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NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF
IN THE DISTRICT COURT OF APPEAL
JULY TERM, A.D. 2002
AMERISHOP MAYFAIR, L.P.,
foreign limited partnership,
CASE NO. 3D02-813
TRIBUNAL NO. 00-15052
Opinion filed November 13, 2002.
An appeal from the Circuit Court for Miami-Dade County,
Philip Bloom, Judge.
Frank, Weinberg & Black, and Neil G. Frank, and Marc A.
Silverman, for appellant.
Phillips, Eisinger, Koss & Brown and Gary S. Phillips, for
Before GREEN, SHEVIN and RAMIREZ, JJ.
The Landlord, Amerishop Mayfair, L.P. ("Amerishop") appeals
the trial court's final judgment finding that Thomas Billante was
not liable as a guarantor for the tenant's breach of a commercial
lease agreement. We affirm.
Amerishop entered into a shopping center lease with the
tenant, Thomas Speciality Restaurants on February 24, 1997.
Billante signed a rental guaranty dated February 25, 1997,
wherein he guaranteed all terms of the lease including, but not
limited to payment by the tenant, of the minimum rental
percentage rental, for the first two years of the lease.1 The
rental guaranty provided in pertinent part that:
Guarantor agrees, absolutely, unconditionally and
irrevocably, that (1) this obligation shall be binding
upon the Guarantor without any further notice or
acceptance thereof, but the same shall be deemed to
have been accepted by the execution of the within
lease; (2) immediately upon each and every default by
Tenant, without any notice to or demand upon the
Guarantor, Guarantor will pay to Landlord the sum or
sums in default and will comply with or perform all the
terms, covenants and conditions of said Lease which
shall be binding upon the Tenant as provided in said
Lease; (3) no extensions, forbearance or leniency
extended by the Landlord to said Tenant shall discharge
the Guarantor and the Guarantor agrees at all times it
notwithstanding same and
notwithstanding the fact that the Guarantor has had no
notice of any said default or of any said forbearance
or extension; (4) Landlord and Tenant without notice to
or consent by Guarantor may at any time or times enter
1 The first two years of the lease were defined as the
twelve month period commencing on the first day of January of
the calendar year immediately succeeding the commencement date
and each twelve month period thereafter. The two year lease
period according to this definition started in January 1998 and
ended on December 31, 1999. Billante would be responsible for
a period of six months after any default by the tenant.
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into such modifications, extensions, amendments or
covenants respecting the said Lease and that Guarantor
shall not be released thereby, it being intended that
any joinder, waiver, consent or agreement by Tenant by
its own operation, shall be deemed to be a joinder,
consent or agreement by Guarantor with respect thereto
and that Guarantor shall continue as Guarantor with
respect to the said Lease as so modified, extended,
amended or otherwise affected.
The obligations of the Guarantor herein shall be
extensive with and shall remain in effect as long as
Tenant's obligations in and under said Lease, and all
extensions or modifications thereof shall continue, and
as long as said Tenant shall be liable Guarantor shall
be liable thereunder in the same manner and in the same
effect: EXCEPT, HOWEVER, bankruptcy or insolvency of
the Tenant shall not release Guarantor from liability
hereunder. . . .
This Guaranty may only be amended or modified at any
time by an instrument in writing executed by the
Landlord and Guarantor.
Thomas Speciality Restaurants subsequently assigned their
lease to La Fontaine, Restaurant, L.C. on August 21, 1997 with
the written consent of Amerishop and Billante. La Fontaine
Restaurant defaulted on their lease in March of 1999. In July of
1999, Billante divested himself of his interest in the restaurant
and sold his interest to Martin Solomon and Churt Partners. On
May 19, 2000, Amerishop entered into a lease termination
agreement with La Fontaine Restaurant. Billante was not a party
to this lease termination agreement nor was he given notice that
such an agreement was to be executed. The pertinent parts of the
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lease termination agreement are as follows:
The aforedescribed Lease between the parties is deemed
to be terminated and the effective date of said
termination for the purpose of this Lease Termination
Agreement shall be deemed to be May 15, 2000. . . .
Landlord acknowledges that the aforedescribed Lease is
terminated as of the Termination Date and the Landlord
releases Tenant from all obligations of Tenant under
the lease. . . . Landlord specifically waives, foregoes
and releases any and all rights which it has, had, or
may have had under the aforesaid lease as of the
Termination Date. . . .
