Dania Live 1748 II, LLC v. Saito Dania, LLC et al

Filing 65

Verdict and Order Following Non-Jury Trial. The Court enters a verdict in favor of Dania Live 1748 II, LLC against Saito Dania, LLC, Saito Steak House, Inc. Closing Case. Signed by Senior Judge Robert N. Scola, Jr on 11/22/2024. See attached document for full details. (pc)

United States District Court
for the
Southern District of Florida
Dania Live 1748 II, LLC, as
successor in interest to Dania Live
1748, LLC, Plaintiff,
v.
Saito Dania, LLC and Saito Steak
House, Inc., Defendants.

)
)
)
) Civil Action No. 23-60960-Civ-Scola
)
)
)
)

Verdict and Order Following Non-Jury Trial
This matter arises from a lease dispute between Plaintiff Dania Live 1748 II,
LLC, as successor in interest to Dania Live 1748, LLC (“landlord” or “Dania Live”)
and Defendant Saito Dania, LLC (“tenant” or “Saito Dania”). The landlord alleges
that the tenant and Defendant Saito Steak House, Inc. (“guarantor” or “Saito
Steakhouse”) owe over $1 million in outstanding rent that accrued from
December 1, 2020, to August 1, 2022, plus attorneys’ fees and costs. The
undisputed lease documents include the following: (1) the initial lease executed
in 2017 (“Lease”); (2) the letter agreement amending the lease executed on July
13, 2018 (“July Letter Agreement”); (3) the Assignment and Assumption of the
Lease executed on November 1, 2019 (“Assignment”); (4) the Guaranty executed
on or about November 1, 2019 (“Guaranty”); (5) the second letter agreement
amending the lease executed on February 24, 2020 (“February Letter
Agreement”); and (6) the document titled “first amendment to lease” executed on
September 2, 2022 (“First Amendment”).
The landlord argues the tenant breached the Lease by failing to pay rent from
December 1, 2020, until the tenant opened for business. The tenant, however,
claims that the obligation to pay rent was delayed until the restaurant opened
for business, or alternatively that the rent commencement date was April 23,
2022, when the co-tenancy provision was satisfied.
The Court held a one-day, non-jury trial on November 20, 2024. Prior to the
trial, the parties submitted a joint pretrial stipulation (ECF No. 41), as well as
their proposed findings of fact and conclusions of law. (ECF Nos. 42, 43.) The
Court has carefully reviewed these submissions. After considering the credible
testimony and evidence, and the applicable law, the Court finds that the rent
commencement date was December 1, 2020, and therefore by failing to pay
$1,115,406.27 in rent, the tenant has breached the Lease. Similarly, the Court
finds that by failing to pay the tenant’s obligations under the Lease, the

guarantor has breached the Guaranty agreement.
1. Stipulations
The parties have stipulated to the following facts. (ECF No. 41.)
a. Plaintiff-Landlord and Defendant-Tenant are parties to an Indenture of
Lease for the real property located at 170 Sunset Drive, Space J115, Dania
Beach, FL 33004 (“Demised Premises”) dated April 25, 2017 (“Lease”).
b. On July 13, 2018, Landlord sent correspondence to Tenant’s predecessor,
Saito Japanese Steakhouse, Inc., (“Tenant’s Predecessor”) amending the
terms of the Lease to reflect a new Projected Delivery Date (the “July Letter
Agreement”).
c. On November 1, 2019, Landlord and Tenant’s Predecessor executed an
Assignment and Assumption of Lease transferring the Lease rights to
Tenant (the “Assignment”).
d. On September 2, 2022, Landlord and Tenant executed a First Amendment
to Lease to provide the physical address of the Demised Premises and to
change the notice provisions of the Lease (the “Amendment”) 1
e. Both the Lease and the Amendment contain integration clauses.
f. Specifically, Section 20.16 of the Lease states in pertinent part:
a. “All
negotiations,
considerations,
representations,
and
understandings between Landlord and Tenant are incorporated
herein and may be modified or altered only by agreement in writing
between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of
the provisions hereof.”
g. Section 2(E) of the Amendment states:
a. “[the] Amendment contains all of the agreements of the parties
hereto with respect to the matters contained herein, and no prior
agreement (other than the Lease), arrangement or understanding
pertaining to any of such matters shall be effective for any purpose.”
h. On October 31, 2019, Saito Steakhouse, Inc. (“Guarantor”) executed a
Guaranty of Tenant’s obligations under the Lease (“Guaranty”).
i. The Guaranty states that Guarantor “guarantees all of the payments to be
made by Tenant under the Lease,” which includes “minimum rent,
percentage rent, additional rent, and all other sums, costs, expenses,
charges, payments, indemnifications by Tenant to Landlord.”
1 The signature block of the Amendment also includes a scrivener’s error, as it should say

Dania Live 1748 II, LLC is the signatory.

j. Further, the Guaranty is “unconditional, irrevocable and absolute.”
k. The Lease contained a provision permitting Tenant to receive
reimbursement for improvements to the Demised Premises. Specifically,
Section 20.30 of the Lease, entitled “Tenant Improvement Allowance,”
provides the formula by which Tenant can recover for sums expended in
the buildout of the Demised Premises.
l. The Tenant Improvement Allowance became payable only upon completion
of the Payment Conditions, as defined by the Lease.
m. The Payment Conditions required Tenant to provide, inter alia, a certificate
of occupancy and final lien waivers in order to receive the Tenant
Improvement Allowance.
n. If Tenant failed to claim the Tenant Improvement Allowance “within twelve
(12) full calendar months following the Commencement Date,” then
Tenant’s right to collect the Tenant Improvement Allowance was forfeited.
o. The Lease required Tenant to remit to Landlord the base rent, a share of
the common area expenses, marketing funds and taxes for the Demised
Premises (collectively, the “Rent”).
p. Initially, Rent was to commence when the Demised Premises “was deemed
to be ready for occupancy by the Tenant” and pursuant to a formula in the
lease for determining the “Commencement Date.”
q. However, due to the delay in opening the restaurant, on February 24,
2020, Landlord and Tenant executed a letter agreement stating “that the
Commencement Date of Lease shall be the earlier of: (i) December 1, 2020,
or (ii) the date the [Demised] Premises opens to the public” (the “February
Letter Agreement”).
r. The February Letter Agreement also stated “[t]enant’s obligation to
commence payments of [Rent] shall commence on the Commencement
Date.”
s. The Lease Documents further provided that the Rent payment obligation
would be based upon the percentage of additional tenants that had opened
in the shopping plaza where the Demised Premises is located (the “CoTenancy Provision”).
t. The Co-Tenancy Provision was satisfied as of December 1, 2021.
u. Tenant has failed to remit all of the Rent and the sum of approximately
$562,136.00 remains outstanding (the “Outstanding Sums”) which
represents base rent, sales tax, common area maintenance expenses and
marketing expenses from December 1, 2021, through and including
August 1, 2022.
v. Tenant opened for business on September 10, 2022.
w. Landlord sent Tenant and Guarantor a demand for the Outstanding Sums.

