Brewfab, LLC v. George Russo ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11003
Non-Argument Calendar
____________________
BREWFAB, LLC,
Plaintiff-Counter Defendant-
Appellee,
versus
3 DELTA, INC.
Defendant-Counter Claimant-
Third Party Plaintiff,
GEORGE RUSSO,
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2 Opinion of the Court 22-11003
Defendant-Appellant,
RICK CURETON,
an individual,
Third Party Defendant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-02031-VMC-SPF
____________________
Before ROSENBAUM, GRANT, and LAGOA, Circuit Judges.
PER CURIAM:
George Russo appeals from the district court’s order grant-
ing summary judgment in favor of BrewFab, LLC. As relevant to
this appeal, BrewFab asserted a claim against Russo for breach of a
personal guaranty. In support of its claim, BrewFab alleged that
Russo, the president of 3 Delta, Inc., promised via text message to
pay BrewFab for 3 Delta’s outstanding invoices and for all future
work performed by BrewFab. After discovery, the parties cross-
moved for summary judgment. BrewFab asserted that Russo’s text
message was an enforceable personal guaranty and that Russo
breached that guaranty, whereas Russo asserted that the text
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22-11003 Opinion of the Court 3
message was not a personal guaranty and that it did not satisfy Flor-
ida’s statute of frauds.
The district court granted BrewFab’s motion for summary
judgment and denied Russo’s motion for summary judgment, de-
termining that the relevant text message was a personal guaranty
and satisfied Florida’s statute of frauds. After careful review, we
affirm the district court’s order.
I. BACKGROUND
In 2018, 3 Delta hired BrewFab to build a machine for ex-
tracting cannabidiol oil. 3 Delta and BrewFab did not have a writ-
ten contract. Instead, 3 Delta and BrewFab proceeded under an
oral agreement whereby BrewFab sent 3 Delta invoices for the
work it performed, and 3 Delta paid those invoices.
In December 2019, 3 Delta stopped paying BrewFab’s in-
voices. In turn, BrewFab stopped shipping equipment to 3 Delta
and stopped working on the extraction machine.
On January 30, 2020, Russo and other representatives of 3
Delta had a conference call with BrewFab’s owners to discuss the
outstanding invoices and the work stoppage. After the conference
call, Russo sent the following text message to Rick Cureton, one of
BrewFab’s owners:
As per our conversation on Jan 30th 2020 I george
Russo from 3 Delta do promise to pay brew fab in full
all outstanding bills as of this date and all agreed upon
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4 Opinion of the Court 22-11003
work done for 3 delta future forward. I thank you for
your patience.
Thereafter, BrewFab resumed work and shipped additional
equipment to 3 Delta. But neither 3 Delta nor Russo paid the past-
due invoices and, on February 12, 2020, 3 Delta instructed BrewFab
to stop all work.
In August 2020, BrewFab initiated the underlying action to
recover the unpaid invoices. In its amended complaint, among
other claims, BrewFab asserted claims against 3 Delta for breach of
contract and accounts stated. BrewFab also asserted a claim against
Russo for breach of his personal guaranty—i.e., the text message
he sent to Rick Cureton.
After discovery, Russo moved for summary judgment on
BrewFab’s breach of personal guaranty claim. In his motion, Russo
asserted that his text message to Cureton was not a personal guar-
anty and that he sent the text message in his capacity as an officer
of 3 Delta. Russo argued that he sent the text message because
“there was no written contract between [BrewFab] and 3 Delta that
obligated 3 Delta to pay [BrewFab’s] existing or future invoices,
which was a serious concern” for BrewFab. And, according to
Russo, the text message was intended “to provide written confir-
mation of 3 Delta’s agreement to pay [BrewFab’s] existing and fu-
ture invoices.” Russo also asserted that the text message did not
satisfy Florida’s statute of frauds and that it was not supported by
consideration.
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BrewFab cross-moved for summary judgment on its breach
of personal guaranty claim, asserting that Russo’s text message
constituted an unambiguous and enforceable personal guaranty
agreement. Among other arguments, BrewFab also asserted that
Russo’s personal guaranty was supported by consideration—i.e.,
the work BrewFab performed for 3 Delta after Russo sent the text
message.
The district court granted BrewFab’s motion for summary
judgment and denied Russo’s motion for summary judgment. The
district court determined that Russo’s “text message
acknowledge[d] that 3 Delta was . . . indebted to BrewFab” and, “in
an effort to ensure that BrewFab continued working, [Russo]
promised to pay for both (1) BrewFab’s outstanding invoices owed
by 3 Delta and (2) all agreed upon work for 3 Delta in the future.”
