Branch Banking and Trust Company v. Crystal Centre, LLC et al

Filing 9

ORDER: Defendant Donald K. Stephens' Motion to Dismiss or for a More Definite Statement 5 is DENIED. Defendant Donald K. Stephens shall file an answer to the complaint within fourteen (14) days of this Order. Signed by Judge James S. Moody, Jr on 8/11/2015. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BRANCH BANKING AND TRUST
COMPANY, a North Carolina banking
corporation, as successor-in-interest to
Colonial Bank by asset acquisition
from the FDIC as Receiver for Colonial
Bank, successor by merger to Citrus and
Chemical Bank,
Plaintiff,
v.

CASE NO: 8:15-CV-1462-T-30EAJ

CRYSTAL CENTRE, LLC, a Florida limited
liability company, OSWALD P. CARREROU,
individually, and DONALD K. STEPHENS,
individually,
Defendants.
____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendant Donald K. Stephens’ Motion
to Dismiss or for a More Definite Statement (Dkt. #5) and Plaintiff’s Response in Opposition
(Dkt. #8). Upon review of the motion, response, and being otherwise advised in the
premises, the Court concludes that the motion should be denied.
BACKGROUND
On June 22, 2015, Branch Banking and Trust Company (“BB&T”) filed its complaint
(Dkt. #1) seeking to enforce a commercial promissory note (the “Note”) and the related

personal guaranty agreements, including the guaranty executed by Defendant Donald K.
Stephens (the “Guaranty”).
Stephens’ motion argues that: (1) the statute of limitations bars the filing of the
complaint; or, as an alternative, (2) BB&T should provide a more definite statement
regarding the breach of the Guaranty.
As set forth below, Stephens’ motion must be denied because Stephens’ statute of
limitations argument fails under Florida law at this stage and BB&T’s cause of action against
Stephens is sufficiently pled.
DISCUSSION
I.

Statute of Limitations
The breach of guaranty claim against Stephens is akin to a breach of contract claim.

Under Fla. Stat. § 95.11(2)(b), “[a] legal or equitable action on a contract, obligation, or
liability founded on a written instrument” shall be commenced within five years. Stephens
argues that the default on the Guaranty occurred on March 30, 2010 (the Note’s maturity
date), and this action was commenced on June 22, 2015, more than five years later.
Stephens’ argument neglects to acknowledge Fla. Stat. § 95.051 that deals with when
limitations are tolled. Specifically, the five-year limitations period is tolled by “[t]he
payment of any part of the principal or interest of any obligation or liability founded on a
written instrument.” § 95.051(1)(f).
The complaint alleges that “a partial payment of the principal due under the Note was
made in the amount of $419,000.00, on or about January 8, 2013 . . .” And “[t]hereafter, an
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additional partial payment of the principal due under the Note was made in the amount of
$150,000.00.” (Dkt. #1 at ¶12, n. 4). These allegations of subsequent partial payments are
sufficient, at this stage, to subject the breach of guaranty claim to tolling. See Cadle Co. v.
McCartha, 920 So. 2d 144, 146 (Fla. 5th DCA 2006).
In Cadle Co., the borrower defaulted on a loan after the creditor accelerated the
payments due on or before December 1998. See id. at 145. After this default, and despite
the acceleration, the borrower made nine additional partial payments. See id. In 2004, the
creditor filed an action to enforce the loan documents and recover the outstanding
obligations. See id. The guarantor, like Stephens here, argued that the breach of guaranty
claim was barred because it was filed more than five years after the 1998 default. See id.
The court disagreed. Relying on Florida’s tolling provision, the Court stated: “By making
partial payments on the debt, the debtor recognizes and signifies the intent to honor the
obligation. It is not until the payee stops making payment that the creditor is placed on
notice that the debtor is no longer willing or able to honor the underlying obligation.” Id. at
146. As such, “the five-year statute of limitations applicable to actions founded on a written
instrument, is ‘tolled’ through the date of any partial payment.” Id. (citations omitted).
Accordingly, Stephens’ statute of limitations argument fails because this action was
filed within five years of the last alleged partial payment.
II.

More Definite Statement
In the alternative, Stephens requests a more definite statement of the breach of

guaranty claim. This argument is asserted in one paragraph and does not explain why a more
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definite statement is appropriate or necessary. Moreover, the breach of guaranty claim
asserted in Count III of the complaint is sufficiently pled; it alleges the necessary facts
establishing the existence of the guaranty, the principal’s subsequent non-payment, and the
resulting damages. Accordingly, Stephens’ motion for a more definite statement is denied.
It is therefore ORDERED AND ADJUDGED that:
1.

Defendant Donald K. Stephens’ Motion to Dismiss or for a More Definite
Statement (Dkt. #5) is DENIED.

2.

Defendant Donald K. Stephens shall file an answer to the complaint within
fourteen (14) days of this Order.

DONE and ORDERED in Tampa, Florida on August 11, 2015.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2015\15-cv-1462 mtd 5 Stephens.wpd

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