x. Tenant failed to remit the Outstanding Sums.
y. Guarantor has failed to remit the Outstanding Sums.
z. Tenant did not obtain a certificate of occupancy until July 2022.
aa.Tenant did not submit the final lien waivers necessary to obtain the Tenant
Improvement Allowance until December 2022.
bb.
Landlord notified Tenant that the Tenant Improvement Allowance
was not payable “because Payment Conditions have not been fulfilled in
accordance with the terms of the Lease” and therefore, “Landlord has no
obligation to pay Tenant any portion of the [Tenant Improvement
Allowance].”
cc. Tenant also asked for permission to pay the Outstanding Sums at the end
of the term of the Lease. This request was denied. In addition to failing to
receive the Outstanding Sums, Landlord has incurred and continues to
incur attorney’s fees and costs in prosecuting this action.
2. Summary of Testimony
A. Gary Bazydlo
Gary Bazydlo is the regional general counsel for the southern region for Kimco
Realty, the parent company for Plaintiff Dania Live. He is the vice president,
assistant secretary, and corporate representative for Plaintiff Dania Live. Kimco
has over 7,000 commercial tenants in developments throughout the country.
Dania Point is a 100-acre development along I-95 near Fort Lauderdale. The
original land assembly was done in 2014 and 2015. The property was to be used
for mixed-use development. On April 25, 2017, the parties entered into an
agreement for Saito to lease 10,000 square feet of space in building J of the
development. The main focus at that point was getting the premises designed,
permitted and built. The first obligation was on the landlord to build the
structure of the building. The Lease contains provision 20.16, which states that
the Lease could be modified or altered only by agreement in writing between the
landlord and the tenant.
The initial Lease was between the landlord and Saito Japanese Steakhouse,
Inc., a related Saito entity, but in November 2019, they executed an assignment,
transferring the Lease rights to the tenant. That same month, the landlord and
Defendant Saito Steakhouse executed an agreement that Saito Steakhouse
would guarantee all payments to be made by the tenant under the Lease.
On February 24, 2020, the parties entered into a letter agreement modifying
the Lease. There were three functions of the letter agreement: it set the delivery
date of March 1, 2020; it set the commencement date for payment of rent of

December 1, 2020, or the date the restaurant opened, whichever was earlier; and
it provided for an HVAC allowance of $193,888.22. The landlord was originally
responsible for the HVAC build-out, but the tenant assumed that responsibility,
so the tenant was entitled to this allowance as reimbursement.
The original Lease provided in section 20.30 that tenant improvement
allowances had to be claimed by the tenant within 12 months following the
commencement date or the tenant would forfeit all rights to claim the allowances.
There are several conditions the tenant must abide by before seeking
reimbursement from the landlord for the tenant improvement allowances.
The Lease also contained a co-tenancy provision in section 20.31. That
provision established that the rent commencement date shall be delayed until at
least 50% of the gross leasable space was open. But, the letter agreement of
February 24, 2020 amended the original Lease and specifically stated that
“[n]otwithstanding anything to the contrary contained in the Lease, the parties
hereby agree that the Commencement Date of Lease shall be the earlier of: (i)
December 1, 2020, or (ii) the date the Leased Premises opens to the public.
Tenant’s obligation to commence payments of Minimum Rent and all additional
rent shall commence on the Commencement date.”
When a tenant does not pay rent in a timely fashion, Kimco does not
automatically move to default on the Lease. The company treats each tenant
individually and separately depending on the relationship between the tenant
and landlord. Sometimes they will send an email or make a phone call or letter,
and sometimes Kimco will take no action while the premises are still under
construction.
When a tenant owes $1 million in arrears, Kimco does not necessarily demand
all the monies be paid immediately and in full. Particularly during the COVID19 pandemic when many tenants could not pay their rents, Kimco would work
with each tenant to determine the best way for the tenant to get caught up on
its rent obligations.
On November 16, 2022, a Notice of Non-Payment was sent to Saito. The notice
indicated that Saito owed $512,419.51. It is very unusual for a tenant to be 23
months in arrears before any written notice is sent by Kimco. Dania Live is now
seeking more than $1 million in past rent because its accounting department
made an error and gave Saito a twelve-month co-tenancy adjustment to which it
was not entitled.
At Dania Point, there are other, larger tenants such as Hobby Lobby, Regal
Cinemas, and two Marriott towers. Saito Dania is in the top third in terms of its
size relative to other tenants there.
On April 24, 2023, Dania Live sent a demand letter to Saito seeking
$562,136.00 which included additional charges for property taxes, sales taxes,

and other charges. Even though it was legally entitled to collect late fees and
interest, Dania Live did not seek those additional sums since it was trying to
work with the tenant to keep the relationship moving forward. Neither the tenant
nor the guarantor have paid the rent owed.
On September 2, 2022, the parties executed the First Amendment to Lease.
The First Amendment was signed by Bazydlo on behalf of Dania Live and Minh
Lee on behalf of the two Saito entities. The First Amendment provided for a
specific address for the restaurant so it could obtain a liquor license and updated
the notice provision of the lease with the correct entities and their addresses.
B. Bruce Corn
Bruce Corn is the real estate broker for Saito. He is responsible for searching
for locations for the restaurants and negotiating leases on Saito’s behalf. He is
not a lawyer.
Corn was involved in negotiations with the owner’s representative which led
to the February 24, 2020 Letter Agreement that amended the lease. The delivery
date was agreed to have occurred as of March 1, 2020, and the commencement
date was negotiated to be December 1, 2020. Although Corn negotiated the terms
of the Letter Agreement, he knew he was not authorized to sign the Letter
Agreement on behalf of Saito. Likewise, although he dealt with Dania Live’s
representative, Katie Wycoff, he knew Wycoff did not have authority to sign the
Letter Agreement. Corn and Wycoff had numerous conversations by phone and
by email concerning the rent commencement date.
On January 4, 2022, Corn received an email from Wycoff. That email was in
response to Corn’s phone conversation with Wycoff in which Corn and Wycoff
discussed the commencement date. Wycoff’s email indicated that Dania Live was
currently researching the request to change the rent commencement and would
get back to him when she had a response.
Corn was aware that there was a co-tenancy provision in the original Lease,
which provided that the tenant did not have to pay rent until the occupancy of
the development was over 50%. Corn believed that the co-tenancy provision of
50% had not been reached prior to Saito opening. Corn did not have any
conversations with the landlord regarding the co-tenancy requirement.
On September 20, 2022, Corn sent an email to Jennifer Reuling in Asset
Management at Kimco in which he acknowledged that Dania Live was asserting
an earlier commencement date than Saito believed should apply. On September
28, 2022, Reuling sent an email to Corn telling him Dania Live was not agreeing
to push the rent commencement date.
On November 4, 2022, Corn received an email from Catherine Moran in Asset
Management at Kimco. The email indicated that the landlord did not agree to

push the rent commencement date. Shortly thereafter, on November 16, 2022,
Saito received the first formal notice of non-payment of rent from Dania Live.
Dania Live believed Saito was delinquent on its rent obligations because an
earlier commencement date was in effect.
Corn understood that the tenant improvement allowance was $1 million
which would be paid by Dania Live once Saito opened and provided lien waivers
and other receipts to Dania Live. On December 27, 2022, Corn sent an email to
Reuling with proof of expenditures on construction, release of lien, general
contractor warranty and certificate of occupancy for the premises so Saito could
request on offset of delinquent rent against the total amount due to Saito for
construction.
No one from Dania Live ever told Corn that the rent commencement date
would be different from that set forth in the original Lease or the Letter
Agreement.
C. Minh Lee
Minh Lee is the owner of Saito Steakhouse and Saito Dania. Lee has been in
the restaurant business since 1995 and started Saito Steakhouse in 2001. Saito
Steakhouse has seven locations.
From the time the restaurant opened in Dania Point, Saito has paid rent on
time. Lee first learned about the opportunity to open a restaurant in Dania Point
in 2016 or 2017 from Corn. Lee was impressed with the location and its potential
for his restaurant.
It took three years for the landlord to develop the building and deliver it to
Saito for its build-out of the property. Lee never spoke with anyone at Dania Live.
He relied exclusively on Corn for all of the negotiations.
3. Findings of Fact
A. The February Letter Agreement set the rent commencement date as
December 1, 2020, and voided the co-tenancy provision.
Section 3.2 of the Lease initially provided the formula for calculating the rent
commencement date. (Pl.’s Ex. 1 at 5.) The Lease also included a co-tenancy
provision, section 20.31, which provided that “Tenant shall not be obligated to
open for business, and the Commencement Date shall be delayed, until the date
on which the First Co-Tenancy Requirement shall be satisfied (i.e., at least 50%
of said gross leasable area is open)[.]” (Id. at 59.) However, on February 24, 2020,
the parties modified the rent commencement date. (Pl.’s Ex. 6.) The modification,
the February Letter Agreement signed by Lee and Bazydlo, stated:

