November 13, 2018
From Greenville County Letitia H. Verdin, Circuit Court Judge
Boyd Johnson, III, of Townes B. Johnson III, LLC, of
Greenville, for Appellant/Respondent.
W. Ellis, of McNair Law Firm, PA, of Greenville; and Robert
L. Widener, of McNair Law Firm, PA, of Columbia, both for
breach of contract action between Mac Papers, Inc. (Mac),
Genesis Press, Inc. (Genesis), and one of Genesis's
founders, Lawrence I. Kudeviz, Mac and Kudeviz filed
cross-appeals. Mac, as Appellant/Respondent, argues the trial
court erred in (1) finding Kudeviz's 1991 guaranty
agreement was limited by Genesis's credit application,
(2) finding Mac failed to prove that Kudeviz intended to be
liable for more than $70, 000, and (3) not addressing
Kudeviz's liability under a 2008 guaranty agreement.
Kudeviz, as Respondent/Appellant, argues the trial court
erred in finding (1) he failed to terminate his personal
guaranty, (2) he was not shielded from liability by equitable
estoppel, and (3) he was not shielded from liability by the
equitable doctrine of waiver. We affirm.
October 17, 1991, Genesis sought a $70, 000 line of credit
with Mac to purchase office supplies for its printing
business in Miami, Florida. On December 2, 1991,
Genesis's three principals, Kudeviz, Barry Zissok, and
Lewis Levin, signed a personal guaranty agreement, which
stated in part:
For and in consideration of credit extended or to be extended
by [Mac], its successors or assigns, to and at the request of
[Genesis, ] the undersigned, jointly and severally, do hereby
unconditionally guarantee the payment at respective maturity
dates of any and all indebtedness of any kind whatsoever,
whether now due or which may hereafter become due . . . .
This guaranty contains no limitations or conditions except as
written herein, may be modified only in writing signed by the
parties hereto, and is to remain in full force and effect
until written notice of its termination is received by
registered mail by [Mac], its successors or assigns, at its
office in Jacksonville, Florida, except the written
termination of this guaranty by the undersigned shall be
effective only as to future credit from and after the date
[Mac], its successors or assigns, receives the aforesaid
notice, i.e., any termination hereof as aforesaid shall not
affect credits extended prior to its effective termination.
2007, Genesis moved its operation from Miami to Greenville.
Between 1991 and 2008, Mac and Genesis conducted business
without incident; however, on March 28, 2008, Genesis's
Greenville operation suffered a devastating fire that
disrupted their business. While Genesis litigated with its
insurance carrier over coverage, Mac extended Genesis
significant credit and flexibility so it could maintain its
operation by restructuring some of its debt. As part of the
restructuring, on December 9, 2008, Kudeviz, on behalf of
Genesis, endorsed a note for $303, 836.32 and signed a
separate personal guaranty containing the same language as
the 1991 guaranty. On February 2, 2009, Kudeviz endorsed
another note for the sum of the first note, plus additional
debt accrued during the interim time frame for a total of
$401, 852.51. In 2010, Genesis settled with its insurance
company and paid Mac in full.
2010 and 2012, Genesis accrued additional financial
obligations to Mac, and by September 4, 2012, Genesis owed
Mac $432, 185.60. Mac filed a complaint for breach of
contract against Genesis and breach of guaranty against
Genesis's three principals, Kudeviz, Zissok, and Levin,
for the unpaid balance of $432, 185.60. Genesis filed
bankruptcy, Zissok settled separately for $32, 500, and Levin
is now deceased. Accordingly, Mac sought $399, 685.60 from
Kudeviz, which was the difference between the outstanding
debt and Zissok's settlement.
trial, Mac called two witnesses, Tonja Van Zandt, its vice
president and finance manager, and Craig Boortz, the general
manager of its Greenville office and primary salesperson for
Genesis's account. Kudeviz testified on his own behalf.
Kudeviz claimed he terminated his personal guaranty by an
email exchange with Boortz on July 12, 2010. As part of an
email to Boortz regarding a sale, Kudeviz asked, "On a
separate subject[, ] is [Van Zandt] working on releasing my
personal note?" Boortz replied, "Yes she is and
feel free to call her on anything related to the note."
trial court found Kudeviz liable for Genesis's debt
pursuant to the 1991 guaranty, but held Kudeviz's
liability was capped at $70, 000 by the terms of the credit
application contemporaneously executed. This appeal followed.