WATT, J.:
¶ 1 We granted certiorari to address a single issue: whether, after foreclosure, the guarantors
¶ 2 Early in 2000, Chase loaned the restaurant $1,750,000.00 to purchase real estate and equipment for a restaurant. The loan was secured by a mortgage and by two guaranty agreements. Initially, Kreth and Vallion entered identical guaranty agreements
¶ 4 Upon default, Chase filed a foreclosure suit in 2005 receiving summary judgment in its favor. The judgment was affirmed and the property was sold at sheriff's sale in December of 2006 to Chase for $750,000.00. The sale was confirmed at a hearing on January 5, 2007. Chase filed a motion for deficiency judgment asking that the restaurant and the guarantors be given credit for the sheriff's sale price of $750,000.00. Later, Chase filed a "clarification" in the cause indicating that the mortgagor was entitled to
¶ 5 On March 15, 2007, the trial court announced its judgment. It found the fair and reasonable value of the mortgaged property to be $1,500,000.00. The trial court determined that the guarantors were entitled to a credit on the judgment of the fair market value of the property, $1,500,000.00, rather than the sale price of $750,000.00. Chase appealed alleging that the determination of the fair market value of the property was too high and that the guarantors waived any rights of setoff based on a fair and reasonable market value determination. The Court of Civil Appeals affirmed on March 12, 2010. We granted certiorari on May 25, 2010 to consider the sole issue presented: whether, after foreclosure, the guarantors' obligation should be credited with the court-determined fair and reasonable market value of the property?
¶ 6
¶ 7 Chase argues that the guaranty agreements waived all rights of the guarantors to setoffs for the adjudicated fair and reasonable market value of the property. Both the restaurant and Kreth assert that a credit of the judicially determined fair market value of the property is appropriate pursuant to 12 O.S.2001 § 686.
¶ 8 Before looking at the precise language of the guaranty contracts, it is helpful to review the rules of construction governing such agreements.
¶ 9 The parties' intent in executing a guaranty contract is gathered from the
¶ 10 The original guaranty agreements signed by Kreth and Vallion on February 15, 2000 provide in pertinent part:
¶ 11 Specialty and Kreth assert that the guaranty agreement's failure to contain specific references to the waiver of protections contained in the statutes governing guaranty agreements, i.e. 12 O.S.2001 § 686
¶ 12 The guaranty agreement Kreth executed specifically provides that, as guarantor,
¶ 13 The plain, clear, unmistakable, unambiguous, and unequivocal language of the Kreth guaranty agreement waived "any and all" rights of any setoff to the guarantors' debts other than actual payment. That being the case, Kreth is not entitled to a reduction in his obligation to Chase in the amount of $1,500,000.00, the judicially determined fair and reasonable market value of the property.
¶ 14 Vallion signed a second guaranty agreement after creating a trust and transferring his interest in the restaurant property into the same. Vallion signed the second guaranty contract on September 21, 2004. It provides in pertinent part:
¶ 15 Vallion insists that the quoted language from the guaranty agreement is insufficient to waive his right to receive credit for the fair and reasonable market value of the real property. The contention is simply not credible.
¶ 16 The term "any" is all-embracing and means nothing less than "every" and "all."
¶ 17 The guaranty contract provides that it waives the benefits of "any" statutory provision limiting the liability of a surety, including "without limitation" several specific statutory references. It goes on to utilize the same language in relation to 12 O.S.2001 § 686,
¶ 18 The Vallion guaranty agreement specifically waived the right to setoff contained in 12 O.S. § 2001 686.
¶ 19 A guarantor's obligation is contractual. Therefore, in each case, we focus on the precise terms of the guarantor's undertaking, the dimension or breadth of the promise made.
¶ 20 The Bank successfully negotiated terms in its favor. Doing so does not render the contract unenforceable for public policy reasons. We hold that the plain, clear, unmistakable, unambiguous, and unequivocal language of the Kreth and Vallion guaranty agreements is sufficient to waive the right to a fair and reasonable market value setoff of the guarantors' liability. The cause is affirmed as to its conclusion regarding the restaurant's entitlement to a credit for the fair and reasonable market value of the property against the deficiency judgment entered. The cause is reversed and remanded for an entry of judgment against the guarantors consistent with this opinion.
EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, WATT, WINCHESTER, JJ., concur.
COLBERT and REIF, JJ., dissent.
KAUGER, J., not participating.
Founders Bank & Trust Co. v. Upsher, 1992 OK 35, ¶ 19, 830 P.2d 1355.
We note that § 686 was amended by the Legislature effective November 1, 2010. The amendment is inapplicable to the cause presented. 2010 Okla. Sess. Law Serv., Ch. 202 (S.B. 2154).
Nevertheless, it is clear that the trial court's refusal to enforce the guaranty agreement was not based on a finding of lack of consideration. See, Transcript of Proceedings, March 15, 2007, providing in pertinent part at pp. 12-13:
Furthermore, no evidence was presented on the issue either demonstrating the existence of consideration for the signing of the second guaranty or the lack thereof. Additionally, the guaranty agreement provides that it was extended to Vallion "at the instance and request of Borrower to induce Bank to extend or continue financial accommodations to Borrower." Any change in obligatory condition of an enforceable pre-existing debt which could be deemed of benefit to guarantor will support guaranty of payment thereof. See, Yount v. Bank of Commerce, 1935 OK 504, ¶ 0, 44 P.2d 874. Finally, we need not address an issue neither contained in the journal entry of judgment nor presented on certiorari. See, Hedges v. Hedges, 2002 OK 92, ¶ 17, 66 P.3d 364 [A trial judge's statement sin announcing an order do not constitute findings of fact and will not be considered incorporated or varying the terms of the journal entry of judgment.];