Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DOLPHIN AVIATION, INC., a ) Florida corporation, ) ) Appellant, ) ) v. ) Case No. 2D19-4575 ) HELI AVIATION FLORIDA, LLC, a ) Florida limited liability company; and ) NICLAS HERLE, an individual, ) ) Appellees. ) ___________________________________) Opinion filed November 25, 2020. Appeal from the Circuit Court for Manatee County; Charles P. Sniffen, Judge. Nick Roknich, III, of The Roknich Law Firm, P.A., Sarasota, for Appellant. Derek W. Eisemann of Michael J. Belle, P.A., Sarasota, for Appellee Heli Aviation Florida, LLC, a Florida limited liability company. No appearance for remaining Appellee. KHOUZAM, Chief Judge. Dolphin Aviation, Inc., appeals an order involuntarily dismissing with prejudice its eviction claim against Heli Aviation, LLC. Because the evidence was sufficient to survive involuntary dismissal under the terms the parties agreed to in their lease, we reverse the involuntary dismissal and remand for further proceedings. FACTUAL BACKGROUND AND PROCEEDINGS BELOW In 2012, Heli Aviation Florida, LLC ("Heli"), entered into a "Corporate Hangar Lease Agreement" with Dolphin Aviation, Inc. ("Dolphin"), under which Heli was the tenant and Dolphin was the landlord. Heli's principal, Niclas Herle, personally guaranteed Heli's obligations under the lease. In the lease, Heli agreed to abide by and conform to all laws and governmental orders, as well as the rules and regulations of the Sarasota Manatee Airport Authority ("Airport Authority"), the latter of which are expressly incorporated by reference. Among other terms, the parties agreed to the following broad termination provision: DISCRETIONARY TERMINATION: Should the Lessee break any of the terms and conditions of this lease or should the Lessee operate its facility in a manner that reflects unfavorably upon Lessor or its operation, then the Lessor shall have the right to terminate this lease upon 30 days written notice and Lessee agrees to promptly and peacefully surrender possession of the premises to Lessor in a neat and reasonable condition. In July 2019, Dolphin filed this action against Heli and Mr. Herle. As to Heli, Dolphin asserted a count for eviction and a count for damages to the premises. As to Mr. Herle, Dolphin asserted he had personally guaranteed Heli's obligations under the lease. Dolphin later filed an amended complaint raising the same three counts. In October 2019, the trial court held an evidentiary hearing for summary eviction and possession. Before the hearing, Dolphin had filed a motion for judicial notice regarding, inter alia, certain recent criminal proceedings against Mr. Herle. -2- Included among the attachments to the motion were: (1) an arrest warrant for Mr. Herle for trespass on the leased premises, (2) a probable cause affidavit by an Airport Authority officer alleging that Mr. Herle had committed a series of crimes on the leased premises between April and August 2019, and (3) a bench warrant dated September 2019 for Mr. Herle's arrest for failure to appear. At the beginning of the hearing, Heli objected to the court taking judicial notice of the probable cause affidavit only—not the arrest warrants or other records—on the basis that the allegations contained therein were hearsay. The court ruled that it would take notice of the fact these criminal cases existed as well as their procedural history. But it concluded that the substantive allegations of the probable cause affidavit were inadmissible hearsay. The trial court reviewed the criminal docket and observed that (1) Mr. Herle had been charged with aggravated assault, (2) his bond had been revoked by order, and (3) the no-bond bench warrant attached to Dolphin's motion for judicial notice was still outstanding. During the hearing, Dolphin's president testified that Dolphin leased the hangar that it subleased to Heli from the Airport Authority. The Airport Authority had notified Dolphin by letter that, by virtue of certain conduct by Heli and Mr. Herle on the leased premises, Dolphin was not in compliance with the terms of its own lease with the Airport Authority. The Airport Authority had consequently directed Dolphin to terminate Heli's sublease, or else the Airport Authority would terminate Dolphin's lease. Heli objected to admitting the Airport Authority's letter into evidence on the basis that it was hearsay and was not a business record. The trial court agreed that the contents of the letter were hearsay that could not establish the truth of the matters -3- asserted, but nonetheless admitted the letter under a hearsay