The district court held that Russo’s text message was a personal
guaranty because its plain language acknowledged that “Russo
would personally finance 3 Delta’s past and future invoices.”1 The
district court further held that Russo’s text message was an unam-
biguous and enforceable personal guaranty that satisfied Florida’s
statute of frauds because: (1) the language “I george Russo from 3
1 The district court further reasoned that the text message was a personal guar-
anty because “[i]nterpreting Russo’s guaranty as a corporate guaranty would
create an ‘absurd result’ that would render the guaranty null and void as 3
Delta is already liable for its existing debts.” But we need not address this
alternative basis for the district court’s holding to resolve the issues raised on
appeal.
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6 Opinion of the Court 22-11003
Delta” was an electronic signature under Florida law; (2) that lan-
guage indicated that Russo signed the text message in his personal
capacity; and (3) the text message was supported by consideration,
i.e., “BrewFab’s voluntary return to work and delivery of equip-
ment.” This appeal followed. 2
II. STANDARD OF REVIEW
“We review a district court’s grant of summary judgment de
novo.” Wadley Crushed Stone Co. v. Positive Step, Inc., 34 F.4th
1251, 1256 (11th Cir. 2022). “We grant summary judgment ‘when
viewing the evidence in the light most favorable to the non-moving
party, there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.’” Id. (quoting Si-
erra Club, Inc. v. Leavitt, 488 F.3d 904, 911 (11th Cir. 2007)).
Whether a contract is ambiguous and questions of contract inter-
pretation are pure questions of law that we also review de novo.
Tims v. LGE Cmty. Credit Union, 935 F.3d 1228, 1237 (11th Cir.
2019).
III. ANALYSIS
Under Florida law, “[a] valid contract arises when the par-
ties’ assent is manifested through written or spoken words, or
2 After the district court granted summary judgment, 3 Delta and BrewFab
stipulated to a consent judgment, in which 3 Delta conceded that BrewFab
was entitled to recover $388,117.59. Accordingly, the district court entered
final judgment for BrewFab. Russo then appealed the district court’s sum-
mary judgment order.
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22-11003 Opinion of the Court 7
‘inferred in whole or in part from the parties’ conduct.’” 3 L & H
Constr. Co. v. Circle Redmont, Inc., 55 So. 3d 630, 634 (Fla. Dist.
Ct. App. 2011) (quoting Com. P’ship 8098 Ltd. P’ship v. Equity
Contracting Co., 695 So. 2d 383, 385 (Fla. Dist. Ct. App. 1997)).
And “[t]he parties’ intention governs contract construction and in-
terpretation.” Whitley v. Royal Trails Prop. Owners’ Ass’n, 910
So. 2d 381, 383 (Fla. Dist. Ct. App. 2005).
“When interpreting a contract, the court must first examine
the plain language of the contract for evidence of the parties’ in-
tent.” Hatadis v. Achieva Credit Union, 159 So. 3d 256, 259 (Fla.
Dist. Ct. App. 2015) (quoting Murley v. Wiedamann, 25 So. 3d 27,
29 (Fla. Dist. Ct. App. 2009)). “Where a contract is clear and un-
ambiguous, it must be enforced pursuant to its plain language.”
Hahamovitch v. Hahamovitch, 174 So. 3d 983, 986 (Fla. 2015). In
such a situation, “the language itself is the best evidence of the par-
ties’ intent, and its plain meaning controls.” Crawford v. Barker,
64 So. 3d 1246, 1255 (Fla. 2011) (quoting Richter v. Richter, 666 So.
2d 559, 561 (Fla. Dist. Ct. App. 1995)). But “[w]here the language
used in a contract is ambiguous or unclear, the court may consider
extrinsic matters . . . to explain, clarify or elucidate the ambiguous
language with reference to the subject matter of the contract, the
circumstances surrounding its making, and the relation of the par-
ties.” Waveblast Watersports II Inc. v. UH-pompano, LLC, 291 So.
3 The parties agree that Florida law applies to the relevant contract issues
raised on appeal.
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3d 657, 661 (Fla. Dist. Ct. App. 2020) (second alteration in original)
(quoting Vienneau v. Metro. Life Ins. Co., 548 So. 2d 856, 859 (Fla.
Dist. Ct. App. 1989)).
If the terms of the contract are ambiguous and disputed, “an
issue of fact is presented as to the parties’ intent which cannot
properly be resolved by summary judgment.” Strama v. Union Fid.
