VANGUARD CONSTRUCTION COMPANY, INC., STANLEY POOLE, RANALD STEWART, AND MICHAEL GLANTZ, APPELLANTS,
v.
THE LEWIS STATE BANK, A FLORIDA BANKING CORPORATION, APPELLEE
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The court held that individual endorsers were not discharged by an extension agreement and that the deficiency judgment was not inequitable under the circumstances.
[1] A surety's consent to a modification of the principal obligor's contract need not be express but may be implied from surrounding circumstances or conduct.
[2] The absence of a surety's physical endorsement on an extension agreement does not preclude a finding of consent if other evidence establishes consent.
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Join FLexlaw to unlock all legal intelligenceVanguard and its officers appealed a deficiency judgment after a foreclosure sale. The individual officers had endorsed Vanguard's note, which include…
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SMITH, Judge.
Vanguard and three of its officers appeal from a deficiency judgment entered for the bank following a foreclosure sale of land mortgaged to the bank to secure Vanguard’s debt. The individual appellants endorsed the corporate note and therein consented “to any extensions or renewals without further notice.” They did not individually execute the later extension agreement between Vanguard and the bank, although appellant Stewart signed as president of Vanguard. The extension agreement increased interest payable from 11 to 15 percent.
The circuit court entered a deficiency judgment against Vanguard for the difference between the principal debt and the land’s market value at the time of foreclosure, with interest at the contract rates, and against the individuals for same principal deficiency, with interest at 10 percent.1 The trial court rejected the claim of all appellants that a deficiency judgment was in the circumstances inequitable, and rejected the individuals’ claim they were discharged by the extension at increased interest to which, they say, they did not consent.
The trial court did not err in declining to discharge the individual endorsers. The bank’s loan officer testified without contradiction that “the principals,” meaning the three endorsers, requested the extension agreement. The endorsers' answer, prepared by former counsel, raised no claim of discharge, although it pleaded other affirmative defenses. The issue of discharge was not otherwise raised before entry of the foreclosure judgment. After the sale, in which the bank successfully bid a nominal sum for the land, the endorsers raised the issue obliquely by a motion for judgment on the pleadings2 and by argument at the hearing on deficiency issues.
The trial court treated the issue as litigated, at least by argument, and ruled on the issue when entering the deficiency judgment. The necessity for pleadings required by Diversified Ent. of Florida, Inc. v. Holt, 188 So. 2d 693 (Fla. 2d DCA 1966) was therefore waived. See Fla.R.Civ.P. 1.190(b).
However, the trial court’s consideration of argument on the issue cannot here obviate the endorser’s lack of evidence showing error in the ruling. Except for the absence of their endorsements on the written extension agreement, the record contains no evidence that these officers of Vanguard, all of whom requested the extension and one of whom signed it for Vanguard, did not consent to the extension.
Therefore, even assuming that endorsers may be discharged by their lack of consent to an extension agreement binding the principal obligor to pay greater interest,3 the absence of their physical endorsements of the extension agreement is not conclusive on the issue of their consent, which may be established by other evidence. See A. Stearns, Law of Suretyship 129 (5th ed. 1951):
“Parties to a contract may always alter it by mutual agreement and this is as true of suretyship contracts as others. Accordingly, if the creditor and principal modify their contract, and the surety consents thereto, he will not be discharged. Such consent need not be expressly given, but may be implied from the surrounding circumstances or from his conduct.”
Nor did the trial court err in its disposition of the claim of all four appellants that any deficiency judgment is in these circumstances inequitable. The amount of the appraisal which the bank secured before making the loan did not, as a matter of law, foreclose the bank from proving in deficiency proceedings that the market value of the property foreclosed and bought in for a nominal bid was less than the appraisal. The trial court properly considered equitable and other relevant factors in determining the amount of the deficiency judgment, and we should defer to that court’s finding. Maudo, Inc. v. Stein, 201 So. 2d 821 (Fla. 3d DCA 1967).
AFFIRMED.
MILLS, Acting C. J., and DRURY, ARV-EL, Associate Judge, concur. . See § 687.11(1), Fla.Stat. (1975): “No individual secondarily liable as endorser, guarantor, surety, or otherwise on any corporate obligation shall be required ... to pay any interest in excess of 10 percent per annum, and any interest claimed . . against such individual in excess of 10 percent per annum shall be forfeited. . .