exception to establish the effect the letter had on the recipient. The letter begins: "As you are aware, the past six years have witnessed a steady stream of repeated rule violations and civil disturbances committed by your subtenant, Heli Aviation of Florida, LLC, through its principal and manager, Niclas Herle." The letter provides "a summary of serious infractions of airport rules and regulations compiled by airport operations officers, and a catalogue of airport police contacts with Mr. Herle," including "numerous safety violations involving refueling as well as frequent altercations with other tenants, customers, students, etc." According to the letter, there was a recent incident where Mr. Herle "allegedly pointed a loaded firearm at a customer while inside Heli Aviation premises," which resulted in his being arrested for aggravated assault and grand theft as well as being prohibited from re- entering the airport grounds. The Airport Authority acknowledged that the criminal charges were still pending and thus their ultimate disposition remained uncertain. "But, frankly, criminal convictions are not necessary to compel us [to] the conclusion that his volatile and violent personality, in combination with his flagrant disregard for safety, pose a serious security risk, and his continued physical presence at the airport cannot be tolerated." Attached to the letter was an itemized list of twenty alleged violations of Airport Authority rules and regulations by Heli, dating back to 2014. Also attached to the letter was a document from the Sarasota Manatee Airport Authority Police Department titled "Law Enforcement Contacts with Niclas Herle," listing twelve events taking place on or around the leased premises dating back to 2013. -4- Ultimately, the Airport Authority's letter notified Dolphin that it was in default of its own lease with the Airport Authority by virtue of the rule violations, civil disturbances, and criminal conduct taking place on the premises Dolphin subleased to Heli. It directed Dolphin that the only cure was to remove Heli and Mr. Herle from the premises; otherwise, the Airport Authority would terminate Dolphin's lease. Heli moved for a directed verdict, which the trial court treated as a motion for involuntary dismissal. As relevant to this appeal, Heli argued that Dolphin had failed to introduce evidence to establish that Heli had actually violated any rules, regulations, or laws, or that it had breached the lease. Heli contended that the allegations in the criminal proceedings and in the Airport Authority's letter were hearsay and thus could not establish any such violations. Dolphin responded that the Airport Authority's letter asserting Heli's and Mr. Herle's violations of its own rules and regulations was affirmative evidence of those violations. Further, Dolphin argued that it was also invoking the lease's Discretionary Termination clause, which expressly allowed Dolphin to terminate if Heli operated the leased facility in a manner reflecting unfavorably on Dolphin. Therefore, "it's not necessary at this hearing to go into proving whether or not those actions occurred, that's not the issue." Dolphin acknowledged that the Discretionary Termination provision was "probably not a tenant favorable provision," but nonetheless, "that's what the lease says." Dolphin argued that the criminal records the court had judicially noticed and the Airport Authority's letter were each affirmative evidence supporting discretionary termination under the unfavorable-operation standard in the lease. -5- Ultimately, the court ruled that Dolphin had failed to admit any evidence to establish its claim. First, the court ruled Dolphin had not established any violations of law or the Airport Authority's rules, regulations, or procedures. Second, the court ruled that neither the judicially noticed criminal proceedings nor the Airport Authority's letter contained any admissible evidence to support discretionary termination based on Heli's operating the facility in a manner reflecting unfavorably on Dolphin. It ruled that the allegations therein were hearsay, and that the letter had been admitted only for its effect on the recipient, not for the truth of the underlying allegations. The trial court granted Heli's motion and dismissed Dolphin's eviction claim with prejudice. This appeal followed. ANALYSIS An order granting a motion for involuntary dismissal is reviewed de novo. U.S. Bank Nat'l Ass'n v. Cook, 276 So. 3d 472, 473 (Fla. 2d DCA 2019). In a nonjury trial, when the defendant moves for involuntary dismissal, it admits