FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Lisa T. Munyon,
C. Golding, Sr., of The Golding Law Group, PLC., Orlando, for
Bruce McCausland, of McKenna, McCausland & Murphy, P.A.,
Ft. Lauderdale, for Appellee Orlando Outlet Owner, LLC.
Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for
Appellees Preferred Choice Restaurants, LLC and Jesse
Enterprises II, LLC.
Guarantor, Tyrone Nabbie, ("Guarantor") appeals a
final judgment against him, contending that the trial court
erred when it entered partial summary judgment in favor of
Appellee Landlord, Orlando Outlet Owner, LLC,
("Landlord") holding that demand for payment was
not a condition precedent to his performance as a guarantor.
We agree and do not reach the other issues on appeal.
entered into a written guaranty agreement (the
"Agreement") with Landlord promising to pay any
amounts due and owing under a lease if the tenant to the
lease should default. Paragraph A of the Agreement provides
that Guarantor, upon default of the tenant,
shall on demand of Landlord fully and promptly pay
all Rental and other sums, costs, and charges to be paid by
Tenant, and perform all the other covenants, and obligations
to be performed by Tenant, under or pursuant to the Lease,
and in addition shall, on Landlord's demand, pay to
Landlord any and all sums due to Landlord under or pursuant
to the terms of the Lease.
(Emphasis added). Paragraph B, however, further provides:
The Guarantor [Appellant] unconditionally waives . . . (b)(i)
presentment, demand for payment of any sum due from the
Tenant or any person who has guaranteed in whole or in part
any of the obligations guaranteed hereby, notice of
dishonor, protest, protest and demand, notice or [sic]
protest, and notice of nonpayment; (ii) notice of default by
the Tenant or any person who has guaranteed in whole or in
part any of the obligations guaranteed hereby; (iii) demand
for performance by the Tenant or any person who has
guaranteed in whole or in part any of the obligations
guaranteed hereby . . . .
an uncured default by the tenant, Landlord filed suit against
Guarantor, seeking to recover under the Agreement. Guarantor
answered the complaint, asserting as an affirmative defense
that Landlord never made a demand for payment under Paragraph
A of the Agreement, and therefore, failed to comply with a
condition precedent. Landlord moved for partial summary
judgment on this issue, arguing that Paragraph B of the
Agreement waived any right Guarantor had to receive a demand
for payment as a matter of law. The trial court granted the
motion and entered a partial summary judgment. The case then
proceeded to a bench trial on the remaining issues, which
resulted in a final judgment of $307, 000 and an award of
attorney's fees against Guarantor.
the parties advance diametrically opposed interpretations of
the provisions at issue, they both assert that the Agreement
is clear and unambiguous. Guarantor argues that Paragraphs A
and B can be read together, and that Paragraph A requires a
demand for payment from Guarantor before he is required to
perform, while Paragraph B only waives demands directed to
others such as the tenant and other guarantors. Landlord, on
the other hand, argues that ...