

Registry of the Court. Likewise, KARSTETER did not

exercise his right under Florida law to file a Motion for

Determination of Amount to be Deposited in the Court

Registry. GRAHAM then filed a Motion to Strike the

Pleadings of Defendant, KARSTETER, and for Entry of

Default. (App. G-1-2).

At a hearing on GRAHAM’s Motion on July 9, 1986, the

Trial Judge determined that KARSTETER should pay into

the Registry of the court $1,460.00. (App. K-5). The Trial

Judge gave KARSTETER ten (10) days within which to

deposit the money into the Registry or to submit some

“mighty convincing case law to the contrary that the deposit

was not required.” (App. K-6). KARSTETER did not deposit

the $1,460.00 into the Court Registry, but filed a

Memorandum of Law contending that the statute was

unconstitutional. (App. I-1).

On July 22, 1986, a successor Trial Judge heard

KARSTETER’s argument as to the_ alleged

unconstitutionality of Florida Statutes §83.60(2). The

successor Trial Judge did not hold the Statute

unconstitutional, but did offer to give KARSTETER yet

additional time in which to deposit the $1,460.00 into the

Court Registry. (App. K-11). The Trial Court also made clear

that “({if KARSTETER did] not choose to put the money into

the Registry of the Court, he [would] lose possession, but he

[could] still proceed with this cause under the Counterclaim

and the Crossclaim”’. (App. K-12). KARSTETER’s counsel

declined the Court’s offer to extend the time for making the

deposit, stating, ‘““Your Honor, in all candor, Mr.

KARSTETER, as far as I am aware, has no intention of

placing the money into the Court Registry.” (App. K-13). The

Trial Judge thereupon entered an Order granting Default

against KARSTETER on GRAHAM’s Complaint for Removal

of Tenant and transferring KARSTETER’s Counterclaim and

Crossclaim to Circuit Court. (App. L-1, 2).

On August 4, 1986, the Trial Court held a final hearing

on the default. KARSTETER appeared in person for the first

time, with his counsel. (App. L-5). The Court advised

KARSTETER that the Court had offered to give him an

opportunity to deposit the $1,460.00 into the Court Registry

and that there had been a refusal to do so on the part of his

counsel. The Court then asked KARSTETER’s counsel to

confirm his client’s intention and KARSTETER’s counsel

indicated that the Court was correct as to the Court’s previous

offer and the fact that KARSTETER intended to place no

money in the Registry. (App. L-6). The Trial Court then

proceeded to permit GRAHAM to prove up its case and

granted Final Judgment for Removal of Tenant. (App. L-8-32).

At the time of the final hearing and at the time of the Trial

Court’s last offer to KARSTETER to deposit the $1,460.00

in the Registry, $1,460.00 represented the rent which had

accrued during the proceedings.

KARSTETER took an appeal of the Final Judgment to

the Circuit Court for the Eleventh Judicial Circuit of Florida.

KARSTETER’s only point on appeal was that the Trial Judge

did not declare Florida’s Rent Deposit Statute

unconstitutional. The Circuit Court, sitting in its appellate

capacity, affirmed per curiam the Final Judgment for

Removal of Tenant. (App. P-1).

KARSTETER then sought a Writ of Certiorari in

Florida’s Third District Court of Appeal. The Third District

Court of Appeal denied the Petition, stating that Florida’s

Rent Deposit Statute “is not unconstitutional.”

KARSTETER next urged the Florida Supreme Court to

exercise its discretionary jurisdiction to accept his case for

review. The Florida Supreme Court declined to do so. (App.

P-8, 9).

KARSTETER now urges this Honorable Court to review

the decisions of the four Florida courts below, none of which

has accepted his contentions.

SUMMARY OF ARGUMENT

The Petitioner has failed to demonstrate any basis for

invoking this Court’s jurisdiction to consider his Petition for

Writ of Certiorari inasmuch as these proceedings are clearly

moot. These proceedings arise from an action for removal of

tenant for non-payment of rent. The tenant is no longer in

possession of the subject premises and never claimed to be

entitled to possession after September 30, 1986, a date which

has long since passed. The lease relied upon by the tenant

has expired. The Florida Legislature has altered the operative

statute. The exception to the doctrine of mootness known as

cases “capable of repetition yet evading review” is not

applicable. This Honorable Court therefore should decline

jurisdiction and deny the Petition for Certiorari as moot.

In any event, the Petition fails to present a real and

substantial federal question. The Petitioner seeks a

declaration that Florida’s Rent Deposit Statute is violative

of the Federal Constitutional guarantees of due process and

_ equal protection of the laws. This Honorable Court’s prior

decisions, including Lindsey v. Normet, 405 U.S. 56 (1972)

which upheld a Rent Deposit Statute against the same

constitutional attack which Petitioner would mount here,

foreclose the need for further analysis or consideration of the

Petition.

Finally, Florida’s Rent Deposit Statute which required

that tenants post the accruing rent into the Court Registry

is clearly constitutionally valid as a rational means of

achieving a valid state objective, namely, the protection of

property owners against undeserved economic loss.

ARGUMENT

I.

PETITIONER HAS FAILED TO DEMONSTRATE

ANY BASIS FOR JURISDICTION OF THIS

COURT TO ISSUE A WRIT OF CERTIORARI

INASMUCH AS THESE PROCEEDINGS ARE

CLEARLY MOOT.

It is a fundamental principle governing this Honorable

Court’s jurisdiction that only actual controversies may be

reviewed; proceedings before this Court will not be allowed

to settle mere abstract, academic, or moot questions. DeFunis

v. Odegaard, 416 U.S. 312 (1974); North Carolina v. Rice, 404

U.S. 244 (1971). See, generally, 14 American Jurisprudence,

Second Edition, Certiorari §8. Mootness can best be defined

as “the doctrine of standing set in a time frame; the requisite

personal interest that must exist at the commencement of

the litigation (standing) must continue throughout its

existence (mootness).’’ Monaghan, ‘Constitutional

Adjudication: The Who and When”’, 82 Yale L.J. 1363, 1384

(1973), quoted with approval in United States Parole

Commission vs. Geraghty, 445 U.S. 388 (1980). An appeal is

moot then where reversal of the proceedings below would be

ineffectual as a practical matter and of no benefit to the

parties seeking it. See. e.g., Doe v. U.S. Civil Service

Commission, 483 F.Supp. 539 (U.S. Dist. Ct. S.D. New York,

1980).

