SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D23-644 Lower Tribunal No. 19-CA-1173 _____________________________
PIAL HOLDINGS, LTD,
Appellant, v.
RIVERFRONT PLAZA, LLC f/k/a THE MACFARLANE GROUP II, LLC, ODED T. MELTZER, SERVICE FIRST MANAGEMENT GROUP I, INC., M2 LEASING FUNDS, LLC, and MYY BUILDERS, INC., Appellees. _____________________________
Appeal from the Circuit Court for Lee County. Joseph C. Fuller & Keith R. Kyle, Judges.
January 26, 2024
TRAVER, C.J.
Pial Holdings, LTD (“Lender”) appeals the trial court’s final summary
judgment for Oded T. Meltzer and Service First Management Group, Inc. (“Service
First”).1 Lender argues that the trial court erred when it found as a matter of law that
Meltzer and Service First did not personally guarantee Lender’s restructured $10
1 This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023. million loan to MacFarlane Group II, now known as Riverfront Plaza, LLC
(“Borrower”). Finding that at minimum, genuine issues of material fact preclude
summary judgment on this issue, we reverse. 2
This dispute stems from a years-long effort by Meltzer and his former business
partner, Robert McFarlane, to build a two-phase senior living development project
in downtown Fort Myers. Relevant here is the second phase, which Borrower
ultimately owned and on which Lender ultimately foreclosed. Borrower’s managing
member was TMOG Holdings II, LLC (“TMOG II”). In turn, TMOG II originally
had two managing members: Metivier Holdings, LLC (“Metivier”) and O&T Fort
Myers, LLC (“O&T”). MacFarlane was Metivier’s managing member, and Meltzer
was O&T’s.
Lender acquired Borrower’s original loan, which MacFarlane and Meltzer
personally guaranteed, via assignment. Later, a dispute arose between MacFarlane
and other TMOG II members about the project. The resulting settlement saw
MacFarlane agree to transfer his and Metivier’s interests in TMOG II back to TMOG
II in exchange for a release of his personal guarantee on the second phase’s original
loan.
Lender raises one other appellate issue, which we affirm without further 2
discussion. 2 The parties agree that Borrower, Lender, Meltzer, and Service First
restructured the original loan, and that Lender released MacFarlane from his
personal guarantee. They also concur that the amended note and mortgage identify
Borrower as the restructured loan’s borrower and mortgagor. They dispute, though,
whether Meltzer and Service First guaranteed the restructured loan. At issue is a
two-paragraph document entitled “Guarantee.” The first paragraph says that the
“undersigned, called Guarantors,” agreed unconditionally to guarantee the loan
jointly, severally, and personally:
The undersigned, called Guarantors, jointly and severally, unconditionally and personally guarantee and promise to pay PIAL HOLDINGS LTD, a British Virgin Island Company, Number 1938322 (“Lender”) or its assigns, the full indebtedness described in the following: (i) [the mortgage and amendments], (ii) [the note and amendments], and (iii) [the loan agreement as assigned and amended] (Collectively, the “Security Instruments”) and any amendments to the Security Instruments. Upon a default by Borrower under any of the Security Instruments, the Guarantors shall be jointly and severally liable to assume the obligations of the Borrower under the repayment terms set forth in the Security Instruments.
The second paragraph explained that the “Guarantor[’s]” obligations under
the Guarantee were continuing, irrevocable, and independent of any right or remedy
against Borrower:
This Guarantee is absolute and unconditional and is not subject to any conditions. Guarantor is fully liable to perform all of the Borrower’s duties and obligations under Security Instruments as of the date of execution of this 3 Guarantee. This Guarantee is a continuing guarantee and applies to all future guaranteed obligations. This Guarantee is a guarantee of payment and not collection. The obligations and liabilities of Guarantor under this Guarantee shall not be conditioned or contingent upon the pursuit of Lender or any right or remedy against Borrower or against any assets securing the payment described in the Security Instruments or right of setoff with respect to such obligations. This guarantee is irrevocable and as such cannot be cancelled, terminated, or revoked by Guarantors.