“Notwithstanding anything to the contrary contained in the Lease,
the parties hereby agree that the Commencement Date of Lease shall
be the earlier of: (i) December 1, 2020, or (ii) the date the Leased
Premises opens to the public. Tenant’s obligation to commence
payments of Minimum Rent and all additional rent shall commence
on the Commencement Date.”
(Id.) Bazydlo testified that because the February Letter Agreement included the
language “Notwithstanding anything to the contrary contained in the Lease”, the
co-tenancy provision was voided by the February Letter Agreement. The Court
agrees. The February Letter Agreement clearly and unambiguously establishes
the rent commencement date as the earlier of December 1, 2020, or the date the
Leased Premises opens to the public. The property opened to the public in
September 2022, making December 1, 2020 the earlier date, and thus the rent
commencement date. The Lease’s co-tenancy provision—a provision that would
change the rent commencement date—runs contrary to the amendment.
Because the amendment states the rent commencement date change is
“notwithstanding anything to the contrary contained in the Lease”, the cotenancy provision is voided by the February Letter Agreement.
Bazydlo acknowledged that up until the time of trial, Kimco Realty believed—
both when issuing the notice to pay rent (Pl.’s Ex. 10) and during the pendency
of this litigation—that the co-tenancy provision was still valid. Accordingly, the
landlord mistakenly represented that the tenant owed $562,136. (See, e.g., Pl.’s
Ex. 10.) However, because the February Letter Agreement voided the co-tenancy
provision, and because the rent commencement date was December 1, 2020, the
tenant actually owed $1,115,406.27 in rent. (Pl.’s Ex. 7.) The Lease contains a
waiver provision (section 20.1) that states “[f]ailure on the part of Landlord or
Tenant to complain of any action or non-action on the part of the other, no matter
how long the same may continue, shall never be deemed to be a waiver by that
party of any of its rights hereunder.” (Pl.’s Ex. 1 at 42.) The landlord therefore
never waived its right to collect the full amount of rent owed—even if the landlord
waited almost two years to inform the tenant of the default and mistakenly asked
for approximately half the rent that the tenant actually owed. Bazydlo testified
that it is rare for Kimco to wait almost two years before sending a demand letter
or otherwise communicating to a tenant about a default. However, Bazydlo
explained that because the tenant was undergoing construction and had
problems with its general contractor, Kimco’s priority was getting the tenant
open for business.

B. After the February Letter Agreement, the landlord never agreed to
delay the rent commencement date further.
The Defendants contend that a series of conversations in 2022 moved the rent
commencement date to after the tenant opened to the public. On January 4,
2022, Katie Wycoff, a representative for Kimco, emailed Corn, stating: “We are
currently researching your request regarding a rent commencement date
change. Will get back to you when we have a response.” (Def.’s Ex. B.) On July
18, 2022, Corn replied to Wycoff and others:
I am reaching back out to you based on the email below and a followup conversation we had in Jan. As you know Saito has finally worked
through the city approval process and has received their final CO. and
is waiting only on a health inspection. In our last conversation you
requested we touch base once the CO had been received and we can
then work on a rent commencement date. Can you please reach out
and we can further discuss confirming a new date
(Id.) Wycoff replied to Corn’s email on July 19, 2022, stating “I recall we were
waiting on Saito’s to open before revisiting the rent commencement. Once they
open, Catherine and Jennifer cc’d here in our asset management dept will be
your contacts to discuss further.” (Id.)
Corn testified that around that time, he and Wycoff were also having
conversations on the phone about moving the rent commencement date.
However, no one from Dania Live ever told Corn that the rent commencement
date would be different from the date set forth in the original Lease or the
February Letter Agreement. In fact, Bazydlo testified that Wycoff had no
authority to alter the rent commencement date, and the email exchange fell
outside the formal process to amend agreements between the parties. Corn and
Saito knew how the rent commencement date could be changed because they
entered into the February Letter Agreement—an agreement in writing signed by
all parties—to change the commencement date.
The communications from Dania Live and Kimco personnel do not show that
the landlord had changed the rent commencement date; they illustrate a
potentiality that the parties would set a new rent commencement date in the
future. That potentiality never came to fruition.
C. The tenant failed to meet the requirements to obtain the Tenant
Improvement Allowance.
The tenant has sought to offset the rent owed to the landlord by requesting

reimbursement under the Tenant Improvement Allowance (“TIA”) provision of the
Lease. Under section 20.30, the tenant could receive up to $1 million in
reimbursements for improvements made to the property. (Pl.’s Ex. 1 at 58.)
However, the Lease specifies that the tenant must satisfy the Payment
Conditions, as defined by the Lease, to claim the TIA. (Id.) The Payment
Conditions required the tenant to provide the landlord, inter alia, a certificate of
occupancy and final lien waivers. (Id.) And, per the Lease, “if the Tenant
Improvement Allowance is not claimed by Tenant within twelve (12) full calendar
months following the Commencement Date, then Tenant forfeits all rights to
collect such Tenant Improvement Allowance.” (Id. at 59.) In December 2022,
Corn emailed Reuling to claim the TIA and present proof for the Payment
Conditions. At that time, however, more than twelve full calendar months had
passed since the rent commencement date—December 1, 2020. Because the
tenant waited two years to claim the TIA and satisfy the Payment Conditions, the
tenant is not entitled to offset its rent obligations with the TIA.
4. Conclusions of Law
A. Jurisdiction
The Court has subject matter jurisdiction pursuant to 28 U.S.C. §1332(a) as
the amount in controversy is over $75,000.00 and the parties are citizens of
different states. (See ECF Nos. 1, 23, 25, 26.)
B. Tenant breached the Lease by failing to remit rent owed.
It is well settled that state law governs issues of contract interpretation that
arise in a diversity action. AFC Franchising, LLC v. Purugganan, 43 F.4th 1285,
1290 (11th Cir. 2022). Furthermore, the Lease provides that it “shall be governed
exclusively by the provisions hereof and by the laws of the State of Florida.” (ECF
No. 1-1 at 55.) For a breach of contract claim, Florida law requires the plaintiff
to establish: (1) the existence of a contract; (2) a material breach of that contract;
and (3) damages resulting from the breach. Vega v. T-Mobile USA, Inc., 564 F.3d
1256, 1272 (11th Cir. 2009) (citing Friedman v. New York Life Ins. Co., 985 So.
2d 56, 58 (Fla. 4th DCA 2008)). Neither party contests that the undisputed Lease
Documents constitute a valid contract. Similarly, neither party disputes that
failure to pay rent constitutes a material breach of the Lease. Instead, the parties
disagree about when the rent became due and owing and whether the tenant
has failed to pay rent that it owes under the Lease.
(1) The undisputed Lease Documents are clear and unambiguous that
the obligation to pay rent commenced on December 1, 2020.

Under Florida law, if terms of a contract are “clear and unambiguous, ... the
contracting parties are bound by those terms, and a court is powerless to rewrite
the contract to make it more reasonable or advantageous for one of the
contracting parties.” Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1290
(11th Cir. 2001). As detailed supra, the February Letter Agreement is clear and
unambiguous: the rent commencement date is the earlier of December 1, 2020,
or the date the Leased Premises opened to the public. Because the property
opened to the public in September 2022, the rent commencement date was
December 1, 2020.
Similarly, the February Letter Agreement is clear and ambiguous that its
terms are “[n]otwithstanding anything to the contrary contained in the Lease.”
The co-tenancy provision in the original Lease would have changed the rent
commencement date and is therefore contrary to the February Letter Agreement.
Accordingly, the February Letter Agreement voided the co-tenancy provision, and
the rent commencement date was not delayed beyond December 1, 2020. Finally,
the February Letter Agreement clearly states: “Tenant’s obligation to commence
payments of Minimum Rent and all additional rent shall commence on the
Commencement Date.”
(2) The July 2022 emails between the parties did not modify the rent
commencement date.
Under Florida law, modification of a contract requires the same “meeting of
the minds” as the formation of the original contract. Pendergast v. Sprint Nextel
Corp., 592 F.3d 1119, 1142 (11th Cir. 2010) (citing Binninger v. Hutchinson, 355
So. 2d 863, 865 (Fla. Dist. Ct. App. 1978)). The party who alleges a contract
modification “carries the burden of proving it.” Charlotte 650, LLC v. Phillip Rucks
Citrus Nursery, Inc., 320 So. 3d 863, 867 (Fla. Dist. Ct. App. 2021).
The Defendant argues that the emails exchanged between Corn and Wycoff
in July 2022 (and other conversations between the two at that time) modified the
Lease and February Letter Agreement by moving the rent commencement date
to when the tenant opened for business. The Lease, however, contains a clause
barring non-written modifications. (Pl.’s Ex. 1 at 47) (“All negotiations,
considerations, representations, and understandings between Landlord and
Tenant are incorporated herein and may be modified or altered only by agreement
in writing between Landlord and Tenant, and no act or omission of any employee
or agent of Landlord shall alter, change or modify any of the provisions hereof.”)
(emphasis added).
The integration clause does not automatically bar subsequent oral
modifications. Florida law allows written contracts to be modified by oral
agreement if “the latter has been accepted and acted upon by the parties in such