A. THE PROCEEDINGS BELOW CONSISTED OF AN

ACTION TO DISPOSSESS PETITIONER AND

PETITIONER IS NO LONGER IN POSSESSION.

The rule that an appellate court will not review

proceedings where no useful or practical purpose can be

served by granting reversal has particular application to

possessory actions where the tenant is no longer in possession.

Thus, the editors of Corpus Juris Secundum state that where

the question presented by an appeal is the right of an

iii

appellant “to possession of property, the appeal must be

dismissed as presenting a moot question where the right to

possession has been lost, or would have been lost before the

appeal can be decided, or possession has been abandoned.”’

5 C.J.S. §1392, Appeal & Errors.

Where, as here, the vacating tenant seeks to mount a

constitutional challenge to the landlord and tenant statutes,

there is even a stronger reason for this Honorable Court to

decline jurisdiction. Thus, in Sanks v. Georgia, 401 U.S. 144

(1970), the United States Supreme Court dismissed two

tenants’ appeal in an action for Removal of Tenant and

refused to consider the tenants’ attack on the

constitutionality of Georgia’s rent deposit statute where,

among other things, the tenants had vacated the premises

prior to the Court’s determination of the appeal. Quoting from

its decision in United States v. Petrillo, 332 U.S. 1, 5 (1947),

this Court pointed out, “We have consistently refrained from

passing on the constitutionality of a statute until a case

involving it has reached a state where the decision of a precise

constitutional issue is a necessity.” 401 U.S. 144 at 151. The

Court then concluded, ““Manifestly, it cannot plausibly be

maintained that this is such a case. Indeed, the only thing

that is now apparent about this lawsuit is that the clear-cut

constitutional issues it formerly presented cannot with any

certainty be said to be relevant to the issues remaining in

it, if, in fact, any issues do remain.” 401 U.S. 144 at 151.

Likewise, with the departure of KARSTETER from the

premises, no clear-cut constitutional issue remains in these

proceedings. Therefore, KARSTETER’s Petition for

Certiorari should be denied.

B. PETITIONER IS NOT ONLY OUT OF

POSSESSION BUT AGREED VOLUNTARILY TO

SURRENDER POSSESSION, AND DID SO, AFTER BEING

GIVEN ADDITIONAL TIME.

The rule that a tenant may not appeal an adverse

judgment in a possessory action where the tenant is no longer

in possession is universally accepted in all jurisdictions where

the tenant voluntarily departed the premises.’

In his brief, KARSTETER maintains that his departure

was not voluntary since there was no agreement as to the

departure date and since he left only because of his fear of

imminent physical eviction by the Sheriff. This contention,

however, is not borne out by the record which clearly shows

that KARSTETER asked for some additional time in which

to move out, that KARSTETER indicated that he would

voluntarily vacate without ihe necessity of the issuance of

a Writ of Possession if given such additional time, and that

the parties, through counsel, agreed to an actual departure

date.

KARSTETER’s ATTORNEY: Is there some time

we can get—

GRAHAM’s ATTORNEY: How about this

weekend? Can we stipulate?

KARSTETER’s ATTORNEY: Fine.

GRAHAM’s ATTORNEY: I [actually, he] will be

out this weekend and we can stipulate to it on

Monday.

KARSTETER’s ATTORNEY: Give him until the

15th, and we will be out before then and I represent

that to you.

Thank you, Judge. (App. L-54).

2See, Class v. Carter, 624 P.2d 626 (Ct.App.Ore. 1980); Allmer v.

Andrews, 386 P.2d 705 (Sp.Ct.Colo. 1963); Vlahos v. DeLong, 209 S.E.2d

12 (Ct.App.Ga., 1974); Hester v. Sammons, 126 S.E.2d 484 (Ct.App.Ga.

1962); Barcom, Inc. v. Doll, 119 So.2d 544 (Ct.App.La. 1960); Soileau v.

Knighten, 423 So.2d 61 (La.App.1st Cir. 1982); and Lee v. Tollerson, 228

S.E.2d 595 (Ct.App.Ga. 1976).

The Court, in fact, adopted the parties’ stipulation:

THE COURT: Here are the copies of the Final

Judgment entered and the Writ of Possession will

not issue until August 15. (App. L-54).

KARSTETER did, in fact, vacate the premises prior to

August 15, 1986, and the record reflects that no Writ of

Possession ever had to be issued.

C. THE LEASE UPON WHICH PETITIONER BASED

HIS ALLEGED RIGHT OF POSSESSION EXPIRED ON

SEPTEMBER 30, 1986.

The Lease upon which KARSTETER based his alleged

right of possession expired on September 30, 1986.

KARSTETER never claimed any right to occupy the premises

after September 30, 1986. (App. K-18, 19). A writ of certiorari

directing that the Final Judgment for Removal of Tenant be

set aside will not “turn back the calendar” for KARSTETER

and put him back in possession for the approximate six-week

period between the time he vacated and the expiration of the

lease between GRAHAM and MIAMI LAKES INN. The

controversy which once existed between these parties has

become moot, if for no other reason, as a result of the mere

passage of time. This Honorable Court has indicated that it

will not sit to decide arguments after events have put them

to rest. Doremus v. Board of Education of Borough of

Hawthorne, 342 U.S. 429 (1952).

D. FLORIDA’S RENT DEPOSIT STATUTE HAS

BEEN CHANGED.

