                          STATE OF MICHIGAN

                           COURT OF APPEALS



STERLING BANK & TRUST, F.S.B.,                                     UNPUBLISHED
                                                                   November 19, 2015
               Plaintiff-Appellee,

v                                                                  No. 322325
                                                                   Oakland Circuit Court
SC SOUTHFIELD-TWELVE ASSOCIATES,                                   LC No. 2009-103711-CK
L.L.C., and MARK A. CANVASSER,

               Defendants-Appellants.


Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

        The proceedings underlying this appeal spanned nearly five years, during which plaintiff,
Sterling Bank and Trust, FSB, sought to recover on a promissory note and leasehold mortgage
executed by defendant SC Southfield-Twelve Associates, LLC, and a guaranty executed by
defendant Mark A. Canvasser.1 The trial court entered a judgment awarding plaintiff
$902,120.85 in damages against SC STA on the basis of its liability for the mortgage debt. The
trial court ordered Canvasser to pay a 25% share of SC STA’s outstanding debt, and it ordered
foreclosure of the leasehold mortgage. Defendants appeal as of right. We affirm.

                                I. FACTUAL BACKGROUND

        On April 16, 1998, SC STA executed a promissory note and mortgage, under which SC
STA received a $1,125,000 commercial loan and plaintiff obtained a leasehold mortgage on SC
STA’s leasehold interest in commercial property located in Southfield, Michigan. At the time,
Canvasser and David L. Steuer, who is not a party in this case, signed a guaranty agreement,
under which they unconditionally guaranteed, among other things, “the full and prompt payment
and collection when due, whether by acceleration or otherwise, and at all times hereafter, of: (a)
the top twenty five percent (25 %) of the outstanding indebtedness on the Mortgage Note . . . .”




1
 We will refer to defendant SC Southfield-Twelve Associates, LLC, as “SC STA” and defendant
Mark Canvasser as “Canvasser” in this opinion.


                                               -1-
        Following two loan modifications, plaintiff filed a two-count complaint against SC STA
in September 2009, under which it (1) alleged that SC STA breached the promissory note and (2)
requested the appointment of a receiver over the property covered by the leasehold mortgage. In
October 2009, the trial court appointed a receiver over the property. In February 2010, plaintiff
filed a first amended complaint, which included an additional count against Canvasser alleging
that he violated the terms of the guaranty agreement.2

        In July 2010, plaintiff filed a motion for summary disposition under MCR 2.116(C)(10)
regarding the extent of Canvasser’s liability under the guaranty agreement. Defendants
subsequently filed a motion to compel plaintiff to mitigate its damages by immediately
foreclosing on the leasehold mortgage. Additionally, Canvasser filed a response in opposition to
plaintiff’s motion for summary disposition, in which he sought the entry of judgment in his favor
under MCR 2.116(I). The trial court granted plaintiff’s motion for summary disposition,
entering a judgment against Canvasser for $209,979.71, and denied defendants’ motion to
compel foreclosure on the leasehold mortgage.

       In September 2011, the trial court held a bench trial on plaintiff’s breach of contract
claim against SC STA and the judicial foreclosure claim. In February 2014, the trial court
entered an opinion and order in favor of plaintiff. In June 2014, the trial court entered a final
judgment (1) awarding plaintiff $902,120.85 in damages against SC STA for breaching the
promissory note and mortgage, (2) amending the original judgment against Canvasser so that
Canvasser is liable for 25% of the current judgment against SC STA, and (3) ordering judicial
foreclosure on the leasehold mortgage, with the understanding that the money judgments against
defendants would be adjusted following the foreclosure sale.

                                  II. STANDARDS OF REVIEW

        On appeal, defendants challenge multiple orders and judgments entered by the trial court.
However, defendants’ claims are rooted in the trial court’s order granting summary disposition in
favor of plaintiff as to Canvasser’s liability under the guaranty, its opinion and order after trial on
plaintiff’s breach of contract and judicial foreclosure claims, and its final judgment against
defendants.

        This Court reviews de novo a trial court’s grant or denial of summary disposition.
Moraccini v Sterling Hts, 296 Mich App 387, 391; 822 NW2d 799 (2012). When reviewing a
motion for summary disposition pursuant to MCR 2.116(C)(10), which tests the factual
sufficiency of the plaintiff’s claim, Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506
(2004), this Court may only consider, in the light most favorable to the party opposing the
motion, the evidence that was before the trial court, which consists of “the ‘affidavits, together
with the pleadings, depositions, admissions, and documentary evidence then filed in the action or
submitted by the parties,’ ” Calhoun Co v Blue Cross Blue Shield Michigan, 297 Mich App 1,
11-12; 824 NW2d 202 (2012), quoting MCR 2.116(G)(5). Under MCR 2.116(C)(10),


2
  Much later in the proceedings, plaintiff filed a second amended complaint, under which
plaintiff requested judicial foreclosure.


                                                 -2-
“[s]ummary disposition is appropriate if there is no genuine issue regarding any material fact and
the moving party is entitled to judgment as a matter of law.” Latham v Barton Malow Co, 480
Mich 105, 111; 746 NW2d 868 (2008). “There is a genuine issue of material fact when
reasonable minds could differ on an issue after viewing the record in the light most favorable to
the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8
(2008). “This Court is liberal in finding genuine issues of material fact.” Jimkoski v Shupe, 282
Mich App 1, 5; 763 NW2d 1 (2008).

       After a bench trial, we review the trial court’s findings of fact for clear error and its
conclusions of law de novo. Florence Cement Co v Vettraino, 292 Mich App 461, 468; 807
NW2d 917 (2011). “As with other findings of fact, an award of damages is reviewed on appeal
pursuant to the clearly erroneous standard.” Triple E Produce Corp v Mastronardi Produce, Ltd,
209 Mich App 165, 177; 530 NW2d 772 (1995). “A factual finding is clearly erroneous if there
is no substantial evidence to sustain it or if, although there is some evidence to support it, the
reviewing court is left with the definite and firm conviction that a mistake has” occurred. Miller-
Davis Co v Ahrens Constr, Inc, 495 Mich 161, 173-173; 848 NW2d 95 (2014).

                   III. CONSTRUCTION OF THE GUARANTY CONTRACT

        Defendants first argue that the trial court erroneously interpreted the guaranty executed
by Canvasser and, as a result, improperly granted summary disposition in favor of plaintiff with
regard to Canvasser’s liability and incorrectly ruled that Canvasser remained liable for a portion
of SC STA’s debt under the final judgment and after proceeds from the foreclosure were applied
to the debt. We disagree.

                        A. RULES OF CONTRACT INTERPRETATION

         The following standards of review and rules of interpretation are applicable in contract
cases:

                We review de novo questions involving the proper interpretation of a
         contract. In ascertaining the meaning of a contract, we give the words used in the
         contract their plain and ordinary meaning that would be apparent to a reader of the
         instrument. We must give effect to every word, phrase, and clause in a contract
         and avoid an interpretation that would render any part of the contract surplusage
         or nugatory. We cannot read words into the plain language of a contract.
         [Northline Excavating, Inc v Livingston Co, 302 Mich App 621, 627-628; 839
         NW2d 693 (2013) (quotation marks and citations omitted).]

        Likewise, “all [of a contract’s] parts are to be harmonized so far as reasonably
possible[.]” Comerica Bank v Cohen, 291 Mich App 40, 46; 805 NW2d 544 (2010) (quotation
marks and citation omitted). “If the language of the contract is unambiguous, we construe and
enforce the contract as written. Thus, an unambiguous contractual provision is reflective of the
parties’ intent as a matter of law. Once discerned, the intent of the parties will be enforced
unless it is contrary to public policy.” Quality Products & Concepts Co v Nagel Precision, Inc,
469 Mich 362, 375; 666 NW2d 251 (2003) (citations omitted).