manner as would work a fraud on either party to refuse to enforce it.” Pro. Ins.
Corp. v. Cahill, 90 So. 2d 916, 918 (Fla. 1956). The former Fifth Circuit and the
Eleventh Circuit have interpreted that principle to apply “even though there was
in the written contract a provision prohibiting its alteration except in writing,”
Canada v. Allstate Ins. Co., 411 F.2d 517, 520 (5th Cir. 1969), but “only where
clear and unequivocal evidence of a mutual agreement is presented.” Fid. &
Deposit Co. of Maryland v. Tom Murphy Const. Co., 674 F.2d 880, 885 (11th Cir.
1982). 2
The Court finds that there was no mutual assent to modify the rent
commencement date. No one from Dania Live ever told Corn that the rent
commencement date would be a different date than the one detailed in the
February Letter Agreement, and the communications Defendants highlight only
illustrate an openness to potentially reconsider the rent commencement date.
Openness to potentially reconsider a key contract term is not “clear and
unequivocal evidence of mutual agreement.” See Fid. & Deposit Co. of Maryland,
674 F.2d at 885.
(3) The Defendant has failed to pay the rent owed starting on December
1, 2020, thereby breaching the Lease.
The landlord has identified $1,115,406.27 in outstanding rent owed by the
tenant as of the December 1, 2020, rent commencement date. (Pl.’s Ex. 7.) By
failing to pay rent, the tenant has breached the Lease agreement. See JF & LN,
LLC v. Royal Oldsmobile-GMC Trucks Co., 292 So. 3d 500, 509 (Fla. Dist. Ct. App.
2020) (stating that failure to timely pay rent constitutes a material breach of a
lease). The landlord has been damaged by the tenant’s failure to pay more than
$1.1 million in outstanding rent. The landlord attests that the outstanding sums
do not include interest or late fees and that the landlord is not seeking interest
or late fees.
C. The guarantor breached the Guaranty by failing to pay the rent that
tenant owed.
Because the Court found that the tenant owes the landlord rent, and because
2 Florida courts have criticized federal courts’ interpretation of the Cahill standard, positing that

the party seeking to enforce an oral amendment in spite of prohibitive language must show more
than just mutual assent, but also that the oral agreement was “accepted and acted upon by the
parties in such a manner as would work a fraud on either party to refuse to enforce it.”
Okeechobee Resorts, L.L.C. v. E Z Cash Pawn, Inc., 145 So. 3d 989, 995 (Fla. Dist. Ct. App. 2014)
(quoting Cahill, 90 So. 2d at 918). Because here the Court finds that no mutual assent existed,
it need not consider whether the agreement was “accepted and acted upon by the parties in such
a manner as would work a fraud on either party to refuse to enforce it.” See id.

