DAVID C. QUIRING AND PAMELA L. QUIRING, HIS WIFE, APPELLANTS,
v.
DON E. PLACKARD AND BETTY PLACKARD, HIS WIFE, APPELLEES

Fla. 3d DCA | 1982-04-13
No. 81-464
Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
412 So. 2d 415 Florida District Court of Appeal, Third District (1982) Positive Treatment
Cited by 8 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the acceleration clause in the mortgage prevailed over the discount clause, and the trial court properly excluded extrinsic evidence and reserved jurisdiction for attorneys' fees.


Headnotes

[1] Extrinsic evidence regarding negotiations prior to the execution of a written agreement is inadmissible to vary the terms of the agreement unless an ambiguity exists.

[2] An acceleration clause in a mortgage that explicitly states it controls over other provisions in the note or mortgage prevails over a discount clause.

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The Quirings purchased a bowling alley from the Plackards, taking back a mortgage with an acceleration clause and a discount for early payment. The Qu…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
HENDRY, Judge.

HENDRY, Judge.

Appellants, David and Pamela Quiring, appeal from a final judgment of the trial court accelerating a mortgage and note owed to plaintiffs/appellees, the Plackards.

The dispute herein evolved from the Quirings’ purchase of a bowling alley from the Plackards for $258,000. The Plackards took back a purchase money mortgage and note in the amount of $100,000 which provided, inter alia, for acceleration of the full amount outstanding in the event of default, and a discount of $28,000 in the event the mortgage was paid in full on or before November 1, 1981. Monthly payments by the Quirings were consistently late and the Plackards gave notice that future payments made after the thirty day grace period would no longer be accepted. The Quirings’ June, 1980 payment was late and the Plack-ards returned the check, informing them that they were in default. Two days after a foreclosure suit was filed, the Quirings tendered a cashier’s check in the amount of $69,420.47, which represented the full unpaid principal of the mortgage plus interest, costs, and miscellaneous charges, less the $28,000 discount. The Plackards refused to accept the check, and following a non-jury trial, the court enforced the acceleration clause in the mortgage and rendered judgment in favor of the Plackards for the full amount due, reserving the issue of costs and attorneys’ fees for a subsequent hearing.

The Quirings have presented several issues for our consideration, which we have consolidated into three main points: (1) the court erred in ruling that the acceleration clause in the mortgage prevailed over the discount clause, (2) the court erred in excluding testimony regarding the circumstances of the execution of the original sales contract between the parties, and (3) the court improperly reserved jurisdiction to award attorneys’ fees when no evidence to support such fees had been presented at trial. We find no error in the proceedings below and affirm.

Despite their default, the Quirings argue that they are still entitled to discount the amount owed by $28,000, since the mortgage was accelerated prior to November 1, 1981, the cutoff date for the discount. They also contend that evidence of the parties’ intent should have been admissible to resolve an apparent conflict between the two provisions in the mortgage. Paragraphs two and eleven, the discount clause and the acceleration clause, respectively, provide in relevant part:

2) In the event the mortgage is paid in advance in full, on or before November 1, 1981, this Third Mortgage may be discounted by $28,000.00 from the then principal balance.

* * * * * *

11) If any of said sums of money herein referred to be not promptly and fully paid within thirty (30) days next after the same severally become due and payable, ... the said aggregate sum mentioned in said promissory note shall become due and payable forthwith or thereafter at the option of the Mortgagees, ... as fully and completely as if the said aggregate sum of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) were originally stipulated to be paid on such day, anything in said promissory note or herein to the contrary notwithstanding, (emphasis supplied)

We conclude that extrinsic evidence regarding negotiations prior to execution of the mortgage was correctly excluded from this ease. All prior negotiations between the parties merged into the final written evidence of their agreement, Carlon, Inc. v. Southland Diversified Co., 381 So. 2d 291 (Fla. 4th DCA 1980); Financial Federal Savings and Loan Ass’n of Dade County v. Continental Enterprises, Inc., 338 So. 2d 907 (Fla. 3d DCA 1976); Window-master Corp. v. Jefferson Construction Co., 114 So. 2d 626 (Fla. 3d DCA 1959), and parol evidence could not be introduced to vary the terms of the written instrument unless an ambiguity existed. Schwartz v. Zaconick, 68 So. 2d 173 (Fla.1953); First Guaranty Corp. v. Palmer Bank and Trust Co. of Fort Myers, 405 So. 2d 186 (Fla. 2d DCA 1981); Atkins v. Bianchi, 162 So. 2d 694 (Fla. 1st DCA 1964); cf. Bleemer v. Keenan Motors, Inc., 367 So. 2d 1036 (Fla. 3d DCA 1979) (parol evidence rule does not apply where legal existence or binding force of instrument is in question).

Paragraph eleven of the mortgage, which specifically provides that the acceleration clause controls “anything in said promissory note or herein to the contrary notwithstanding,” resolves any conflict between the two provisions and manifests the predominance of the acceleration clause over the discount clause. Accordingly, use of parol evidence to explain or vary the terms of the mortgage was prohibited, see Grier v. M.H.C. Realty Corp., 274 So. 2d 21 (Fla. 4th DCA 1973), and the Plackards’ contractual right to accelerate the full balance of the mortgage was properly enforced. Scarfo v. Peever, 405 So. 2d 1064 (Fla. 5th DCA 1981).

We also find no error with respect to the trial court’s reservation of jurisdiction to award attorneys’ fees at a later time. Although the mortgage provided for payment of attorneys’ fees by the Quirings upon their failure to comply with the terms of the instrument, this provision did not become effective until their default was fully determined. This issue was, therefore, properly delayed pending outcome of the litigation.

Affirmed.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Land O'Sun Realty Ltd. v. Rewjb GAS Invs., 685 So. 2d 870 (Fla. 3d DCA 1996)
    …efined “notwithstanding” as “without prevention or obstruction from or by; in spite of’); Pate v. Marathon Steel Co., 777 P. 2d 428, 431 (Utah 1989) (noting that “[a]ctually, the word ‘notwithstanding’ means ‘in spite of ”). In Quiring v. Plackard, 412 So. 2d 415 (Fla. 3d DCA 1982), this court affirmed the exclusion of extrinsic evidence regarding an acceleration clause and a discount clause within a mortgage, finding no ambiguity. Quiring, 412 So. 2d at 417. We held: Paragraph eleven of the mortgage, which…
    1 / 2
  • Hargitay v. Pipes, 415 So. 2d 753 (Fla. 3d DCA 1982)
    …PER CURIAM. Affirmed. Quiring v. Plackard, 412 So. 2d 415 (Fla. 3d DCA 1982). Appellee’s motions for attorney’s fees on appeal is granted in the amount of $1,000. See Florida Glass & Mirror Co. v. Economy King Equipment Co., 353 So. 2d 596 (Fla. 4th DCA 1977); § 59.46, Fla.Stat. (1981).…
  • FOX v. Cruanas, 557 So. 2d 136 (Fla. 3d DCA 1990)
    …PER CURIAM. Affirmed. David v. Sun Fed. Sav. & Loan Ass’n, 461 So. 2d 93 (Fla.1984); Quiring v. Plackard, 412 So. 2d 415 (Fla.3d DCA 1982); § 702.01, Fla.Stat. (1987).…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw