      Third District Court of Appeal
                              State of Florida

                           Opinion filed May 1, 2019.
        Not final until disposition of timely filed motion for rehearing.

                              ________________

                               No. 3D18-676
                        Lower Tribunal No. 10-63470
                            ________________


                        Franco D’Agostino, et al.,
                                  Appellants,

                                       vs.

                             CCP Ponce, LLC,
                                   Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.

      Lamelas Law, PA, and Gustavo J. Lamelas and Daniel Buigas, for
appellants.

     Anthony & Partners, LLC, and John A. Anthony and Nicholas Lafalce
(Tampa), for appellee.


Before EMAS, C.J., and SCALES and HENDON, JJ.

     SCALES, J.
      In this appeal of a foreclosure deficiency judgment, the appellants are the

mortgagor, Ponce Trust, LLC (“Ponce Trust”), and the two guarantors of the

underlying promissory note, Franco D’Agostino (“D’Agostino”) and Dayco

Properties, Ltd. (collectively, the “Guarantors”). Appellee CCP Ponce, LLC (“CCP

Ponce”) is a successor-in-interest of the original lender and mortgagee, Mellon

United National Bank (“Mellon”). On March 6, 2018, the trial court entered the

challenged deficiency judgment that awarded CCP Ponce $7,792,150.35 against

Ponce Trust, and $44,041,969.88 against the Guarantors (“Final Deficiency

Judgment”). For the reasons stated herein, we affirm the Final Deficiency

Judgment as to Ponce Trust, but reverse the Final Deficiency Judgment against the

Guarantors and remand to the trial court for further proceedings.

      I. History of the Proceedings

      A. The Relevant Loan Documents

      In March 2007, Ponce Trust entered into a Construction Loan Agreement

with Mellon. Amending and restating a loan originating in 2004, this March 2007

Construction Loan Agreement, and accompanying loan documents, memorialized

a $50,000,000 principal loan for Ponce Trust to use in constructing a twelve-story

condominium project in Coral Gables, Florida.

      In conjunction with the loan, in March 2007, the Guarantors executed two

distinct guaranty agreements: (i) a Guaranty Agreement, and (ii) a Guaranty of



                                         2
Completion. In the Guaranty Agreement, the Guarantors guarantied payment of

Ponce Trust’s loan obligations. The Guaranty Agreement, however, significantly

limited D’Agostino’s liability, providing that, in the event the lender and Ponce

Trust complete Tranche B funding,1 D’Agostino’s guarantee of the loan’s principal

would be eliminated. D’Agostino would then remain liable only for “all costs of

collection, including court costs and attorneys fees through all appellate levels and

post judgment proceedings, and for default rate interest,” as well as for his

obligations under the separate Guaranty of Completion.

      In the separate Guaranty of Completion, the Guarantors agreed to perform

Ponce Trust’s “Obligations” in the event Ponce Trust did not complete

construction of the subject condominium project. The term “Obligations” is

specifically defined in the document and includes: (i) constructing the

improvements timely, in accordance with the construction plans, and “in a good

and workmanlike manner;” (ii) furnishing labor and materials and completing

payment therefor; and (iii) providing additional funds from sources outside of the

loan, if necessary, to complete the project.

      Potentially relevant in this case, the Guaranty of Completion contains two

provisions that are not found in the Guaranty Agreement: (i) a provision stating


1  Tranche B funding represented $40,375,000 of the total loan. The record
indicates that the lender and Ponce Trust completed Tranche B funding, thus
triggering D’Agostino’s limited liability under the Guaranty Agreement.

                                          3
that the liability assumed under the Guaranty of Completion will not be affected by

the acceptance of any settlement or judgment of a bankruptcy court; and (ii) a

provision stating that the Guarantors’ obligations under the Guaranty of

Completion are “completely independent” from the obligations of Ponce Trust.

      While the 2007 Construction Loan Agreement and promissory note were

modified twice again, in 2009 and 2010, the loan documents relevant to this appeal

– the Guaranty Agreement and the Guaranty of Completion – were not amended

by those modifications.

