A long-running legal battle over a disputed piece of courtyard space in Tampa, Florida, has concluded in favor of the long-term tenant, The Dubliner, Inc., and the landlord, Frank Kane. The U.S. Court of Appeals for the Eleventh Circuit affirmed a lower court’s decision, concluding that the 2009 lease agreement for Howard Avenue Station, LLC (HAS) did not grant them rights to the contested area.
The case centers on a twelve-foot strip of courtyard lying between two adjacent commercial properties owned by Frank Kane. HAS, a real estate consulting and development company represented by its managing member Thomas Ortiz, filed for bankruptcy in 2012. The dispute escalated in an adversary proceeding where HAS sought a judgment declaring that its 2009 lease included this Disputed Area.
A History of Leases and Litigation
To understand the Eleventh Circuit’s ruling, one must trace the complex history of the leases involved.
The Dubliner, an Irish pub, first leased the first floor of the building at 2307 West Azeele Street in 2002. This lease included the western portion of the courtyard separating the Azeele Street building from the Howard Avenue building. The Dubliner later constructed a deck in this area, reinforcing its use of the space.
HAS entered into a “Master Commercial Lease” with Kane in 2006, which was subject to existing tenant leases, including The Dubliner’s. As litigation brewed between The Dubliner and HAS over the Disputed Area—which The Dubliner had been using since 2002—a Florida state court ruled in 2009 in favor of The Dubliner, confirming that its lease had been validly renewed and covered the Disputed Area.
Crucially, just two months after that state court victory, Kane, HAS, and Ortiz terminated the Master Lease and signed a new agreement: the 2009 HAS Lease.
The Ambiguity of the 2009 Lease
The Eleventh Circuit found that the 2009 HAS Lease was inherently ambiguous regarding the Disputed Area.
HAS argued that because the lease listed specific street addresses for the Howard Avenue building units (309, 311, 315, and 317 South Howard Avenue), they were entitled to the entire parcel associated with those addresses, which, in HAS’s view, included the Disputed Area.
However, the appellate court pointed to conflicting language within the lease itself. Section 1 defined the “Buildings and exterior space” by referencing an attached photograph which explicitly showed a “fenced off area.” The court noted that the Disputed Area lies *beyond* a dividing wooden wall, meaning it was not part of the area described as “fenced off.”
Adding to the confusion, Section 2 referred to a “Section 2 Sketch” intended to further define the leased premises, but this sketch was never attached to the final document. This absence created the ambiguity that required the courts to look at outside evidence—extrinsic evidence—to determine the parties’ true intent.
Relying on Context and History
When considering the extrinsic evidence, the appellate court agreed with the bankruptcy court’s ultimate conclusion: HAS did not secure rights to the Disputed Area in the 2009 lease.
The court emphasized the context surrounding the 2009 agreement. The Dubliner had occupied the Disputed Area since 2002, and a state court had just ruled two months prior that The Dubliner’s occupation was lawful under its existing arrangement.
“Keeping this context in mind,” the opinion stated, “it is difficult to believe that the parties intended for the lease terms demising the addresses of the HAS Building to include the Disputed Area. If they truly intended to include the Disputed Area, they would have done so more explicitly.”
The bankruptcy court had heard testimony from Frank Kane, who stated he never intended to include the Disputed Area in the 2009 HAS Lease, maintaining that he had always rented that space separately to The Dubliner.
Procedural Challenges Rejected
HAS raised several procedural challenges on appeal, all of which the Eleventh Circuit swiftly rejected.
First, HAS claimed the District Court did not apply the correct standard of review, arguing that contract interpretation should be reviewed *de novo* (an independent review) rather than for clear error. The Eleventh Circuit found this argument was based on a misreading of the District Court’s order. While the District Court acknowledged the bankruptcy court weighed evidence (suggesting a clear error review), it also independently stated the bankruptcy court’s interpretation was “correct,” satisfying the *de novo* review requirement for contract law.
Second, HAS argued it was denied a fair hearing under Federal Rule of Civil Procedure 52(c) when the bankruptcy court refused to let Ortiz testify in rebuttal after Kane had testified. The appellate court found that HAS had already presented its case and that the proposed testimony—which aimed to explain why the Section 2 Sketch was missing—would not have resolved the core contractual ambiguity. Therefore, denying the late rebuttal evidence was not an abuse of discretion.
In summary, the Eleventh Circuit found no error in the lower courts’ determination that the 2009 HAS Lease, when read in light of the surrounding circumstances, historical use, and the previous litigation, did not convey the Disputed Area to Howard Avenue Station, LLC.