Life Ins. Co., 793 So. 2d 1129, 1132 (Fla. Dist. Ct. App. 2001) (quot-
ing Universal Underwriters Ins. Co. v. Steve Hull Chevrolet, Inc.,
513 So. 2d 218, 219 (Fla. Dist. Ct. App. 1987)). But “[a] contract
may be interpreted as a matter of law when the ambiguity can be
resolved by undisputed parol evidence of the parties’ intent.”
Waveblast, 291 So. 3d at 661 (quoting Life Care Ponte Vedra, Inc.
v. H.K. Wu, 162 So. 3d 188, 192 (Fla. Dist. Ct. App. 2015)).
Here, the relevant contract is the text message Russo sent to
Cureton. On appeal, Russo argues that the text message: (1) is am-
biguous as to whether it constitutes a personal guaranty; and (2) is
not a valid personal guaranty under Florida’s statute of frauds. We
consider Russo’s arguments in turn.
A. Personal Guaranty
“A guaranty is a promise to pay the debt of another on the
default of the person primarily liable for payment or performance.”
Fort Plantation Invs., LLC v. Ironstone Bank, 85 So. 3d 1169, 1171
(Fla. Dist. Ct. App. 2012). In other words, “[a] guaranty is a collat-
eral promise to answer for the debt or obligation of another.”
FDIC v. Univ. Anclote, Inc., 764 F.2d 804, 806 (11th Cir. 1985). Like
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22-11003 Opinion of the Court 9
other contracts governed by Florida law, if a guaranty agreement
is unambiguous, “the plain language of the contract governs and
there is no need for parol evidence of the parties’ intent.” Haggin
v. Allstate Invs., Inc., 264 So. 3d 951, 954 (Fla. Dist. Ct. App. 2019).
On appeal, Russo asserts that the relevant text message is
“ambiguous as to whether . . . it was intended to be a personal guar-
anty on the part of Mr. Russo, or whether it was sent solely with
the intention to memorialize the parties’ verbal agreement as to 3
Delta’s obligations to pay BrewFab.” Russo further asserts that the
text message is ambiguous as to whether it was sent in an individ-
ual or representative capacity.
As a preliminary matter, we agree that the text message is
ambiguous, but not for the reasons Russo suggests. As noted, a
guaranty is a promise to pay the debt of another upon that person’s
default. See Fort Plantation Invs., 85 So. 3d at 1171; see also Univ.
Anclote, 764 F.2d at 806. Here, the text message merely states that
“I george Russo from 3 Delta do promise to pay brew fab in full all
outstanding bills as of this date and all agreed upon work done for
3 delta future forward.” (Emphasis added). The text message does
not indicate that the “outstanding bills” Russo promised to pay
were owed by another.
But, before the district court, Russo acknowledged that the
text message referred to the outstanding invoices 3 Delta owed
BrewFab. And, on appeal, Russo has made the same concession.
Because BrewFab agrees that the text message’s reference to “out-
standing bills” refers to the invoices 3 Delta owed BrewFab (, there
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10 Opinion of the Court 22-11003
is no dispute that this term refers to 3 Delta’s debt, i.e., a debt owed
by someone other than Russo. We may therefore interpret the text
message as follows: “I george Russo from 3 Delta do promise to
pay brew fab in full all outstanding bills owed by 3 Delta as of this
date and all agreed upon work done for 3 Delta future forward.”4
See Waveblast, 291 So. 3d at 661 (“[A] contract may be interpreted
as a matter of law when the ambiguity can be resolved by undis-
puted parol evidence of the parties’ intent.” (quoting Life Care, 162
So. 3d at 192)).
With that interpretation in mind, we turn to the arguments
Russo has raised on appeal. As to whether the meaning of the text
message is ambiguous, Russo asserts that the text message is am-
biguous because it could be interpreted as a personal guaranty or
as “memorializ[ing] the parties’ verbal agreement as to 3 Delta’s
obligations to pay BrewFab.” But the plain language of the text
message does not support the latter interpretation. The language,
“I george Russo from 3 Delta do promise to pay brew fab in full all
outstanding bills [owed by 3 Delta] as of this date,” plainly means
that Russo promised to pay 3 Delta’s then outstanding bills in full.