      B. The Foreclosure Action

      In December 2010, MUNB Loan Holdings, Inc. (“MUNB”), a successor to

Mellon, filed the instant foreclosure action and, in March 2011, MUNB filed the

operative amended complaint. This amended complaint alleges a May 2010 default

date, and asserts seven counts (against various defendants).2 Importantly, while
2 Count I (against Ponce Trust) seeks damages for breach of the promissory note

and alleges that $28,731,231.15 in principal remains due and owing under the note.
Count II (against Ponce Trust) seeks to foreclose on the mortgage securing the
note.
Count III (against Ponce Trust) seeks to foreclose on personal property secured by
other security agreements. Count IV (against the Guarantors) alleges that, to the
extent the Guarantors are in possession of personal property secured by other
security agreements, MUNB is entitled to replevin against the Guarantors. Count V
(against Ponce Trust) seeks enforcement of an assignment of rents document
executed as part of the loan. Count VI (against Dayco Properties, LLC) is a claim
on the Guaranty Agreement premised on Ponce Trust’s failure to meet its payment
obligations under the promissory note. Count VII (against D’Agostino) is a claim
on the Guaranty Agreement premised on Ponce Trust’s failure to meet its payment
obligations under the promissory note.


                                        4
MUNB’s amended complaint specifically alleges that the Guarantors executed and

delivered to Mellon the Guaranty of Completion (and the Guaranty of Completion

is attached as an exhibit to the amended complaint), MUNB’s amended complaint

alleges no claim against the Guarantors under the Guaranty of Completion.

      In their answer to MUNB’s amended complaint, Ponce Trust and the

Guarantors denied that default had occurred and was continuing to occur, and

further denied MUNB’s allegations that Ponce Trust was leasing units in violation

of the loan documents. In their affirmative defenses, Ponce Trust and the

Guarantors asserted that: (i) MUNB had unclean hands; (ii) MUNB was mis-

applying their payments; and (iii) payment had been made insofar as MUNB was

holding funds belonging to Ponce Trust and the Guarantors that should have been

used for the required loan payments.

      In July 2011, MUNB filed its summary judgment motion seeking a final

summary judgment on all counts in its amended complaint except for the replevin

count (Count IV). The trial court conducted a hearing on MUNB’s motion in

December 2011, and, on June 4, 2012, the trial court entered a First Amended

Summary Final Judgment of Foreclosure in favor of MUNB and against Ponce

Trust only (“Foreclosure Judgment”).3 This Foreclosure Judgment: (i) determined


3 The trial court entered the initial foreclosure judgment on December 14, 2011,
shortly after the hearing. The trial court later amended it on June 4, 2012, nunc pro
tunc, to December 14, 2011, to reflect an adjustment in the amounts due.

                                         5
that MUNB was owed a total of $37,346,025.50 (comprising approximately

$28,731,231 in principal on the promissory note, costs, approximately $8,553,000

in default rate interest, and approximately $174,500 in post-judgment interest that

accrued from December 14, 2011, with a credit of approximately $112,000 that

was held in escrow); (ii) foreclosed Ponce Trust’s interest in the real and personal

property in favor of MUNB; and (iii) set a foreclosure sale for the property.

Immediately after liquidating the amount due under the note, the Foreclosure

Judgment contains the following language: “which shall bear interest per year at

the interest rate provided by Section 55.03(1), Florida Statutes (2011).” No party

appealed the Foreclosure Judgment.

         The Foreclosure Judgment adjudicated and disposed of Counts I, II, III, and

V of the amended complaint, as well as Ponce Trust and the Guarantors’

affirmative defenses to those claims. With regard to Counts VI and VII (the counts

against the Guarantors under the Guaranty Agreement), the judgment included the

following language: “As to Count VI (Breach of Guaranty Agreement) and Count

VII (Breach of Guaranty Agreement), this Court reserves jurisdiction to determine

the validity and enforceability of the Guaranty Agreement and Guaranty of

Completion, and the extent of Dayco’s and D’Agostino’s liability thereunder, if

any.”4


4   The record is unclear as to the ultimate disposition of the replevin count (Count

                                           6
        C. Ponce Trust Files for Chapter 11 Reorganization

        On February 22, 2012, prior to the foreclosure sale, Ponce Trust filed for

relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy

Court for the Southern District of Florida. Ponce Trust’s filing of the bankruptcy

case stayed the foreclosure proceedings in the trial court.5 In December 2012,

Ponce Trust filed its plan of reorganization, which the Bankruptcy Court approved

on December 26, 2012. The plan identified seventy-seven unsold units in the

condominium project, and required that the creditor6 receive payments on its claim

from revenues generated from the ongoing sale of the units, as well as rental

income from the unsold units. The plan effectively discharged Ponce Trust’s

liability to CCP Ponce for all default rate interest. The plan did not address or

modify the Guarantors’ liability.

