PHILIP F. CACCIATORE, JR., APPELLANT,
v.
FISHERMAN'S WHARF REALTY LIMITED PARTNERSHIP, BY AND THROUGH EMALFARB INVESTMENT CORP., ITS GENERAL PARTNER, APPELLEE
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Philip Cacciatore appealed a judgment holding him personally liable on a lease guaranty and sought to avoid payment of attorney's fees. The Florida Fourth District Court of Appeal affirmed the judgment and held that the guarantor is liable for attorney's fees under the lease's prevailing party attorney's fees clause because the guaranty expressly bound the guarantor to all covenants and obligations in the lease.
The court held that the guarantor is liable for attorney's fees because the guaranty expressly bound the guarantor to be bound by each and every covenant and obligation in the lease with the same force and effect as if the guarantor had executed the lease as lessee, and the suit on the guaranty falls within the lease's prevailing party attorney's fees provision.
[1] A guarantor is not liable for attorney's fees in an action to enforce a guaranty unless the guaranty expressly provides for such liability or the underlying contract cont…
[2] A guaranty that binds the guarantor to each covenant and obligation of the lease, with the same force and effect as the lessee, incorporates the lease's attorney's fees p…
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“As a general rule, the guarantor is not liable for attorney's fees and costs in connection with an action to enforce a guaranty where there is no express provision in the guaranty for such liability”
Establishes the general rule that absent express provision in the guaranty itself, attorney's fees are not recoverable
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCacciatore executed a personal guaranty of a lease with Fisherman's Wharf Realty Limited Partnership. The lease contained an attorney's fees provision…
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KLEIN, J.
Appellant was held liable on his personal guaranty of a lease and appeals, but we find the issues he raises to be without merit. We address the issue raised by appellee’s motion for attorney’s fees on appeal, which is whether the guarantor can be liable for attorney’s fees where there is no express provision for attorney’s fees in the guaranty.
Appellant, who is contesting the payment of attorney’s fees, relies on Kim v. Peoples Federal Savings & Loan Ass’n of Taventum, Pennsylvania, 538 So. 2d 867, 869 (Fla. 1st DCA 1989), in which the court denied attorney’s fees to the plaintiff recovering on a guaranty, stating:
As a general rule, the guarantor is not liable for attorney’s fees and costs in connection with an action to enforce a guaranty where there is no express provision in the guaranty for such liability, but where the contract provides only for payment of attorney’s fees and costs in connection with proceedings to collect on the note. See Servaites v. Lowden, 99 Nev. 240, 660 P. 2d 1008 (1983); Securities Investment Company of St. Louis v. Donnelley, 89 Nev. 341, 513 P. 2d 1238 (1973); Taylor v. Ross, 736 S.W. 2d 614 (Tenn.Ct.App.1987).
The Kim court did not quote the attorney’s fee provision in the note, but did state that the note in Kim was distinguishable from the one involved in Holcomb v. Bardill, 214 So. 2d 522 (Fla. 4th DCA 1968). The note in Holcomb provided:
In the event this note is placed in the hands of an attorney for collection, or in case the holder shall become a party either as plaintiff or as defendant in any suit or legal proceeding in relation to the property described or the lien created in the mortgage securing payment of this indebtedness or for the recovery or protection of said indebtedness, the maker hereof will repay on demand all costs and expense arising therefrom, including reasonable attorney’s fees, with interest thereon at the rate of 10 percent per annum until paid.
Id. at 523. This court held in Holcomb that the language in the note was broad enough to allow recovery of attorney’s fees in a suit on the guaranty.
In the present case the lease provided:
ATTORNEY FEES AND COSTS: In connection with any litigation arising out of this Lease, the prevailing party shall be entitled to recover all costs incurred, including a reasonable attorney’s fee in the events [sic] of appellate proceedings.
This suit on the guarantee clearly falls within the term “any litigation arising out of this Lease,” and appellee is a prevailing party. We therefore agree that the appel-lee is entitled to attorney’s fees.
In addition, the guaranty provides:
Guarantor further agrees to be bound by each and every covenant, obligation, power and authorization, without limitation, in the said Lease, with the same force and effect as if it were designated in [sic] and had executed said Lease as Lessee hereunder. This provision also makes the guarantor liable under the prevailing party attorney’s fees provision in the lease, because it binds the guarantor in the same manner as the lessee is bound.
We therefore reject appellant’s argument that, under Kim and MSI Financial Group v. Veterans Construction Corp., 645 So. 2d 178 (Fla. 3d DCA 1994), which is consistent with Kim, he is not liable. We affirm the appeal on the merits and grant appellee’s motion for attorney’s fees.
POLEN and SHAHOOD, JJ., concur.
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Cacciatore v. Fisherman's Wharf Realty Ltd. P'ship, 821 So. 2d 1251 (Fla. 4th DCA 2002)…S, JJ., concur. . The order likewise directed levy on appellant's interest in two jointly titled automobiles, but this appeal involves only the portion of the order pertaining to the stock. . See Cacciatore v. Fisherman’s Wharf Realty Ltd. P'ship, 778 So. 2d 1076 (Fla. 4th DCA 2001). . Appellee cited to the trial court some or all of the cases it likewise cites here for that position: First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla.1971); Cadle Company v. G & G Associates, 741 So.…
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Riesterer v. Cadle Co. II, 981 So. 2d 644 (Fla. 2d DCA 2008)…provision in that document. MSI, 645 So. 2d at 179; Kim, 538 So. 2d at 869. Yet, a guarantor may be liable for fees if the language in the note is broad enough to cover a suit on the guaranty. See Cacciatore v. Fisherman’s Wharf Realty Ltd. P’ship, 778 So. 2d 1076, 1077 (Fla. 4th DCA 2001). Cacciatore involved a lease dispute. Id. The lease provided that “[i]n connection with any litigation arising out of this Lease, the prevailing party shall be enti- [*646] tied to recover all costs incurred, including a r…
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Stevan Pardo and Howard Kaplan v. Goldberg, 92 So. 3d 295 (Fla. 3d DCA 2012)…869 (Fla. 1st DCA 1989)). However, “a guarantor may be liable for fees if the language in the [promissory] note is broad enough to cover a suit on the guaranty.” Riesterer, 981 So. 2d at 645; cf. Cacciatore v. Fisherman’s Wharf Realty Ltd. P’ship, 778 So. 2d 1076 (Fla. 4th DCA 2001) (awarding attorney’s fees on appeal where the language of the underlying personal guaranty did not include a provision awarding attorney’s fees but the lease included language that was broad enough to support such an award). But…
Authorities Cited
- Holcomb v. Bardill, 214 So. 2d 522 (Fla. 4th DCA 1968)
- Hollis v. Peoples Fed. Sav. & Loan Ass'n OF Tarentum, 538 So. 2d 867 (Fla. 1st DCA 1988)
- MSI Fin. Grp., Inc. v. Veterans Constr. Corp., 645 So. 2d 178 (Fla. 3d DCA 1994)