Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nabbie v. Orlando Outlet Owner, LLC

Florida Court of Appeals, Fifth District

February 9, 2018

TYRONE NABBIE, Appellant,
v.
ORLANDO OUTLET OWNER, LLC, PREFERRED CHOICE RESTAURANTS, LLC, AND JESSE ENTERPRISES II, LLC, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Orange County, Lisa T. Munyon, Judge.

          Wayne C. Golding, Sr., of The Golding Law Group, PLC., Orlando, for Appellant.

          Robert 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.

          EISNAUGLE, J.

         Appellant 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.

         Guarantor 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 . . . .

(Emphasis added).

         After 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.

         Although 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.