{ "id": 8897691, "name": "TRIPPS RESTAURANTS OF NORTH CAROLINA, INC., Plaintiff v. SHOWTIME ENTERPRISES, INC., DUELING PIANOS OF NORTH CAROLINA, INC., FRANK SCOZZAFAVE and MICHAEL SCOZZAFAVE, Defendants", "name_abbreviation": "Tripps Restaurants of North Carolina, Inc. v. Showtime Enterprises, Inc.", "decision_date": "2004-05-18", "docket_number": "No. COA03-610", "first_page": "389", "last_page": "393", "citations": [ { "type": "official", "cite": "164 N.C. App. 389" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "592 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631152 ], "year": 2004, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/se2d/592/0724-01" ] }, { "cite": "163 N.C. App. 73", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915232, 12631152 ], "year": 2004, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0073-01", "/se2d/592/0724-01" ] }, { "cite": "284 S.E.2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "537" }, { "page": "538" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 47", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526672 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "51" }, { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0047-01" ] }, { "cite": "500 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "759", "parenthetical": "citing Isbey v. Crews, 55 N.C. App. 47, 51, 284 S.E.2d 534, 537 (1981)" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 562", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651585 ], "year": 1998, "pin_cites": [ { "page": "575", "parenthetical": "citing Isbey v. Crews, 55 N.C. App. 47, 51, 284 S.E.2d 534, 537 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0562-01" ] }, { "cite": "269 S.E.2d 117", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "123" } ], "opinion_index": 0 }, { "cite": "301 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561083 ], "year": 1980, "pin_cites": [ { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0044-01" ] }, { "cite": "156 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "271 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564625 ], "year": 1967, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0444-01" ] }, { "cite": "40 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "201" } ], "opinion_index": 0 }, { "cite": "226 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624699 ], "year": 1946, "pin_cites": [ { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0706-01" ] }, { "cite": "354 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "234", "parenthetical": "quoting Indemnity Co. v. Hood, 226 N.C. 706, 710, 40 S.E.2d 198, 201 (1946)" } ], "opinion_index": 0 }, { "cite": "319 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741751 ], "year": 1987, "pin_cites": [ { "page": "294", "parenthetical": "quoting Indemnity Co. v. Hood, 226 N.C. 706, 710, 40 S.E.2d 198, 201 (1946)" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0287-01" ] }, { "cite": "518 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "134 N.C. App. 391", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11144899 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/134/0391-01" ] }, { "cite": "250 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "593" } ], "opinion_index": 0 }, { "cite": "296 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565499 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0212-01" ] }, { "cite": "386 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "438" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 616", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523885 ], "year": 1989, "pin_cites": [ { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0616-01" ] }, { "cite": "41 S.E. 487", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1902, "pin_cites": [ { "page": "487" } ], "opinion_index": 0 }, { "cite": "130 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273416 ], "year": 1902, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc/130/0285-01" ] }, { "cite": "166 S.E. 334", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "203 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613670 ], "year": 1932, "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/nc/203/0483-01" ] } ], "analysis": { "cardinality": 550, "char_count": 10404, "ocr_confidence": 0.746, "pagerank": { "raw": 1.0795257130330453e-07, "percentile": 0.5621150113384988 }, "sha256": "107b5a54c798ce220c84f0c1abc5f163f04f595cbe0c6749cc8e3f73308c7424", "simhash": "1:7b89641097e17eed", "word_count": 1672 }, "last_updated": "2023-07-14T17:15:16.246957+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and STEELMAN concur." ], "parties": [ "TRIPPS RESTAURANTS OF NORTH CAROLINA, INC., Plaintiff v. SHOWTIME ENTERPRISES, INC., DUELING PIANOS OF NORTH CAROLINA, INC., FRANK SCOZZAFAVE and MICHAEL SCOZZAFAVE, Defendants" ], "opinions": [ { "text": "LEVINSON, Judge.\nDefendant (Frank Scozzafave) appeals from judgments finding him liable, as the personal guarantor of a lease, for breach of the lease contract. We affirm.\nThis appeal arises from the interpretation of a lease signed 12 November 1997. The first sentence of the lease states:\nThis lease agreement, made and entered into this the 12th of November, 1997, by and between Tripps Restaurants of North Carolina, . . . hereinafter called the \u201cLessor,\u201d and Showtime Enterprises, . . . hereinafter called the \u201cLessee\u201d and Frank Scozzafave . . . and Michael A. Scozzafave . . . hereinafter called the \u201cGuarantors.