Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT BREMAN WOOTTON and BROOKE WOOTTON, Appellants, v. IRON ACQUISITIONS, LLC, Appellee. No. 2D21-2229 May 4, 2022 Appeal from the County Court for Lee County; H. Andrew Swett, Judge. David W. Holley of Burandt, Adamski, Feichthaler & Sanchez, PLLC, Cape Coral, for Appellants. Christopher J. Thornton of Thornton Law Firm, PLLC, Naples, for Appellee. CASANUEVA, Judge. Breman and Brooke Wootton, tenants, filed the underlying action in county court against Iron Acquisitions, LLC, landlord, alleging that it violated section 83.49, Florida Statutes (2019), when it retained a portion of their security deposit without complying with the notice requirements of the statute. After a bench trial, a final judgment was entered in favor of Iron Acquisitions. The issue in this appeal is whether a landlord must strictly comply with the notice requirements of section 83.49 before it may retain any portion of a tenant's security deposit. We hold that strict compliance with the statute is required and reverse. I. Procedural Background In April 2019, the Woottons entered into a residential lease agreement with Iron Acquisitions for a one-year term. After problems arose with the residence, on October 5, 2019, the parties entered into a settlement agreement allowing them to terminate the lease. The agreement states that the landlord "agrees to consider the Lease terminated as of the date of the execution of this Agreement and pursuant to Fla. Stat. § 83.49 give written notice to Wootton within 30 days of said Agreement, his intention to impose a claim on the deposit and the reason for imposing the claim." On November 13, 2019, Iron Acquisitions sent a letter to the Woottons' 2 attorney notifying them that it was retaining $960 of their security deposit. The Woottons filed suit against Iron Acquisitions alleging that Iron Acquisitions' letter failed to comply with the notice requirements of section 83.49, and therefore, Iron Acquisitions could not impose a claim on their security deposit. The final judgment entered in favor of Iron Acquisitions does not contain any factual findings, and there is no transcript of the trial proceeding. II. Standard of Review The Woottons argue on appeal that the trial court erred in finding that Iron Acquisitions' letter concerning the security deposit complied with section 83.49. Because the letter is contained in the record, the standard of review is de novo. "When a decision in a non-jury trial is based on findings of fact from disputed evidence, it is reviewed on appeal for competent, substantial evidence. . . . However, where a trial court's conclusions following a non-jury trial are based upon legal error, the standard of review is de novo." Jasser v. Saadeh, 91 So. 3d 883, 884 (Fla. 4th DCA 2012) (alteration in original) (quoting Acoustic Innovations, Inc. v. Schafer, 976 So. 2d 1139, 1143 (Fla. 4th DCA 2008)). Here, there is no 3 dispute as to the content of Iron Acquisitions' letter. Therefore, the determination regarding whether the letter complied with section 83.49 is a legal determination subject to de novo review. Further, the lack of a trial transcript in this case does not prevent appellate review. "Even without a trial transcript, the appellate court can reverse when the trial court makes an error of law on the face of the judgment." Siam Motors, Inc. v. Spivey, 136 So. 3d 692, 694 (Fla. 2d DCA 2014) (citing Mobley v. Mobley, 18 So. 3d 724, 727 (Fla. 2d DCA 2009)); see also A.A. v. D.W., 326 So. 3d 1186, 1187 (Fla. 2d DCA 2021) (holding that while the lack of a transcript or a proper substitute usually precludes a challenge to the judgment, this rule does not apply "where reversible error is apparent on the face of the judgment" (citing Casella v. Casella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990))). III. Analysis "We first examine the statute's plain meaning, resorting to rules of statutory construction only if the statute's language is ambiguous." Lopez v. Hall, 233 So. 3d 451, 453 (Fla. 2018) (citing Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)). Because the language of section 83.49 is unambiguous, "it must be accorded its 4 plain and ordinary meaning." State v. J.A.R., 318 So. 3d 1256, 1258 (Fla. 2021) (quoting Brown v. State, 715 So. 2d 241, 243 (Fla. 1998)). Section 83.49, Florida Statutes (2019) Section 83.49(3)(a) states that when a tenant vacates the premises for termination of the lease and the landlord intends to impose a claim on the security deposit, the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant's last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form: This is a notice of my intention to impose a claim for damages in the amount of __________ upon your security deposit, due to __________. It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord's address). 