Meltzer signed the Guarantee twice, under “Borrower” and under Service
First:
The Guarantee does not define “Borrower” or “Guarantors.” Borrower
ultimately defaulted on the restructured loan and conceded below that Lender could
foreclose. Lender also sued Meltzer and Service First for breach of the Guarantee.
Meltzer and Service First moved for summary judgment, contending Lender could
not enforce the Guarantee against them. Lender did not cross-move for summary
judgment; it argued that genuine issues of material fact precluded summary 4 judgment in Meltzer’s and Service First’s favor. The trial court entered summary
judgment, finding the Guarantee did not impose personal liability on Meltzer and
Service First as a matter of law.
We review de novo the trial court’s order granting summary judgment. See
Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
The trial court should enter summary judgment only if no genuine dispute of material
fact exists, and the moving party is entitled to judgment as a matter of law. Fla. R.
Civ. P. 1.510(a). The moving party bears the initial burden of production to show
the lack of a genuine dispute, and the nonmoving party must respond with evidence
showing that a reasonable jury could find in its favor. See Shiver v. Chertoff, 549
F.3d 1342, 1343 (11th Cir. 2008). The trial court must view all evidence in the light
most favorable to the nonmoving party and draw all reasonable inferences in its
favor. See Newcomb v. Spring Creek Cooler Inc., 926 F.3d 709, 713 (11th Cir.
2019). The moving party carries its burden when it shows “an absence of evidence
to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). The nonmoving party must then point to evidence in the record
demonstrating the existence of a genuine issue. Id. at 324.
We also review the trial court’s interpretation of the Guarantee, like all
contracts, de novo. See Nabbie v. Orlando Outlet Owner, LLC, 237 So. 3d 463, 466
(Fla. 5th DCA 2018) (citing Jackson v. Shakespeare Found., Inc., 108 So. 3d 587,
5 593 (Fla. 2013)). In construing a contract’s terms, we must review the entire
instrument as a whole and according to its plain language. E.g., Talbott v. First Bank
Fla., FSB, 59 So. 3d 243, 245 (Fla. 4th DCA 2011). When parties execute two or
more documents at or near the same time and throughout the same transaction, we
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SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D23-644 Lower Tribunal No. 19-CA-1173 _____________________________
PIAL HOLDINGS, LTD,
Appellant, v.
RIVERFRONT PLAZA, LLC f/k/a THE MACFARLANE GROUP II, LLC, ODED T. MELTZER, SERVICE FIRST MANAGEMENT GROUP I, INC., M2 LEASING FUNDS, LLC, and MYY BUILDERS, INC., Appellees. _____________________________
Appeal from the Circuit Court for Lee County. Joseph C. Fuller & Keith R. Kyle, Judges.
January 26, 2024
TRAVER, C.J.
Pial Holdings, LTD (“Lender”) appeals the trial court’s final summary
judgment for Oded T. Meltzer and Service First Management Group, Inc. (“Service
First”).1 Lender argues that the trial court erred when it found as a matter of law that
Meltzer and Service First did not personally guarantee Lender’s restructured $10
1 This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023. million loan to MacFarlane Group II, now known as Riverfront Plaza, LLC
(“Borrower”). Finding that at minimum, genuine issues of material fact preclude
summary judgment on this issue, we reverse. 2
This dispute stems from a years-long effort by Meltzer and his former business
partner, Robert McFarlane, to build a two-phase senior living development project
in downtown Fort Myers. Relevant here is the second phase, which Borrower
ultimately owned and on which Lender ultimately foreclosed. Borrower’s managing
member was TMOG Holdings II, LLC (“TMOG II”). In turn, TMOG II originally
had two managing members: Metivier Holdings, LLC (“Metivier”) and O&T Fort
Myers, LLC (“O&T”). MacFarlane was Metivier’s managing member, and Meltzer
was O&T’s.
Lender acquired Borrower’s original loan, which MacFarlane and Meltzer
personally guaranteed, via assignment. Later, a dispute arose between MacFarlane
and other TMOG II members about the project. The resulting settlement saw
MacFarlane agree to transfer his and Metivier’s interests in TMOG II back to TMOG
II in exchange for a release of his personal guarantee on the second phase’s original
loan.