\u201d\nThe text of the lease follows this introductory sentence, setting out the obligations of the lessor and lessee. At the conclusion of the lease are the signatures of the parties. Defendant signed on the line labeled \u201cguarantor.\u201d\nOn 22 May 2001 plaintiff filed suit against defendants Showtime Enterprises, Inc., Dueling Pianos of North Carolina, Inc., Frank Scozzafave, and Michael Scozzafave. The complaint alleged that the defendants had defaulted on the terms of the lease by failing to pay rent, property taxes, or insurance, and that they were liable for payment of back rent, taxes, insurance, and attorney\u2019s fees. Plaintiff also alleged that defendant Frank Scozzafave \u201cguaranteed the payment of the rent and all other contractual obligations of Showtime due under the lease.\u201d Following a bench trial, the trial court entered judgment for plaintiff. The court\u2019s order noted that default judgment \u201chad previously been entered against the corporate defendants\u201d; that \u201cMichael Scozzafave has been discharged of any debt in this matter in bankruptcy\u201d; and, thus, that \u201cthis order and judgment concern only the plaintiff\u2019s claims against defendant Frank Scozzafave.\u201d The court entered judgments against defendant for $256,753.00 in damages and $35,630.44 in interest. From these judgments, defendant appeals.\nDefendant argues first that the trial court erred by concluding that he was a guarantor on the lease. \u201cIn reviewing a judgment resulting from a bench trial, the question before this Court is whether competent evidence exists to support the trial court\u2019s findings of fact and whether those findings support the trial court\u2019s conclusions of law.\u201d Beneficial Mortgage Co. v. Peterson, 163 N.C. App. 73, 75, 592 S.E.2d 724, 726 (2004). In the instant case, the trial court\u2019s judgment was based in pertinent part upon its finding \u201cthat defendant Frank Scozzafave guaranteed Showtime\u2019s obligations under the lease as shown by the terms of and his signature on the lease as Guarantor[.]\u201d We conclude that this finding was supported by competent evidence, and that it supports the conclusion that defendant was a personal guarantor of the lessee\u2019s obligations under the lease.\nA personal guaranty is \u201ca contract, obligation or liability . . . whereby the promisor, or guarantor, undertakes to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person who is himself . . . liable to such payment or performance.\u201d Trust Co. v. Clifton, 203 N.C. 483, 485, 166 S.E. 334, 335 (1932). The guarantor \u201cmakes his own separate contract,... and is not bound to do what his principal has contracted to do, except in so far as he has bound himself by his separate contract[.]\u201d Hutchins v. Planters National Bank of Richmond, 130 N.C. 285, 286, 41 S.E. 487, 487 (1902). However, both contracts (between creditor and primary obligor and between creditor and guaranty) may be contained in the same instrument. 38 Am. Jur. 2d Guaranty \u00a7 4 (1999).\nThus, \u201cto hold a guarantor liable under a guaranty agreement, plaintiff must first establish the existence of the agreement.\u201d Carolina Mills Lumber Co. v. Huffman, 96 N.C. App. 616, 618, 386 S.E.2d 437, 438 (1989). In this regard, \u201ccontracts of guaranty are subject to the more general law of contract[.]\u201d O\u2019Grady v. Bank, 296 N.C. 212; 220, 250 S.E.2d 587, 593 (1978). In construing a contract, the court must look to the intent of the parties. See Holshouser v. Shaner Hotel Grp. Props. One, 134 N.C. App. 391, 518 S.E.2d 17 (1999). \u201cIt is a well-settled principle of legal construction that \u2018[i]t must be presumed the parties intended what the language used clearly expresses, and the contract must be construed to mean what on its face it purports to mean.\u2019 \u201d Hagler v. Hagler, 319 N.C. 287, 294, 354 S.E.2d 228, 234 (1987) (quoting Indemnity Co. v. Hood, 226 N.C. 706, 710, 40 S.E.2d 198, 201 (1946)). In addition, a contract should \u201cbe understood and interpreted in the light of the relationship of the parties, and the purpose they sought to accomplish.\u201d Bank v. Corbett, 271 N.C. 444, 447, 156 S.E.2d 835, 837 (1967).\nIt is true, as defendant states, that in our determination of whether a guaranty contract exists the labels given to contract terms are not necessarily determinative of the issue. However, this only means that \u201c [i]t is appropriate to regard the substance, not the form, of a transaction as controlling, and we are not bound by the labels which have been appended to the episode by the parties.