the truth of all facts in evidence and every reasonable conclusion or inference based thereon favorable to the non- moving party. Where the plaintiff has presented a prima facie case and different conclusions or inferences can be drawn from the evidence, the trial judge should not grant a motion for involuntary dismissal. Deutsche Bank Nat'l Tr. Co. v. Kummer, 195 So. 3d 1173, 1175 (Fla. 2d DCA 2016) (quoting Day v. Amini, 550 So. 2d 169, 171 (Fla. 2d DCA 1989)). Here, the trial court reversibly erred in involuntarily dismissing Dolphin's eviction claim. As a threshold matter, the court correctly ruled that Dolphin failed to adduce sufficient admissible evidence to establish that Heli had violated airport rules or regulations. Dolphin neither cited to nor sought to admit the rules or regulations -6- themselves, and the Airport Authority's letter addressing that issue was expressly admitted for its effect on the listener only, not to establish the truth of the allegations. Accordingly, Dolphin's evidence failed to establish a prima facie case on that basis. Nonetheless, Dolphin's evidence was sufficient to withstand involuntary dismissal on its alternative ground under the unfavorable-operation standard the parties agreed to in the Discretionary Termination clause. That atypically broad provision in this commercial lease between corporate entities expressly entitled Dolphin to terminate the lease at its discretion once Heli "operate[ed] its facility in a manner that reflect[ed] unfavorably upon [Dolphin] or its operation." By its plain language, that clause does not require any actual violation of a rule, regulation, or law in order for Dolphin to exercise its discretion to terminate. To the contrary, Heli agreed that Dolphin's authority to terminate was much broader than that. As Dolphin's counsel asserted below, even though the provision is "not a tenant favorable provision . . . that's what the lease says." It must be enforced as written. See, e.g., Prestige Valet, Inc. v. Mendel, 14 So. 3d 282, 283 (Fla. 2d DCA 2009) ("It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain." (quoting Barakat v. Broward Cty. Hous. Auth., 771 So. 2d 1193, 1195 (Fla. 4th DCA 2000))). Consequently, the issue was not whether any of the acts described in the Airport Authority's letter or in the criminal materials had actually occurred. Rather, under the plain language of the parties' agreement, the question was whether Dolphin adduced affirmative evidence sufficient to survive involuntary dismissal on its claim that Heli had operated its facility in a manner that reflected unfavorably upon Dolphin. -7- Under that standard, it does not matter whether the allegations were true; by focusing instead on how Heli's operation of the facility reflected on Dolphin, the parties agreed it would be enough that others believed they were true. The letter from Dolphin's own landlord—which threatened to terminate Dolphin's lease due to "a steady stream of repeated rule violations and civil disturbances committed by" Heli and Mr. Herle on the leased premises over the prior six years—qualifies under that broad standard. In the unique context of this case, the fact the letter was admitted solely for its effect on the recipient does not alter this conclusion. The effect of the letter was to demonstrate to Dolphin how Heli's operation of the leased premises unfavorably reflected on Dolphin to the point that Dolphin was now in danger of losing its own lease. Likewise, the criminal materials over which the trial court took judicial notice should have precluded involuntary dismissal. They alleged that Heli's principal had committed various crimes on the premises over a course of years. The court also took judicial notice of the fact that, at the time of the hearing, a bench warrant for Mr. Herle's arrest had been issued in connection with the judicially noticed charges and was still outstanding. As with the Airport Authority's letter, whether or not these allegations by law enforcement were true, they certainly constitute some affirmative evidence that the facility had been operated in a manner reflecting unfavorably on Dolphin. Given the fact the claim was dismissed involuntarily, the question of whether Dolphin met its burden to prove its claim is beyond the scope of this appeal, and we make no comment on that issue. We hold simply that Dolphin's evidence was sufficient to withstand involuntary dismissal under the standard set forth in the lease. -8- Reversed and remanded for further proceedings consistent with this opinion. MORRIS and SMITH, JJ., Concur. -9-