Witchell v. Londono

707 So. 2d 796, 1998 Fla. App. LEXIS 1008, 1998 WL 44483
CourtDistrict Court of Appeal of Florida
DecidedFebruary 6, 1998
DocketNo. 96-2681
StatusPublished
Cited by3 cases

This text of 707 So. 2d 796 (Witchell v. Londono) 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
Witchell v. Londono, 707 So. 2d 796, 1998 Fla. App. LEXIS 1008, 1998 WL 44483 (Fla. Ct. App. 1998).

Opinion

VAN NORTWICK, Judge.

Barry Witchell seeks review of a final judgment assessing damages against him in the amount of $575,855.52 for sums due J.H. Londono, appellee, under a promissory note. Witchell challenges (i) the trial court’s failure to apply the proceeds of the sale of collateral on a pro rata basis to reduce the indebtedness under two promissory notes secured by the collateral, and (ii) the trial court’s use of an allegedly inadmissible appraisal report to determine the value of the collateral. We affirm in part and reverse in part.

Factual and Procedural Background

The circumstances underlying this appeal began in 1984, when Kent Realty Corporation purchased certain real and personal property comprising an apartment complex in Tallahassee, Florida from a general partnership comprised of appellee J.H. Londono, and two others. The purchase was financed by the partnership’s acceptance of a purchase money promissory note (Note # 1) and mortgage. At the time of the transaction, Witchell was president of Kent Realty Corporation. He was not, however, personally obligated under Note # 1.

In 1989, Kent Realty defaulted under Note # 1 and the partnership instituted a foreclosure proceeding. On September 1, 1989, the parties entered into an agreement under which a new promissory note (Note #2) would be given to the partnership for accrued interest and late charges due under Note #1 and fees and costs incurred in the foreclosure proceedings. The agreement provided that Note #2 was given in consideration for the partnership’s dismissal of the pending foreclosure suit against Kent Realty. This agreement states in pertinent part:

2.... Note #2 shall be guaranteed by Witchell, and his obligation on Note #2 shall not be extinguished by reason of the recording of the. Deed [in lieu of foreclosure, held by an escrow agent] as set forth herein, if the same is recorded pursuant to the terms hereof. Note.#2 shall be secured by the Mortgage, and the parties hereto agree that this Agreement shall act as a modification and spreading agreement to the Mortgage such that the same secures Note # 2, as well as Note # 1.
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6. In the event the Deed [in lieu of foreclosure, held by an escrow agent] is recorded as provided for herein, and in the event Note # 2 is- paid in whole or in part by Witchell, and thereafter for a period not exceeding five (5) years from the recording of the Deed, Mortgagee sells the property [the collateral under the mortgage] at arms length for a net price in excess of $3,400,000.00, Witchell shall receive from such excess the lesser of such amounts as he paid on Note # 2, or the net proceeds.
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7. Witchell joins in the execution hereof for the purpose of guaranteeing Note #2, and if the same is not paid by Mortgagor it will be paid by Witchell. Witchell also agrees to sign Note #2 as a co-maker.

The principal amount of Note # 2 was $277,-426.16. Witchell signed as a co-maker of Note # 2. Subsequently, Londono acquired the partnership interests of the other members of the partnership, and he became the sole owner of Note # 2.

In November 1991, Londono filed a complaint seeking to foreclose the mortgage (Count I) and to enforce Note #2 against Witchell individually (Count II). The foreclosure was uncontested and a deed transferring both the real and personal property to appellee was recorded. Witchell was not served and collection of Note #2 was not pursued at that time. The final judgment of foreclosure, entered January 10, 1992, set forth the total amount due Londono for principal under Note # 1 with interest accrued from May 1, 1990; the principal under Note # 2 with interest accrued from September 1, 1989;. and real estate taxes for 1990 and 1991 [798]*798on the collateral property, costs and a reasonable attorneys fee.

On March 23/1995, Londono filed a complaint against Witchell for damages arising from the default of Kent Realty under the two notes. At the non-jury trial, Witchell argued that, if he owed anything to appellee, the amount found to be due under Note #2 should be credited pro rata by the market value of the real and personal property received by Londono in the foreclosure action. Witchell’s counsel also objected to admission of the appraisal report offered by Londono, asserting that the appraiser failed to produce the data underlying his opinion as to value. The trial court reserved ruling on the admissibility of the appraisal report.

In the final judgment, the trial court ruled that Witchell was personally obligated under Note #2. With respect 'to the pro rata allocation of the value of the mortgage between Note #1 and Note # 2, further the court found that:

The parties had no agreement as to the pro-ration of the value of the mortgaged property between the two notes. The only provisions in the security agreement which gave Witchell the right to escape personal liability for the amount due on Note # 2 were contingent on Loridono’s realizing at least $3,400,000.00 in cash from a sale of the mortgaged property or by his refusing an offer of that much cash or more. There is no evidence of such a sale or of such a refusal.

The court also determined that the appraisal report was admissible, and accepted ,the appraiser’s opinion that the mortgaged real property had a fair market value of $2,800,000.00 on the date of the foreclosure sale. The trial court then calculated the amount due under Note # 2, based upon the terms of the note and the parties’ agreement, and entered final judgment in favor of Lon-dono and against Witchell in the amount of $575,855.52.

Allocation of Proceeds of Foreclosure Sale

As his first issue raised in this appeal, Witchell contends that the proceeds of.the foreclosure sale or the value of, the collateral sold should have been allocated on a pro rata basis to reduce the amounts owed under Note # 1 and Note # 2. Based on the agreement between the parties as to allocation of the value or proceeds of the sale of the collateral, we cannot agree.

We agree with Witchell that Florida law recognizes the general rule that “when there are multiple notes with the same maturity date and secured by the same collateral, the proceeds of the foreclosure should be allocated to reduce the indebtedness owed on each note on a pro rata basis.” Thunderbird, Ltd. v. Great Am. Ins. Co., 566 So.2d 1296, 1301 (Fla. 1st DCA 1990); see also Kohl v. First Trust Co. of Tonawanda, 255 App. Div. 123, 6 N.Y.S.2d 84, 89 (1938)(where an agreement is silent regarding application of proceeds of a foreclosure sale, proceeds should be applied ratably among multiple notes secured by same collateral); Petit v. Blenkiron, 16 Cal.App.2d 751, 61 P.2d 527, 528 (1936)(in absence of agreement as to priority of satisfaction of notes secured by real property, “the general rule is that the proceeds shall be divided ratably between the several obligations”).

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Cite This Page — Counsel Stack

Bluebook (online)
707 So. 2d 796, 1998 Fla. App. LEXIS 1008, 1998 WL 44483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witchell-v-londono-fladistctapp-1998.