TENTH JUDICIAL CIRCUIT COURT
FOR HARDEE, HIGHLANDS AND POLK COUNTY, FLORIDA

County Case No.: 00-CC11-1102
Appeal No.: CC-39

THOM MCGHEE AIRCRAFT, INC.,

Appellant/Defendant,

vs.

CITY OF WINTER HAVEN, a municipal corporation of the state of Florida,

Appellee/Petitioner.

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OPINION OF THE COURT

This is an appeal from the county court of Polk County, Judge Timothy Coon presiding. Appellee/Petitioner, the City of Winter Haven (the City), brought suit in county court seeking judgement for possession of lease property, and an award of attorney fees and costs. Appellant/Defendant, Thom McGhee Aircraft, Inc. (McGhee), filed their answer, affirmative defense, and counterclaim.

McGhee motioned the trial court for leave to amend their answer. The trial judge denied that motion and awarded final summary judgement to the City. McGhee filed a timely appeal seeking review of the order denying their motion to amend, and the order of final summary judgement. This court has jurisdiction. Fla. R. App. P. 9.030(c). The rulings of the county court are affirmed.

I.

The parties entered into a renewable five-year commercial lease on January 27, 1995. The lease, from March 1, 1995 to February 28, 2000, provided for $750.00 in monthly rental payments. The lease contained a provision for renewal for three additional five-year terms based upon a written request and subject to a renegotiated rental payment. (R. at 5-6) McGhee made a written request to renew the lease. (R. at 65) The City demanded $1.650.00 and McGhee offered $892.33. However, the parties failed to renegotiate the new rental payment amount. (R. at 50). On February 28, 2000, City deemed the lease terminated and sought to recover the property by an eviction action when McGhee failed to vacate the property or pay the amount requested.

The trial judge found that the plain language of the lease provides for renewal conditioned upon renegotiation of the rental payment amount. The court further concluded that when a contract is clear and unambiguous, it cannot create any meaning in addition to that expressed in the document. The order states expressly that "[t]here is no language in the contract stating that if the parties fail to renegotiate a rental payment amount, the rent then in effect would automatically and by default apply to the rental option." (R. at 429)

II.

The issues before the court require different standards of review. A ruling on a motion for summary judgement is subject to de novo review. First, the reviewing court must determine whether the trial court properly resolved the matter on summary judgement. Phillip J. Padavano, Florida Appellate Practice, § 9.4 (1997). If so, then the reviewing court must determine whether the trial court was correct. Id. A ruling on a motion to amend is discretionary and presumptively correct. The trial court will not be reversed absent a showing of abuse of discretion.

III.

The decision of this court turns on the following: (1) whether the trial court erred in granting the City’ motion for summary judgement; and (2) whether the trial court erred in denying McGhee’s motion to file an amended answer and complaint.

IV.

A. McGhee argues that issues before the trial court on the motion for summary judgement, the answer, affirmative defense, and counterclaim involved the rights and obligations of the parties under the lease. McGhee claims that the City attempted to double the rental payment in contravention to McGhee’s understanding of the renewal provision in Article V of the lease. They concluded that the issue of whether the City complied with the renewal provision presented a genuine issue of material fact which precludes summary judgement.

The City counters that the pleadings show no material factual dispute. The plain language of the lease shows that the lease expired on February 28, 2000. According to the renewal provision contained in the lease, renewal was not automatic, neither did it give McGhee the right to unilateral renewal. Renewal was subject to the successful negotiation of the rental payment. Because the rental payment was an essential term in the lease, the party’s failure to agree upon a rental payment for an additional five-year term constituted failure of assent. Consequently, the lease terminated on February 28, 2000.

The right to renegotiate renewal is distinct from the right to renew. City of Winter Haven v. Ridge Air, Inc., 458 So. 2d 434 (Fla. 2d DCA 1984). An agreement such as the lease at issue before this court provides expressly for the right to renegotiate. Renewal is clearly subject to certain conditions precedent including a renegotiated rental payment.

A court may award final summary judgement only in the complete absence of any genuine issues of material fact. Here, there is no dispute that the parties executed a lease on January 27, 1995 which was to began on March 1, 1995 and end on February 28, 2000 unless renewed. The lease clearly states that the it will terminate unless McGhee requests renewal in writing within 60 days of termination. It further states that renewal is subject to a renegotiated rental payment. There is no dispute that the parties did not agree to a rental payment amount for a second five-year term.

B. McGhee argues that the trial judge erred when he denied their motion to file an amended answer and affirmative defenses. The motion states that McGhee renewed the lease for an additional 15 years and tendered $892.33 as rental payment which the City refused to accept, and that the City breached the lease agreement. (R. at 418). McGhee cites Florida Rule of Civil Procedure 1.190 for the proposition that a court should grant amendments when justice requires.

The court file shows that McGhee filed their motion six days after the hearing on June 8, 2000. The trial judge denied the motion as untimely. According to the judge, McGhee had "more than adequate time" to make those arguments at the hearing. This court agrees.

V.

The interpretation of a commercial lease raises legal issues. McGhee has presented no factual issues, and the record reflects no material factual disputes. Accordingly, the action for judgement of possession was properly resolved by final summary judgement. Further, McGhee presented no record evidence that they were prejudiced by the trial judge’s decision denying their motion to file an amended answer and affirmative defenses after the hearing on the motion for summary judgement.

Accordingly, it is ORDERED that the rulings of the trial court are AFFIRMED.

ORDERED April 12, 2001.

Charles B. Curry

Chief Judge