Rissman on Behalf of Rissman Inv. Co. v. Kilbourne
| Decision Date | 22 September 1994 |
| Docket Number | No. 93-1648,93-1648 |
| Citation | 643 So.2d 1136 |
| Parties | 19 Fla. L. Weekly D2036 Robert RISSMAN, on Behalf of RISSMAN INVESTMENT COMPANY, a Michigan Partnership, as general partner of Brittany of Michigan, a Michigan Limited Partnership, Appellant, v. R. KILBOURNE, M.L. Kilbourne, Leroy Edgeley and Jacqueline Edgeley, and Good Life Resorts, Inc., a Florida corporation, Appellees. |
| Court | Florida District Court of Appeals |
Raymond M. Ivey of Raymond M. Ivey, P.A., Gainesville, for appellant.
Stephen A. Scott, Gainesville, for appellees.
Appellant Robert Rissman appeals from a final judgment for defendants. On appeal, he contends that the trial court erred in finding (1) appellees were not estopped from asserting a greater balance due on a promissory note based on their estoppel letter of April 28, 1980, (2) his letters of June 20, October 4, and November 20, 1990 did not constitute tenders, and (3) appellees were entitled to attorney's fees. We affirm in part and reverse in part.
On January 7, 1980, Robert Rissman contracted to purchase from Brittany, Ltd. real property in Alachua County. The purchase price was $1,100,000 amended to $1,050,000 with $50,000 being paid to Brittany, Ltd. in consideration of a noncompete agreement. Pursuant to the terms of the Purchase and Sale Agreement, Rissman agreed to give the seller, Brittany, Ltd., a promissory note in the amount of $875,000, secured by a mortgage on real property (the all-inclusive note). The balance of the purchase price, $225,000, was to be paid in cash at closing.
At the time of the purchase, the property was encumbered by three mortgages: a first mortgage in favor of Sun Bank of Gainesville, a second mortgage now held by Good Life Resorts, Inc. (the subject mortgage), and a third mortgage in favor of Brittany Financial, Ltd. * As stated in the all-inclusive note, Brittany, Ltd.'s equity therein was the difference between the then unpaid balance of the all-inclusive note and the sum of the then unpaid balances of the underlying mortgages.
The all-inclusive note given by Rissman to Brittany, Ltd. provided that Rissman would make the monthly payments to the holders of the three underlying mortgages and deduct these payments from the monthly payment due Brittany, Ltd. on the all-inclusive note. The difference--$1,744.69--was paid to Brittany, Ltd. each month.
After execution of the Purchase Agreement, Rissman obtained, from the holders of the underlying mortgages, letters stating the balances due on each of their mortgages. Upon the request of the seller's agent, Good Life's servicing agent, First American Title Insurance Company of Arizona sent a letter dated April 28, 1980, to Rissman's attorney, Arthur Braverman, in which Good Life stated that the unpaid principle balance as of April 1980 was $193,568.17.
Rissman purchased the subject property, paid Brittany, Ltd. the balance of the purchase price and paid to the underlying mortgage holders all sums due them on their mortgages. After purchasing the subject property, First American sent Rissman annual account statements on the Good Life mortgage. Each statement reflected a balance consistent with the April 28, 1980, letter from First American.
In 1982, Rissman filed suit against Brittany, Ltd., the seller of the real property, for breach of the purchase agreement regarding warranties given concerning the sewer system on the real property. At the conclusion of the trial, judgment was entered in favor of Rissman and against Brittany, Ltd. Since the damages ($334,373.55) exceeded Brittany, Ltd.'s balance or equity in the all-inclusive note and because the court intended to cancel out Brittany, Ltd.'s equity in the note, Rissman again obtained, from the holders of the underlying mortgages, including Good Life, balances then due in order to determine Brittany, Ltd.'s equity in the all-inclusive note. Again, Good Life confirmed a balance consistent with its April 28, 1980 letter. By subtracting the balances of the underlying mortgages from the balance due on the note, the court was able to determine Brittany, Ltd.'s equity in the all-inclusive note ($197,319.00), which the court canceled. The balance of the damages ($137,054.55) was awarded Rissman by way of final judgment. After entry of the final judgment, Rissman negotiated and accepted $45,000.00 from Brittany, Ltd. in satisfaction of the final judgment.
As of late 1989, according to Rissman, Good Life, through First America, continued to verify an amount consistent with the April 28, 1980, letter. At that time, Rissman's C.P.A. maintained records reflecting that amount.
By letter of June 6, 1990, and pursuant to Rissman's request for a payoff statement on the Good Life mortgage, First American noted that an error had been made in the April 28, 1980, statement. First American stated that the recomputed unpaid principle balance of $175,445.28 was owed rather than $108,450.44, which would have been the balance of the subject mortgage in accordance with the April 28, 1980 letter, the annual statements and the balance reported after the 1982 Brittany, Ltd. lawsuit.
Rissman contends that he tendered payment by letters of June 20, October 4 and November 20, 1990, in accordance with the original April 28, 1980 letter, in the full amount of all sums due on the subject promissory note and mortgage. Good Life has consistently denied that any legal tender occurred by, with, or as a result of these three letters.
The first letter is dated June 20, 1990, written by Dennis A. Darin, Jr., an attorney purporting to represent Brittany of Michigan, Ltd. (in which Rissman was the general partner) and addressed to First American Title. The alleged "tender" stated:
Our client['s] records, based upon your original advice, and upon all of your subsequent confirmations, show a balance as of June 1, 1990 of $108,450.44 plus appropriate interest. Its position is that you and your principal are now estopped from denying the accuracy of this balance. We demand that this sum be accepted in full settlement of the mortgage in question and that you forward a pay-off letter stipulating that amount....
The second letter, which is dated October 4, 1990, written by Rissman's current counsel and addressed to John K. Graham, First American Title's counsel and vice president, states:
In connection with the above-referenced account and pursuant to Dennis A. Darin, Jr.'s letter of June 20, 1990, Request is hereby made, pursuant to Section 701.04, Florida Statutes, that First American Title agree to accept the sum of $108,450.44 plus appropriately accrued interest as payment in full on the promissory note and in satisfaction of the mortgage given as security.
The third letter is a letter dated November 20, 1990, written again by Rissman's current counsel and addressed to John K. Graham. The letter states:
In connection with the above-referenced account, please be advised that Michigan National Bank holds the sums necessary to pay off the account. Specifically, the bank and the present owner of the property, Brittany of Michigan, do hereby tender the principal sum of $103,273.43 plus accrued interest as payment in full....
The pay-off proceeds are being held by Michigan National Bank, in trust; pending your response and instructions. Please advise the method you prefer to handle exchange of the proceeds and delivery of the satisfaction of mortgage. Again, we stand ready, willing and able to transmit the pay-off proceeds.
After receiving no response to the letters, Rissman filed suit on March 5, 1991, seeking a declaration of the balance due on the all-inclusive note and mortgage. On March 23, 1993, the cause was tried without a jury before Judge Maurice V. Giunta. The trial court rendered a final judgment for Good Life on May 4, 1993. In the final judgment, the trial judge, without explanation, ruled The court further held,...
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