IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

DAVID HIRSCHAUER, D.O.,

            Appellant,

vs.                                                                                                         Appeal No.99-1272-CI-88A

BENCHMARK INSURANCE COMPANY,

            Appellees.

____________________________________/

Opinion filed ________________________

Appeals from Final Judgment Pinellas County Court

The Honorable Michael F. Andrews

Mark P. Bryan, Esquire
Post Office Box 1954
St. Petersburg, FL  33731-1954
Attorney for Appellant

J. Emory Wood, Esquire
5015 4th Street North, Suite A
St. Petersburg, FL  33703
Attorney for Appellee

ORDER AND OPINION

            THIS CAUSE came before the Court on appeal, filed by David Hirschauer, D.O. (“Appellant”), from a Final Judgment, entered April 28, 1998, awarding the Appellee the full amount of Appellant’s Guaranty, or $11,800.00.  Upon review of the record and being otherwise fully advised, the Court finds the Final Judgment is affirmed.  

            The appropriate standard of review for this Court, sitting in its appellate capacity, is to determine whether the lower court committed prejudicial error.  See Falls v. National Environmental Products, 665 So.2d 320 (Fla. 4th DCA 1996).  In view of the standard of review, the lower court properly enforced the Appellant’s Guaranty to the Appellee.

            The record shows that the Appellee, Benchmark Insurance Company, executed a promissory note with First Florida Medical, a group of physicians of which the Appellant was a member, in the amount of $375,000.00, on August 22, 1994, with a maturity date of March 31, 1995.  At a meeting held on March 2, 1995, the Appellee’s Board of Directors agreed to extend the maturity date of the note until September 30, 1995. Thereafter, an Extension Agreement was executed, on March 31, 1995, by the Appellee.  The Extension Agreement is silent as to whether it was conditioned upon the execution of guaranties by the members of First Florida Medical.  However, approximately one month after the Extension Agreement was signed, members of First Florida Medical, including the Appellant, signed Guaranties for the amount of the promissory note.  The Guaranty signed by the Appellant, on April 27, 1995, specifically states . . .

Obligation of Guarantor. The Guarantor hereby guarantees the prompt payment to the Lender, its successors and assigns, of the amount of $375,000.00 due under the loan made to FFM by Lender (the “Note”).  Guarantor’s entire obligation under this Guaranty shall not exceed $11,800.00, plus any costs of enforcing this Guaranty.      

            The promissory note subsequently went into default and the Appellee sought to collect on the Guaranties executed by members of First Florida Medical, including Appellant’s Guaranty.  The lower court enforced the Appellant’s Guaranty, ordering him pay the maximum guarantied amount of $11,800.00.  The sole issue raised by the Appellant is whether the Guaranty executed by the Appellant was consideration for the loan extension. 

            A guaranty executed subsequent to the principal contract and not a part of the same transaction must be supported by new consideration.  See Texaco, Inc. v. Giltak Corporation, 492 So.2d 812, 814 (Fla. 1st DCA 1986).  Forbearance of collection of a debt in and of itself can be consideration.  See  Bara v. Jones, 400 So.2d 88, 89 (Fla. 4th DCA 1981).  Further, it is not necessary that the guaranty be executed at the same time as the note.  See Barnett Bank of South Florida v. University Gynecological Associates, Inc., et al, 638 So.2d 595, 595 (Fla. 4th DCA 1994).

            In reaching its decision, the record reflects the lower court held a non-jury trial, in which numerous witnesses testified and numerous exhibits were admitted into evidence.  Following the non-jury trial, the lower court ordered both parties submit written closing arguments to aid the court in rendering a judgment.   After considering the evidence and arguments of counsel, which included the aforementioned case law, the lower court entered a Final Judgment in favor of the Appellee.  This Court gives deference to the lower court because, as the finder of fact, it had the first hand opportunity to resolve conflicts in the evidence and weigh the credibility of the witnesses.  See Ferry v. Abrams, 679 So.2d 80, 81 (Fla. 5th DCA 1996)(holding that great deference is afforded to the finder of fact because it has the first hand opportunity to see and hear the witnesses testify).   Therefore, because the record contains sufficient competent evidence to support the Final Judgment, this Court will not substitute its judgment for that of the lower court.  See id. (citing State v. Cardosa, 609 So.2d 152 (Fla. 5th DCA 1992).

            It is therefore,

            ORDERED AND ADJUDGED that the Final Judgment, entered December 15, 1998, is affirmed.  It if further

            ORDERED AND ADJUDGED that Appellee’s Request for Oral Argument is denied.

            It is further

           

            ORDERED AND ADJUDGED that the Appellee’s Request for Attorney’s Fees is granted pursuant to the Attorney’s Fees Provision of the Guaranty executed by the Appellant.  This cause is remanded to the lower court to determine the amount of reasonable attorney’s fees the Appellee is entitled to.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 27th day of September 2000.

 

___________________________________
CHARLES W. COPE
Circuit Judge, Appellate Division

 

Copies Furnished To:

The Honorable Michael F. Andrews

Mark P. Bryan, Esquire
Post Office Box 1954
St. Petersburg, FL  33731-1954
Attorney for Appellant

J. Emory Wood, Esquire
5015 4th Street North, Suite A
St. Petersburg, FL  33703
Attorney for Appellee

Staff Attorney, Appellate Division