Circuit Court judge denies Solorzano motion to amend settlement agreement with landlord involving pizza business in Siesta Village

Pizzeria to vacate premises in late April

Solorzanos Pizzeria has operated out of an Avenida Madera storefront since 2007. Rachel Hackney photo

After an April 3 hearing via telephone, a 12th Judicial Circuit Court judge has denied the request of Siesta Key business owner Phil Solorzano to amend a March 18 settlement agreement Solorzano signed with the Davidson Sears Partnership.

That settlement allowed Solorzanos Pizzeria to remain in its Siesta Village location just through April.

In March 28 correspondence, Phil Solorzano pleaded with Circuit Judge Hunter Carroll “to help me out in such hard times with this [novel coronavirus] pandemic. … March has been so slow, and now they made us shut down all outside and inside eating …” He was referring to a March Executive Order issued by Gov. Ron DeSantis.

Having paid rent for March and April, as required in the settlement, Solorzano continued, he had asked a representative of Davidson Sears to allow the pizza business to remain open through June, ”since there is no business for March and April, the two months I am paying for.”

On March 30, Phil Solorzano made a rent payment of $3,926.33 to Davidson Sears through the Sarasota County Clerk of the Circuit Court and County Comptroller, court records show. Altogether, through that date, he had paid $37,630.73 in an effort to avoid eviction, which Davidson Sears initiated in February through a 12th Judicial Circuit Court complaint.

In his March 28 correspondence to the judge, Solorzano added that he could use a government stimulus loan to make another rent payment. “Things have been very hard, and I haven’t heard back from John, or his lawyer, so I went to the clerk of court, and they said to send you this letter,” Solorzano wrote, referring to John Davidson, one of the Davidson Sears principals.

“Please help me out,” Solorzano continued, as “I have a family to feed, employees to pay, a business to run, and a community to feed …”

Circuit Judge Hunter Carroll. Image courtesy 12th Judicial Circuit website

In a handwritten order following the April 3 hearing, Carroll explained, “The Court does not have the legal authority to alter an agreement the parties voluntarily entered into. Thus, any relief Mr. Solorzano sought by his 3/28/20 letter is denied.”

Carroll also pointed out that the court “retains jurisdiction to award attorney fees or costs or both, if any, upon a timely motion.”

In response to Solorzano’s correspondence, Amanda R. Kison, an attorney with the Sarasota firm of Bentley & Bruning, had submitted to the court a copy of a Facebook posting from Solorzanos Pizzeria on March 24. That post said that the business was the “only place open” that night among dining establishments on Siesta Key. The post added, “[A]lways here for you guys!!! What a crazy and sad feeling it is, to see the Island so dead, and everything closed up …”

The post further noted plans for the relocation of the restaurant, saying those had been in the works “for a long time now” and had nothing to do with the COVID-19 pandemic.

In an April 4 Facebook post, Solorzanos Pizzeria Siesta Key said it would be merging its Siesta location with its Gulf Gate business as of April 27.

Getting to this point

As a result of an emergency hearing in March, Judge Carroll ordered Solorzano Brothers LLC and Phil Solorzano of Siesta Key to pay back rent of $28,790.91 to the Davidson Sears Partnership, which owns the Avenida Madera location where the Solorzanos have operated a pizza restaurant since 2007.

Further, Carroll ordered Solorzanos Brothers and Phil Solorzano to pay $3,926.33 in rent for April. If the latter action were not taken by April 1, Carroll wrote, then Davidson Sears would have the right to take immediate possession of everything in the restaurant.

This document issued by the Office of the Sarasota County Clerk of the Circuit Court and County Comptroller shows the total of payments made by Phil Solorzano in conjunction with the court case. Image courtesy of the Clerk’s Office

Phil Solorzano made those payments on March 4 and March 5. He had asked for the emergency hearing, in an effort to keep the pizzeria open.

In February, Davidson Sears filed a motion that sought to evict the Solorzanos from the Avenida Madera location, claiming that the business owed the partnership $88,985.14 in back rent and related fees as detailed in the business’ lease agreement.

Amanda Kison. Image from the Bentley & Bruning website

In a formal response to Phil Solorzano’s March 28 correspondence to Judge Carroll, Kison of Bentley & Bruning wrote in an April 1 filing that the eviction complaint followed the business’ “failure to pay rent for more than 10 months.” She also noted that during the March 3 emergency hearing, Carroll determined that Solorzanos had no rights through its lease to occupy the Avenida Madera premises beyond April 30.

In response to the original complaint, Gregg Horowitz, a Sarasota attorney representing Phil Solorzano, sought dismissal of the case, contending that the amount of money the partnership was seeking 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].”

A related issue with which Judge Carroll dealt during the April 3 hearing was a motion by Horowitz to withdraw from the case. Filed on April 1, that motion said, “Irreconcilable differences have arisen between the Offices of Gregg Horowitz, Solorzano Brothers, LLC and Philip Solorzano.”

In a separate April 3 order, Carroll granted that motion, officially relieving the Law Office of Gregg Horowitz from “further responsibility in this case …”

In email correspondence with the attorneys for Davidson Sears — which they attached to their response to Phil Solorzano’s March 28 correspondence to Carroll — Solorzano called Horowitz lazy and added that Horowitz “likes to procrastinate with all his cases.”

Threats and alternatives

In her April 1 response to Phil Solorzano’s plea to the judge, Davidson Sears attorney Kison contended that Solorzano “has always intended to sell his Siesta Key location even before the initiation of the eviction Complaint.” However, she continued, “his intention was to secure a renewed lease agreement with the Landlord so he could sell his business with a corresponding long-term lease agreement.”

In support of her points, Kison attached as an exhibit an email from Solorzano to Deborah Pruett of Davidson Drugs, which was dated Jan. 25.

“I can stay or I can leave, like I have been telling you for the past few years,” Solorzano wrote. “I have 5 locations now, and opening another in [Lakewood Ranch] in a few months, and the key is just not what it [used] to be, and the rent keeps going up.”

This is an April 6 Facebook post on the Solorzanos Pizzeria Siesta Key page. Image from Facebook

Solorzano continued, “[T]he goal is to leave on good terms, and with you getting paid, and which I intend to do. I have a few people who are extremely happy to take my store with everything in it, very well known in town, and have been in the restaurant business for a very long time. So I can get my money for my equipment,” he wrote, “you get the money I owe you, and the store never goes one month being empty looking for a new tenant, and you can charge them the same amount you [have] been charging me or more.”
He further pointed out, “[T]he last thing we need to do is go to court and get lawyers involved for no reason, when I am telling you I am going to give you the money I owe you. The only request I had from [the prospective new tenant], was to get a 10 year lease to make it worth it for them. … If I have to take all my stuff out, which I have no problem doing, the place [will] be a complete mess, and I will take EVERYTHING out of there, it will be [an] empty shell, and will cost money to fix, and time to get ready for a new tenant, definitely not worth it [to] you.”

Solorzano added, “I really appreciate everything you have done for me since 2007, and I’m sure you appreciate me sticking around throughout the [BP] oil spill [in the Gulf of Mexico in 2010], red tide, hurricanes, and everything else that has been thrown at me since 2007.”

Additionally, Kiser included in her response a copy of a March 17 email from Solorzano to his attorney, Horowitz, on which Solorzano copied Kison. In that, he wrote that he objected to a couple of paragraphs in the proposed settlement agreement. Solorzano pointed out, “If John [Davidson] wants to spend his last years going to court, then let’s do it, I got time, he doesn’t. But we have to postpone this case because of the [COVID-19] outbreak, and any days I miss for being closed I’m going to want to add on in May, since I’m paying for those days with my April rent. Please ask the judge if we can postpone until the pandemic is under control …”

Kison noted in her response in the case docket that that email made it clear that Solorzano signed the settlement agreement “with full knowledge of the Covid-19 outbreak’s potential effect on his business, and with the intent of later requesting additional time from the Court to remain in the premises.”

In a March 16 reply to an email from attorney Horowitz, Kison also had pointed out that Davidson Sears was not willing to allow Solorzano to sell the business with a 10-year lease.

Then, on March 26, Solorzano wrote attorney Jill Bowen of Bentley & Bruning, who has represented Davidson Sears, too, in the case. Solorzano stressed that the pandemic “is making me lose the last busiest months of the year. However long this lasts, plus an extra 3 months that I paid for since this Virus started, is how long I expect to stay.”
He again threatened to remove everything from the Avenida Madera location, “since everything is mine, and I mean everything. It will obviously cost you more money to get it back to restaurant ready, and time.”

The alternative, he noted once more, would be an agreement to a long-term lease, as he claimed he had “someone who is ready to move in May 1st, has a lot of money, owns multiple restaurants all around the country, and wants to put a German Take Out Restaurant in my location.”

In her response to the March 28 correspondence, Kison pointed out that the March 26 email “demonstrates Solorzano’s complete lack of respect for this Court and this proceeding, and establishes his request is simply a contrived effort to manipulate the Landlord into capitulating to his threats or to use the Covid-19 outbreak [to] manipulate this Court into providing him with leverage against the landlord.”

Solorzanos Pizzeria occupies space in this Avenida Madera building, close to the Ocean Boulevard intersection. Image from Google Maps

She added, “Based on the foregoing, the Landlord objects to any modification or amendment to the Settlement Agreement, or the granting of any additional relief outside of the terms of the Settlement Agreement.”

In its April 4 Facebook post, Solorzanos Pizzeria Siesta Key wrote, “So happy I no longer have to deal with John Davidson, owner of Davidson’s Drugs, and owner of most of Siesta Key village. What a greedy, miserable, old man, who only thinks of himself.”

The post added, “I hope all of John’s tenants work out a deal with that extremely high over priced rent you are paying, like he did for me several times. You can tell him, you want him to lower the rent, like you did for Phil, or your [sic] leaving, it worked for me lol Don’t be a sucker, he loves suckers, he hates people who are smarter than him, like me.”