As the Petitioner has indicated in his Brief, the Florida

Legislature has modified Florida Statutes §83.60(2) by an

amendment which took effect on October 1, 1987. A decision

on the merits in this case could only effect the disposition

of those pending cases, if any, governed by the pre-1987 law

and would leave unaffected those cases arising after the

effective date of the modified statute. A petition for certiorari

to review the validity of an obsolete law is simply an

10

invitation to the Court to involve itself in an exercise in

futility and in a purely academic pursuit. See, e.g., Sanks

v. Georgia, 401 U.S. 144 (1970); see also, North Carolina v.

Rice, 404 U.S. 244 (1971).

E. THE PRESENT PROCEEDINGS DO NOT FALL

WITHIN THE EXCEPTION TO THE DOCTRINE OF

MOOTNESS KNOWN AS CASES “CAPABLE OF

REPETITION YET EVADING REVIEW.”

KARSTETER does not deny that he has vacated the

premises, or that the lease upon which he based his claim

to possession has long expired; he claims, instead, that the

present proceedings fall within the exception to the doctrine

of mootness known as cases “capable of repetition, yet

evading review”.

What KARSTETER overlooks in the first instance is that

the exception to the mootness doctrine for cases which are

“capable of repetition, yet evading review” requires that

there be a reasonable expectation or demonstrated probability

(and not a mere theoretical possibility) that the same

controversy will recur between the same complaining parties.

Murphy v. Hunt, 455 U.S. 478 (1982); Weinstein v. Bradford,

423 U.S. 147 (1975) and Lane v. Williams, 455 U.S. 624 (1982).

KARSTETER fails to meet this requirement; that he and

GRAHAM will ever enter into a landlord-tenant relationship

again is a remote possibility at best. Moreover, as indicated

previously, Florida’s Rent Deposit Law has been changed.

Now that the operative statute has been changed, any future

case having similarity to the present proceedings will be

governed by Florida’s modified law and therefore must be

attended by different constitutional analysis. KARSTETER’s

case itself cannot be repeated except in the highly improbable

See, e.g., Moore v. Ogilvie, 394 U.S. 81 (1969); Southern Pacific

Terminal Co. v. ICC, 219. U.S. 498 (1911), Roe v. Wade, 410 U.S. 113 (1973),

and Super Tire Engineering Co. v. McCorble, 416 U.S. 115 (1974).

11

reece

event that the Florida Legislature decides to modify the state

again in such fashion as to restore the pre-1987 law.

KARSTETER’s reliance upon the authorities to which

he cites is misplaced for a second reason; all of the cases cited

by KARSTETER in his Petition involved elections, strikes,

or pregnancies and therefore involved issues which became

arguably moot merely because of the passage of time or

because of external factors outside of the control of the

litigants. Final Judgment for Removal of Tenant was entered

against KARSTETER, on the other hand, and the ceritral

issue of possession became moot in his case, simply because

he failed to make use of the available procedural safeguards,

any one of which, if taken in timely fashion, would have

prevented the case from becoming moot and would have

preserved the central issue for further judicial review.

KARSTETER could have (1) deposited the rent of $1,460.00

in the County Court Registry; (2) petitioned the County Court

for a determination of the appropriate amount of rent to be

so deposited as provided by Florida Statutes §83.60 (2); or

(3) posted a supersedeas bond after Default Final Judgment

as set by the County or Circuit Court and remained in

possession. Since KARSTETER failed to do any of the above,

he simply allowed the central issue of possession to become

moot and he failed to preserve the posture of his case for

further judicial review. The exception to the doctrine of

mootness known as “capable of repetition yet evading

review” was never intended to excuse those who seek judicial

review from the responsibility for preserving the record below

or for maintaining the posture of the case in order that such

review can be made.

In short, if there were ever a case that was demonstrably

moot, this: is that case. KARSTETER has vacated the

premises and has left the State of Florida. The lease upon

which he based his alleged right to possession has expired.

The operative statute has been changed or modified.

12

Since KARSTETER voluntarily vacated the premises and

since he never claimed any entitlement to possession after

September 30, 1986, a Writ of Certiorari issued now from

this Honorable Court would be both academic and ineffectual.

The posture of this case presents no necessity for judicial

determination of the constitutional challenge which

KARSTETER attempts to raise; indeed, the central issue of

this case, namely, the entitlement to possession, is simply

moot. Since the central issue or crux of this case is moot, no

subsidiary or ancillary matter, such as liability for costs or

attorney’s fees, can save this case from mootness as a matter

of law. The exception to the doctrine of mootness known as

cases “capable of repetition yet evading review” has no

application to these proceedings.

Accordingly, KARSTETER’s Petition for Writ of

Certiorari is clearly moot and should be denied by this

Honorable Court.

Il.

THE PETITION FOR WRIT OF CERTIORARI

PRESENTS NO REAL OR SUBSTANTIAL

FEDERAL QUESTION.

It is basic that a real and substantial federal question

is essential to the jurisdiction of The United States Supreme

Court over decisions of state courts. Abrams v. Van Schaick,

293 U.S. 188 (1934). It is not sufficient that the purported

federal question merely be alleged. Sawyer v. Piper, 189 U.S.

154 (1903). In the proceedings below, KARSTETER claimed

the right to live rent-free on the subject premises. He was

able to do so for approximately ten (10) weeks while his claims

were being adjudicated; he maintains that he would have

been able to continue to do so but for the operation of Florida’s

Rent Deposit Statute which he claims violated his Fourteenth

Amendment rights to due process of law. This Honorable

Court, however, has already addressed the constitutionality

of a state Rent Deposit Statute and its established precedents

13

foreclose the need for further analysis of the federal question

purportedly presented. Bianchi v. Morales, 262 U.S. 170

(1926); and Lindsey v. Normet, 405 U.S. 56 (1972).

In Bianchi, this Honorable Court held that a state can,

consistent with the Due Process Clause of the Fourteenth

Amendment of the United States Constitution, provide

separate summary proceedings to determine the right to

possession of real property and exclude therefrom all claims

and defenses which the occupant may have against the owner

of the property except for payment. See also, Grant Timber

& Mfg. Co. v. Gray, 236 U.S. 133 (1915).

In Lindsey, this Court considered the constitutionality

of Oregon’s Rent Deposit Statute with respect to essentially

the same attacks mounted here, namely, that the statute

allegedly denied due process or equal protection of the laws.