Lender raises one other appellate issue, which we affirm without further 2
discussion. 2 The parties agree that Borrower, Lender, Meltzer, and Service First
restructured the original loan, and that Lender released MacFarlane from his
personal guarantee. They also concur that the amended note and mortgage identify
Borrower as the restructured loan’s borrower and mortgagor. They dispute, though,
whether Meltzer and Service First guaranteed the restructured loan. At issue is a
two-paragraph document entitled “Guarantee.” The first paragraph says that the
“undersigned, called Guarantors,” agreed unconditionally to guarantee the loan
jointly, severally, and personally:
The undersigned, called Guarantors, jointly and severally, unconditionally and personally guarantee and promise to pay PIAL HOLDINGS LTD, a British Virgin Island Company, Number 1938322 (“Lender”) or its assigns, the full indebtedness described in the following: (i) [the mortgage and amendments], (ii) [the note and amendments], and (iii) [the loan agreement as assigned and amended] (Collectively, the “Security Instruments”) and any amendments to the Security Instruments. Upon a default by Borrower under any of the Security Instruments, the Guarantors shall be jointly and severally liable to assume the obligations of the Borrower under the repayment terms set forth in the Security Instruments.
The second paragraph explained that the “Guarantor[’s]” obligations under
the Guarantee were continuing, irrevocable, and independent of any right or remedy
against Borrower:
This Guarantee is absolute and unconditional and is not subject to any conditions. Guarantor is fully liable to perform all of the Borrower’s duties and obligations under Security Instruments as of the date of execution of this 3 Guarantee. This Guarantee is a continuing guarantee and applies to all future guaranteed obligations. This Guarantee is a guarantee of payment and not collection. The obligations and liabilities of Guarantor under this Guarantee shall not be conditioned or contingent upon the pursuit of Lender or any right or remedy against Borrower or against any assets securing the payment described in the Security Instruments or right of setoff with respect to such obligations. This guarantee is irrevocable and as such cannot be cancelled, terminated, or revoked by Guarantors.
Meltzer signed the Guarantee twice, under “Borrower” and under Service
First:
The Guarantee does not define “Borrower” or “Guarantors.” Borrower
ultimately defaulted on the restructured loan and conceded below that Lender could
foreclose. Lender also sued Meltzer and Service First for breach of the Guarantee.
Meltzer and Service First moved for summary judgment, contending Lender could
not enforce the Guarantee against them. Lender did not cross-move for summary
judgment; it argued that genuine issues of material fact precluded summary 4 judgment in Meltzer’s and Service First’s favor. The trial court entered summary
judgment, finding the Guarantee did not impose personal liability on Meltzer and
Service First as a matter of law.
We review de novo the trial court’s order granting summary judgment. See
Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
The trial court should enter summary judgment only if no genuine dispute of material
fact exists, and the moving party is entitled to judgment as a matter of law. Fla. R.
Civ. P. 1.510(a). The moving party bears the initial burden of production to show
the lack of a genuine dispute, and the nonmoving party must respond with evidence
showing that a reasonable jury could find in its favor. See Shiver v. Chertoff, 549
F.3d 1342, 1343 (11th Cir. 2008). The trial court must view all evidence in the light
most favorable to the nonmoving party and draw all reasonable inferences in its
favor. See Newcomb v. Spring Creek Cooler Inc., 926 F.3d 709, 713 (11th Cir.
2019). The moving party carries its burden when it shows “an absence of evidence
to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). The nonmoving party must then point to evidence in the record
demonstrating the existence of a genuine issue. Id. at 324.
We also review the trial court’s interpretation of the Guarantee, like all
contracts, de novo. See Nabbie v. Orlando Outlet Owner, LLC, 237 So. 3d 463, 466
(Fla. 5th DCA 2018) (citing Jackson v. Shakespeare Found., Inc., 108 So. 3d 587,
5 593 (Fla. 2013)). In construing a contract’s terms, we must review the entire
instrument as a whole and according to its plain language. E.g., Talbott v. First Bank
Fla., FSB, 59 So. 3d 243, 245 (Fla. 4th DCA 2011). When parties execute two or
more documents at or near the same time and throughout the same transaction, we
will read and construe those documents together as a single contract. See Whitley v.
