# Third District Court of Appeal

State of Florida

Opinion filed December 12, 2018.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D16-2678

Lower Tribunal No. 12-41555

________________



### 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 writtenrelease 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

1 Rosen was not a party to the foreclosure action.

221, 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

2 In its subsequent motion for summary judgment, Harborside claimed only the

amount due and owing as of March 30, 2016.

3he 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.

4in 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 twostep 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

5after 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

6assignment; (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

7to 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 handin-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.

8