        In September of 2016, CCP Ponce filed a motion in the Bankruptcy Court to

re-open the bankruptcy case for the sole purpose of terminating the automatic stay

of the foreclosure action. At that point, forty-two condominium units remained

unsold, and the amount of the debt had been reduced from the approximately $37


IV) asserted against the Guarantors. Such disposition is not essential to our
adjudication of this appeal.
5   See 11 U.S.C. § 362.
6 During the pendency of the reorganization, CCP Ponce became the successor-in-
interest of MUNB.

                                         7
million reflected in the Foreclosure Judgment to approximately $19 million. On

October 26, 2016, the Bankruptcy Court granted CCP Ponce’s motion, lifted the

automatic stay, and entered an order allowing the foreclosure sale to go forward.

      D. The Foreclosure Sale and CCP Ponce’s Motion for Deficiency Judgment

      After the Bankruptcy Court lifted the stay, the trial court set the foreclosure

sale for February 9, 2017. The remaining collateral – now forty-one units – was

sold at foreclosure to CCP Ponce in the bid amount of $900,200.00. Less than a

week later, on February 15, 2017, CCP Ponce filed its motion for deficiency

judgment seeking a judgment against Ponce Trust and the Guarantors for the

difference between the amount due pursuant to the Foreclosure Judgment and the

fair market value of the unsold condominium units (as of the date of the

foreclosure sale).

      In its motion, CCP Ponce specifically set forth the amount CCP Ponce

claimed it was owed by Ponce Trust and the Guarantors – the “Deficiency

Balance” – as follows: the amount of the Foreclosure Judgment (as adjusted by

Ponce Trust’s reorganization) remaining due and owing of $19,080,454.14, less the

market value of remaining collateral in the amount of $13,000,000. This resulted in

an alleged Deficiency Balance of $6,080,454.14. Indeed, in three separate

paragraphs of its motion, CCP Ponce claims that this is the amount it is due from




                                         8
Ponce Trust and the Guarantors. CCP Ponce did not assert a claim in this motion

that any amounts were due under the Guaranty of Completion.

      E. The Trial and Entry of the Challenged Final Deficiency Judgment

      On January 22, 2018, the trial court conducted a bench trial on CCP Ponce’s

motion for deficiency judgment. On the Friday prior to the Monday bench trial,

CCP Ponce filed a pre-trial memorandum indicating that it would be seeking

damages against the Guarantors based not only on the Guaranty Agreement but

also based on the Guaranty of Completion. In this submission, CCP Ponce asserted

that it would be seeking a deficiency judgment of $7,792,150.35 against Ponce

Trust, and $44,041,969.88 against the Guarantors.

      At the beginning of the trial, the Guarantors’ counsel objected to any claim

by CCP Ponce based on the Guaranty of Completion:

      They have never sued – they have never asserted a Cause of Action on
      the Guaranty of Completion. And so I object to any kind of attempt to
      shoehorn my client to liability that he did not accept on that theory.
      That’s a very important issue.


      The trial court, at least initially, seemed to agree, stating in response to CCP

Ponce’s counsel:

      [I]f it’s not in your Complaint and you haven’t pled it, you’re not
      entitled to receiving [sic] it, period. That’s what the law is . . . It’s a
      very simple statement, if you don’t plead it, you’re not entitled to
      recover, period, end of sentence . . . . Again, if you didn’t plead it as a
      Cause of Action in your Complaint, you’re not entitled to recover.
      Period.


                                          9
      Yet, over the objections of the Guarantors’ counsel, the trial court permitted

CCP Ponce to put on evidence regarding damages allegedly awardable pursuant to

the Guaranty of Completion, and denied the Guarantors’ involuntary dismissal

motion that sought dismissal of any claims related to the Guaranty of Completion.