. Matters outside the pleadings may not be considered on such a motion. Reinhard v. Bliss, 85 So. 2d 131 (Fla. 1956).
. See Miami Nat’l Bank v. Fink, 174 So. 2d 38 (Fla. 3d DCA 1965), cert, den., 180 So. 2d 658 (Fla. 1965); Simpson, Handbook on the Law of Suretyship 357-58 (1950).
But see Taines v. Capital City First Nat’i Bank, 344 So. 2d 273 (Fla. 1st DCA 1977), in which we held accommodation parties not discharged when they consented to “any extensions or renewals of this note.” The accommodation parties contended the extension agreement “drastically altered” the obligation of the original note, in part by changing the principal obligor’s obligation for interest from the Chase Manhattan prime rate (but not less than 8% nor greater than 15%) to a constant 10%. Although no difference between the Chase Manhattan prime rate hnd 10% was in fact shown, the opinion in Taines did not turn on the absence of that proof. Contrast Chris Craft Ind., Inc. v. Van Valkenberg, 267 So. 2d 642, 646 (Fla. 1972), in which the Supreme Court held a guarantor not discharged when he consented to “any extensions, renewals, alterations, amendments or waivers ... of any of the terms and provisions of said promissory note including . . . the . . amount and time of payment . . . .” It is unclear whether in Chris Craft the same result would have attached to the accommodation party’s earlier consent only to “all extensions and renewals.”
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Pike v. Nat'l Fid. Life Ins. Co., 377 So. 2d 973 (Fla. 3d DCA 1979)…pel were therefore obviously tried by the “implied consent of the parties,” and are therefore properly “treated in all respects as if they had been raised in the pleadings.” Fla.R.Civ.P. 1.190(b); Vanguard Construction Co., Inc. v. Lewis State Bank, 348 So. 2d 72 (Fla. 1st DCA 1977); Titusville Enterprises, Inc. v. Newkirk, 205 So. 2d 16 (Fla. 4th DCA 1967). Even assuming arguendo that a formal amendment to the pleadings was appropriate, there was no basis, in view of the manifest lack of prejudice to the de…
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McCOLLEM v. Chidnese, 832 So. 2d 194 (Fla. 4th DCA 2002)…denied if the holder of the note comes to the court with unclean hands or the foreclosure would be unconscionable”). The appellate court should defer to a trial court’s well-reasoned equitable findings. See Vanguard Constr. Co. v. Lewis State Bank, 348 So. 2d 72 (Fla. 1st DCA 1977). Nevertheless, the conduct constituting the unclean hands, which the court uses as a basis to reduce the deficiency judgment, must generally be connected with the matter in litigation and must affect the adverse party. See Penni…
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Barnett Bank OF Jacksonville, N.A. v. Jacksonville Nat'l Bank, 457 So. 2d 535 (Fla. 1st DCA 1984)…hing JNB’s right to funds in Perfecta’s checking account with Barnett, was posed by the court and treated by the parties as within the issues being tried by the trial court. Rule 1.190(b), Fla.R.Civ.P.; Vanguard Construction Co. v. Lewis State Bank, 348 So. 2d 72, 74 (Fla. 1st DCA 1977); Pike v. National Fidelity Life Insurance Co., 377 So. 2d 973, 976 (Fla. 3d DCA 1979). The fact that Barnett presented this argument in terms of common law rules espoused in Gendler v. Sibley State Bank, supra, and similar ca…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Reinhard v. Bliss, 85 So. 2d 131 (Fla. 1956)
- Miami Nat'l Bank v. Fink, 174 So. 2d 38 (Fla. 3d DCA 1965)
- Chris Craft Indus., Inc. v. VAN Valkenberg, 267 So. 2d 642 (Fla. 1972)
- Taines v. Cap. City First Nat'l Bank, 344 So. 2d 273 (Fla. 1st DCA 1977)
- Hansen v. Ponce de Leon Hotel, 180 So. 2d 658 (Fla. 1965)
- Silver v. State, 180 So. 2d 658 (Fla. 1965)
- Maudo, Inc. v. Isidor Stein and Rose Stein, 201 So. 2d 821 (Fla. 3d DCA 1967)
- Diversified Enters. OF Fla., Inc. v. Holt, 188 So. 2d 693 (Fla. 2d DCA 1966)