FOREST CREEK DEVELOPMENT COMPANY, ETC., ET AL., APPELLANTS,
v.
LIBERTY SAVINGS & LOAN ASSOCIATION, APPELLEE
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Forest Creek Development Company appealed the dismissal of its amended complaint against Liberty Savings & Loan for breach of a $250,000 loan commitment and alleged usury on a $150,000 loan. The court reversed in part, finding that the usury count was properly dismissed but that the misrepresentation and promissory estoppel counts stated valid causes of action and should not have been dismissed.
The court held that the usury count was properly dismissed because a defense appeared on the face of the complaint. The breach of contract count was dismissed for insufficient allegations, but the trial court should have allowed amendment. The misrepresentation and promissory estoppel counts adequately stated causes of action and were erroneously dismissed. Liberty's waiver defense cannot be determined on the face of the complaint and requires factual development.
[1] A usury claim may be dismissed if the loan documents themselves contain a provision limiting interest to the maximum rate allowed by law and stipulating that any excess i…
[2] A breach of contract claim based on a loan commitment may be dismissed for failure to allege specifics regarding the amount of interest, terms of repayment, or funding.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In no event shall the amount of interest due or payment in the nature of interest payable hereunder exceed the maximum rate of interest allowed by applicable law, as amended from time to time, and in the event any such payment is paid by the undersigned or received by the Holder, then such excess sum shall be credited as a payment of principal, unless the undersigned shall notify the Holder, in writing, that the undersigned elects to have such excess sum returned to it forthwith.”
The mortgage note provision that defeated the usury claim by showing interest would be capped at maximum legal rates
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Join FLexlaw to unlock all legal intelligenceLiberty Savings & Loan failed to honor a $250,000 loan commitment to Forest Creek Development Company. Liberty subsequently made a $150,000 loan to Fo…
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SHARP, Chief Judge.
Forest Creek Development Company, et al., appeals from an order granting Liberty Savings and Loan Association’s motion to dismiss Forest Creek’s amended complaint with prejudice. Forest Creek’s causes of action concern Liberty’s failure to honor a $250,000 loan commitment, and allegations that a $150,000 loan made by Liberty to Forest Creek was usurious. We reverse in part.
We agree with the trial judge that the count dealing with usury was properly dismissed. A defense to this count appears on the face of the complaint and its attachments. The mortgage note provides:
In no event shall the amount of interest due or payment in the nature of interest payable hereunder exceed the maximum rate of interest allowed by applicable law, as amended from time to time, and in the event any such payment is paid by the undersigned or received by the Holder, then such excess sum shall be credited as a payment of principal, unless the undersigned shall notify the Holder, in writing, that the undersigned elects to have such excess sum returned to it forthwith.
With regard to the breach of contract count, we find that the allegations are insufficient to state a cause of action. There are no specifics alleged regarding the amount of interest, terms of repayment, or funding. However, we think the trial court should have given Forest Creek a second chance to amend its complaint in the interest of justice. See Dingess v. Florida Aircraft Sales and Leasing, Inc., 442 So. 2d 431 (Fla. 5th DCA 1983).
We find that the counts regarding misrepresentation and promissory estoppel do sufficiently state a cause of action, and that it was erroneous to have dismissed them. See Fontainbleau Hotel Corp. v. Walters, 246 So. 2d 563 (Fla.1971). Liberty appears to agree that the elements of both were well pled, but it contends Forest Creek waived its complaint as to Liberty’s failure to honor its claimed $250,000 additional loan commitment by subsequently accepting a $150,000 loan from Forest Creek. Normally waiver is a defense not raised on the face of a complaint. As in this case, a waiver defense depends upon allegations of facts and their subsequent proof.1 This issue cannot be determined on the basis of Forest’s amended complaint. See, e.g., Ehmann v. Florida National Bank at Ocala, 515 So. 2d 1063 (Fla. 5th DCA 1987).
AFFIRMED in part, REVERSED in part, REMANDED.
DAUKSCH and COWART, JJ., concur. . "Waiver" is an intentional or voluntary relinquishment of a known right or conduct which infers such relinquishment. The essential elements of waiver are (1) existence of right at time of waiver; (2) privilege, advantage, or benefit which may be waived; (3) actual or constructive knowledge or right; and (4) intent to relinquish right. When waiver is to be implied from conduct, the acts, conduct, or circumstances relied upon to show waiver must make out a clear case. Taylor v. Kenco Chemical & Mfg. Corp., 465 So. 2d 581, 587 (Fla. 1st DCA 1985).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jersey Palm-Gross, Inc. v. Paper, 658 So. 2d 531 (Fla. 1995)…ANSTEAD, Justice. We have for review Jersey Palm-Gross, Inc. v. Paper, 639 So. 2d 664 (Fla. 4th DCA 1994), in which the Fourth District certified conflict with Forest Creek Development Co. v. Liberty Savings & Loan Ass’n, 531 So. 2d 356 (Fla. 5th DCA 1988), review denied, 541 So. 2d 1172 (Fla.1989). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. We approve the decision below, and disapprove Forest Creek insofar as it holds that a usury savings clause precludes, as a matter of…
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Jersey Palm-Gross, Inc. v. Paper, 639 So. 2d 664 (Fla. 4th DCA 1994)…ntractual provisions that statutory law has not prohibited. Here, this court has stretched to uphold an invalidation, rather than the contrary. The majority brushes aside the decision in Forest Creek Development Co. v. Liberty Savings & Loan Ass’n, 531 So. 2d 356 (Fla. 5th DCA 1988), rev. denied, 541 So. 2d 1172 (Fla.1989), in which because of a savings [*675] clause, the fifth district did not even permit a usury defense to survive a mere motion to dismiss. Forest Creek thus appears to stand for the proposi…1 / 2
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First Am. Bank & Tr. v. Int'l Med. Ctrs., Inc., 565 So. 2d 1369 (Fla. 1st DCA 1990)…amount of interest payable to that authorized under applicable law have been recognized as valid and enforceable in this state and provide a complete defense to a charge of usury. E.g., Forest Creek Development Co. v. Liberty Savings & Loan Assoc., 531 So. 2d 356 (Fla. 5th DCA 1988), rev. denied 541 So. 2d 1172 (Fla.1989). In a case such as this, where the effective interest rate found to be usurious is so near the allowable maximum depending on disputed legal principles of valuation, a strong showing indeed…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Taylor v. Kenco Chem. & MFG. Corp. & Emerald Mfg. Co., Inc., 465 So. 2d 581 (Fla. 1st DCA 1985)
- Fontainebleau Hotel Corp. v. Walters, 246 So. 2d 563 (Fla. 1971)
- Dingess v. Fla. Aircraft Sales & Leasing, Inc., 442 So. 2d 431 (Fla. 5th DCA 1983)
- Dirk D. Ehmann v. Fla. Nat'l Bank AT Ocala, 515 So. 2d 1063 (Fla. 5th DCA 1987)