The Court expressly upheld the statute, striking down as

violative of due process only that portion of the Oregon

Statute (having no analogue in the Florida Statutes) that

specifically set the post-judgment supersedeas bond at twice

the amount of rent. The Court stated:

There are unique factual and legal characteristics

of the landlord-tenant relationship that justify

special statutory treatment inapplicable to other

litigants. The tenant is, by definition, in possession

of the property of the landlord; unless a judicially

supervised mechanism is provided for what would

otherwise be swift repossession by the landlord

himself, the tenant would be able to deny the

landlord the rights to income incident to ownership

by refusing to pay rent and by preventing sale or

rental to someone else. Many expenses of the

landlord continue to accrue whether a tenant pays

his rent or not. Speedy adjudication is desirable to

prevent subjecting the landlord to undeserved

economic loss. . . Lindsey v. Normet, 405 U.S. 56,

72-73.

14

ee ne een ne

Indeed, the Court, in Lindsey noted that failure to require

an escrow of rent from a tenant pendente lite could be said

to deprive the landlord of his income and his property without

the process of law. Lindsey, supra, at 67 n.13. In this

connection, the Court noted, ‘““Nor should we forget that

Constitution expressly protects against confiscation of private

property or the income therefrom.” Lindsey, supra, at 74.

KARSTETER claims to find support in Lindsey for his

contentions. He quotes from that case as follows:

“While the court upheld the majority of the

challenged Oregon statute, it also specifically

recognized that due process requires that there be

an opportunity to present every available defense,

405 U.S. at 66, 92 S.Ct. at 870, 31 L.E.D.2d at 46.”

KARSTETER’s Brief, page 13.

In Lindsey, however, this Honorable Court went on to qualify

the above statement in such fashion as to show why rent

deposit statutes do not violate due process:

“Due process requires that there be an opportunity

to present every available defense.’’ American

Surety Co. v. Baldwin, 287 U.S. 156, 168 (1932). See

also Nickey v. Mississippi, 292 U.S. 393, 396 (1934).

Appellants do not deny, however, that there are

available procedures to litigate any claims against

the landlord cognizable in Oregon. Their claim is

that they are denied due process of law because the

rental payments are not suspended while the

alleged wrongdoings of the landlord are litigated.

We see no constitutional barrier to Oregon’s

insistence that the tenant provide for accruing rent

pending judicial settlement of his disputes with the

lessor. Lindsey, supra, at 66.

There are clearly available procedures in Florida for

KARSTETER “‘to litigate any claim” against his former

landlord or former employer. Indeed, KARSTETER filed a

15

Counterclaim and Crossclaim both of which were left

standing and are now awaiting jury trial. A tenant who fails

to comply with the Florida Rent Deposit Law only loses his

right to possession, he does not lose the right to litigate any

cognizable claim. K.D. Lewis Enterprises Corporation v.

Smith, 445 So.2d 1032 (Fla. 5th DCA 1984).

In this connection, it should also be noted that

KARSTETER lost possession because of his adamant refusal

to place any funds in the Registry, whether for accrued rent

or for rent as it would accrue during the proceedings. By the

time Default Final Judgment was entered against him, the

amount of rent required by the Trial Court to be deposited

represented only the rent accruing during the trial

proceedings. The Trial Court, it will be recalled, set the

required deposit in the amount of $1,460.00 on July 9, 1986,

and never increased the amount. (App. K-5). KARSTETER

was subsequently given multiple opportunities to deposit that

amount and to proceed to the jury trial he purportedly

wanted. (App. K-11, 12; L-6). When KARSTETER rejected

the Court’s last offer, on August 4, 1986, to post $1,460.00

into the Registry, the total rent owning at that time was

$2,190.00, representing rent due for the months of June, July

and August, 1986 at $730.00 per month; of this amount,

$1,460.00 represented rent accruing during the pendency of

the proceedings, namely, rent in the amount of $730.00 which

accrued on July 1, 1986, and rent in the amount of $730.00

which accrued on August 1, 1986. The rent, according to the

Lease, was payable in advance on the first day of each month.

App. A-6. See, also, F.S. 83.46(1). Therefore, Default Final

Judgment was entered against KARSTETER for failure to

pay “accruing rent” or the rent as it accrued during the

proceedings.

Finally, in his Brief, KARSTETER attempts to

distinguish the Oregon Statute which was upheld in Lindsey

from the Florida Rent Deposit Statute by pointing out that

failure to comply with the Oregon Statute forced the tenant

16

:

.

;

i

E

j

:

5

to go to Trial in two days whereas failure to comply with the

Florida Statute restricts, at least facially, the issues at trial

to payment. The distinction, however, is more apparent than

real. First, it is doubtful that any defense more complicated

than “payment” could be presented effectively in only two

days. Secondly, in actual practice and as indicated by Florida

caselaw, Florida tenants are able to raise, and to be heard

upon, many other defenses without first having to deposit

any funds into the Court Registry.* Moreover, additional

defenses may be raised by Motion for Re-Hearing or New

Trial or by Motion to Set Aside Final Judgment, without

making any deposit of funds into the Registry.’ Most

significantly, of course, what KARSTETER overlooks is that

this Honorable Court has already held that a state may

constitutionally restrict the issues to be decided in summary

proceedings for recovery of real property to “payment”’.

Bianchi v. Morales, 262 U.S. 170 (1926); Grant Timber & Mfg.

Co. v. Gray, 236 U.S. 1233 (1915).

In the words of one leading commentator on Florida

Landlord and Tenant Law who has analyzed its federal

constitutional consequences:

It seems obvious that Florida’s statute has been

approved by proxy in Lindsey v. Normet, supra, and

that any constitutional challenge to the statute

would be foreclosed. Boyle, Landlord’s Remedies in

Florida, {p. 172.

“See, e.g., Mihaley v. White, 15 Fla. Supp. 2d 57 (Cty. Ct. Sarasota Cty.

1986); Wallace v. Shaw, 20 Fla. Supp. 2d 107 (Cty. Ct. Palm Beach Cty.

1986); Johnson v. Kalliorinen, 16 Fla. Supp. 2d 86 (Cty. Ct. Palm Beach

Cty. 1986).

‘See Florida Statute §51.011 and Rule 1.540, Florida Rules of Civil

Procedure.

17

Where the previous decisions of the United States

Supreme Court clearly foreclose further analysis of the issue

to be reviewed, no real or substantial federal question is

presented and this Court should deny certiorari.®

Thus, this Honorable Court should deny KARSTETER’s

Petition for Certiorari.

Ill.

FLORIDA’S RENT DEPOSIT STATUTE IS

CONSTITUTIONALLY VALID AS A RATIONAL

MEANS OF ACHIEVING THE VALID

OBJECTIVE OF PROTECTING PROPERTY

OWNERS FROM UNDESERVED ECONOMIC

LOSS.

Historically, and prior to the enactment of the Florida

Residential Landlord and Tenant Act (of which F.S. §83.60(2)

is a part), Florida tenants were simply unable to raise any

substantive defense to an action for possession for non-

payment except for the defense of actual payment.’ The

Residential Landlord and Tenant Act, which was passed in

1973, can be fairly characterized as a revolutionary advance

in tenants’ rights. By that legislation, tenants were granted,

for the first time, the right in removal actions to raise “any

defense, whether legal or equitable’’, including the landlord’s

material non-compliance with the landlord’s statutory duties.

F.S. §83.60(1) and F.S. §83.51. The Act also eliminated any

doubt about the availability of ‘self-help’; henceforth, it

would be clear the Florida property owners were required to

6California Water Serv. Co. v. Redding, 304 U.S. 252 (1938);

Minneapolis, St. P. & S. Ste M.R. Co. v. C.L. Merrick Co., 254 U.S. 376

(1920); and Leonard v. Vicksburg S. & P.R. Co., 198 U.S. 416 (1905).

"Brownlee v. Sussman, 238 So.2d 317 (Fla. 3d DCA 1970); Nevins Drug

Co., Inc. v. Bunch, 63 So.2d 329 (Fla. 1953); Rader v. Prather, 130 So. 15

(Fla. 1930); and Masser v. London Operating Co., 145 So. 79 (Fla. 1932).

18

resort to legal process to recover possession of rental property

except in cases of surrender or abandonment. F.S. §83.59(3).

Consequently, viewed in its historical context, the Florida

Rent Deposit Statute (F.S. §83.60(2) ) does not represent a

curtailment of any rights enjoyed by tenants at the time of

the enactment of either the Florida or the United States

Constitutions. Instead, it simply provides for a statutory

showing of good faith on the part of the tenant, as a

procedural prerequisite, to the raising of defenses not hitherto

available to tenants in possessory actions. The defenses in

question, if not raised in good faith, could easily be used to

destroy the summary nature of the proceedings and to inflict

undeserved economic loss on Florida property owners.

Florida Statutes §83.60(2) obligates the Court to notify

the tenant of the requirements of the Rent Deposit Statute.

The version of the statute appearing in the Petitioner’s Brief

omits the key language in this respect. The statute actually

provided at all material times as follows:

In an action by the landlord for possession of a

dwelling unit, if the tenant interposes any defense

other than payment, the tenant shall pay into the

registry of the court the accrued rent as alleged in

the complaint or as determined by the court and

the rent which accrues during the pendency of the

proceeding, when due. The court shall notify the

tenant of such requirement. Failure of the tenant

to pay the rent into the registry of the court as

provided herein constitutes an absolute waiver of

the tenant’s defenses other than payment, and the

landlord is entitled to an immediate default.

(Emphasis added to the language omitted from the

version of the statute appearing in the Appellant’s

Brief).

KARSTETER was notified of the requirement by a

number of means. The summons served upon him contained

the following “Cautionary Warning”:

19

CAUTIONARY WARNING

If this is an action for possession of a dwelling unit

based upon non-payment of rent and if you

interpose any defense to this action other than

payment of rent, you must pay into the registry of

the County Court the accrued rent as alleged in the

attached Complaint or as may be determined by the

Court and the rent which accrues during the

pendency of these proceedings when due. Your

failure to pay rent into the registry of the County

Court as stated above constitutes an absolute

waiver of your defenses other than payment and

the Plaintiff will be entitled to an immediate

Default.

Thereafter, GRAHAM, although not required to do so,

provided KARSTETER with written Notice of Demand to

Deposit Rent into the Registry of the Court. (App. F-1, 2).

The Court also orally advised KARSTETER of the statutory

requirement on July 9, 1986 (App. K-4), on July 22, 1986

(App. K-11) and August 4, 1986 (App. L-6).

Florida Statutes §83.60(2) provides tenants with a

meaningful opportunity to be heard and does not deny them

due process of law. It is simply not true that, as KARSTETER

maintains in his Brief, F.S. 83.60(2) “totally deprives the

tenant of any trial whatsoever”. KARSTETER’s Brief, page

14.

First, if the tenant simply alleges payment, no deposit

need be advanced (F.S. 83.60(2) ) and the tenant is entitled

to a full trial before the Court or, if he elects, before a jury.

F.S. §51.011. Secondly, the tenant may raise, by motion, any

matter relating to the Court’s jurisdiction or the sufficiency

of the pleadings and be heard upon such motion without ever

posting funds into the Court Registry. Thus, Florida courts

have consistently held that tenants do not need to deposit

funds into the Registry pursuant to F.S. §83.60(2) where the

20

a

tenants seek to determine the validity of the three-day notice,

the validity of service of process or the sufficiency of the

landlord’s complaint. Mihaley v. White, 15 Fla. Supp.2d 57

(Cty. Ct., Sarasota Cty. 1986); Wallace v. Shaw, 20 Fla.

Supp.2d 107 (Cty. Ct., Orange Cty. 1986); Johnson v.

Kalliorinen, 16 Fla. Supp.2d 86 (Cty. Ct. Palm Beach Cty.