      Over the objection of the Guarantors, CCP Ponce introduced a Deficiency

Judgment Computation Worksheet that, consistent with CCP Ponce’s pre-trial

memorandum, separately calculated the deficiency amounts allegedly owed by

Ponce Trust and the Guarantors.       As discussed in further detail below, the

deficiency damages sought against Ponce Trust were significantly less than those

sought against the Guarantors primarily because: (i) approximately $32 million in

pre-foreclosure sale default rate interest had been discharged in Ponce Trust’s

bankruptcy reorganization; and (ii) the non-discharged interest accrued not at the

eighteen percent default rate outlined in the loan documents, but, rather, at the

significantly lower post-judgment interest statutory rate set by section 55.03(1).7

The trial court rejected the Guarantors’ arguments that they should receive the

same treatment as the principal debtor, Ponce Trust.

      Ultimately, on March 6, 2018, the trial court entered the challenged Final

Deficiency Judgment against the Guarantors based on the damage calculations


7 Section 55.03(1) provides that Florida’s Chief Financial Officer shall set, on a
quarterly basis, the interest rate payable on judgments. § 55.03(1), Fla. Stat.
(2011).

                                        10
submitted by CCP Ponce in its pre-trial memorandum and Deficiency Judgment

Computation Worksheet – damages presumably premised on both the Guaranty

Agreement and the Guaranty of Completion. The trial court’s Final Deficiency

Judgment awarded CCP Ponce a deficiency of $7,792,150.35 against Ponce Trust,

and $44,041,969.88 against the Guarantors. In its Final Deficiency Judgment, the

trial court specifically concluded that any limitations on the Guarantors’ liability in

the Guaranty Agreement are irrelevant “because the Completion Guaranty

provides for unlimited liability.” Both Ponce Trust and the Guarantors appealed

this Final Deficiency Judgment.8

      II. Issues on Appeal

      While the Guarantors make several arguments on appeal, we characterize

and address what we perceive as the three principal issues in this appeal: (i)

whether the trial court erred by allowing claims to proceed based on the Guaranty

of Completion; (ii) whether the trial court erred by not giving the Guarantors the

financial benefits that inured to Ponce Trust by virtue of Ponce Trust’s bankruptcy

reorganization; and (iii) whether the trial court erred by calculating the post-



8 While both Ponce Trust and the Guarantors appealed the Final Deficiency
Judgment, the initial brief advances only the arguments of the Guarantors. Hence,
any challenge to the Final Deficiency Judgment by Ponce Trust is deemed
abandoned. City of Miami v. Haigley, 143 So. 3d 1025, 1027 n.1 (Fla. 3d DCA
2014). Therefore, without further elaboration, we affirm the Final Deficiency
Judgment as it relates to Ponce Trust.

                                          11
Foreclosure Judgment interest at the eighteen percent default rate in the loan

documents, as opposed to the post-judgment interest rate established in section

55.03(1). We address each issue in turn.

      III. Analysis

      A. CCP Ponce’s Claim Based on the Guaranty of Completion9

      As mentioned earlier, over the objections of the Guarantors’ counsel, the

trial court allowed CCP Ponce to assert a claim against the Guarantors based on the

Guaranty of Completion. While not entirely clear from the Final Deficiency

Judgment,10 it does appear that the trial court’s allowing CCP Ponce to assert a

claim under the Guaranty of Completion resulted in significant benefits to CCP

Ponce. By concluding that the Guaranty of Completion provides for “unlimited

liability” of the Guarantors, the trial court did not limit D’Agostino’s liability as

expressly provided in the Guaranty Agreement, nor did the trial court conduct any

legal analysis of whether the Guaranty Agreement limited the liability of the

Guarantors to payments owed to CCP Ponce by Ponce Trust.11 The Guarantors

9 Whether a pleading is sufficient in its allegation of a claim is a question of law
that we review de novo. Patel v. Shah, 217 So. 3d 152, 154 (Fla. 3d DCA 2017).
10 The Final Deficiency Judgment does not itemize which damages against the
Guarantors are premised on the Guaranty Agreement as opposed to the Guaranty
of Completion.
11Because we conclude that CCP Ponce did not plead a claim under the Guaranty
of Completion, we need not, and do not, reach the issue of whether Ponce Trust’s
payment obligations are “Obligations” guaranteed by the Guarantors under the

                                           12
assert, as they did below, that it was error for the trial court to allow CCP Ponce to

prosecute this claim, because no claim was pled on the Guaranty of Completion.