                                                 -3-
        “Contracts of guaranty are to be construed like other contracts, and the intent of the
parties, as collected from the whole instrument and the subject-matter to which it applies, is to
govern.” Comerica Bank, 291 Mich App at 46 (quotation marks and citation omitted).
However, the Michigan Supreme Court has recognized that “a guaranty contract—like a surety
contract—is a special kind of contract,”3 and has applied to guaranty contracts the principles of
construction that apply to surety contracts. Bandit Indus, Inc v Hobbs Int’l, Inc (After Remand),
463 Mich 504, 511-512; 620 NW2d 531 (2001) (citations omitted).

                The undertaking of a surety is to receive a strict interpretation. . . . The
       liability of a surety is not to be extended by implication beyond the terms of his
       contract. A surety cannot be held beyond the precise terms of his agreement. . . .
       [Id. (quotation marks and citations omitted).]

                                       B. APPLICATION

         Defendants argue that the trial court erroneously disregarded the word “top” in
interpreting the extent of Canvasser’s liability, emphasizing that the adjective “top” serves as a
limitation of Canvasser’s liability and asserting that Canvasser’s liability was limited to the “top
25%” of the outstanding indebtedness at the time of default minus any amount subsequently
received by plaintiff, including proceeds from foreclosure on the mortgage.4 The plain language
of the guaranty provides otherwise, and we cannot identify any provision in the agreement that
could reasonably be construed as supporting Canvasser’s contention that SC STA’s outstanding
liability was required to be fixed at a particular time for purposes of determining his liability.

        The guaranty states, “The Undersigned, Mark A. Canvasser and David L. Steuer, hereby
unconditionally guarantee the full and prompt payment and collection when due, whether by
acceleration or otherwise, and at all times hereafter, of: (a) the top twenty five percent (25 %) of
the outstanding indebtedness on the Mortgage Note . . . .” (Emphasis added.) Additionally, the
guaranty also provides, “Any amount received by Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of application as Lender may
from time to time elect.” Given this clear and unambiguous language, and the absence of any
language setting a time for establishing the amount of Canvasser’s liability, the trial court
properly concluded that the plain language of the guaranty does not establish a particular time for


3
  A surety and a guarantor are similar in that both “promise to answer for the debt or default of
another,” but the primary distinction between a surety contract and a guaranty contract is as
follows: “ ‘[W]hile the surety assumes liability as a regular party to the primary undertaking, the
guarantor does not, as his or her liability depends on an independent collateral agreement by
which he or she undertakes to pay the obligation if the primary payor fails to do so.’ ” Bandit
Indus, 463 Mich at 507-508 n 4, quoting 23 Michigan Civil Jurisprudence, Surety, § 14, p 50.
4
  Similarly, defendants also contend that even if the trial court correctly calculated the
outstanding liability of SC STA, the court should have interpreted the guaranty to demand no
further repayment from Canvasser because plaintiff could receive from SC STA more than 25%
of outstanding debt.


                                                -4-
the calculation of Canvasser’s liability and does not prescribe a particular timeframe or order for
applying payments in the calculation of SC STA’s outstanding debt for purposes of determining
Canvasser’s “top 25%” share. Similarly, the trial court properly found that the guaranty includes
no provision that could be reasonably construed as indicating that SC STA’s outstanding liability
had to be fixed at a particular time. Rather, the guaranty indicates that Canvasser remains liable
for the “top 25%” of SC STA’s outstanding liability when payment on the loan is due and “at all
times hereafter.”

        Defendants assert on appeal that both parties agreed in the trial court that the word “top”
means that Canvasser promised to pay the first or initial 25% portion of SC STA’s liability under
the promissory note and only disagreed as to the time at which the “top” is calculated and the
effect of proceeds from foreclosure on the “top.” On this basis, defendants assert that the
meaning of “top” is unambiguous and that “the trial court erred in failing to ascribe any meaning
to it.” However, the record shows that the trial court considered the word “top” and properly
construed the plain language of the guaranty. Additionally, as the trial court recognized, the
word “outstanding” is significant in ascertaining Canvasser’s obligations under the guaranty and
in construing the word “top.” The plain meaning of “outstanding,” which is not defined in the
guaranty or the loan agreement,5 under these circumstances is “unpaid” or “continuing to exist.”
Merriam-Webster’s Collegiate Dictionary (11th ed). Likewise, in Black’s Law Dictionary (10th ed),
“outstanding” is defined as “[u]npaid; uncollected <outstanding debts>.” Thus, in construing the
guaranty as a whole and in a manner that harmonizes its provisions as much as reasonably possible,
Comerica Bank, 291 Mich App at 46, we conclude that the ordinary meaning of the guaranty was
that Canvasser unconditionally promised to pay the first or initial 25% of SC STA’s unpaid or
uncollected debt when the debt was due, or at any time after it became due, regardless of any
other payments received by plaintiff.

        Defendants also incorrectly assert that plaintiff was required to foreclose on the leasehold
mortgage and subtract the proceeds from SC STA’s outstanding indebtedness before calculating
Canvasser’s 25% liability. Likewise, we reject defendants’ argument that the trial court erred in
denying Canvasser’s request that all funds collected by plaintiff be applied to the “top” portion
of the debt in a manner that satisfies Canvasser’s obligation under the guaranty. The following
clear and unambiguous language in the guaranty belies defendants’ claims:

               The obligations of the undersigned hereunder are independent of the
       obligations of Borrower [SC STA], and a separate action or actions for payment,
       damages or performance may be brought and prosecuted against the
       undersigned, or any one of them, whether or not an action is brought against
       Borrower or the security for Borrower’s obligations, and whether or not
       Borrower be joined in any such action or actions, and whether or not notice be
       given or demand be made upon Borrower.



5
 “Courts may consult dictionary definitions to ascertain the plain and ordinary meaning of terms
undefined in an agreement.” Holland v Trinity Health Care Corp, 287 Mich App 524, 527-528;
791 NW2d 724 (2010).


                                                -5-
               Lender may, from time to time, without notice to the undersigned . . . and
       without affecting, diminishing or releasing the liability of the undersigned . . . (g)
       resort to the undersigned . . . for payment of any of the Liabilities, or any portion
       thereof, whether or not Lender shall have resorted to any property securing any
       of the Liabilities or any obligation hereunder or shall have proceeded against any
       other of the undersigned or any other party primarily or secondarily liable on any
       of the Liabilities . . . . [Emphasis added.]

This language plainly allows plaintiff to (1) seek recovery from Canvasser without first seeking
recovery through foreclosure of the leasehold mortgage and (2) file suit against Canvasser for
damages, payment, or performance without first filing suit against SC STA or otherwise
recovering from SC STA. See Comerica Bank, 291 Mich App at 47-48 (holding, with regard to
a guaranty agreement that included terms similar to those in this case, that “[t]he plain language
of the limited guarant[y] forecloses defendant’s arguments” that the plaintiff was required to
foreclose on the collateral before collecting on the guaranty).

        Therefore, consistent with our duty to read the language of the contact as a whole and
“harmonize[] [its parts] so far as reasonably possible[,]” id. at 46 (quotation marks and citation
omitted), we conclude that defendants’ interpretation of “top” is not supported by the precise
terms of the agreement, and plaintiff was not required to foreclose on the leasehold mortgage at a
particular time or apply the proceeds from the foreclosure or other funds received from SC STA
in a manner that satisfied Canvasser’s liability under the guaranty, see Bandit Indus, 463 Mich at
511-512.

                               IV. MITIGATION OF DAMAGES

        Next, defendants argue that the trial court incorrectly denied their motion to compel
plaintiff to mitigate its damages by foreclosing on the leasehold mortgage. Additionally,
defendants contend that, after the bench trial, the trial court erroneously found that plaintiff had
pursued reasonable mitigation efforts, arguing “that the [l]easehold [m]ortgage held as collateral
was a depleting asset,”6 and that the trial court failed to adequately explain how any funds
advanced by plaintiff preserved the collateral. We disagree.



6
   Defendants briefly assert for the first time in their reply brief that the trial court erred in
“foreclosing from consideration at trial the reasonableness of what [plaintiff] now claims were
efforts to mitigate.” “Reply briefs must be confined to rebuttal, and a party may not raise new or
additional arguments in its reply brief.” Kinder Morgan Michigan, LLC v City of Jackson, 277
Mich App 159, 174; 744 NW2d 184 (2007), citing MCR 7.212(G). Nevertheless, the record
does not support defendants’ claim that the trial court precluded consideration of this issue at
trial. The reasonableness of plaintiff’s mitigation efforts was an issue specifically identified by
defendants in the joint final pretrial order, plaintiff expressly acknowledged defendants’
argument regarding its mitigation efforts during its opening statement at trial, and defense
counsel extensively cross-examined witnesses at trial regarding the reasonableness of plaintiff’s
mitigation efforts.


                                                -6-
                                     A. APPLICABLE LAW

        “Mitigation of damages is a legal doctrine that seeks to minimize the economic harm
arising from wrongdoing.” Morris v Clawson Tank Co, 459 Mich 256, 263; 587 NW2d 253
(1998). “The question whether [a] plaintiff’s efforts to mitigate damages were reasonable under
the circumstances is one for the trier of fact.” Id. at 270. A plaintiff’s duty to reasonably
mitigate its damages is as follows:

              Where one person has committed a tort, breach of contract, or other legal
       wrong against another, it is incumbent upon the latter to use such means as are
       reasonable under the circumstances to avoid or minimize the damages. The
       person wronged cannot recover for any item of damage which could thus have
       been avoided. [Id. at 263-264 (quotation marks and citation omitted).]

Because “[t]he failure to mitigate damages is an affirmative defense,” Fothergill v McKay Press,
374 Mich 138, 140; 132 NW2d 144 (1965), “[t]he defendant bears the burden of proving that the
plaintiff failed to make reasonable efforts to mitigate damages,” Morris, 459 Mich at 266.

                                        B. APPLICATION

                                       1. FORECLOSURE

        First, the trial correctly rejected defendants’ claim, under their motion to compel plaintiff
to mitigate its damages by foreclosing on the leasehold mortgage, that plaintiff had to pursue
foreclosure on the leasehold mortgage before it could seek damages from Canvasser. As we
explained supra, the plain language of the guaranty did not require plaintiff to foreclose on the
leasehold interest. Given the clear intent of the parties under the guaranty agreement, see
Comerica Bank, 291 Mich App at 46, it would be counterintuitive to conclude that foreclosure
was a means of mitigation required before it could seek damages from Canvasser, see Morris,
459 Mich at 263-264. In addition, the leasehold mortgage indicates that plaintiff was permitted
to commerce foreclosure proceedings, but was not required to do so, in the event of default, and
that plaintiff could “[s]eek the [court] appointment . . . of a receiver to manage the mortgage
premises and collect rent profits and income therefrom.” As such, there is no indication that
foreclosure was the only reasonable means to avoid or minimize plaintiff’s damages, especially
in light of the other remedies identified in the leasehold mortgage. See Quality Products, 469
Mich at 375. Likewise, “the intent of the parties will be enforced unless it is contrary to public
policy,” id. (citations omitted), and, for the same reason, there is no indication that the agreement
was contrary to public policy in this case.

        Again, mitigation is an affirmative defense, which a defendant must plead and adequately
support with proofs at trial. Lawrence v Will Darrah & Assoc, Inc, 445 Mich 1, 15; 516 NW2d
43 (1994). Under the legal doctrine of mitigation, a plaintiff generally cannot later recover
damages which could have been avoided by reasonable effort or expenditure. Morris, 459 Mich
at 263-264. We find no basis for concluding, and defendants have provided no authority
indicating, that the trial court erred in failing to compel mitigation; instead, the proper remedy is
precluding damages when a plaintiff failed to make reasonable efforts to mitigate those damages.



                                                -7-
See id. at 263-266. As the trial court concluded, plaintiff continued to have a duty to mitigate its
damages, but it was not required to foreclose on the leasehold mortgage.

                          2. REASONABLE MITIGATION EFFORTS

         Next, we reject defendants’ claim that the trial court erred in finding that plaintiff
fulfilled its duty to mitigate its damages. In its opinion and order entered after the trial, the court
concluded that plaintiff reasonably mitigated its damages based on upon the following reasoning:

       [Plaintiff] sought the appointment of a receiver early on in this litigation and as a
       result of the receiver’s efforts, [plaintiff] has maintained the value of its security. .
       . . [Plaintiff] also has advanced a substantial amount of funds to avoid tax
       forfeiture, defaults, vacancies and waste on the property. Had [plaintiff] not taken
       these steps, it logically follows that the building would be worth substantially less
       than it is today. . . .

Given the unrebutted evidence that plaintiff introduced establishing its mitigation efforts, the
trial court’s conclusion is not in error. See id. at 263, 266.

        At trial, Perry Allen, a portfolio manager for plaintiff, testified that as of September 2011,
defendants owed plaintiff $88,591.30 for “tax escrow” payments, and plaintiff continuously
advanced funds for the payment of the real property taxes on the property since 2009 in order to
avoid property tax foreclosure and the penalties and late fees associated with delinquent property
taxes. Allen also testified that plaintiff had paid approximately $190,000 in expenses necessary
to preserve, protect, and improve the physical condition and income potential of the collateral in
order to preserve its interest in the commercial property. These expenses, which were incurred
based on the decisions of the court-appointed receiver, were associated with securing a large
tenant, making repairs and improvements on the property necessary to secure that tenant,
performing other maintenance on the premises, and maintaining insurance. Plaintiff’s advances
also covered monthly lease payments owed by SC STA under the ground lease in order to
preserve its interest in the property, as the ground lessor was permitted to initiate termination of
the ground lease or eviction upon default.

        David Gronbach, an employee of court-appointed receiver Retail Center Management,
LLC, which assumed possession and full control over the premises in 2009, similarly testified
that plaintiff protectively advanced funds for approximately $100,000 in property maintenance
and repairs, including renovations that were necessary to make the space “habitable” or
“leaseable” to property’s largest, or “anchor,” tenant, which only became a tenant following the
appointment of a receiver. Gronbach also recalled that he had paid SC STA’s monthly lease
payments, real property taxes, and insurance with funds supplied by plaintiff, although the lease
payments and insurance premiums were paid out of the operating fund once the fund included
sufficient capital—from leasing additional space and properly managing the premises—to cover
the payments. Likewise, according to Gronbach, the commercial property’s cash flow increased
after the appointment of a receiver, and all of the protective advances were necessary and
commercially reasonable.




                                                 -8-
       Defendants presented no evidence at trial rebutting plaintiff’s mitigation efforts and only
attempted to undermine plaintiff’s efforts through cross-examination, which only elicited
additional testimony supporting the conclusion that plaintiff’s mitigation efforts were
reasonable.7

       Thus, on this record, we cannot conclude that the trial court’s ruling was clearly
erroneous, as defendants failed to sustain their “burden of proving that . . . plaintiff failed to
make reasonable efforts to mitigate damages.” Morris, 459 Mich at 266.

                       V. LIABILITY FOR PROTECTIVE ADVANCES

       Lastly, defendants contend that none of them are liable for the protective advances paid
by plaintiff to the receiver, arguing that the advances were made for the protection of the
underlying real property, not for the priority and protection of plaintiff’s interest under the
leasehold mortgage. We disagree.

        Defendants’ characterization of plaintiff’s interest in the commercial property is not
supported by the express terms of the leasehold mortgage. The mortgage covers, inter alia, SC
STA’s “estate, title, interest, and rights” in the leased real property, the buildings on the
premises, and the rents and profits arising from the buildings and the premises. Thus, it is
apparent that the physical condition and the profitability of those components were relevant to
plaintiff’s preservation of the collateral securing the loan.

       Defendants also emphasize the language of the guaranty, which guarantees payment of
“any indebtedness resulting from advances made on Borrowers [sic] behalf by Lender to protect
or preserve the priority and security of its first lien,” and briefly acknowledge that the leasehold
mortgage permits expenditures to preserve the premises. (Emphasis added.) However,
defendants fail to recognize that the plain language of the leasehold mortgage undermines their
claim that they are not liable for money advanced by plaintiff to the receiver. See Quality
Products, 469 Mich at 375.