1986). If any such motion is filed, the time for filing an

Answer is tolled and the Court hears and determines al]

issues presented by the motion separately and prior to Trial.

Mihaley v. White, supra. KARSTETER filed no such motion.

Thirdly, if a tenant feels aggrieved by the amount of rent

specified by the landlord as due and owing, the tenant may

file a Motion to Determine the Amount of Rent to be

Deposited into Court. F.S. §83.60(2) specifies, it will be

recalled, that the amount to be deposited into the Court

Registry is “the accrued rent as specified in the complaint

or as determined by the Court.” F.S. §83.60(2). KARSTETER

simply did not avail himself of this procedure.’ Instead, he

repeatedly refused to place any money into the Registry and

demanded that a jury be empanelled to determine the

threshold issue of the amount of rent, if any, to be deposited

pendente lite. See Petitioner’s Brief page 22.

Finally, after entry of Final Judgment, Florida law

provides several procedures for obtaining additional hearings

and for post-judgment relief. First, the tenant may file a

Petition for Re-Hearing or New Trial after Final Judgment.

Florida Stautes §51.011(4). If such a motion is filed, no Writ

of Possession can issue until the motion has been judicia!ly

determined. Rule 1.550(a), Florida Rules of Civil Procedure.

No bond or deposit of funds in the Court Registry is required

for the filing of a Motion for Re-Hearing or New Trial. See

Florida Statutes §51.011.

‘For a case illustrating the proper procedure to be employed by the

tenant to obtain such determination see, Hialeah Housing Authority v.

Rodriguez, 25 Fla.Supp.2d 4 (Cty. Ct. Dade Cty. 1987).

21

Secondly, and even after a Motion for Re-Hearing or New

Trial has been presented and denied, the tenant can re-apply

to the Trial Court pursuant to Rule 1.540, Florida Rules of

Civil Procedure and obtain relief from judgment on any of

the following grounds:

(1) mistake, inadvertence, surprise or excusable

neglect; (2) newly discovered evidence which by due

diligence could not have been discovered in time

to move for a new trial or rehearing; (3) fraud

(whether heretofore denominated intrinsic or

extrinsic), misrepresentation or other misconduct

of an adverse party; (4) the judgment or decree is

void; (5) the judgment or decree has been satisfied,

released or discharged or a prior judgment or decree

upon which it is based has been reversed or

otherwise vacated or it is no longer equitable that

the judgment or decree should have prospective

application.

No bond or deposit of funds into the Registry of the Court

is required for an application to set aside a Default Final

Judgment pursuant to Rule 1.540.

KARSTETER filed no Motion for Re-Hearing or New

Trial and made no application to set aside the Default Final

Judgment pursuant to Rule 1.540. Instead, he stipulated with

GRAHAM that he would vacate the premises by a date

certain, waiving his post-judgment remedies. (App. L-54).

Contrary to KARSTETER’s contentions, failure to comply

with F.S. §83.60(2) does not deprive Florida tenants of access

to the courts. As the Fifth District Court of Appeal of Florida

has made clear:

“(The tenant] loses only his right to retain

possession of the premises if he fails to pay rent to

the landlord or into the Registry of the Court. Any

cause of action against the landlord to which he

22

may be otherwise entitled is still available to him.”

K.D. Lewis Enterprises Corporation v. Smith, 445

So.2d 1032 (Fla. 5th DCA 1984) at 1035.

In so holding, the Court explained the rationale and practical

necessity for Florida’s Rent Deposit Statute:

As now framed, the landlord may recover his rent

should the tenants’ suit have no legal basis. On the

other hand, should the tenants’ suit have merit, the

rent is not lost to them. To follow the course

suggested by the tenants would enable a devious

tenant to live rent free during the litigation, if he

could frame a legally sufficient pleading. We see

no more reason to expect a landlord to continue

furnishing housing without rent than to expect an

oil supplier to continue furnishing oil without

payment during a period of litigation. 445 So.2d

1032 at 1035.

See also, Mahdi v. Poretsky Management, inc., 433 A.2d 1085

(D.C.App. 1981) and Davis v. Rental Associates, 456 A.2d 820

(D.C.App. 1983).

Florida Statutes §83.60(2) did not unconstitutionally deny

KARSTETER access to the Courts; it merely prevented him

from living “rent free during the litigation.” K.D. Lewis

Enterprises Corporation v. Smith, 445 So.2d 1032 at 1035.

Finally, the requirements of Florida Statutes §83.60(2)

and the other landlord-tenant statutes have to be understood

within the general context of Florida Landlord and Tenant

Law and the traditional leniency which Florida courts have

shown to defaulting tenants. Thus, while Florida Statutes

§83.56(3) facially provides that the landlord may “terminate”

the tenancy three-days after service of written notice of

default and Florida Statutes §83.60(2) provides that the

landlord is entitled to an “immediate” defauit if the tenant

raises any defense other than payment and fails to pay the

accrued rent or rent as determined by the court, Florida

23

courts have traditionally provided relief to tenants against

forfeiture of leases on the condition they tender payment of

the rent arrearages with interest.’ Indeed, Florida’s special

“equity of redemption” can be exercised by the tenant at any

stage of the proceedings and even after Final Judgment for

Removal of Tenant has been entered.'!° KARSTETER never

made any attempt to repay rent for the time he occupied

GRAHAM’s premises.

Florida Statutes §83.60(2) does not operate harshly on

the tenant since it provides only for a temporary

relinquishment of funds into the custody of the Court during

the Summary Proceeding and no deposit is necessary where

the tenant alleges prior payment. Since the Summary

Proceeding cases are advanced on the Court calendar (F.S.

§83.59 (2) ), the tenant need only relinquish the funds for a

short time. Moreover, contrary to what a literal reading of

the statute might imply, the Florida caselaw has clearly

established that the funds need not be deposited into the

Court Registry until the actual time of trial. Ash v. Dade

County, 18 Fla. Supp. 2d 185 (Cir. Ct., App. Div., Dade Cty.

