Gordon v. Flamingo Holding Partnership, s. 92-2366
| Decision Date | 17 August 1993 |
| Docket Number | Nos. 92-2366,92-2446 and 92-2340,92-1551,s. 92-2366 |
| Citation | 624 So.2d 294 |
| Parties | 18 Fla. L. Weekly D1824 Robert GORDON, et al., Appellants, v. FLAMINGO HOLDING PARTNERSHIP, et al., Appellees. |
| Court | Florida District Court of Appeals |
Lapidus & Frankel, Jorden Burt Berenson Klingensmith & Suarez and Dan Paul and Irma T. Solares, Schulte Blum McMahon & Joblove and Michael D. Joblove, Maria Metropolis, Miami, for appellants.
Coll Davidson Carter Smith Salter & Barkett and Darrell W. Payne and Vance E. Salter, Dubbin Berkman Bloom & Karan, Miami, for appellees.
Before JORGENSON, LEVY, and GERSTEN, JJ.
This is an appeal from a final judgment of foreclosure arising from the sale and development of a parcel of real property in North Bay Village. We affirm the order on appeal except for that portion of the final judgment that denies Robert Gordon prejudgment interest.
In 1981, Robert Gordon sold his Caribbean Towers property to an entity called Firewater, N.V., and took back a purchase money first mortgage for $4,260,000. At the time of the sale, Caribbean Towers was an apartment complex with 103 units, and had the right to develop an additional eighty units. Its rents were pledged as additional collateral for the mortgage debt. Florida East Coast Properties [FECP], whose principal was Tibor Hollo, owned the adjacent parcel of land known as the Flamingo property. Firewater conveyed Caribbean Towers to FECP. In February, 1982, FECP and Firewater executed a Unity of Title agreement to combine the Caribbean Towers property and the Flamingo property, and to develop the site jointly as a high-rise condominium to be marketed through Flamingo Marina Corporation. None of the parties notified Gordon of the Unity of Title agreement.
The City of North Bay Village granted Flamingo Marina Corporation a permit to build a 506 unit project on the Flamingo property. The permit was conditioned upon an agreement between FECP and the City that FECP would close 14 units to residential use in Caribbean Towers and transfer from Caribbean to Flamingo the right under the City's zoning code to build 80 additional units on the Caribbean property. Throughout this time, the Caribbean property remained the security for Gordon's mortgage.
In 1984, Flamingo financed the construction of the 506 unit building by the issuance and sale of Dade County Housing Authority Bonds guaranteed by Irving Trust Company. To secure the bonds, Irving Trust took a first mortgage on the Flamingo property and a second mortgage, behind Gordon's, on the Caribbean property. Irving Trust was aware that Gordon had not consented to the Unity of Title or the transfer of the rights to develop the Caribbean property, and knew that the transfer of those rights would diminish the value of Gordon's collateral. Fourteen Caribbean units were closed, and Flamingo Plaza became available for occupancy in March, 1988. By then the unified property had the maximum density allowed under the City's zoning code.
In March, 1990, FECP conveyed only the Flamingo Property, and not the Caribbean property, to Flamingo Holding Partnership [FHP]. FHP took title to the property knowing that development rights had been transferred from the Caribbean parcel to the Flamingo parcel, and that both the Unity of Title agreement and the transfer of rights had been accomplished without the knowledge or consent of Robert Gordon. 1
In August of 1989, Gordon's attorney sent FECP a demand letter for payment of the overdue 1988 taxes on the Caribbean property, and a reminder that a principal installment of $300,000 would be due on September 17, 1989. FECP, through Tibor Hollo, responded to the attorney and asked Gordon to In January, 1990, the Gordon mortgage on the Caribbean property went into default for failure to pay the 1988 ad valorem taxes and the principal payment due September 17. Gordon filed this action for foreclosure and sought to impose an equitable lien as compensation for the degradation of the collateral caused by the closing of 14 units and the transfer of developmental rights to the Flamingo property. As an alternative, he sought compensation as a third party beneficiary of the Housing Finance Authority's mortgage to require FHP, mortgagor by assignment, to abide by the agreement and pay the Gordon mortgage. On Gordon's motion for summary judgment, the trial court ruled that Gordon was not an intended third party beneficiary.
"hold tight" for 50 days while he negotiated with the Bank of New York, successor to Irving Trust, to take over the entire project. Gordon, through his attorney, agreed to "hold tight" for 50 days, and then to decide how to proceed if negotiations with the Bank of New York were unsuccessful. The negotiations failed.
Following trial on the other claims, the trial court entered a detailed 17-page order and ruled that Gordon was entitled to a judgment of foreclosure on the Caribbean property, as there was no express forbearance agreement after the fifty day period of "holding tight" had expired; that FECP was estopped from asserting any equitable defense to the foreclosure because FECP and Tibor Hollo were primarily at fault for impairing the collateral; that Gordon was entitled to an equitable lien upon the Flamingo property to compensate him for the impairment of the Caribbean collateral; that the lien would be superior to the Irving Trust lien; and that Gordon was not entitled to prejudgment interest. FECP appeals the final judgment of foreclosure; Flamingo appeals the order granting Gordon an equitable lien on its property. Gordon appeals the order that earlier denied him status as a third party beneficiary of the Housing Authority Mortgage, and the portion of the Final Judgment of Foreclosure that denied him prejudgment interest on the equitable lien.
The trial court properly ruled that Gordon was entitled to a final judgment of foreclosure on the Caribbean property, as there was substantial competent evidence to support its finding that Gordon had not agreed to extend the time indefinitely for payment of the mortgage. See Triefler v. Barnett Bank of South Florida, 588 So.2d 240 (Fla. 3d DCA 1991) (...
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