        In relevant part, sections “seventh,” “eighth,” “tenth,” and “twenty-second” of the
leasehold mortgage provide that (1) plaintiff may make advances or pay taxes and assessments,
procure and maintain insurance, and make necessary repairs to the premises if SC STA defaults
on its obligation to do so; (2) SC STA is responsible for payment of those expenditures, and
payment is secured by the mortgage; (3) if the premises or any part of the premises, in the sole
discretion of plaintiff, requires “inspection, repair, care or attention of any kind or nature not


7
  On appeal, in support of their claim that foreclosure was the only reasonable means of
mitigation, defendants heavily rely on defendant Canvasser’s statement in an affidavit that SC
STA’s leasehold interest was a depleting asset. However, even if we assume that is the case, that
fact does not, on its own, demonstrate that plaintiff’s mitigation efforts were unreasonable given
the lack of evidence regarding the rate at which the asset was depleting, especially in light of the
testimony indicating that plaintiff’s efforts were commercially reasonable and actually preserved
the value of the leasehold interest.


                                                -9-
theretofore provided by [SC STA], [plaintiff] may . . . enter or cause entry to be made upon the
[p]remises and inspect, repair and/or maintain the same as [plaintiff] may deem necessary or
advisable, and may . . . make such expenditures and outlays of money as [plaintiff] may deem
appropriate for the preservation of the premises”; (4) SC STA is responsible for payment of
expenditures or outlays for repairs or maintenance that plaintiff finds necessary for the
preservation of the premises, and payment is secured by the mortgage; (5) if SC STA defaults on
its obligations under the mortgage, plaintiff may request that the court appoint “a receiver to
manage the mortgaged premises and collect rent profits and income therefrom”; (6) if SC STA
fails to comply with any of the terms, covenants, and conditions under the ground lease,8 plaintiff
may take any action that it deems necessary or desirable to prevent or cure SC STA’s default
under the lease and may expend any sum of money, at plaintiff’s sole discretion, that is necessary
to prevent or cure the default; and (7) SC STA is liable for payment of any funds expended by
plaintiff in order to prevent or cure SC STA’s default under the ground lease, and payment is
secured by the mortgage.

        Further, the clear and unambiguous language of the guaranty make Canvasser liable for
the top 25% of SC STA’s outstanding indebtedness under the promissory note and “any
indebtedness resulting from advances made on Borrower[’]s behalf by Lender to protect or
preserve the priority and security of its first lien.” In addition, the guaranty made Canvasser
liable for all of SC STA’s obligations under the terms and conditions of the leasehold mortgage:

               The undersigned further unconditionally guarantee the faithful, prompt
       and complete compliance by Borrower with all terms and conditions of the
       Mortgage Note, the Mortgage securing payment of the Liabilities and all other
       agreements, documents and instruments securing payment of the Liabilities or
       related thereto (such Mortgage Note, Mortgage and all other instruments
       collectively referred to hereinafter as the “Loan Documents”) and the payment of
       all costs, expenses, charges and other expenditures required to be made by
       Borrower, or which Borrower agrees to make, under the terms and provisions of
       any Loan Document.

         Accordingly, given the unrebutted evidence presented at trial establishing that the
protective advances were made in accordance with the decisions of the court-appointed receiver
and in accordance with the provisions of the mortgage, we conclude that the trial court did not
err in finding SC STA and Canvasser liable for the protective advances.

                                       VI. CONCLUSION

        Defendants have failed to establish that the trial court improperly interpreted the language
of the guaranty contract. Further, defendants have failed to show that the trial court erroneously


8
  Under section 13 of the ground lease, the “[t]enant makes all repairs, including structural
repairs to the plate glass, required to maintain the demised premises in the condition required in
order for [the t]enant to conduct its business in the demised premises and to fulfill the
requirement of any public authority having jurisdiction over the same.”


                                               -10-
concluded that plaintiff met its duty to mitigate its damages or erroneously found that SC STA
and Canvasser were liable for the protective advances.

       Affirmed.



                                                         /s/ Kathleen Jansen
                                                         /s/ William B. Murphy
                                                         /s/ Michael J. Riordan




                                            -11-
