Rizzi v. Service Development Corp.

• Decision Date: 17 January 1978
• Docket Number: No. 76-2110,76-2110
• Citation: 354 So.2d 898
• Parties: Gilda RIZZI, Appellant, v. SERVICE DEVELOPMENT CORPORATION, a Florida Corporation, and Jack P. Moskos and Betsy B. Moskos, his wife, and Charles Fischofer and Joan Fischofer, his wife, and James F. Redditt and Elizabeth R. Redditt, his wife, jointly and severally, Appellees.
• Court: Florida District Court of Appeals

Page 898

354 So.2d 898

Gilda RIZZI, Appellant, v. SERVICE DEVELOPMENT CORPORATION, a Florida Corporation, and Jack P. Moskos and Betsy B. Moskos, his wife, and Charles Fischofer and Joan Fischofer, his wife, and James F. Redditt and Elizabeth R. Redditt, his wife, jointly and severally, Appellees.

No. 76-2110.

District Court of Appeal of Florida, Fourth District.

Jan. 17, 1978.

Rehearing Denied Feb. 24, 1978.

Hal H. McCaghren, West Palm Beach, for appellant.

Richard W. Bates, Orlando, and J. Geoffrey Pflugner of Dent & Pflugner, Sarasota, for appellees.

DREW, E. HARRIS (Ret.), Associate Judge.

Robert Armstrong entered into a written lease for certain lands with the buildings and improvements for a period of fifteen years at an annual rental of $13,800, payable $1,150 per month plus certain percentages of gross sales according to a formulae fixed in the lease with Service Development Corporation. Attached to the lease was a "Guarantee of Lease" signed by the six individual stockholders of the lessee. The full text of the guarantee, ¹ omitting the names and witnesses, appears in the footnote. The lease and guarantee were dated February 10, 1969.

In December, 1971, Robert Armstrong sold the property and assigned the lease containing the guarantee and all past due and future rentals to Gilda Rizzi, plaintiff below appellant here. At the time of Rizzi's purchase, rents, taxes and other obligations under the lease were past due. Rizzi brought this action against the lessee corporation and the six stockholder guarantors to recover past due rent and the other obligations alleging that the lessee had abandoned the property, failed to pay rents and other charges, and that Rizzi had re-rented the premises for $800 per month, which was set off against amount due.

As affirmative defenses the guarantors alleged that the assignment of the lease ineffective as an assignment of the guarantee, estoppel by failure to rent promptly after abandonment, failure to mitigate damages and other defenses not pertinent here.

After trial before the court a judgment was entered for the guarantors. The trial court, in its judgment, held:

"The guarantee of lease which is the subject matter of this suit was never assigned by reference, nor did the guarantors consent to an assignment or receive notice thereof. The guarantee was a special, rather than general and could not be assigned without the consent of the guarantors. In addition, the lease was materially altered without the knowledge of the guarantors. Under the above and other circumstances shown by the evidence, Plaintiff is not entitled to prevail."

The assignment of the lease to Rizzi, attached to the original lease and guarantee recited:

"FOR VALUE RECEIVED, we hereby assign to GILDA RIZZI, all of our right, title and interest in this lease, together with all past, present and future rents due under the terms of said lease."

The guarantee was for the benefit of the lessor Armstrong, "his heirs and assigns." (Emphasis supplied.) The guarantee was a part of the original lease and obviously one of the considerations for it. It was not a "special" guaranty as held by the trial court but a general guaranty. It ran to the lessor and his assigns and therefore to any person to whom the principal obligations and the guaranty may be transferred. ²

The transfer of the lease to Rizzi as purchaser of the property and all past, present and future rents was transfer of the original...