      As we have quoted in section I.E., supra, at the outset of the bench trial on

CCP Ponce’s deficiency judgment motion, the trial court unequivocally stated

what is axiomatic in Florida law: a party cannot recover damages based on an

unpled claim. Michael H. Bloom, P.A. v. Dorta-Duque, 743 So. 2d 1202, 1203

(Fla. 3d DCA 1999) (“It is well settled that a defendant cannot be liable under a

theory that was not specifically pled.”). Given the trial court’s clear statements

that CCP Ponce could not recover on an unpled claim, we can conclude only that

the trial court decided that CCP Ponce had pled a claim against the Guarantors

based on the Guaranty of Completion. We have scoured the record, though, and

are unable find that CCP Ponce pleaded any such claim.12 Neither MUNB’s

operative amended complaint nor CCP Ponce’s deficiency judgment motion raised

such a claim. In fact, in its deficiency judgment motion, CCP Ponce plainly, and

Guaranty of Completion. Nor do we reach the issue of whether the evidence at trial
established whether Ponce Trust failed to complete any of the “Obligations” that
were guaranteed by the Guarantors under the Guaranty of Completion. It certainly
does not appear, though, that the trial court, in its Final Deficiency Judgment,
awarded any damages to CCP Ponce specifically related to Ponce Trust’s failure to
complete the project. It appears, rather, that the trial court simply concluded that
the Guarantors’ liability was unlimited because of certain unidentified language in
the Guaranty of Completion.
12 We note that, at oral argument, CCP Ponce’s counsel was unable to provide a
record citation to where his client’s claim against the Guarantors, based on the
Guaranty of Completion, had been pleaded.

                                         13
without qualification, asserted that the deficiency amount being sought from the

Guarantors – consistent with the Guaranty Agreement – is the difference between

the amount remaining due pursuant to the Foreclosure Judgment (which CCP

Ponce quantified as $19,080,454.14) and the fair market value of the collateral

(which CCP Ponce quantified as $13,000,000). CCP Ponce then – again, consistent

with the Guaranty Agreement – specifically calculated the difference, alleging an

entitlement both from Ponce Trust and from the Guarantors of $6,080,454.14.

        While we note that the Foreclosure Judgment “reserves jurisdiction to

determine the validity and enforceability of the Guaranty Agreement and Guaranty

of Completion” (emphasis added), we have been provided with no authority that a

trial court’s mere reference to a document in a reservation of jurisdiction provision

somehow supplants a plaintiff’s burden to plead a cause of action premised on that

document. See, e.g., Marin v. Marin, 842 So. 2d 273, 274-75 (Fla. 3d DCA 2003);

Muhlrad v. Muhlrad, 375 So. 2d 24, 26 (Fla. 3d DCA 1979). As the trial court

correctly stated at the onset of the deficiency trial, a cause of action must be pled

for a trial court to award damages on the cause of action. Bloom, 743 So. 2d at

1203.

        Against this backdrop, we simply are unable to conclude, as the trial court

apparently did, that CCP Ponce pled entitlement to damages against the Guarantors

based on anything other than the Guaranty Agreement.           Additionally, as we



                                         14
observed in footnote 10, supra, we are unable to determine from the record which

damages in the Final Deficiency Judgment the trial court awarded against the

Guarantors pursuant to the Guaranty Agreement, as opposed to the Guaranty of

Completion. Therefore, we reverse all of those portions of the Final Deficiency

Judgment that awarded damages against the Guarantors, and remand for the trial

court to recalculate, consistent with this opinion, the damages owed by each of the

Guarantors based exclusively on the Guaranty Agreement, without regard to the

Guaranty of Completion.13 On remand, the trial court may conduct whatever

proceedings, evidentiary and otherwise, it deems necessary to perform the requisite

recalculation.

        B. Effect of Ponce Trust’s Bankruptcy on the Guarantors’ Liability

        Citing to federal bankruptcy law,14 the Guarantors next argue that the trial

court erred in summarily concluding in the Final Deficiency Judgment that the

13 We note that, in its Final Deficiency Judgment, the trial court purported to
calculate D’Agostino’s liability – without regard to the Guaranty of Completion –
at approximately $15,310,000. It appears that the trial court calculated this sum
simply by eliminating principal from the total amounts owed to CCP Ponce, as is
no doubt required by the Guaranty Agreement. This calculation proved purely
academic, though, after the trial court determined that, irrespective of the Guaranty
Agreement’s limiting provisions, the Guaranty of Completion would provide for
“unlimited liability” of the Guarantors. On remand, the trial court cannot perform
the requisite recalculation of the Guarantors’ liability under the Guaranty
Agreement by restating this sum because this calculation is not informed by our
holdings in sections III. B. and C., infra. On remand, the trial court should
recalculate the amount based on the holdings in this opinion.
14   See, e.g., In re Troutman Enters., Inc, 253 B.R. 8, 11 (B.A.P. 6th Cir.2000)