See Crawford, 64 So. 3d at 1255 (“Where the terms of a contract
4 The district court found that the text message was unambiguous based, in
part, on its finding that the text message indicated that Russo “promised to pay
for . . . BrewFab’s outstanding invoiced owed by 3 Delta.” While that finding
relied on parol evidence to interpret the term “all outstanding bills,” as noted,
the parties do not dispute the meaning of that term, and we may affirm for
any reason supported by the record. Hill v. Emp. Benefits Admin. Comm. of
Mueller Grp. LLC, 971 F.3d 1321, 1325 (11th Cir. 2020).
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22-11003 Opinion of the Court 11
are clear and unambiguous, the parties’ intent must be gleaned
from the four corners of the document.”). And because that lan-
guage is unambiguous, Russo’s argument that, in context, the text
message was intended to alleviate BrewFab’s concern that 3 Delta
never provided a written promise to pay BrewFab, is irrelevant. 5
See Haggin, 264 So. 3d at 954–55 (interpreting a guaranty agree-
ment commensurate with its “clear and unambiguous language”
and holding that the trial court erred in considering parol evidence
to interpret that unambiguous language).
As to whether it is unclear that Russo sent the message in his
personal capacity, Russo asserts that the language “I george Russo
from 3 Delta” is ambiguous because that language could mean that
Russo sent the message “in his corporate capacity as a representa-
tive of 3 Delta.” In Florida, “[g]enerally, a signature preceded by
the word ‘by’ and accompanied by descriptio personae, that is, lan-
guage identifying the person signing the document as a corporate
officer or something similar, does not create personal liability for
the person signing a contract to which he or she is not a specified
party.” Robert C. Malt & Co. v. Carpet World Distribs., Inc., 763
So. 2d 508, 510 (Fla. Dist. Ct. App. 2000). But the language “I
5 Russo alsosummarily asserts that the language “[a]s per our conversation on
Jan. 30th 2020” necessarily invites the consideration of parol evidence. Be-
cause Russo cites no case law in support of that assertion, and he did not fur-
ther develop this argument before the district court or on appeal, this argu-
ment has not been fairly raised, and we will not consider it. See Nat’l Mining
Ass’n v. United Steel Workers, 985 F.3d 1309, 1326 n.15 (11th Cir. 2021).
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george Russo from 3 Delta” does not indicate that Russo was sign-
ing the guaranty in his capacity as president of 3 Delta. Indeed, the
at-issue guaranty does not contain any descriptio personae for
Russo. Instead, as the district court correctly held, the language
‘“from 3 Delta’ merely identifies Russo as an individual generally
affiliated with 3 Delta,” it does not identify Russo as a corporate
officer signing the guaranty in a representative capacity.
For these reasons, we reject Russo’s ambiguity arguments.
Accordingly, we affirm the district court’s decision that Russo’s text
message was a personal guaranty to pay the debt 3 Delta owed
BrewFab.
B. Statute of Frauds
Florida’s statute of frauds provides that
“[n]o action shall be brought . . . whereby to charge
the defendant upon any special promise to answer for
the debt, default or miscarriage of another person
. . . unless the agreement or promise upon which
such action shall be brought, or some note or memo-
randum thereof shall be in writing and signed by the
party to be charged therewith . . . .”
Fla. Stat. § 725.01. Moreover, “[t]o comply with [Florida’s statute
of frauds], the writing must contain the essential terms of the trans-
action.” First Guar. Corp. v. Palmer Bank & Tr. Co. of Fort Myers,
405 So. 2d 186, 188 (Fla. Dist. Ct. App. 1981). But “[t]here is no
definitive list of essential terms that must be present and certain to
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22-11003 Opinion of the Court 13
satisfy the statute of frauds. Rather, the essential terms will vary
widely according to the nature and complexity of each transaction
and will be evaluated on a case by case basis.” Ge Lin v. Ecclestone
Signature Homes of Palm Beach, LLC, 59 So. 3d 267, 270 (Fla. Dist.
Ct. App. 2011) (quoting Socarras v. Claughton Hotels, Inc., 374
So.2d 1057, 1060 (Fla. Dist. Ct. App. 1979)).
On appeal, Russo argues that the guaranty agreement does
not satisfy the statute of frauds because: (1) he did not sign the guar-
anty agreement; and (2) the guaranty agreement is missing an es-
sential term, i.e., consideration. 6
As to Russo’s first argument, under Florida’s Electronic Sig-
nature Act, “an electronic signature may be used to sign a writing
and shall have the same force and effect as a written signature.”