1986). In addition, the funds are safeguarded since they are

held by a neutral third party, namely, the Court. Without

payment of rent and without making any deposit into the

Court Registry, KARSTETER was able to take discovery,

including depositions (App. O), and to prolong the final

disposition of the proceedings from June 6, 1986, to August

9, 1986, during all of which time he remained in possession.

All he had to do to be granted the jury trial he purportedly

sought and to obtain additional delay which would thereby

be occasioned was to deposit $1,460.00 of the $10,000.00

*Rader v. Prather, 100 Fla. 591, 130 15 (Fla. 1930); Dinn v. Edmonson,

428 So.2d 286 (Fla. 4 DCA), pet.rev.den. 440 So.2d 351 (Fla. 1983); Herrell

v. Seyforth, Shaw, Fairwkeather, 491 So.2d 1173 (Fla. 1 DCA 1986)

“Rader v. Prather, supra. See, Boyle, Landlord's Remedies in Florida,

(1987), Chpt. 8 “Relief From Forfeiture, The Eviction Paradox”.

24

severance payment he had previously received from his

former employer. (App. K-7). KARSTETER makes no

showing that he was “indigent” as indeed he cannot.

KARSTETER also maintains that Florida’s Rent Deposit

Statute is unconstitutional because it deprived him of the

right to jury trial. KARSTETER’s loss of his right to jury

trial, however, was entirely self-inflicted and resulted solely

from his adamant refusal to place any monies into the Court

Registry. The right to jury trial in Florida can be waived.

See e.g., In re: Shambow’s Estate, 15 So.2d 837 (Fla. 1943).

Just as the right to jury trial may be waived by failure to

make timely demand for same, a litigant may also lose the

right to jury trial in a landlord and tenant case by failing

to make timely deposits into the Court Registry. F-.S.

§83.60(2). KARSTETER, in fact, waived his right to jury trial

by failing to take the required procedural steps to preserve

his right to jury trial. He could have sought a determination

by the Court of the amount of rent owing or he could have

deposited the rent demanded into the Court Registry. F.S.

$83.60(2). If he had done either, he would have preserved his

right to jury trial. In fact, he did neither and as a result

Default was entered against him. No one is entitled to a trial,

by jury or otherwise, if there is no triable issue.

KARSTETER’s contention that F.S. §83.60(2)

unconstitutionally deprives tenants of their right to jury trial

was carefully considered and specifically rejected by the Court

in Multach v. Snipes, 15 Fla. Supp. 2d 52 (Cty. Ct., Palm

Beach Cty. 1986). The Court’s logic and reasoning should

recommend themselves to this Honorable Court:

Defendant objects to the application of Section

83.60(2) to default her, contending that the statute

violates Article I, Section 22 of the Florida

Constitution. The constitutional provision provides

in pertinent part that the “right of trial by jury

shall be secure to all and remain inviolate.”

25

Section 83.60(2) does not impair Defendant’s right

to a trial by jury which is available and was honored

upon appropriate demand. Rather, Section 83.60(2)

conditions the right upon payment of rent into the

Registry of the Court during the pendency of the

proceedings. Just as a Court may enter a default

for failure to plead or to comply with discovery

orders, so may a statute condition a tenant’s

presentation of defenses on the deposit of unpaid

and accruing rent into the Court registry. See,

Mahdi v. Poretsky Management, Inc., 433 A. 2d 1085

(D.C. 1981). 15 Fla. Supp. 2d 52 at 55.

In his Brief, KARSTETER concedes that the right to trial

by jury in civil cases that was created by Seventh Amendment

is not applicable to the States. KARSTETER’s Brief, p. 17.

He maintains, however, that when “the State of Florida

established. . . the right of trial by jury in civil cases, any

deprivation of such right would be a denial of due process

under amendment XIV to the U.S. Constitution.

KARSTETER’s mistake, of course, is to believe that either

the ‘due process” clause or the “equal protection” clause

compels a state to treat its citizens in identical fashion in

all circumstances. Tenants in dispossessory action may

constitutionally be afforded modes or mechanisms of trial

which differ from those provided to other litigants. As this

Court held in Lindsey, supra, “Classifying tenants differently

will offend the equal protection safeguard ‘only if the

classification rests on grounds which are wholly irrelevant

to the achievement of the State objective,’ [citing] McGowan

v. Maryland, 366 U.S. 420 (1961). . .” 405 U.S. 54 at 70.

KARSTETER simply makes no such showing.

KARSTETER has sought to rely upon the Maryland case

of Lucky Ned Pepper’s Ltd. v. Columbia Park and Recreation

Association, 494 A.2d 947 (Md. App. 1985), but this reliance

is clearly misplaced. In Lucky Ned Pepper’s Ltd., the Court

held that Maryland’s Rent Deposit statute was constitutional

26

to the extent it conditioned jury trial in landlord and tenant

actions upon full payment of rent in the Registry as the rent

accrues. The Court stated flatly, ““We do not suggest, however,

that a statutory provision requiring the escrowing of rents

as they become payable during the pendency of a jury trial

is. . . unconstitutional.” 494 A.2d 947 at 953. The Court

quoted extensively from Lindsey v. Normet, supra, and

concluded:

. [A] tenant’s request for a jury trial, like a

request for continuance, makes it impossible to

provide a lessor with quick relief. Therefore, we

believe that if a tenant is to remain in possession

of the landlord’s property, pending resolution of a

jury trial, it is not unreasonable to request that the

tenant pay for the privilege of remaining on the

landlord’s premises. 494 A.2d 947 at 953.