                                         15
Guarantors’ liability is unaffected by Ponce Trust’s bankruptcy reorganization. The

Guarantors assert that, irrespective of whether CCP Ponce pled a claim under the

Guaranty of Completion, they should nevertheless be entitled to the benefits that

inured to Ponce Trust as a result of Ponce Trust’s bankruptcy reorganization.

Specifically, the Guarantors suggest that, because Ponce Trust’s bankruptcy

reorganization eliminated Ponce Trust’s obligation to pay pre-Foreclosure

Judgment accrued default interest, the Guarantors’ interest obligations should be

similarly discharged.

      CCP Ponce responds to the Guarantors’ argument by citing federal authority

suggesting a guarantors’ liability for the debts of a Chapter 11 debtor is unaffected

by a bankruptcy reorganization unless the confirmed plan provides for specific

treatment of the guarantors.15

      The issue is obviously significant. According to CCP Ponce’s calculations in

its pre-trial memorandum and Deficiency Judgment Computation Worksheet,

Ponce Trust owes CCP Ponce approximately $36 million less than the Guarantors.

While not entirely clear from the record, suffice to say a significant amount of the

difference results from Ponce Trust’s bankruptcy reorganization plan. So, whether

(“The plan is essentially a new and binding contract between the Reorganized
Debtor and the Petitioning Creditors.”).
15 See, e.g., In re Applewood Chair Co., 203 F.3d 914, 918 (5th Cir. 2000) (“The
general rule is that a discharge in bankruptcy does not affect a guarantor’s
liability.”).

                                         16
the Guarantors’ liability under the Guaranty Agreement is limited to what Ponce

Trust owes is critical.

         While the parties’ arguments on this issue are focused exclusively on federal

bankruptcy law, in our view the issue is one of Florida contract law, that is,

whether the Guaranty Agreement manifests the parties’ intent for the Guarantors to

have liability for (i) Ponce Trust’s obligations to CCP Ponce or, in the alternative,

(ii) all sums due under the loan documents, irrespective of what Ponce Trust might

owe CCP Ponce. We recognize that this issue may pose a purely legal question;

we are loath, however, to reach and adjudicate the issue in the first instance

without giving either the parties or the trial court the opportunity to address it.16

Therefore, on remand, the trial court should specifically address and adjudicate the

parties’ intent regarding the scope of the Guarantors’ liability under the Guaranty

Agreement. On remand, the trial court may conduct whatever proceedings it deems

necessary to perform the requisite inquiry.

         C. The Appropriate Post-Judgment Interest Rate for Guarantors’ Liability17

         If, on remand, the trial court determines that the parties did not intend for

the Guarantors’ liability to be limited to amounts owed by the borrower, Ponce



16   We express no opinion on the issue.
17We review de novo a trial court’s decision regarding post-judgment interest.
Alexander v. Kalitan, 263 So. 3d 70, 71 (Fla. 4th DCA 2019).

                                           17
Trust,18 then the trial court will need to revisit its calculation of the default interest

owed by the Guarantors. The Guarantors assert that the trial court erred in

awarding CCP Ponce post-Foreclosure Judgment interest at the eighteen percent

default rate contained in the Construction Loan Agreement, rather than the

statutory post-judgment interest rate prescribed in section 55.03(1) of the Florida

Statutes. Again, the practical significance of this issue is hard to overstate: it

appears that well over $26 million of post-Foreclosure Judgment interest awarded

to CCP Ponce is calculated using the eighteen percent default rate. The Guarantors

argue that the amounts Ponce Trust owed to CCP Ponce were liquidated by the

trial court’s adjudication of Count I of CCP Ponce’s amended complaint (CCP

Ponce’s action on the promissory note), and that, once this liability was reduced to

a judgment, pursuant to the express language of the Foreclosure Judgment, post-

judgment interest would accrue at the statutory interest rate, rather than the

contractual default interest rate.