Fla. Stat. § 668.004. The Electronic Signature Act defines an “elec-
tronic signature” as “any letters, characters, or symbols, manifested
6 In addition to opposing Russo’s arguments, BrewFab asserts that Russo
waived the argument that the guaranty agreement did not satisfy Florida’s
statute of frauds because it was unsigned. But, in his motion for summary
judgment, Russo asserted that the text message did not satisfy the statute of
frauds because it was not an actual document signed and executed by Russo.
And, while the district court noted that Russo “did not meaningfully advance”
that argument, the district court did address and reject the merits of his argu-
ment. Because Russo presented this argument in a “way as to afford the dis-
trict court an opportunity to recognize and rule on it,” Russo did not waive
the argument. See CSX Transp., Inc. v. Gen. Mills, Inc., 846 F.3d 1333, 1336–
37 (11th Cir. 2017) (quoting In re Pan Am. World Airways, Inc., Maternity
Leave Pracs. & Flight Attendant Weight Program Litig., 905 F.2d 1457, 1462
(11th Cir. 1990)).
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14 Opinion of the Court 22-11003
by electronic or similar means, executed or adopted by a party with
an intent to authenticate a writing.” Id. § 668.003. And the Act
provides that “[a] writing is electronically signed if an electronic
signature is logically associated with such writing.” Id.
Here, the language “I george Russo from 3 Delta” consti-
tutes an electronic signature under Florida law. That language sat-
isfies the definition of an electronic signature, i.e., “letters, charac-
ters, or symbols” intended to “authenticate a writing.” § 668.003.
And that language is “logically associated with” the relevant guar-
anty agreement, because “I george Russo from 3 Delta” precedes
Russo’s promise to pay 3 Delta’s debt. Therefore, the district court
did not err in holding that the guaranty agreement was electroni-
cally signed by Russo. 7
As to Russo’s second argument, “[a] guaranty . . . , like all
contracts, must be supported by consideration.” Texaco, Inc. v.
7 Russo also suggests that a text message cannot satisfy Florida’s statute of
frauds and that an electronic signature cannot be contained in the body of an
agreement. As to whether a text message can satisfy Florida’s statute of frauds,
“[t]o satisfy the statute, a note or memorandum may take almost any possible
form.” Kolski ex rel. Kolski v. Kolski, 731 So. 2d 169, 171 (Fla. Dist. Ct. App.
1999). Indeed, one Florida appellate court previously found that a telegram—
a precursor to text messages—could “constitute . . . sufficient memoranda.”
Heffernan v. Keith, 127 So. 2d 903, 904 (Fla. Dist. Ct. App. 1961). As to
whether an electronic signature can be found in the body of an agreement,
Florida’s Electronic Signature Act does not specify that an electronic signature
must come at the end of an agreement. And Russo’s conclusory assertion,
without authoritative support, cannot defeat the Electronic Signature Act’s
plain language.
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22-11003 Opinion of the Court 15
Giltak Corp., 492 So. 2d 812, 814 (Fla. Dist. Ct. App. 1986). There-
fore, consideration is an essential term of Russo’s guaranty agree-
ment. And, whereas here, “[a] guaranty [was] executed subsequent
to the principal contract[,] and [was] not a part of the same trans-
action,” the guaranty “must be supported by . . . new considera-
tion.” Id.Here, Russo promised to pay BrewFab for both “all out-
standing bills as of this date” and for “all agreed upon work for 3
delta future forward.” Like the guaranty agreement in Texaco,
which the Florida appellate court held was supported by new con-
sideration, Russo’s promise was a unilateral contract that covered
future indebtedness for future work. Cf. id. at 814. And Russo’s
promise became a binding guaranty agreement when BrewFab ac-
cepted Russo’s promise by resuming work and sending 3 Delta ad-
ditional equipment, after Russo sent the text message. Cf. id. at
814–15. Russo does not contest that the work BrewFab performed,
after he sent the text message, was “agreed upon work” and he
does not assert that BrewFab has a pre-existing obligation to con-
tinuously perform work on 3 Delta’s credit. Therefore, the district
court did not err in holding that BrewFab’s return to work and de-
livery of equipment, after Russo sent the text message, constituted
consideration in exchange for the guaranty agreement. See id.; see
also Gibbs v. Am. Nat. Bank of Jacksonville, 155 So. 2d 651, 655
(Fla. Dist. Ct. App. 1963) (holding that a guaranty agreement was
supported by consideration and, therefore, affirming summary
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16 Opinion of the Court 22-11003
judgment where the agreement covered “future advances as well
as existing indebtedness”).
IV. CONCLUSION
For all these reasons, we affirm the district court’s order
granting summary judgment for BrewFab.
AFFIRMED.