Shir Bensusan v. Design Engineering Group, LLC and Moses Bensusan

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
SHIR BENSUSAN,
Appellant,
v.
DESIGN ENGINEERING GROUP, LLC,
Appellee.
No. 4D2024-1340
[December 3, 2025]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mark A. Speiser, Judge; L.T. Case No. CACE21004742.
John J. Shahady of Shahady & Wurtenberger, P.A., Fort Lauderdale,
and Bart A. Houston and Alexander G. Lewitt of Houston Roderman, Fort
Lauderdale, for appellant.
Wayne H. Schwartz of Lee & Amtzis, P.L., Boca Raton, for appellee.
SHEPHERD, J.
This is an appeal from a final judgment awarding 92% of a contractual
retainage to appellee Design Engineering Group, LLC (“DEG”) pursuant to
the terms of supplemental construction contracts. 	We affirm in part and
reverse in part, holding that appellant Shir Bensusan is liable on an
unconditional and absolute guaranty, and that DEG is entitled to recover
on the retainage and statutory interest, but is not entitled to the 10%
interest awarded by the trial court.
DEG, 	a 	subcontractor 	on 	a 	construction 	project, 	recorded 	a
construction lien on March 10, 2016, on real property owned by property
developer Costa Hollywood Property Owner, LLC (“Costa”), after Costa had
failed 	to 	timely 	pay 	for 	work 	performed. 	The 	lien 	amount 	was
$1,011,755.68, 	including 	a 	$176,751.91 	retainage. 	Retainage 	is 	an
amount withheld from progress payments.
Based 	on 	work 	stoppage, 	DEG 	and 	Costa 	entered 	supplemental
contracts on June 21, 2016, for the continued construction of the project.
The purpose, as stated in the “Agreement” and “Payment and Completion

2
Agreement,” was to induce DEG to resume work on the project. In return,
Costa promised to timely pay for labor and materials provided. 	Moses
Bensusan (Costa’s principal) and his wife, appellant Shir Bensusan, each
signed the Agreement as guarantors. 	All parties agreed that at the time
the 	new 	contracts 	were 	entered, 	DEG 	had 	earned 	$176,751.91 	in
retainage. 	DEG resumed work and Costa, through its general contractor,
Beauchamp, failed to pay DEG. DEG sought relief from the guarantors for
the retainage.
Shir Bensusan first claims the trial court reversibly erred by denying
her motion to continue trial. On that issue, we affirm without discussion.
Shir Bensusan next claims the trial court abused its discretion in
finding DEG was entitled to recover 92% of the retainage.1 	We affirm the
trial 	court’s 	ruling 	because 	the 	guaranty’s 	language 	and 	other 	trial
evidence supports the conclusion that the Bensusans had signed an
unconditional and absolute guaranty.
“A 	trial 	court’s 	interpretation 	of 	a 	contract 	is 	reviewed 	de 	novo.”
Marshall 	v. 	MacWilliam, 	391 	So. 	3d 	446, 	450 	(Fla. 	4th 	DCA 	2024).
However, the appellate court is bound by the trial court’s findings of fact
in a case where competent, substantial evidence supports the findings.
See Richardson v. Everbank, 152 So. 3d 1282, 1287–88 (Fla. 4th DCA
2015) (“[T]he appellate court does not re-weigh the evidence or . . . . assess
whether 	it 	is 	possible 	to 	recite 	contradictory 	record 	evidence 	which
supports arguments rejected below, nor does it retry the case or substitute
its 	judgment 	for 	the 	trial 	court’s 	on 	factual 	matters 	supported 	by
competent, substantial evidence[.]”) (quoting Lahodik v. Lahodik, 969 So.
2d 533, 535 (Fla. 1st DCA 2007)).
At trial, Frank Gatto (“Gatto”), DEG’s owner and officer, testified and
presented exhibits proving that Shir Bensusan had executed an absolute
and unconditional guaranty in DEG’s favor for payment of contractual
retainage “already earned” of $176,751.91. 	The trial court found the
Agreement entered on June 21, 2016, was an enforceable contract with an
unconditional guaranty.
“As to an absolute guaranty, the guarantor becomes liable immediately
upon 	default 	in 	payment 	by 	another, 	whereas 	under 	a 	conditional
guaranty, the guarantor does not become liable until the occurrence of
1 DEG did not cross-appeal the trial court’s failure to award the additional 8% of
the retainage.

3
certain conditions.” Fort Plantation Invs., LLC v. Ironstone Bank, 85 So. 3d
1169, 1171 (Fla. 5th DCA 2012).
If a written contract in unambiguous terms expresses an
unconditional guarantee, then the guaranty is absolute . . . .
Where the guaranty is absolute, the guarantor becomes liable
upon non-payment by the principal, and the person in whose
favor the guaranty runs has no duty to first pursue the
principal before resorting to the guarantors.
Id. (emphasis added) (quoting Anderson v. Trade Winds Enters., Corp., 241
So. 2d 174, 177 (Fla. 4th DCA 1970)).
The 	guaranty 	contained 	in 	Section 	3 	of 	the 	Agreement 	states, 	in
pertinent part:
(c) Moses Bensusan and his wife, Shir Bensusan (collectively
“Guarantor”), guarantee the Retainage 	upon the following
terms:
(i) Guarantor unconditionally, absolutely and irrevocably
guarantees to DEG the payment or the Retainage if not
timely paid by Costa to DEG in accordance with the
terms of the Payment and Completion Agreement and
the Subordination Agreement.
(ii) Guarantor 	waives 	diligence, 	presentment, 	protest,
demand 	for 	payment 	and 	notice 	of 	default 	or
nonpayment to or upon Guarantor with respect to the
Retainage. 	The 	liability 	of 	Guarantor 	under 	this
Agreement 	shall 	be 	direct 	and 	immediate 	and 	not
conditional 	or 	contingent 	upon 	the 	pursuit 	or
exhaustion of any remedies against Costa. 	Guarantor
understands and agrees that this Guaranty shall be
construed as a continuing, absolute and unconditional
guaranty of payment without regard to any circumstance
whatsoever which constitutes. or might be construed to
constitute, an equitable or legal discharge of Costa for the
Retainage, 	or 	of 	Guarantor 	under 	this 	Guaranty, 	in
bankruptcy or in any other instance, except for payment
in full of the Retainage. 	When pursuing its rights and
remedies against any Guarantor, DEG may, but shall
be 	under 	no 	obligation 	to, 	pursue 	such 	rights 	and
remedies as it may have against Costa and any failure

4
by DEG to do so does not relieve Guarantor at any
liability, and shall not impair or effect the rights and
remedies of DEG against Guarantor. 	This Guaranty
shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon
Guarantor until the earlier of (i) the date upon which
the Retainage is paid in full by Costa, or (ii) the date
upon 	which 	Guarantor’s 	obligations 	under 	this
Guaranty to pay the Retainage is paid in full. . . .
(Emphasis added).
Shir 	Bensusan 	claims 	the 	trial 	court 	improperly 	interpreted 	the
contracts in awarding final judgment to DEG because the project was not
completed. 	However, in reviewing a contract’s terms, we are “bound by
the plain meaning of the contract’s text.” 	Allstate Ins. Co. v. Revival
Chiropractic, LLC, 385 So. 3d 107, 113 (Fla. 2024) (quoting MRI Assocs. of
Tampa, Inc. v. State Farm Mut. Auto. Ins. Co., 334 So. 3d 577, 583 (Fla.
2021)). “Provisions in [a contract’s text] cannot be viewed in isolation from
the full textual context of which they are a part.” 	Id. 	Instead, “proper
interpretation requires consideration of ‘the entire text, in view of its
structure and of the physical and logical relation of its many parts.’” Lab’y
Corp. of Am. v. Davis, 339 So. 3d 318, 324 (Fla. 2022) (quoting Antonin
Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 167
(2012)).
The Payment and Completion Agreement, Section 4, states in part:
“Costa will pay Beauchamp and Beauchamp will then pay [DEG] on all
payment applications dated after March 31, 2016 within ten days of
receipt. 	No retainage will be withheld on these applications.” 	At trial,
Gatto testified that Costa had obtained a $70 million loan. 	Under the
agreements, DEG was entitled to monthly payments or draws based on
labor and materials provided and was promised that the previously earned
retainage would be paid. After the $70 million loan was funded, Gatto and
his crew of approximately 100 construction workers resumed work on the
project. DEG worked for 30 days and then submitted a bill to Costa. DEG
waited ten days, gave Costa a few days of grace, and then walked off the
job 	when 	payment 	was 	not 	forthcoming. 	Gatto 	testified 	that 	DEG
completed 92% of the project.
In 	sum, 	the 	guaranty’s 	unconditional 	language 	supports 	the 	trial
court’s award.

5
However, we reverse the trial court’s award of 10% interest on the
amount awarded. 	The Agreement’s Section 3(a), which provides for 10%
interest, is applicable only to the agreement between DEG and Costa. DEG
is, however, entitled to statutory pre-judgment and post-judgment interest
from Shir Bensusan. 	“[I]f a plaintiff establishes that he sustained out-of-
pocket loss, prejudgment interest must be awarded from the date of the
loss. 	The trial court has no discretion regarding awarding prejudgment
interest and must do so applying the statutory rate of interest in effect at
the time the interest accrues.” 	Sterling Vills. of Palm Beach Lakes Condo.
Ass’n, Inc. v. Lacroze, 255 So. 3d 870, 872 (Fla. 4th DCA 2018) (quoting
Summerton v. Mamele, 711 So. 2d 131, 133 (Fla. 5th DCA 1998)).
Affirmed in part, reversed in part, and remanded with instructions.
GROSS and F ORST , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.