Florida Pottery Stores of Panama City, Inc. v. American Nat. Bank

578 So. 2d 801, 1991 Fla. App. LEXIS 3845, 1991 WL 59996
CourtDistrict Court of Appeal of Florida
DecidedApril 23, 1991
Docket89-2476
StatusPublished
Cited by18 cases

This text of 578 So. 2d 801 (Florida Pottery Stores of Panama City, Inc. v. American Nat. Bank) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Pottery Stores of Panama City, Inc. v. American Nat. Bank, 578 So. 2d 801, 1991 Fla. App. LEXIS 3845, 1991 WL 59996 (Fla. Ct. App. 1991).

Opinion

578 So.2d 801 (1991)

FLORIDA POTTERY STORES OF PANAMA CITY, INC., Wallace C. Yost, and Allen J. Miller, Appellants,
v.
AMERICAN NATIONAL BANK, Appellee.

No. 89-2476.

District Court of Appeal of Florida, First District.

April 23, 1991.

*802 David L. Fleming, Robin A. Kobacker and Lonnie D. Loren, Pensacola, for appellants.

Larry A. Bodiford and Bill R. Hutto of Hutto, Nabors, Bodiford & Warner, Panama City, for appellee.

MINER, Judge.

In this appeal, appellants seek review of a supplemental final judgment awarding attorney's fees and an order of the trial court dismissing an amended counterclaim on the ground that it was based on an oral agreement rendered unenforceable by the statute of frauds. We find merit in appellants' contentions and reverse.

From what we can glean from the somewhat sparse record before us, appellee, American National Bank (ANB) brought suit on a promissory note against appellants, Florida Pottery Stores, Wallace Yost and Allen Miller. Florida Pottery Stores was the borrower and Yost and Miller were guarantors. After appellants filed an answer and counterclaim, the trial court entered final judgment for ANB in the amount of $419,545.40. Apparently, appellants' counterclaim was severed. Yost and Miller appealed the final judgment entered in favor of ANB and thereafter their severed counterclaim was dismissed, triggering another appeal. These two appeals were consolidated. See Yost v. American National Bank, 570 So.2d 350 (Fla. 1st DCA 1990).

Subsequently, Florida Pottery Stores filed a second amended counterclaim alleging breach of contract by ANB. According to the allegations in the counterclaim, Yost had informed ANB's President that Florida Pottery Stores would need $650,000 in funding to begin operations. Florida Pottery Stores borrowed ANB's legal lending limit of $400,000 and ANB represented that it would secure participation for the remaining $250,000. The counterclaim alleged in pertinent part:

In reliance upon [ANB's President's] representations, Florida Pottery made a series of interim borrowings from ANB between June 20, 1986 and July 29, 1986, totaling approximately $400,000.
*803 5. Yost and [ANB's President] agreed that the package loan of $650,000 would have the following terms:
(a) Interest rate — 12% per annum
(b) Five-year amortization
(c) Collateral — security interest in Florida pottery inventory and a second mortgage on Mariner Plaza Shopping Center.
Thus, the above-referenced interim loans were structured so as to be under terms similar to those to be included in the participated, package loan, and Yost and [ANB's President] structured the transaction in the manner which they believed would be the most attractive to the participant. Yost was aware of ANB's lending limit and would not have caused Florida Pottery to make the series of interim loans in an amount which would ultimately leave Florida Pottery under-capitalized had he not been lead by [ANB's President] to believe that ANB would arrange a participation so that the additional $250,000 would be funded.

When ANB failed to secure participation, Florida Pottery Stores became undercapitalized and suffered lost profits.

To this amended counterclaim, ANB filed an answer denying all but the jurisdictional allegations and raising as affirmative defenses the statute of frauds and the parol evidence rule. With the joining of issues, ANB filed a motion for summary judgment supported by an affidavit from its President, the essence of which was that Florida Pottery Stores only requested a $400,000 loan and that there was no written agreement to loan any amount over that sum.[1]

On August 15, 1989, the trial court issued its order granting final summary judgment in favor of ANB and dismissing the counterclaim. The trial court found that the $400,000 loan was accomplished by a series of three promissory notes executed by Florida Pottery Stores between June 20 and July 29, 1986. These notes were renewed in a single note executed on September 18, 1986, which note was later renewed on March 17, 1987, and again on June 16, 1988. The trial court concluded that any of the alleged negotiations or conversations concerning the package loan of $650,000 merged into the closing and subsequent renewal of the $400,000 loan at the time the notes were executed. In addition, the trial court deemed the oral agreement unenforceable under the statute of frauds. The court reasoned that the five-year repayment provision precluded the contract from being performed within the space of one year.

As the parties proceeded with the counterclaim, a separate dispute arose concerning ANB's entitlement to attorney's fees. Although ANB took its judgment in December 1988, appellants did not file a supersedeas bond until the latter part of April of the following year. The bond, in the amount of $493,849.67 was approved by the trial court. Two days after filing the supersedeas bond, ANB filed a motion "for assessment of attorney fees and costs incurred in this litigation under the terms of the note sued upon."[2] Appellants filed a memorandum disputing ANB's entitlement to attorney's fees arguing that section 57.115, Florida Statutes (1987), which section provides for post-judgment attorney's fees, was inapplicable because ANB was not forced to bring supplemental proceedings. In addition, appellants asserted that attorney's fees could not be assessed against the guarantors unless their guaranty agreement specifically provided for such liability. ANB responded by arguing that section 57.115 was applicable, and by pointing out that the guaranty provision incorporated the terms of the note including liability for attorney's fees.

On June 23, 1989, the trial court issued its supplemental final judgment awarding costs and attorney's fees to ANB. The *804 court found that ANB's attorney spent a total of 90 hours in pre- and post-judgment prosecution of the claim; a fee of $150.00 per hour resulted in an attorney's fee award of $13,500. The judgment did not state whether the award was based upon section 57.115 or upon the terms of the note. On August 15, 1989, the trial court denied appellants' motion for rehearing whereupon this appeal ensued.

Turning first to appellants' contention that the trial court erred in granting summary final judgment for ANB, we first observe that Rule 1.510, Florida Rules of Civil Procedure, provides that a summary judgment shall be entered "if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." On the record before us, we conclude that the undisputed facts as set forth in the trial court's order are insufficient to establish ANB's entitlement to judgment as a matter of law. The trial court correctly determined that the following facts were undisputed: (1) any agreement relating to participation for an amount in excess of $400,000 was oral; (2) the participated portion of the loan was to be payable over a five-year period,[3] and (3) the record was silent as to when the participated portion of the loan would be made. These facts do not establish as a matter of law that the oral agreement was barred by the statute of frauds.[4]

The trial court found the agreement barred by the statute of frauds because repayment would not occur within one year.

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Bluebook (online)
578 So. 2d 801, 1991 Fla. App. LEXIS 3845, 1991 WL 59996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-pottery-stores-of-panama-city-inc-v-american-nat-bank-fladistctapp-1991.