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Scott concentrates his practice in the areas of civil and commercial trial litigation, including business torts, real estate litigation, construction and lien law litigation, contract disputes, collections, foreclosures and title insurance claims.

In addition, he represents insurance carriers, third party administrators, and employers in the defense of workers’ compensation claims. Scott also handles appellate cases throughout the State of Florida. He is admitted to practice in the United States District Court for the Southern and Middle Districts of Florida, as well as the Eleventh Circuit Court of Appeals.

Scott holds an AV® Preeminent™ rating by Martindale-Hubbell. He was selected as one of Gulfshore Business Magazine’s and Business Observer's (f/k/a Gulf Coast Business Review's) top 40 Under 40. The 40 Under 40 list recognizes bright, young business leaders, executives and professionals under the age of 40 who live and work in Pinellas, Hillsborough, Manatee, Sarasota, Charlotte, Lee and Collier counties.

Box stores won a victory in Palm Beach Gardens, Florida, recently. With the assistance of Henderson Franklin’s Summer Associate Kristen Schalter, we wanted to share the facts and impact of the Sears, Roebuck & Co. v. Forbes/Cohen Fla. Props., L.P. (Fla. App., 2017) case for those involved in commercial leasing.

Background

On July 12, Sears Roebuck (“Sears”) prevailed over the City of Palm Beach Gardens (“The City”) and the owner of the Gardens Mall (“Forbes”) in a commercial sublease dispute involving a violation of the store’s substantive due process rights under the Florida and U.S. Constitutions and unconstitutional impairment of contract.

The Sublease

In 1987, Sears Roebuck entered into a thirty-year lease with Forbes. Sears desired to sublease part of its store in the mall to Dicks Sporting Goods in 2011. Forbes later sent a letter to Sears stating that Sears could not sublease to Dick’s Sporting Goods because Sears had no right to sublease, the sports store lacked signage rights, and Dick’s Sporting Goods “did not belong” at the mall.

Resolution 20-2012

Unbeknownst to Sears, Forbes requested the City enact a resolution granting mall owner (Forbes’) approval over subleases and store modifications. Forbes contributed to the drafting process. The City passed Resolution 20-2012 (“Resolution”) which contained no criteria or grounds for approving or denying of any of the listed modifications or proposed subleases and heard no testimony regarding the Resolution.

Holding

Florida’s 4th District Court of Appeals ultimately agreed with Sears, finding that Resolution 20-2012 unconstitutionally impaired Sears’ right to contract with Dick’s Sporting Goods because it gave unilateral approval to the City and Forbes without specific criteria, which allowed Forbes to arbitrarily deny Sears’ sublease. Most importantly, the court stated the Resolution lacked a legitimate interest for a public purpose and no rational basis. To the court, the existing City Planned Unit Development already accomplished the public purpose of the Resolution.

Accordingly, the court held that Sears had a right to sublease to Dick’s Sporting Goods, that the City had deprived Sears of substantive due process, and awarded Sears reasonable fees and costs as the prevailing party.

Future Action

At trial, Sears conceded that the sublease to Dick’s Sporting Goods would require municipal approval through waivers because the plans for signage did not comply with the City’s zoning standards. However, Sears noted regular industry practice involved working with municipalities obtain approvals and waivers for signage. It will be interesting to observe whether or not the City grants the waivers for the signage now that it has lost to Sears at trial, especially since Sears’ lease is up in 2018.

Take-Away

Always be sure to determine if governing ordinances provide sufficient criteria for unilateral decision-making, otherwise there may be a lurking claim that the decision is arbitrary and the ordinance could be unconstitutional.

 

Photo Courtesy of Wikimedia Commons

Lease.jpg“An ounce of prevention is worth a pound of cure.” “Penny-wise, pound foolish.” “A stitch in time saves nine.” Few would doubt the universal application of these time-honored pearls of wisdom. Yet when it comes to legal documents, common sense goes by the wayside.

Contract? What Contract?

As a litigation attorney, there have been instances too numerous to count where a potential client calls me about a legal problem. When I ask to review the contract or document at issue, I’m usually met with a response that there is no document or, if there is one, it was not drafted by an attorney. The client then spends thousands of dollars in legal fees correcting a problem that should have been avoided in the first place.

Continue Reading Commercial Leasing Best Practices

iStock_000019598645_MediumWith increasing frequency, I am receiving calls from people who want to remove someone from possession of a residence owned by the caller. Invariably, the caller insists that the possessor should be evicted, but upon closer inspection, the claim really isn’t an eviction action. In this post, I will explore the three similar, but distinct, actions available for possession of real property in Florida.

Eviction

Probably the most familiar claim for possession is one for eviction. In its most basic form, an action for eviction results when the occupant of the property has failed to pay rent to the property owner. Florida Statutes Chapter 83 governs actions for eviction. An action for eviction requires a landlord-tenant relationship. That relationship is typically established by showing that the property owner and occupant have signed a lease agreement for the property. Even in the absence of a written lease, a landlord-tenant relationship can be established by showing that the tenant made periodic rent payments (weekly, monthly, bi-monthly, etc.) for the privilege of occupancy. Keep in mind that rent need not be money, but in certain circumstances may be goods or services. If there is no landlord-tenant relationship, then there cannot be an eviction. An eviction action proceeds under an expedited (summary) procedure, so a plaintiff usually can obtain a judgment of possession within 60 days.

Ejectment

Continue Reading What Options Do Owners Have to Take Possession of Real Property in Florida?

I know what you’re thinking. No sensible person would ever pay twice for a construction project. But the following scenario is, unfortunately, an all-too common reality for many property owners:

One day, you’re enjoying the view from the bay windows of your recently completed home addition (or newly constructed home). A small taste of buyer’s remorse begins to fill your mouth, but with a sip of coffee, you quickly cast it aside, knowing that the minor fortune you just paid to your contractor is well worth it. A knock on the door brings your mind back to the present. As you glide across the shiny new hardwood floor and open the door, you are met with a sharply dressed man who, after confirming your identity, hands you a stack of papers and leaves. The words on the papers are filled with legal mumbo-jumbo, but you understand enough to know that a masonry company is suing you for payment, and threatening to foreclose its claim of lien if you do not pay. Certain that this must be a mistake, you call your contractor. Your heart sinks when you hear the dreaded message: “The number you have reached is no longer in service….”

In Florida, the same law that protects construction lienors (contractors, sub-contractors, suppliers and laborers) also protects owners by putting limits on their liability to those very same lienors. Property owners can limit their exposure by ensuring that all payments made to the contractor are “proper payments.” By only making “proper” payments, an owner’s liability will not exceed the contract price (i.e., an owner won’t have to pay twice). To ensure that a payment is a “proper” payment, an owner should follow these general guidelines:

Before making any payment to the contractor, make sure to: Continue Reading How to Pay Twice for Your Construction Project