the guarantor also failed to pay the amount the tenant owes, the Court finds that
the guarantor has breached the Guaranty agreement. “A guaranty is a collateral
promise to answer for the debt or obligation of another.” Fed. Deposit Ins. Corp.
v. Univ. Anclote, Inc., 764 F.2d 804, 806 (11th Cir. 1985). A guarantor is liable
only insofar as the principal is liable. Id. A breach of guaranty claim is akin to a
breach of contract claim under which the guarantor is alleged to have breached
its promise by failing to pay the debt of another on the default of the person
primarily liable for payment. Ecp Station I LLC v. Chandy, No. 8:15-CV-2523-TJSS, 2016 WL 3883028, at *3 (M.D. Fla. June 29, 2016) (cleaned up).
The parties have stipulated: (1) that Saito Steakhouse guaranteed Saito
Dania’s obligations under the Lease, (2) that the Guaranty agreement was
“unconditional, irrevocable and absolute”, and (3) that Saito Steakhouse
“guarantees all of the payments to be made by Tenant under the Lease,”
including “minimum rent, percentage rent, additional rent, and all other sums,
costs, expenses, charges, payments, indemnifications by Tenant to Landlord.”
Because it is undisputed that Saito Steakhouse guaranteed the tenant’s
obligations under the Lease, and because the tenant owes rent under the Lease,
the guarantor has breached the Guaranty agreement by failing to pay the
amount owed under the Lease. Further, the landlord has suffered damages as a
result of the guarantor’s failure to pay.
D. Plaintiff is entitled to reasonable fees and costs.
Under Florida law, absent a specific statutory or contractual provision, a
prevailing litigant has no general entitlement to attorney's fees. Int'l Fid. Ins. Co.
v. Americaribe-Moriarty JV, 906 F.3d 1329, 1335–36 (11th Cir. 2018). As such,
a “contractual attorney's fee provision must be strictly construed.” Id. (quoting
B & H Constr. & Supply Co. v. Dist. Bd. of Trustees of Tallahassee Cmty. Coll.,
542 So. 2d 382, 387 (Fla. Dist. Ct. App. 1989)). An agreement for one party to
pay another’s fees must “must unambiguously state that intention and clearly
identify the matter in which the attorney's fees are recoverable.” Id. (quoting
Sholkoff v. Boca Raton Cmty. Hosp., Inc., 693 So.2d 1114, 1118 (Fla. Dist. Ct.
App. 1997).
Because the landlord relies only on the attorneys’ fees provisions in the Lease
and Guaranty, the Court only consults those agreements in determining the
landlord’s entitlement to fees. See Balboa Cap. Corp. v. Vital Pharms., Inc., No.
21-13263, 2023 WL 2609628, at *8 (11th Cir. Mar. 23, 2023). The Lease (section
20.9) unambiguously dictates that “Tenant agrees to pay to Landlord the amount
of all reasonable legal fees and expenses incurred by Landlord arising out of or
resulting from any act or omission by Tenant with respect to this Lease”. (Pl.’s
Ex. 1 at 45.) Further, the Guaranty unambiguously states: “Guarantor also

agrees to pay to Landlord the costs and expenses (including reasonable
attorneys' fees) incurred by Landlord for collecting or attempting to collect any
item(s) of Rent or otherwise enforcing the Lease against Tenant or collecting
under or enforcing this Guaranty.” (Pl.’s Ex. 5.)
The provisions do not require that the landlord be the prevailing party in order
to collect reasonable attorneys’ fees and costs. (See id.) (“for collecting or
attempting to collect any item(s) of Rent”) (emphasis added). However, even if they
had, the landlord is the prevailing party in this litigation because the landlord
succeeded on all significant issues. See Moritz v. Hoyt Enterprises, Inc., 604 So.
2d 807, 810 (Fla. 1992) (holding that “the party prevailing on the significant
issues in the litigation is the party that should be considered the prevailing party
for attorney's fees.”). Under both agreements, the Landlord is entitled to
reasonable attorneys’ fees and costs.
5. Conclusion
Accordingly, for the reasons set forth above, the Court enters a verdict in
favor of Plaintiff Dania Live in the amount of $1,115,406.27. The Clerk is
directed to close this case and any pending motions are denied as moot.
Done and ordered in Miami, Florida, on November 22, 2024.
____ _______________________
Robert N. Scola, Jr.
United States District Judge

_