5 Section 83.49(3)(a) further provides that if a landlord does not give this required notice within the thirty-day period, the landlord loses the right to impose a claim on the security deposit.1 Iron Acquisitions' Letter In Iron Acquisitions' letter asserting its intent to impose a claim on the Wootton's security deposit, Iron Acquisitions stated that it performed a move-out inspection on Saturday, November 9, 2019, that it was returning $240 of the deposit, and that $960 of the deposit was being retained for five items related to cleaning or repair of the residence. Iron Acquisitions' letter failed to comply with the requirements of section 83.49 in several aspects: 1) it was not mailed to the Woottons' last known mailing address; 2) it failed to notify them that they had to object in writing within fifteen days to the deduction from the security deposit; and 3) it failed to provide the address to which they were required to mail their objection. The issue before the court is whether Iron Acquisitions' letter was sufficient to fulfill the requirements of section 83.49. 1 As noted previously, the parties' settlement agreement specifically required the landlord to comply with section 83.49. 6 Section 83.49(3)(a) specifically states that the landlord "shall" give the tenant written notice by certified mail to the tenant's last known mailing address. Here, the letter was not sent to the Woottons. Further, the statute provides that the landlord's notice "shall" contain the required statement in "substantially" the form as stated in the statute. The letter in the present case was not in substantially the same form as the statute where it failed to notify the Woottons that they must object in writing within fifteen days and that they must send the objection to a specific address. Therefore, based on the plain meaning of the language in section 83.49, we hold that Iron Acquisitions' letter did not comply with the requirements of the statute. Affirmative Defenses We do not find merit in Iron Acquisitions' arguments on appeal pertaining to its affirmative defenses. Iron Acquisitions first argues that it established the affirmative defense of accord and satisfaction at trial. It contends that the parties' lease dispute was settled by the written settlement agreement that resolved all claims under the lease. "[T]he defense of accord and satisfaction requires proof that 'the parties mutually intended to effect a settlement of an existing 7 dispute by entering into a superseding agreement . . . and . . . actual performance with satisfaction of the new agreement. . . .' " Wolowitz v. Thoroughbred Motors, Inc., 765 So. 2d 920, 923 (Fla. 2d DCA 2000) (alteration in original) (quoting Rudick v. Rudick, 403 So. 2d 1091, 1093-94 (Fla. 3d DCA 1981)). Here, Iron Acquisitions did not fulfill its obligations in the settlement agreement. The agreement required that Iron Acquisitions "pursuant to Fla. Stat. § 83.49 give written notice to Wootton within 30 days of said Agreement, his intention to impose a claim on the deposit and the reason for imposing the claim." Therefore, the new agreement required compliance with section 83.49, and as noted above, Iron Acquisitions' letter failed to comply with section 83.49. Iron Acquisitions further argues that it established the affirmative defense of accord and satisfaction at trial where the Woottons cashed the check for the remaining portion of the security deposit, $240. Iron Acquisitions relies on sections 673.3111 and 725.05, Florida Statutes (2019). Iron Acquisitions' reliance on section 673.3111 is misplaced because that statute required Iron Acquisitions to prove that the check or its letter "contained a conspicuous statement to the effect that the instrument was 8 tendered as full satisfaction of the claim." § 673.3111(2). Neither the letter nor the $240 check contains the required language. Iron Acquisitions' reliance on section 725.05 is also misplaced as that statute applies only where the parties agree to satisfy the debt by a written instrument, other than by endorsement on a check. Here, the parties never agreed that Iron Acquisitions could retain a portion of the security deposit. IV. Conclusion Accordingly, because Iron Acquisitions' letter did not comply with section 83.49, the trial court erred in entering judgment in its favor. We reverse the final judgment and remand for proceedings consistent with this opinion. Reversed and remanded. ROTHSTEIN-YOUAKIM and ATKINSON, JJ., Concur. Opinion subject to revision prior to official publication. 9