ANDREW A. SCHWAB, APPELLANT,
v.
FRANK QUITONI AND CHARLES BLACKBURN, APPELLEES
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Andrew Schwab appeals a judgment against him on a promissory note signed by his development corporation. The trial court found Schwab personally liable as a guarantor despite his claim he signed only in a representative capacity, and rejected his usury defense.
Schwab is personally liable on the promissory note, having signed it with the intention to personally guarantee payment. The note is not usurious because the profit-participation provision in the mortgage, which would have made the return contingent rather than certain interest, never materialized when the project failed.
[1] A defense of usury is not proven when the lender's potential profit participation, contingent on the successful completion and sale of housing units, never materialized d…
[2] A trial court's finding that a party intended to personally guarantee a promissory note, despite conflicting testimony, will be affirmed if supported by competent substan…
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Join FLexlaw to unlock all legal intelligence“the judgment appealed from is supported by competent substantial evidence and the judgment of this court should not be substituted for that of the trial judge who had the opportunity to personally observe all witnesses in their demeanor while testifying”
Establishes the standard of review for factual findings on personal liability—appellate courts defer to trial court credibility determinations.
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Join FLexlaw to unlock all legal intelligenceSchwab-Vittorino Development Corporation borrowed $37,000 from Quitoni and Blackburn for a land development venture. A promissory note was executed wi…
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PER CURIAM.
This is an appeal by the defendant, Andrew A. Schwab, from a final money judgment in favor of plaintiffs Frank Quitoni and Charles Blackburn, in an action on a promissory note.
The record reflects that Schwab-Vittori-no Development Corporation was a developer and builder of commercial and residential property in Dade County. Appellant Schwab, a dentist by profession, was secretary to the corporation. Appellees, Frank Quitoni and Charles Blackburn, loaned $37,-000 to the corporation in a land development venture and received a promissory note signed as follows:
“SCHWAB-VITTORINO DEVELOPMENT CORP. By s/ A. C. Vittormo as President (Seal) s/ Andrew A. Schwab (Seal).”
The note was secured by a mortgage given by the corporation on lands involved wherein Vittorino signed as president and Schwab as secretary of the corporation. In addition to the interest on the note, the mortgage contained provisions permitting appellees, the mortgagees, to participate in profits in the venture in the event that certain housing improvements were completed on the property and the housing units sold. Had mortgagees participated as expected, their return on the $37,000 loan would have been as high as thirty to thirty-five percent; but unfortunately the project failed and no houses were completed and sold before the mortgagees foreclosed the mortgage.
Final judgment was entered by the trial court which found that there was no usury; that Schwab had personally guaranteed payment to the appellees, having “. signed the promissory note with the intention of so doing . . . ;” and held that the appellees recover from both the corporation and Andrew A. Schwab, individually, the total sum of $43,871.78. Appellant Schwab seeks reversal of the final judgment, contending (1) that he is not personally liable on the note, having intended to sign said instrument in a representative capacity as an officer of the corporation, and (2) that the note is usurious.
On the question of usury, appellees were to participate in the profits of the development venture in the event houses were built and sold on the land. The mortgage provided for this, but the note did not so provide. The project failed, so the opportunity to participate in the provision provided for in the mortgage never arose. Appellant has failed to prove his defense of usury. See Dezell v. King, 91 So. 2d 624 (Fla. 1956); Atwood v. Fisher, 330 So. 2d 62 (Fla.3d DCA 1976); Diversified Enterprises, Inc., v. West, 141 So. 2d 27 (Fla.2d DCA 1962).
Regarding the execution of the note by the appellant, there is conflicting testimony as to whether or not he intended to personally guarantee it, or to sign it as an officer of the corporation. The documents were prepared by the attorney of Vittorino and appellant; the attorney was not present at the time of the execution of the documents and he did not advise appellant as to how to sign the note. The judgment appealed from is supported by competent substantial evidence and the judgment of this court should not be substituted for that of the trial judge who had the opportunity to personally observe all witnesses in their demeanor while testifying. A presumption of correctness attaches to the judgment appealed, and appellant has failed to overcome this presumption. See Herzog v. Herzog, 346 So. 2d 56 (Fla.1977); Shaw v. Shaw, 334 So. 2d 13 (Fla.1976); Tyrrell v. Tyrrell, 281 So. 2d 221 (Fla. 1st DCA 1973).
Accordingly, the final judgment herein appealed is affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Kraft v. Zelda Pincourt Mason, 668 So. 2d 679 (Fla. 4th DCA 1996)…when payment depends upon a contingency. See, e.g., Bailey v. Harrington, 462 So. 2d 861 (Fla. 3d DCA), rev. denied, 472 So. 2d 1180 (Fla.1985), and rev. denied sub nom., N-Site Associates v. Harrington, 472 So. 2d 1181 (Fla.1985); Schwab v. Quitoni 362 So. 2d 297 (Fla. 3d DCA 1978). Here, when the loan was given, any talk of recovery was pure speculation. Quite possibly, there would be no successful recovery from the antitrust litigation, and Mason might have collected nothing beyond the pay back of the loan…
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Oregrund Ltd. P'ship v. Sheive, 873 So. 2d 451 (Fla. 5th DCA 2004)…er, 639 So. 2d 664, 673 (Fla. 4th DCA 1994), Farmer, J. dissenting. Profit participation is authorized by the usury statute as not constituting additional interest. Bailey v. Harrington, 462 So. 2d 861 (Fla. 3d DCA 1985). See also Schwab v. Quitoni, 362 So. 2d 297 (Fla. 3d DCA 1978). In this case, however, the alleged transactions contain no provision for any interest in profits as contemplated by the statute. The record reveals that the $600,000.00 proceeds were to be used for the benefit of another entity,…
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Bailey v. Harrington, 462 So. 2d 861 (Fla. 3d DCA 1985)…er, this profit participation provision is expressly authorized by our usury statutes as not constituting additional interest, § 687.03(4), Fla. Stat. (1983), and has long been approved by well-established principles of usury law. Schwab v. Quitoni, 362 So. 2d 297 (Fla. 3d DCA 1978). The main appeal of the defendant/appellant Yenom Associates Corp. is rendered moot by our ruling today; so is the first point in the main appeal of the defendant/appellant Frank A. Bailey. The remaining point raised by the defe…
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
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)
- Herzog v. Herzog, 346 So. 2d 56 (Fla. 1977)
- Diversified Enters., Inc. v. West, 141 So. 2d 27 (Fla. 2d DCA 1962)
- Dezell v. King, 91 So. 2d 624 (Fla. 1956)
- Anibel K. Tyrrell v. Tyrrell, 281 So. 2d 221 (Fla. 1st DCA 1973)
- Atwood v. Fisher, 330 So. 2d 62 (Fla. 3d DCA 1976)