USCA11 Case: 21-14350 Document: 65-1 Date Filed: 10/30/2023 Page: 1 of 5

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-14350 ____________________ In re: HOWARD AVENUE STATION, LLC, Debtor. ___________________________________________________

HOWARD AVENUE STATION, LLC, Plaintiff-Appellee, THOMAS ORTIZ, Interested Party-Appellee, versus FRANK KANE,

Defendant-Appellant.

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PER CURIAM: Several years ago, appellant Frank Kane (the “Landlord”) leased certain commercial real property to Howard Avenue Sta- tion, LLC (the “Tenant”). In 2012, after Tenant allegedly failed to meet his rental obligation, Landlord brought an eviction proceed- ing against Tenant in a Florida state court. Tenant responded by seeking relief under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court of the Middle District of Florida. Landlord moved the Bankruptcy Court for relief from the automatic stay pursuant to 11 U.S.C. § 362(d) to enforce his rights in state court, and alternatively, to compel Tenant to pay all post-petition rent and make monthly adequate protection payments of $21,400. The Bankruptcy Court granted Landlord’s alternative motion.

* Honorable R. Austin Huffaker, United States District Judge for the Middle District of Alabama, sitting by designation.

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21-14350 Opinion of the Court 3 In 2019, Tenant moved the Bankruptcy Court for leave to abate these rental payments after the City of Tampa ordered Ten- ant to vacate the property because it was unfit for human habita- tion. The Bankruptcy court granted the motion on July 12, 2019, pursuant to Florida Statute § 83.201. 1 In its order, the Bankruptcy Court stated that “[a]dequate protection payments are abated until the required repairs have been made . . . at which time any

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Fourteen days later, Thomas Ortiz, Tenant’s sole member, moved the Bankruptcy Court for rehearing or modification of the July 12 order. Ortiz asked that the order be modified to provide that Ten- ant was relieved of its obligation to pay any back rent if the leased premises were repaired. The Bankruptcy Court denied this motion in an order entered on August 28, 2019.

Tenant appealed the July 12 and August 28 orders to the Dis- trict Court. In response to Tenant’s argument that it should not be obligated to pay back rent upon reoccupying the buildings, the Dis- trict Court recognized the obvious. That is, if Tenant reoccupies the building, Tenant will have a claim against Landlord for the dam- ages it sustained while deprived of the use of the leased premises.

And requiring Tenant to pay the back rent in advance of a determi- nation of such damages—presumably in the form of a setoff or counterclaim—would be inequitable. The District Court affirmed the Bankruptcy Court’s orders in part (concerning the abatement of rent due while the leased premises were inhabitable) and re- versed it in part (concerning the requirement that Tenant pay the back rent upon resuming possession of the premises). [Id.] Landlord appeals the District Court’s decision. It seeks an affirmance of the Bankruptcy Court’s decision—specifically, the re- quirement that Tenant pay back rent upon reentering the leased premises. We are persuaded that, in the interests of equity, the USCA11 Case: 21-14350 Document: 65-1 Date Filed: 10/30/2023 Page: 5 of 5

21-14350 Opinion of the Court 5 District Court’s solution is just and reasonable. Accordingly, we affirm.2 AFFIRMED.

2 The motion of Thomas Ortiz to dismiss this appeal for lack of jurisdiction is denied. The motion of Frank Kane to dismiss Thomas Ortiz as a party to this appeal is also denied.