Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ATUSA AMIRI and ABDOLHOSSEIN SHARBAYANI, Appellants, v. JEREMY McGREAL and KIMBERLY McGREAL, Appellees. No. 2D20-953 June 11, 2021 Appeal from the Circuit Court for Hillsborough County; Cheryl K. Thomas, Judge. Melissa N. Champagne of Community Law & Title, P.A., Tampa, for Appellants. Jeremy McGreal and Kimberly McGreal, pro se. ATKINSON, Judge. Atusa Amiri and Abdolhossein Sharbayani (Landlords) appeal part of the circuit court's final judgment dismissing their counterclaim for nonpayment of rent against Jeremy and Kimberly McGreal (Tenants). We agree that the circuit court erred in dismissing the Landlords' counterclaim for nonpayment of rent and reverse that portion of the circuit court's final judgment. In 2015, the Landlords and Tenants entered into a Lease- Purchase Agreement for a residential property on Weeburn Road in Temple Terrace. The Tenants were required to pay $2,233.35 per month to the Landlords for rent. If the Tenants failed to make timely rent payments, they would be required to pay a late fee of $150. Before the Tenants moved into the home, the parties discussed what appeared to be water damage inside the home, the home warranty, and property insurance. After the Tenants moved into the home, the water damage worsened, and water leaks were discovered in the foundation. The Tenants called Mr. Sharbayani and asked him to send a plumber to fix the problem. Although Mr. Sharbayani promised to send a plumber, no plumber came to inspect the property. The Tenants brought a plumber to assess the damage and make repairs. They alleged that they made payments for repairs to the property. During this time, the Tenants stopped making monthly rent payments. 2 On July 20, 2017, the Landlords filed a summary eviction action in Hillsborough County Court, alleging that the Tenants had breached their lease agreement by failing to timely pay rent. In the summary eviction action, the Landlords only sought an award of possession of the Weeburn Road property; they did not ask to be awarded unpaid rent. On July 31, 2017, the Tenants filed a complaint against the Landlords in circuit court (the circuit court action), alleging failure to disclose material defects, unjust enrichment, and breach of contract and seeking recission of the Lease-Purchase Agreement. In the summary eviction action, the Tenants filed a motion to determine the amount of rent and a motion to consolidate the summary eviction and circuit court actions. On August 29, 2017, after a hearing, the county court determined that the Tenants owed $8,400.05 in unpaid rent and ordered them to pay this amount into the court registry. The county court ordered them to pay subsequent monthly rent payments into the court registry until the final judgment in the summary eviction action. The county court also denied the Tenants' motion to consolidate. On September 13, 3 2017, the county court entered final judgment for the Landlords and awarded them with possession of the home on Weeburn Road. On October 4, 2017, the Tenants filed an amended complaint in the circuit court action, adding a claim for constructive eviction. The Landlords filed an Answer, Affirmative Defenses, and Counterclaims. The Landlords' first counterclaim was for nonpayment of rent. The Tenants raised the affirmative defense of res judicata in response to this counterclaim, arguing that the Landlords' counterclaim was barred because they had not brought their claim for nonpayment of rent in the summary eviction action in county court. After a bench trial, the circuit court entered a final judgment dismissing the Landlords' counterclaim for nonpayment of rent, finding that the counterclaim was a compulsory claim in the summary eviction action.1 The circuit court denied the Landlords' motion for rehearing. 1 The circuit court also denied all of the Tenants' claims and the Landlords' second counterclaim. However, the parties did not raise any issues on appeal concerning these aspects of the final judgment. 4 In support of the trial court's dismissal, the Tenants rely on the doctrine of res judicata, "a procedural bar that prohibits relitigation of claims in a subsequent cause of action and includes claims that were raised or could have been raised in the prior action." Neapolitan Enters., LLC v. City of Naples, 185 So. 3d 585, 590–91 (Fla. 2d DCA 2016); see also Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) ("A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action." (emphasis added) (quoting Kimbrell v. Paige, 448 So. 2d 1009, 1012 (Fla. 1984))). "The de novo standard of review applies to a trial court's ruling that a defendant is barred from obtaining relief on the grounds of res judicata or collateral estoppel." Campbell v. State, 906 So. 2d 293, 295 (Fla. 2d DCA 2004). The Tenants also rely on the rule against splitting causes of action to justify the trial court's preclusion of the Landlords' claim for rent damages. An aspect of the doctrine of res judicata, the rule 5 against splitting causes of actions "generally provides that a party must claim and recover in one action all damages sustained or accruing from one wrongful act." Neapolitan Enters., LLC, 185 So. 3d at 592. Florida courts have held that section 83.21, Florida Statutes (2017), which "provides for actions for the removal of [nonresidential] tenants by summary procedure," "allows the landlord to bring an action only for possession." Camena Invs. & Prop. Mgmt. Corp. v. Cross, 791 So. 2d 595, 596 (Fla. 3d DCA 2001) (emphasis added) (citing § 51.011, Fla. Stat. (2017) ("Summary procedures")). A landlord is authorized "to file a separate action for the unpaid rent." Id. In Camena Investments & Property Management Corp., the Third District explained the statutory remedy: The summary procedure statutes envision an expedited process to determine the right to possession promptly without the necessity of deciding all other issues between the parties. While the tenant may assert all equitable defenses in a landlord/tenant dispute, there is no obligation to do so in the summary procedure action. Just as the landlord does not have to assert all its claims in the action to remove the tenant, the tenant does not have to assert all its defenses. The tenant may await the landlord's action for damages to assert any monetary claims by way of affirmative defenses or counterclaims. 6 Id. at 596–97 (citations omitted). The same summary eviction proceeding pursuant to section 51.011 is available in actions to remove residential tenants. § 83.59; see also Balan v. Vestcor Fund XXII, Ltd., No. 3:19-cv-351-J- 34JBT, 2020 WL 6786191, at *3 n.8 (M.D. Fla. Nov. 2, 2020), report and recommendation adopted, 2020 WL 6784138. Section 83.55 provides landlords with a right of action for damages but does not provide for this claim to be heard in a summary eviction proceeding. See § 83.55 ("If either the landlord or the tenant fails to comply with the requirements of the rental agreement or this part, the aggrieved party may recover the damages caused by the noncompliance."). "The [summary] procedure in [section 51.011] applies only to those actions specified by statute or rule." § 51.011. The Landlords brought a summary eviction action under sections 83.59 and 51.011 in the county court case seeking possession of the residential property leased to the Tenants. They would not have been able to bring their nonpayment of rent claim in the summary eviction action because section 83.55 does not provide for the landlord to utilize the summary procedures in 7 section 51.011 in an action for damages. And the Landlords were authorized under the statutory framework for summary proceedings in landlord-tenant actions to bring a claim for nonpayment of rent in a separate action. See Camena Invs. & Prop. Mgmt. Corp., 791 So. 2d at 596; see also §§ 83.55, .59; 51.011. Therefore, the Landlords' counterclaim in the circuit court action was not barred by res judicata or the rule against splitting causes of actions because it could not have been brought in the summary eviction action that the trial court erroneously concluded had a preclusive effect. See id. Thus, the circuit court erred in dismissing the Landlords' counterclaim for nonpayment of rent. We reverse and remand for further proceedings. Reversed and remanded. SILBERMAN, and LUCAS, JJ., Concur. Opinion subject to revision prior to official publication. 8