As a material condition of this Agreement, the Tenant
shall sell and transfer over to the Landlord those
certain items identified in Exhibit 1, consisting of
certain furniture, fixtures and equipment located at
the demised premises (the "FF&E"). The Tenant
represents and warrants that it owns this FF&E free and
clear of all liens and encumbrances of any nature and
any kind . . . to the extent there are liens held by
any third party, Tenant will satisfy those liens in
full. . . .
Paragraph 11 provides:
This agreement does not release nor impair any right of
the Landlord to proceed under the certain Rental
Guaranty executed by Tom Billante dated February 24,
Amerishop did not provide notice to Billante that La
Fontaine Restaurant had failed to pay its rent nor did it seek
payment of the past due rents until June 20, 2000, one year and
three months, after La Fontaine Restaurant defaulted on their
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lease payments. On June 20, 2000, Amerishop filed its complaint
to enforce the terms of the rental guaranty against Billante.2
After a bench trial, the trial court entered a final
judgment in favor of Billante. The court found that the
guarantor's obligation terminated after the debtor's obligation
was discharged by the lease termination agreement and Amerishop
took the instant appeal.
Amerishop argues that pursuant to the terms of the rental
guaranty, Billante remained liable for the tenant's breach of the
lease. Amerishop further argues that the common law rule, that
a guarantor is released by the release of the principal debtor,
was contractually altered by the specific language placed in the
rental guaranty; the rental guaranty was enforceable against
Billante as La Fontaine Restaurant was insolvent; no formal
proceeding was required to determine La Fontaine Restaurant's
insolvency as a condition precedent to bringing suit; and even if
a formal proceeding was required, there was substantial evidence
of the tenant's insolvency admitted at trial. Billante responds,
however, that Amerishop's release of La Fontaine Restaurant from
liability also released him from all obligations under the
guaranty. We agree.
2 La Fontaine Restaurant's rent delinquency was
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A contract of guaranty is the promise to answer for the
payment of the debt, default or performance of another. Nicolaysen
v. Flato, 204 So. 2d 547, 549 (Fla. 4th DCA 1967). The law is
settled that the release of the debtor constitutes a release of
the guarantor. See Matey v. Pruitt, 510 So. 2d 351, 353 (Fla. 2d
DCA 1987)(if debtor's obligation has been paid or otherwise
satisfied, the guarantor's obligation is terminated). This is
because where the debtor has been released, there is nothing left
for the guarantor to secure. Id.
In the present case, the express terms of the rental
guaranty indicated, among other things, that Billante agreed to
be absolutely liable for all damages that arose from the tenant's
breach of the lease and that his obligations would be "extensive
with and remain in effect as long as tenant's obligations."
Hence, to the extent that the tenant had obligations under the
lease, so did Billante. Pursuant to this agreement, if the tenant
defaulted within the two year period described in the contract and
the tenant remained obligated to the landlord, the landlord could
obtain relief from Billante. It follows that once the tenant's
obligations ceased, Billante's obligations ceased also. We
therefore conclude that Billante's obligations terminated once the
lease termination agreement discharged La Fontaine Restaurant's
obligations. Jordan v. Keys Cove Marine, Inc., 719 So. 2d 378
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(Fla. 3d DCA 1998). See also Matey, supra.
Amerishop, however, maintains that because the lease
termination agreement contained language that it did not release
or impair any right of Amerishop to proceed under the rental
guaranty against Billante, Billante remained liable. We disagree
where Billante was not a party to this lease termination agreement
and did not consent to the same. For this reason, Amerishop's
reliance upon the decision of New Market Acquisition, Ltd. v.
Powerhouse Gym, 154 F. Supp. 2d 1213 (S.D. OH 2001) is misplaced.
In New Market, the guarantor expressly agreed in the guaranty
agreement to remain liable for all damages even where the landlord
released the tenant from further obligations. Id. at
1221;(emphasis added). The New Market court recognized that but
for the clear language of the guaranty that shows that the
guarantors expressly agreed to remain liable for all damages even
if the landlord released the tenant, the settlement agreement
entered into between the landlord and tenant would have resulted
in a compete discharge of the guarantor. The guaranty in the
present case does not purport to hold the guarantor liable for
damages in the event of a release of the tenant and is therefore
Finally, and as an additional ground for affirmance, we note
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that the rental guaranty in this case provided that the guaranty
could only be amended or modified by an instrument in writing
executed both by the landlord and guarantor. Here, Billante never
executed the lease termination agreement or received notice of it
for that matter. The tenant's execution of the lease termination
agreement, independent of the guarantor, therefore, could not bind
Billante as guarantor.
Accordingly, we affirm the final judgment under review.
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