While it is true that the Court in Lucky Ned Pepper’s,

Ltd., held unconstitutional the particular statutory

mechanism requiring the posting of past due (accrued) rents,

it should be recalled that KARSTETER posted no rent at all,

either the accruing rent or the accrued, into the Court

Registry. Indeed, he adamantly and repeatedly refused to

deposit any rent at all. All the Trial Court required was that

KARSTETER deposit the amount accruing during the

pendency of the proceedings. Having failed and refused to

deposit even the accruing rent, KARSTETER is simply in

no position to avail himself of the ruling in Lucky Ned

Pepper’s, Ltd. Final Judgment was not entered against him

because he failed to deposit the accrued rent; Final Judgment

was entered against him because he would not deposit any

rent at all. Moreover, a close reading of Lucky Ned Pepper’s,

Ltd., reveals that the Court’s objection to Maryland’s Rent

Deposit Statute was that it “presupposes a determination

that the [accrued rent] is owed.”” Lucky Ned Pepper’s, Ltd.,

494 A.2d 947 at 951. In Florida’s Rent Deposit Statute, on

the other hand, and as indicated above, there is a built-in

27

procedural safeguard enabling the tenant to obtain a judicial

determination of the amount to be deposited, if the tenant

takes issue with the accrued rent demanded by the landlord.

F.S. §83.60(2). It was this procedure which KARSTETER

failed to invoke in neglecting to file a Motion to Determine

Amount of Rent to be Deposited into Court Registry and it

was this failure, together with his failure and refusal to

deposit the accruing rent, which led to entry of Default and

Default Final Judgment against him. Clearly, Lucky Ned

Pepper’s, Ltd., provides KARSTETER with no assistance in

the particular factual posture of this case.

In summation, KARSTETER failed to pay the accrued

rent into the Court Registry as demanded by the Landlord

and failed to invoke the procedure for obtaining a judicial

determination of the amount due. He failed to pay the

accruing rent and, indeed, adamantly refused to post into the

Court Registry any deposit monies at all, despite the lower

Court’s repeated extentions of time within which to do so.

In so failing and refusing, KARSTETER, at length, suffered

Default Final Judgment to be entered against him pursuant

to Florida Statute §83.60(2). The Trial Court, however, left

intact both KARSTETER’s Counterclaim and Crossclaim.

Accordingly, KARSTETER lost the “right” to remain in

possession of his adversary’s property without payment of

rent, but he did not lose his access to the court to pursue his

claims for damages.

The statute which led to KARSTETER’s fate is not a

harsh or oppressive measure. It provides only for the

temporary relinquishment of funds for short duration as a

showing of good faith and as a reasonable and necessary

measure to prevent undeserved economic loss on the part of

Florida property owners, given the unique characteristics of

the landlord-tenant relationship. Viewed in its historical

perspective, the statute does not represent a curtailment of

the rights enjoyed by tenants at the time of the enactment

of either the Federal or Florida Constitutions but is instead

28

ant SE eae Nei linc aba ba Are

aha oy aaa

a reasonable safeguard and counter-balance to the vastly

increased power of tenants to raise defenses in possessory

actions brought about by the enactment of the Florida

Residential Landlord and Tenant Act in 1973.

The United States Supreme Court has specifically upheld

against constitutional attack a Rent Deposit Statute. Lindsey

uv. Normet, supra. The vast majority of other courts have

consistently upheld legislation requiring tenants to pay rent

into Court Registries during possessory actions as non-

violative of either state or Federal Constitutional

guarantees.!!

Florida Statutes §83.60(2), like all validly enacted state

statutes, comes to this Honorable Court clothed with a

presumption of constitutionality. Davies Warehouses Co. v.

Bowles, 321 U.S. 144 (1944). That presumption is fortified

in this case by common sense, the imperative of rendering

justice to property owners as well as tenants, and the specific

pronouncements of this Honorable Court as well as the vast

majority of lower courts who have considered and rejected

the same arguments which KARSTETER now advances.

' Farrell v. Drew, 19 N.Y.2d 486; 281 N.Y.S.2d 1, 227 N.E.2d 824 (1967);

Department of Building v. Saltzer, 16 N.Y.2d 915, 264 N.Y.S.2d 701, 212

N.E.2d 154 (1965); Ten West 28th Street Realty Corp. v. Moerdler, 52 Misc.

2d 109, 275 N.Y.S.2d 144 (1966); Milchman v. Rivera, 9 Misc. 2d 347, 240,

N.Y.S.2d 859, app dismd 13 N.Y.2d 1! 23, 247 N.Y.S.2d 122, 196 N.E.2d

555 (1963); Schaeffer v. Montes, 37 Misc. 2d 722, 233 N.Y.S.2d 444 (1962);

Emray Realty Corp. v. De Stefano, 5 Misc. 2d 352, 160 N.Y.S.2d 433 (1957);

De Paul v. Kauffman, 441 Pa. 386, 272 A.2d 500, (1971); Davis v. Rental

Associates, Inc., 456 A.2d 82 (1983, Dist.Col.App.); Mahdi v. Poretsky

Management, Inc., 433 A2d 1085 (1981, Dist.Col.App.). See, Officenters

International Corp. v. Interstate North Associates, 166 Ga.App. 93, 303

S.E.2d 292 (Ga.App. 1983) cert.den. 464 U.S. 937 (1983); Oaks v. District

Court of State of R.I.,631 F.Supp. 538 (D.R.I. 1986); and First Sav. Bank

F.S.B. v. Whittley, 751 S.W.2d 60 (Ct.Ap. W.D. 1987).

29

CONCLUSION

For the foregoing reasons, Respondent, GRAHAM, prays

that this Honorable Court deny the Petition for Certiorari,

filed by Petitioner, KARSTETER, and that the Court assess

all costs, including reasonable attorneys fees, pursuant to

Florida Statute §83.48 and §59.46, in favor of the Respondent

and against the Petitioner.

Re VO) submitted,

Mabatd B. bake T, JR

WISEHEART & JOYCE, P.A.

2840 S.W. Third Avenue

Miami, Florida 33129

(305) 285-1222

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three (3) copies of the foregoing

Brief in Opposition to Petition for Certiorari were mailed to

Roland Gomez, Esq., Law Offices of Roland Gomez, Attorneys

for Petitioner, 8100 Oak Lane, Suite 400, Miami Lakes,

Florida 33016 and to Jerry Currington, Esquire, Assistant

Attorney General, Department of Legal Affairs, The Capitol,

Tallahassee, Florida 32301, this 15th day of November, 1988.

MALCOLM B. WISEHEART, JR.

30

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