Attorney for Solorzanos Brothers and Phil Solorzano says in court filing that parties are working on a settlement
Following an emergency court hearing this month, Solorzano Brothers LLC and Phil Solorzano of Siesta Key, who have operated a pizza restaurant in Siesta Village since 2007, were ordered to pay back rent of $28,790.91 to the Davidson Sears Partnership, owner of the business’ Avenida Madera location.
Twelfth Judicial Circuit Court Judge Hunter Carroll also ordered Solorzano Brothers and Phil Solorzano to pay $3,926.33 in rent for April. If that were not paid prior to April 1, the judge wrote, then Davidson Sears would have the right to take immediate possession of everything in the restaurant.
Court records show that Phil Solorzano made both payments — the first on March 4; the second, on March 5.
Court documents also indicate that Phil Solorzano had to pay $400 to cover the cost of the eviction complaint the Partnership filed in February, $439.36 for the Clerk of Court fee, and a total of $30 for three summonses, the first payment record noted. The total of the check was $29,660.27. For the second payment — to cover the April rent — the total was $3,985.23, which included another $58.90 in Clerk of Court fees.
Altogether, court records show, Solorzano paid $33,645.50, as ordered by the judge.
The documents noted that the funds were received from Phil Solorzano “individually.”
Additionally, on March 6, Solorzano Brothers and Phi Solorzano filed a motion asking the court for an extension of time to respond to Count II of the eviction complaint that Davidson Sears filed in late February. That count entailed a claim for damages in the amount of $88,985.14 and said that “[a]s the guarantor [of the lease], Phil Solorzano is … liable for all financial obligations.”
The Solorzanos’ motion added that the Partnership’s attorney “is drafting a settlement agreement and will have it completed shortly. Defendants believe the case will be resolved via agreement of the parties.”
Jill M. Bowen, an attorney with the Bentley & Bruning law firm in Sarasota, filed the verified complaint on behalf of Davidson Sears.
John Davidson is the manager of the Partnership, the complaint shows. His eponymous drug stores operate in Davidson Plaza in Siesta Village and on South Midnight Pass Road. The partnership owns a number of parcels on the island, Sarasota County Property Appraiser Office records show.
No other document had been filed in the case prior to the publication deadline for this issue of The Sarasota News Leader.
The basis of the complaint
On Feb. 6, the Davidson Sears Partnership filed its verified complaint in Circuit Court, claiming that Solorzanos Pizzeria owed the $88,985.14 in “unpaid rent and other charges.”
The complaint named Solorzano Brothers LLC and Phil Solorzano individually,
In a Feb. 20 motion, Gregg Horowitz, a Sarasota attorney, filed a motion on behalf of Solorzano Brothers and Phil Solorzano, seeking dismissal of the complaint. Horowitz contended that the amount of money Davidson Sears sought was “over and above the amount due for rent.”
Horowitz added that the “landlord accepted rent it perceived deficient and waived the right to file [an eviction].”
As an alternative to dismissal of the case, he asked for an evidentiary hearing, which was the proceeding that Judge Carroll conducted on March 3.
In his handwritten order after that hearing, Carroll did reference “an oral agreement [with the landlord] that late fees would be waived due to red tide … That agreement also allowed [the Solorzanos] to pay reduced rent” and then make up the difference, Carroll noted.
Further, Carroll pointed to a second oral agreement allowing which the Solorzanos lease to be extended through April 30.
A copy of the three-year lease between Davidson Sears and Solorzanos, which Phil Solorzano signed on April 20, 2017, said the base rent for the pizza restaurant was $25 per square foot, which added up to $2,343.75 per month — “(or $28,125.00 per year)” through Dec. 31, 2017. After that date, the lease continued, the rent would be “subject to an adjustment” at the start of each succeeding year, “based upon the increase in the Consumer Price Index …”
However, the lease added, “[I]n no case shall the annual increase adjustment be less than four percent (4%).”
The rent included “applicable sales tax (presently 7%),” the lease said, and the money would be due before the first day of each month.
A clause in the document also noted that the penalty for failure to pay the full amount of rent by the 10th day of the month it was due would result in a late charge of $25 per day.
Further, Solorzanos Pizzeria was required to pay “its proportionate share” of a common area maintenance fee. That would be based on the amount of square footage Solorzanos occupied out of all the Davidson Sears properties, the lease noted, which is 15,495 “rentable square feet.” The lease said the Solorzanos space represented 7% of the partnership’s developed area.
The lease was to end on Dec. 31, 2019.
Countering allegations
In a Feb. 20 answer to the Davidson Sears complaint, Sarasota attorney Horowitz argued that the Partnership had agreed to extend the Solorzanos lease for six months. He added that that agreement was based on the downturn the business suffered as a result of the red tide bloom that began in the fall of 2017 and did not end until early 2019.
By early August 2018, when the bloom was killing tons of fish and producing an aerosol that is irritating to the human respiratory system, tourists began cancelling visits to Sarasota County, business owners said. The local economy lost approximately $96.4 million in 2018, according to reports of the county’s tourism office, Visit Sarasota County, and local government leaders.
Davidson Sears “accepted repayment plan” for past rent, the Solorzanos’ answer to the complaint pointed out.
On March 2 — the day before the emergency hearing — Sarasota attorney Horowitz filed an amended motion, asking the court to dismiss Solorzano Brothers as a defendant because “it is not a party to the lease … [Phil Solorzano] is the tenant.” “Because Solorzano Brothers, LLC is not a party to the lease … there is no landlord-tenant relationship between it and [Davidson Sears],” the motion said.
Judge Carroll denied that motion during the hearing.
The timeline for the proceedings
In laying out its case, the Partnership’s complaint said that on Jan. 10, Davidson Sears gave Solorzanos Brothers and Phil Solorzano — who was identified as the manager and guarantor of the lease — a three-day notice for unpaid rent.
A letter signed by Kevin R. Bruning, a partner in Bentley & Bruning, was delivered via hand on Jan. 10 to Solorzano Brothers LLC and to Phil Solorzano, the letter said. The amount owed at that time for “unpaid rent and use of the premises at 215 Avenida Madera” was $29,095.70, the letter pointed out.
Then, on Jan. 15, the complaint continued, Davidson Sears “terminated the month-to-month tenancy.” Nonetheless, the complaint continued, Solorzanos had “failed or refused to remove itself from the Premises …”
A document entered into evidence during the March 3 emergency hearing says the first outstanding balance for Solorzano Brothers was $3,766.12, not including a $385 late fee, as of July 18, 2017.
By March 20, 2018, the document indicates, the business owned Davidson Sears $80,483.80.
Payments made from Dec. 7, 2018 through Jan. 15 of this year left a balance of $40,790.91, that document showed. Adding in late fees, the document said, the total due to the partnership was $98,295.91.
An ancillary concern
Because of the failure to pay rent and other charges, the complaint continued, Davidson Sears was “entitled to immediate possession of the Premises,” according to Chapter 83 of the Florida Statutes.
Additionally, the complaint contended, because of Solorzanos’ defaults, Davidson Sears was entitled to sell the personal property in the business as a lien for rent. However, the complaint said, “Solorzano intends on removing or selling personal property from the Premises in violation of Landlord’s lien rights.”
In the complaint, Davidson Sears sought an injunction that would prohibit Solorzanos Pizza from “damaging, disposing of, secreting or removing any inventory, equipment, improvements, merchandise, loose fixtures, and personal property [from the premises].”