      CCP Ponce counters by asserting that the Guarantors were not named as

parties in either Count I (CCP Ponce’s action on the note) or in Count II (CCP

Ponce’s foreclosure count) of the amended complaint, and that, by the express


18 Obviously, if the trial court determines that the Guarantors’ liability under the
Guaranty Agreement is limited to the amount Ponce Trust owed CCP Ponce, then
this step is unnecessary. In calculating the amount due by Ponce Trust, the trial
court applied the statutory, rather than the contractual, default interest rate to the
post-Foreclosure Judgment sums due.

                                           18
terms of the Foreclosure Judgment, the trial court did not adjudicate any of CCP

Ponce’s claims against the Guarantors. CCP Ponce suggests that the Guarantors are

thus similarly situated to the guarantor in Provident National Bank v. Thunderbird

Associates, 364 So. 2d 790 (Fla. 1st DCA 1978).

      In Thunderbird, after the bank had obtained a foreclosure judgment against

its borrower and purchased the foreclosed property at a foreclosure sale, the bank

brought a distinct, separate deficiency action against a guarantor of the loan. Id. at

792-93. After conducting a trial, the trial court entered a deficiency judgment

against the guarantor, in favor of the bank, setting a post-judgment interest rate on

the deficiency judgment at the statutory rate. Id. at 794. The bank appealed arguing

that, pursuant to the loan agreement, the borrower had agreed to pay default

interest at fifteen percent and, pursuant to the guaranty agreement, the guarantor

had agreed to guarantee the sums payable by the borrower. Id. at 796-97. Our sister

court agreed with the bank and reversed the trial court. The Thunderbird court

reasoned that, because the guarantor “was not an original party to the action and

the claim against it is founded on the guaranty,” the bank’s contract with its

borrower – calling for a fifteen percent default interest rate – controlled. Id. at 797-

98. Importantly, underpinning its holding, the Thunderbird court twice makes

reference to the guarantor not being an original party to the foreclosure




                                          19
proceedings, and that the bank’s separate, independent action against the guarantor

was based exclusively on the guaranty. Id. at 797, 798.

      We distinguish Thunderbird from our case. Not only were the Guarantors

original parties to the foreclosure proceedings, the Guarantors’ claims and defenses

were procedurally intertwined with CCP Ponce’s claims against Ponce Trust. In its

summary judgment motion resulting in the Foreclosure Judgment, CCP Ponce

sought to adjudicate fully its claims against, and the defenses of, the Guarantors.

Indeed, the parties litigated the Guarantors’ affirmative defenses to the foreclosure,

and the Foreclosure Judgment adjudicates those defenses          Hence, this case is

procedurally distinguishable from Thunderbird, and the Guarantors are not

similarly situated to the Thunderbird guarantor.

      Based on our reading of Thunderbird, these distinguishing facts are

dispositive. Because the Guarantors were, at all times, not only parties to, but

active litigants in, the proceedings resulting in the entry of the Foreclosure

Judgment, it makes little sense to conclude that the Foreclosure Judgment’s

liquidation of the amounts due would not inure to, or be binding upon, them. The

Thunderbird decision does not control the post-judgment interest issue of the

instant case. Rather, under the distinctive facts of this case, the trial court should

have followed the general rule that a debt bears interest at the contract rate only to

the date of final judgment, and after that date, the total indebtedness bears interest



                                         20
at the statutory rate. Braswell v. Braswell, 881 So. 2d 1193, 1203 (Fla. 3d DCA

2004).

      Thus, on remand, if the trial court determines that the parties did not intend

for the Guarantors’ liability under the Guaranty Agreement to be limited to the

amounts owed by Ponce Trust, the trial court should – when calculating the

amounts due by the Guarantors under the Guaranty Agreement – apply the

statutory interest rate to all post-Foreclosure Judgment sums due. Again, on

remand, the trial court may conduct whatever proceedings it deems necessary to

perform the requisite calculations.

      III. Conclusion

      We affirm those portions of the Final Deficiency Judgment assessing

damages against Ponce Trust. We reverse those portions of the Final Deficiency

Judgment assessing damages against the Guarantors, and remand for recalculation

of those damages consistent with this opinion.

      Affirmed in part; reversed in part and remanded.




                                        21
