Third District Court of Appeal
State of Florida
Opinion filed December 12, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2678
Lower Tribunal No. 12-41555
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Michael Rosen,
Appellant,
vs.
Harborside Suites, LLC,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Rodney Smith,
Judge.
Gunster, Angel A. Cortiñas, and Jonathan H. Kaskel, for appellant.
The Lehman Law Firm PLLC, and Gary E. Lehman; Nelson Mullins Broad
and Cassel, Beverly A. Pohl, P.A, and Christina Lehm (Fort Lauderdale), for
appellee.
Before LOGUE, LUCK, and LINDSEY, JJ.
PER CURIAM.
Was appellant Michael Rosen automatically released from his personal
guaranty on a real estate development loan, or did the guaranty require a written
release before he was off the hook? Because we agree with the trial court that the
guaranty and loan agreements required a written release, and it was undisputed that
the bank never issued one, we affirm summary judgment in favor of the bank’s
assignee, appellee Harborside Suites, LLC.
Factual Background and Procedural History
On September 30, 2005, Bahia Sun Associates, and several other related
entities, of which Rosen was a principal, entered into a revolving mortgage note
and construction loan agreement with Ohio Savings Bank/Amtrust in the principal
amount of $41 million. The loan was for the development of a one hundred fifty
eight unit condominium project in Hillsborough County. Rosen personally
guaranteed the loan in a separate unconditional and continuing guaranty and
indemnity agreement.
The construction project was completed in June 2007, just when the nation
was plunging into the 2008 recession which hit the real estate market in Florida
especially hard. A majority of the purchasers defaulted. By February 2008, only
four contracts had closed. In May of that year, the bank declared a default on the
loan due to nonpayment.
Ultimately, the bank was taken over by the FDIC. Prior to the takeover, the
bank filed an action to foreclose the mortgage in Hillsborough County.1 On June
1Rosen was not a party to the foreclosure action.
2
21, 2012, ITI Venture, the owner of the mortgage at the time, obtained a consent
final judgment of foreclosure in its favor in the amount of $38,940,918.33, plus
interest. Soon thereafter, ITI Venture assigned the foreclosure judgment to
Harborside.
Harborside then filed this post-foreclosure action to enforce the guaranty
against Rosen to recover the full amount due under the foreclosure judgment.2
Harborside moved for summary judgment, which Rosen opposed. After a hearing,
the trial court entered summary final judgment in favor of Harborside and against
Rosen in the amount of $24,017,999.79, reserving jurisdiction to determine
attorney’s fees and costs at a later date. Upon the denial of his motion for rehearing
of the judgment, Rosen appealed.
Standard of Review
“A trial court’s interpretation of a contract is reviewed de novo. The same
standard applies to the review of the entry of summary judgment.” 19650 NE 18th
Ave. LLC v. Presidential Estates Homeowners Ass’n, Inc.,
103 So. 3d 191, 194
(Fla. 3d DCA 2012) (citation omitted).
Discussion
Rosen’s principal argument below and before this court is that he was
released from the guaranty – long before the foreclosure action was filed – when
2Inits subsequent motion for summary judgment, Harborside claimed only the
amount due and owing as of March 30, 2016.
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he delivered one hundred twenty five pre-construction sales contracts to the bank
on May 5, 2005.3 Rosen relies on this language from section 2.3 of the guaranty,
Notwithstanding anything to the contrary contained herein, upon
Borrower’s satisfaction of the Pre-Sales Requirement in accordance
with the terms and conditions of the Agreement, Guarantor shall
thereafter be released from his obligations under this Guaranty with
respect to matters occurring from and after the date of such release[,]
to argue that once he met the requirement to deliver the pre-sales contracts, he was
automatically released from the personal guaranty.
Harborside responds that section 2.3 is not an automatic release and the bank
never released Rosen from the unconditional guaranty. The issue we must decide,
then, is whether the guaranty automatically released Rosen when he delivered the
pre-sales contracts, or whether the bank had to release Rosen in writing before the
guaranty was extinguished.
As always with contracts, we construe them “according to their plain
language,” Dirico v. Redland Estates, Inc.,
154 So. 3d 355, 357 (Fla. 3d DCA
2014) (quotations and citations omitted), “read[ing] provisions of a contract
harmoniously in order to give effect to all portions thereof.” City of Homestead v.
Johnson,
760 So. 2d 80, 84 (Fla. 2000). “In the absence of some ambiguity, the
intent of the parties to a written contract must be ascertained from the words used
3 Rosen also contends the trial court erred in failing to grant judgment on the
pleadings on his affirmative defenses that the bank breached the loan agreement
and failed to meet a condition precedent to enforcing the guaranty. We affirm the
trial court’s order denying judgment on the pleadings without further discussion.
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in the contract, without resort to extrinsic evidence.” Dirico, 154 So. 3d at 357
(quotations omitted). Reading the various provisions of the guaranty together
leads to the inescapable and unambiguous conclusion that a written release was
necessary to discharge Rosen from his obligations under the contract.
