In short: In Tender Loving Care Garden Supply v. Jesher’s, a Monroe County landlord sued to evict its tenant, and the tenant counterclaimed to enforce a purchase option in the lease. The trial court ruled the option was properly exercised and later ordered the owners to sell. On March 8, 2017, the Third District affirmed the order to sell, which it reviewed as an order on the right to possession of property, and dismissed the appeal of the earlier ruling as non-final. The Florida Supreme Court denied review on June 19, 2017.
The Facts
Tender Loving Care Garden Supply, Inc. (TLC) leased property to Jesher’s, LLC. Section 34 of the lease, as described at argument, gave the tenant an option to buy, set an appraisal process for the price, and provided for owner financing. TLC sued to evict the tenant. Jesher’s counterclaimed for specific performance of the option, with damages as an alternative.
In a May 25, 2015 omnibus order, the trial court ruled on motions from both sides, including that the option had been properly exercised. Claude Halioua, whom TLC’s counsel described as an owner of the property, was added as a party around that time. After a third appraiser set the price, the court entered an April 18, 2016 order directing the parties to specifically perform the sale under the lease option. TLC and Halioua appealed both orders, and a related petition for writs of prohibition and mandamus (No. 3D16-1148) was consolidated with the appeal and denied on July 28, 2016.
At oral argument, the court asked the parties to address its jurisdiction. The points below were what the lawyers argued, not findings by the court:
- The owners’ counsel argued Halioua was not a party when the 2015 omnibus order was entered, was never sued for specific performance, and could not be compelled to sell his property.
- The tenant’s counsel, John Campbell, argued that Halioua answered later pleadings without raising personal jurisdiction, and that the owners had themselves twice asked the court to compel the sale under the same lease covenants. He said only the interest rate on the owner financing remained for trial.
- The panel pressed the owners’ counsel on whether the orders were final or non-final, and on whether a defense of lack of personal jurisdiction is waived if not raised in the first response.
The Decision
In a written opinion filed March 8, 2017, the Third District dismissed the appeal in part and affirmed in part. It dismissed the appeal of the May 25, 2015 omnibus order because the matter remained pending in the trial court, making it a non-final, non-appealable order.
It affirmed the April 18, 2016 order directing specific performance of the sale. In a footnote, the court explained that this order was appealable as a non-final order determining the right to immediate possession of property under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). The opinion did not discuss the personal jurisdiction argument.
The owners sought review in the Florida Supreme Court, which denied review on June 19, 2017, according to the ACIS docket.
The Law
An option to purchase in a lease is a separate promise from the lease itself. When the tenant properly exercises it, the option becomes a contract for sale that a court can enforce by specific performance, including any pricing mechanism the parties agreed to, such as appraisals.
Appellate jurisdiction is the threshold question. Most interlocutory rulings cannot be appealed until final judgment, but Rule 9.130(a)(3) lists exceptions, including orders that determine the right to immediate possession of property. A partial final judgment can be appealed under Rule 9.110(k) only when it disposes of a separate claim or ends the case as to a party.
Under Florida Rule of Civil Procedure 1.140(h), a defense of lack of personal jurisdiction is waived if it is not raised in the first motion or responsive pleading. The panel asked about this at argument, but the opinion did not rely on it.
Lessons
- Landlords should read the option clause before filing an eviction. Suing a tenant who holds a purchase option can prompt a counterclaim to buy the property.
- Option clauses that include price and financing terms can be enforced piece by piece, as the trial court did here.
- Before appealing an interim order, confirm it is one the rules allow you to appeal. Part of this appeal was dismissed on that ground alone.
- Raise personal jurisdiction in your first filing. Answering without it usually waives the defense.
- Asking the court for the same relief you later attack on appeal weakens the appeal.
Source: Tender Loving Care Garden Supply, Inc. v. Jesher’s, LLC, No. 3D16-998 (consolidated with 3D16-1148) — Fla. 3d DCA opinion (March 8, 2017); ACIS docket 3D2016-0998 (Florida Supreme Court review denied June 19, 2017).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Specific Performance of a Lease Purchase Option: Final or Non-Final Order, Unjoined Co-Owner?
Go Deeper
- A Contract Remedy That Wasn’t Exclusive: Specific Performance Survives (Regents Park v. KAI Properties)
- Commercial Lease Fights in Florida: Lockouts, Holdovers and One Word in the Lease
- Appealing Too Early: Why a Condo Ownership Appeal Was Dismissed (Mantabs v. Happy Fiddler)
Frequently Asked Questions
Can a tenant force a landlord to sell under a lease purchase option in Florida?
Yes, if the tenant properly exercises the option and meets its conditions, a court can order specific performance. In Tender Loving Care v. Jesher’s, the trial court ordered the owners to sell under the lease’s option clause, and the Third District affirmed that order.
Can you appeal an order compelling the sale of property before the case is over?
Often yes. Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) allows immediate appeal of orders determining the right to immediate possession of property, which is how the Third District reviewed the order to sell in this case.
What happens if a landlord sues to evict a tenant who has a purchase option?
The tenant may counterclaim to enforce the option. That is what happened here: the eviction suit became a fight over whether the tenant could buy the property, and the tenant won the order to sell.
When is the defense of lack of personal jurisdiction waived in Florida?
Under Florida Rule of Civil Procedure 1.140(h), it is waived if it is not raised in the party’s first motion or responsive pleading. The panel raised this at argument in Tender Loving Care, though the opinion did not rely on it.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