\u201d Trust Co. v. Creasy, 301 N.C. 44, 53, 269 S.E.2d 117, 123 (1980). But, this principle in no way suggests that the labels chosen by the parties to a contract are without weight in determining their intent. Moreover, in construing the terms employed in the lease, we are also guided by the Restatement (Third) of Suretyship and Guaranty \u00a7 15 (1996), which states in relevant part:\n\u00a7 15. Interpretation of the Secondary Obligation \u2014 Use of Particular Terms: Unless indicated to the contrary by applicable law, the language employed by the parties, agreement of the parties, or the context:\n(a) if the parties to a contract identify one party as a \u201cguarantor\u201d or the contract as a \u201cguaranty,\u201d the party so identified is a secondary obligor and the secondary obligation is, upon default of the principal obligor on the underlying obligation, to satisfy the obligee\u2019s claim with respect to the underlying obligation].]\nIn the instant case, the first sentence of the lease identifies defendant as a \u201cguarantor,\u201d and defendant\u2019s signature appears at the end, above the word guarantor. The lease was executed by defendant Showtime Enterprises, Inc. as lessee, and by defendant individually as a guarantor. The lease would have been binding on Showtime even without the signatures of the individual defendants as guarantors. Thus, defendant\u2019s signature serves no other function except to acknowledge his agreement to guarantee the lease. The preamble of the lease further demonstrates that Showtime was the lessee, and that defendant was a guarantor. The only reasonable interpretation of defendant\u2019s signature is that he was a guarantor on the lease. We conclude that the contract establishes the parties\u2019 intention to create a separate guaranty contract contingent upon the default of the primary obligor (Showtime), and that the trial court did not err by concluding that defendant was a guarantor on the lease. This assignment of error is overruled.\nDefendant Frank Scozzafave\u2019s second assignment of error asserts that the trial court erred in not finding that plaintiff failed to mitigate its damages. \u201cTypically, in a leasing context, the duty to mitigate means that a landlord must use reasonable efforts to relet the premises to anew tenant.\u201d Strader v. Sunstates Corp., 129 N.C. App. 562, 575, 500 S.E.2d 752, 759 (1998) (citing Isbey v. Crews, 55 N.C. App. 47, 51, 284 S.E.2d 534, 537 (1981)). Further, \u201cthe burden is on the breaching party to prove that the nonbreaching party failed to exercise reasonable diligence to minimize the loss.\u201d Isbey, 55 N.C. App. at 51, 284 S.E.2d at 538. In the instant case, plaintiff presented evidence that defendants left the property in such poor condition that it would have cost several hundred thousand dollars just to restore it to a condition in which it could be rented. Plaintiffs also testified that it was not feasible for them to attempt these extensive repairs in the short time remaining on the lease. This evidence supports the trial court\u2019s finding that plaintiff was unable to mitigate its damages and its conclusion that defendant was not entitled to a reduction in the amount of damages awarded to plaintiff. Defendant\u2019s second assignment of error is overruled.\nWe hold that the trial court did not err. Accordingly, the trial court\u2019s judgment in favor of plaintiff is\nAffirmed.\nJudges HUNTER and STEELMAN concur.\n. The lease was assigned to Dueling Pianos of North Carolina, Inc., on 9 December 1997.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "Adams & Osteen, by J. Patrick Adams and William L. Osteen, Jr., for plaintiff-appellee.", "William M. Black, Jr., for defendants-appellants." ], "corrections": "", "head_matter": "TRIPPS RESTAURANTS OF NORTH CAROLINA, INC., Plaintiff v. SHOWTIME ENTERPRISES, INC., DUELING PIANOS OF NORTH CAROLINA, INC., FRANK SCOZZAFAVE and MICHAEL SCOZZAFAVE, Defendants\nNo. COA03-610\n(Filed 18 May 2004)\n1. Guaranty\u2014 breach of lease contract \u2014 personal guarantor\nThe trial court did not err in a breach of lease contract case by finding defendant liable as the personal guarantor of the pertinent lease, because: (1) defendant\u2019s signature on the contract served no other function except to acknowledge his agreement to guarantee the lease; (2) the preamble of the lease further demonstrated that defendant company was the lessee and defendant individual was a guarantor; (3) the only reasonable interpretation of defendant\u2019s signature is that he was a guarantor on the lease; and (4) the contract established the parties\u2019 intention to create a separate guaranty contract contingent upon the default of the primary obligor.\n2. Landlord and Tenant\u2014 breach of lease contract \u2014 failure to mitigate damages\nThe trial court did not err in a breach of lease contract case by not finding that plaintiff failed to mitigate its damages, because: (1) plaintiffs presented evidence that defendants left the property in such poor condition that it would have cost several hundred thousand dollars just to restore it to a condition in which it could be rented; and (2) plaintiffs testified that it was not feasible for them to attempt these extensive repairs in the short time remaining on the lease.\nAppeal by defendant from orders entered 16 August 2002 and 3 September 2002 by Judge Catherine C. Eagles in Guilford County. Superior Court. Heard in the Court of Appeals 25 February 2004.\nAdams & Osteen, by J. Patrick Adams and William L. Osteen, Jr., for plaintiff-appellee.\nWilliam M. Black, Jr., for defendants-appellants." }, "file_name": "0389-01", "first_page_order": 421, "last_page_order": 425 }