1. The language of section 2.3 points to a written release. The use of the
words “upon” and “thereafter” indicate a sequence of events rather than, as Rosen
argues, a simultaneous and automatic occurrence. As written, the provision states
“upon the Borrower’s satisfaction of the Pre-Sales Requirement . . ., Guarantor
shall thereafter be released from his obligations.” The inclusion of both these
words distinguishes this case from the one Rosen relied on for the proposition that
an automatic release was intended. The release provision in De Valk Lincoln
Mercury, Inc. v. Ford Motor Co.,
811 F. 2d 326, 330 (7th Cir. 1987), simply stated
that “[u]pon [appellant’s] demand … [appellee] shall be released.” Unlike the
release in this case, the word “thereafter” was not used in the De Valk release. For
this reason, the De Valk court reasonably concluded that the release in that case
occurred immediately upon the demand and required no subsequently executed
writing. The inclusion of the word “thereafter” in the Rosen release suggests a two-
step process.
2. Section 2.3 also says that Rosen would “thereafter be released from
his obligations under this Guaranty with respect to matters occurring from and
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after the date of such release.” “[S]uch release” suggests that the release was a
physical thing – an object – rather than an automatic state of being, as Rosen
contends.
3. The guaranty itself provided that a release from the guaranty must be
in writing. Section 3.5 provided that, “No waiver, amendment, release or
modification of this Guaranty shall be established by conduct, custom, or course of
dealing, but solely by an instrument in writing duly executed by the parties hereto.”
Section 3.5 does not permit what Rosen has advocated here – that his conduct in
delivering the pre-sales contracts automatically released him from the guaranty.
Any release from the guaranty had to be in writing.
4. The pre-sales requirement also shows that the release must be in
writing. The loan agreement defined the pre-sales requirement as:
Borrower’s execution and delivery to Lender of a minimum of one
hundred twenty five (125) valid, binding and then effective Approved
Sales Contracts, certified by Borrower as being true, correct and
complete, pursuant to which the total gross sales revenue payable to
the Borrower from all such Approved Sales Contracts must equal or
exceed $60,652,920.00.
An approved sales contract under the loan agreement:
shall mean a valid, binding and effective arm’s-length retail contract
for the sale and purchase of a Condominium Unit, between the
Borrower and a bona fide third-party purchaser of Condominium Unit
for value, which purchaser is not affiliated with the Borrower,
Guarantor or any Affiliate thereof (a “Buyer”). All Approved Sales
Contracts shall (i) be on terms and conditions, and in form and
substance, reasonably satisfactory to the Lender; (ii) prohibit
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assignment; (iii) contain no rescission rights or contingencies that
would enable either party thereto to terminate the contract (other than
Borrower’s right to terminate such contract for failure to satisfy the
Pre-Sales Requirement), (iv) are in good standing and free from
default, (v) meet the requirements of the Interstate Land Sales Act as
of the date of execution of such contract and as of the date such
contract is presented to Lender, as demonstrated by Borrower to
Lender’s Satisfaction, in Lender’s sole and absolute discretion,
and (vi) provide for a nonrefundable cash downpayment or Deposit . .
..
(emphasis added). In other words, to meet the pre-sales requirement, Rosen had to
deliver one hundred twenty five approved contracts. And to be approved contracts,
the bank had to find their terms, conditions, form, and substance reasonably
satisfactory, and the bank had to be satisfied that the pre-sales contracts met the
requirements of the federal land sales act.
Delivering the contracts was not enough to trigger the pre-sales requirement.
The contracts had to be approved ones, and this required the bank to take the extra
step to be satisfied that the contracts met the stringent requirements of the loan
agreement. Delivery of the one hundred twenty five contracts, alone, could not
automatically release Rosen from the guaranty, as he argues, because the bank had
a critical and contractually-mandated role in deciding whether certain condition
were met.
Rosen responds that we must ignore the requirement of a written release in
section 3.5 of the guaranty, and the bank’s role in approving the pre-sales contracts
in the loan agreement, because section 2.3 says it is “[n]othwithstanding anything
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to the contrary contained herein,” so we should only be looking at the language of
section 2.3. But the notwithstanding clause directs only that we disregard contrary
provisions that are “contained herein,” that is, contained within the guaranty. The
requirement that the bank approve the pre-sales contracts in its sole and absolute
discretion is not contained in the guaranty. It is in the separate loan agreement.
Also, none of the other provisions in the loan agreement and guaranty are
“to the contrary” of section 2.3. Indeed, they are complimentary. As we discussed
above, section 2.3 contemplates a subsequent release after the pre-sales
requirement has been met; the loan agreement gives the bank a role in determining
that the contracts are satisfactory; and section 3.5 of the guaranty sets out how the
release is to be communicated to Rosen (in writing). These provisions work hand-
in-hand to insure that the strict requirements of the loan agreement have been met
before Rosen is released from his guaranty.
Conclusion
The evidence was undisputed that the bank did not release Rosen in writing
from his personal guaranty. Because a written release was required by the
guaranty and loan agreements, we affirm the trial court’s summary judgment in
favor of Harborside on its claim seeking to enforce the guaranty against Rosen.
Affirmed.
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