Royal Trails Prop. Owners’ Ass’n, 910 So. 2d 381, 383 (Fla. 5th DCA 2005) (citing
Courtesy Auto Grp., Inc. v. Garcia, 778 So. 2d 1000, 1002 (Fla. 5th DCA 2000)).
Where a contract’s terms are clear and unambiguous, we must glean the
parties’ intent from the four corners of the document. See Crawford v. Barker, 64
So. 3d 1246, 1255 (Fla. 2011). Ambiguity exists only when contractual language
“is susceptible to more than one reasonable interpretation.” Penzer v. Transp. Ins.,
29 So. 3d 1000, 1005 (Fla. 2010). But “[a] true ambiguity does not exist [in a
contract] merely because [the] contract can possibly be interpreted in more than one
manner.” Am. Med. Int’l, Inc. v. Scheller, 462 So. 2d 1, 7 (Fla. 4th DCA 1984).
Therefore, where one interpretation of a contract would be absurd and another would
be consistent with reason and probability, we will interpret the contract in the
rational manner. Vyfvinkel v. Vyfvinkel, 135 So. 3d 384, 386 (Fla. 5th DCA 2014).
Based on this record before us, the Guarantee is ambiguous. “A guaranty is a
promise to pay the debt of another on the default of the person primarily liable for
payment or performance.” Fort Plantation Invs., LLC v. Ironstone Bank, 85 So. 3d
6 1169, 1171 (Fla. 5th DCA 2012). It must be in writing, and the guarantor must sign
it. § 725.01, Fla. Stat. (2017). The “writing” must contain “language indicating that
it was intended to be a personal guarantee under Florida law.” Schmidt v. Sabow,
331 So. 3d 781, 788 (Fla. 2d DCA 2021).
Although the document at issue is called a “Guarantee,” it does not define
“Guarantors” or “Borrower,” the latter of which appears over Meltzer’s and Service
First’s signatures. But no magic words are required to create a guaranty; instead, we
look to the substance of an agreement to determine whether it constitutes a guaranty.
See e.g., Robert C. Malt & Co. v. Carpet World Distribs., Inc., 763 So. 2d 508, 510–
11 (Fla. 4th DCA 2000) (interpreting corporate officer’s conditional promise to pay
corporation’s debts as personal guaranty despite that promise’s inclusion in lease
addendum).
Meltzer and Service First were not “borrowers” of the restructured loan; only
Borrower was. Corporations and persons cannot guarantee their own debts, and
therefore, we will not construe as guaranties documents signed on behalf of the
corporation already involved because to do so would render the guaranty a nullity
and meaningless. See, e.g., Tampa Bay Econ. Dev. Corp. v. Edman, 598 So. 2d 172,
174 (Fla. 2d DCA 1992) (“For a corporation to guarantee its own debt would add
nothing to its existing obligation and would be meaningless.”). Meltzer and Service
First do not contest this principle, but they contend Service First became the
7 successor mortgagor to Borrower in the restructured loan. They also claim that
Meltzer signed the Guarantee on Borrower’s behalf, even though “Personally”
appears after his name on the signature block. Lender disputes both contentions. It
argues that nothing in the restructured loan transaction would allow Borrower to
transfer its obligation to Service First. It also suggests that the word “Personally,”
alongside the Guarantee’s references to joint and several personal liability, describes
a personal guarantee. It does not explain, however, why “Borrower” appeared above
Meltzer’s and Service First’s signatures.
While we make no suggestion of what should occur on remand, we find that
based on this record, there are—at minimum—genuine issues of material fact
precluding summary judgment in Meltzer’s and Service First’s favor on the
Guarantee. We therefore reverse for further proceedings.
AFFIRMED in part; REVERSED in part; and REMANDED for further
proceedings.
MIZE and BROWNLEE, JJ., concur.
Alexander Brockmeyer, of Boyle, Leonard & Anderson, P.A., Fort Myers, for Appellant.
Robert A. Stok and Theodore Sandler, of Stok Kon + Braverman, Fort Lauderdale, for Appellees, Oded T. Meltzer and Service First Management Group I, Inc.
8 No Appearance for Appellees, Riverfront Plaza, LLC f/k/a The MacFarlane Group II, LLC, m2 Leasing Funds, LLC, and MYY Builders, Inc.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED