SOL WALKER, IRVING OSTER AND TAMPA BAY TERMINAL, INC., APPELLANTS,
v.
NAROSE BLDGS., INC., NATHAN I. GORDON AND LAKELAND ACRES, INC., APPELLEES
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Appellants Walker, Oster, and Tampa Bay Terminal challenged a trial court decree finding they had entered into a usurious contract and ordering cancellation of a mortgage and repayment of funds. The appellate court affirmed, rejecting appellants' arguments that the transaction was a valid sale of a second mortgage rather than a loan, and finding no abuse of discretion in the trial court's evidentiary and procedural rulings.
The trial court's findings of fact are supported by substantial competent evidence and are clothed with a presumption of correctness; appellants failed to demonstrate otherwise. The trial court did not abuse its discretion in entering joint judgment against appellants collectively or in refusing to allow amendment of pleadings to assert an affirmative defense.
“The trial court, under the authority of Florida Statutes 687.07, F.S. A., cancelled the mortgage held by appellant, Tampa Bay Terminal, Inc., and ordered appellants to repay to appellees the sum of money which appellees had paid pursuant to the contract.”
Describes the trial court's remedy for the usurious transaction
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Join FLexlaw to unlock all legal intelligenceAppellants entered into a transaction with appellees involving what appellants characterized as a sale of a second mortgage but which the trial court …
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The appellants are appealing from a final decree entered by the trial court, sitting without jury, in which he found that appellants had entered into a contract with appellees wherein appellants charged usurious interest. The trial court, under the authority of Florida Statutes 687.07, F.S. A., cancelled the mortgage held by appellant, Tampa Bay Terminal, Inc., and ordered appellants to repay to appellees the sum of money which appellees had paid pursuant to the contract.
The appellants base two of their points on appeal on the assumption that the transaction in question involved a loan in conjunction with a sale of a second mortgage. However, it appears from the final decree that the trial court found that there was no valid sale but instead that the purported sale was simply a device utilized by appellants in attempting to avoid the usury laws. The trial court’s findings of fact come before us clothed with a presumption of correctness. Bass v. Bass, Fla.App. 1966, 188 So.2d 346. Before we could consider appellants’ points on appeal, appellants would have to show a lack of substantial competent evidence to support the trial court’s findings. LaFrance Cleaners & Dyers, Inc. v. Argenio, Fla.App. 1962, 147 So.2d 330. The appellants have failed to make such a showing; thus, the trial court’s findings must stand.
In another point on appeal, appellants claim that the trial court erred by entering judgment in favor of appellees collectively against appellants collectively. The record shows that this was agreed to at trial and this question cannot now be raised for the first time on appeal. Marsh v. Sarasota County, Fla.App.1957, 97 So.2d 312.
The appellants also claim that the trial court erred in not allowing them to file a post-trial motion wherein they sought to amend and assert an affirmative defense. The trial court’s decision to refuse amendment to pleadings will not be disturbed on appeal unless an abuse of discretion is shown. McSwiggan et al. v. Edson, Fla. 1966, 186 So.2d 13. The appellants have failed to make such a showing.
The appellants’ other points have been considered and found to be without merit.
The judgment appealed from is affirmed.
LILES, C. J., and ALLEN and SHANNON, JJ., concur.
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Gen. Cap. Corp. v. TEL Serv. Co., Inc., 212 So. 2d 369 (Fla. 2d DCA 1968)…ber Company, Fla.App.1967, 199 So. 2d 311; Tiernan v. Sheldon, Fla.App.1966, 191 So. 2d 87; Sheldon v. Tiernan, Fla.1967, 200 So. 2d 183; Argenbright v. J. M. Fields Co., Fla.App.1967, 196 So. 2d 190; and Walker v. Narose Bldgs., Inc., Fla.App.1968, 206 So. 2d 400. We can conclude this part of the opinion by restating the language of Judge Allen of this Court in Cutri Enterprises, Inc. v. Pan American Bank of Miami, Fla.App. [*379] 1959, 115 So. 2d 592, a usury case, as follows: “We have studied this volumi…
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Friedman v. U.S. Home Corp., 452 So. 2d 1111 (Fla. 2d DCA 1984)…at defendants’ proposed repairs were not a reasonable exercise of their option under the homeowners warranty. The final judgment of the trial court comes to this court clothed with a presumption of correctness. See Walker v. Narose Buildings, Inc., 206 So. 2d 400 (Fla. 2d DCA), cert. denied, 212 So. 2d 871 (Fla.1968). The lower court’s findings and con- [*1113] elusions will not be disturbed where there is competent, substantial evidence to support such findings and conclusions. In re Estate of Rodgers, 149…
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McSWIGGAN v. Murray Edson, 186 So. 2d 13 (Fla. 1966)
- Marsh v. Sarasota Cnty., 97 So. 2d 312 (Fla. 2d DCA 1957)
- LaFRANCE Cleaners & Dyers, Inc. v. Argenio, 147 So. 2d 330 (Fla. 3d DCA 1962)
- State of Fla. on the relation of Joseph B. Sidman & Jack P. Bluestein v. Fink, 147 So. 2d 330 (Fla. 3d DCA 1962)
- Baker v. State, 188 So. 2d 346 (Fla. 3d DCA 1966)
- Bass v. Bass, 188 So. 2d 346 (Fla. 2d DCA 1966)