ISRAEL BROIDE AND WESTON STEAKHOUSE, LLC, APPELLANTS,
v.
CARLOS ALVAREZ, INDIVIDUALLY, BRASERO'S RESTAURANTS INTERNATIONAL, LLC, A FLORIDA LIMITED LIABILITY COMPANY, AND OMAR MALPICA, INDIVIDUALLY, APPELLEES
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In this contract dispute, the Fourth District Court of Appeal reversed a $100,000 judgment against the defendants because the promissory note at issue lacked consideration. The court held that since the note's sole consideration—an operational agreement—was declared void for lack of mutual assent, the note itself was unenforceable.
The promissory note is unenforceable for lack of consideration because the operational agreement, which was the sole consideration for the note, was declared void due to lack of mutual assent. The trial court therefore erred in entering summary judgment in favor of the plaintiffs on their breach of note claim.
[1] A promissory note is unenforceable for lack of consideration if the sole consideration for the note is an agreement that is subsequently declared void.
[2] An instrument issued without consideration is subject to the defense of lack of consideration.
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Join FLexlaw to unlock all legal intelligence“the promissory note upon which the judgment is based is unenforceable for lack of consideration”
Establishes the core holding that the note cannot be enforced.
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Join FLexlaw to unlock all legal intelligenceOn December 2, 2004, the parties executed both a written Operational and Administrative Agreement and a Promissory Note. The plaintiffs alleged in the…
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We reverse the final judgment dated November 4, 2009, awarding damages in the amount of $100,000 plus interest to Carlos Alvarez and Brasero’s Restaurants International, LLC (the “plaintiffs”), because the promissory note upon which the judgment is based is unenforceable for lack of consideration. We affirm all other issues raised on appeal without further discussion.
The parties signed both a written “Operational and Administrative Agreement” (the “Operational Agreement”) and a Promissory Note (the “Note”) on December 2, 2004. In paragraph five of their complaint, the plaintiffs specifically alleged that the defendants had executed the Note “[i]n consideration” of the Operational Agreement. Thus, it is undisputed that the Operational Agreement was the sole consideration for the Note. Subsequently, pursuant to a counterclaim for declaratory judgment, the trial court declared that the Operational Agreement was void due to a lack of mutual assent. Neither party disputes this conclusion. Because the Operational Agreement is invalid and because that agreement was the sole consideration for the Note, the Note is unenforceable for lack of consideration. See § 673.3031(2), Fla. Stat. (2004) (“The drawer or maker of an instrument has a defense if the instrument is issued without consideration.”); § 673.3051(l)(b), Fla. Stat. (2004) (“[T]he right to enforce the obligation of a party to pay an instrument is subject to ... [a] defense of the obligor that would be available if the person entitled to enforce the instrument were enforcing a right to payment under a simple contract....”). Accordingly, the trial court erred in entering a final summary judgment in the plaintiffs’ favor on their claim for breach of the Note.
Reversed and remanded for further proceedings consistent with this opinion.
TAYLOR, CIKLIN and GERBER, JJ., concur.