JOHN R. HAWKE AND JEAN HAWKE, APPELLANTS,
v.
BROWARD NATIONAL BANK OF FORT LAUDERDALE, H. G. COLEMAN AND ARTHUR SAARINEN, APPELLEES
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The court held that a promissory note containing both a confession of judgment and a set-off provision is valid as to the set-off provision, even if the confession of judgment is void, provided the provisions are severable. The court also held that the plaintiffs failed to state a cause of action for libel and slander.
Plaintiffs appealed a summary judgment dismissing counts I and II of their complaint regarding a promissory note with a confession of judgment and set…
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Plaintiffs appeal from a summary judgment dismissing Counts I and II of their complaint; and from a final judgment for the failure to plead further after an order of dismissal of Count III for failure to state a cause of action. We find no error and therefore affirm.
The plaintiffs had given the defendant-bank a note which contained a confession of judgment and a set-off provision. Although a confession of judgment is null and void in Florida,1 it does not affect the negotiability of the instrument, Hazlett v. Willaume, 1918, 76 Fla. 514, 80 So. 309. Set-off provisions in promissory notes are allowed in Florida, Bank of West Orange v. Associate Discount Corporation, Fla.App.1967, 197 So.2d 858; Griffin v. Gulf Life Insurance Co., Fla.App.1962, 146 So.2d 901; Ribaudo v. Citizens National Bank of Orlando, 5 Cir. 1958, 261 F.2d 929; McKee v. Hood, 5 Cir. 1963, 312 F.2d 394.
Where a confession of judgment and a set-off provision are present in a promissory note, but are severable, as was the case here, the validity of the note and the set-off will be upheld, regardless of the presence of a confession of judgment. There being only a question of law to be determined, the trial court properly entered a summary judgment for the defendants on Count I and Count II.
The final judgment was entered after an order of dismissal of Count III with leave to amend the complaint. We have examined the pleadings and agree that the plaintiffs have failed to state a cause of action in libel and slander in not alleging the disputed words used; in not stating what crime was alleged to have been committed; in not alleging that tlié' publication or utterances were false and in *680failing to allege sufficient circumstances to show malice in order to negate the presence of a qualified privilege.
Affirmed
WALDEN, C. J., and McCAIN and OWEN, JJ., concur.
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Cappadona v. Bilowit, 46 Fla. Supp. 33 (Palm Beach Cty. Cir. Ct. 1977)…that the costs and attorney’s fees provision is severable. Both parties have cited the same authorities in support of their positions — Vineberg v. Brunswick Corp., 391 Fed.2d 184 (5th Cir. 1968), and Hawke v. Broward Nat. Bank of Fort Lauderdale, 220 So. 2d 678 (Fla. 4th DCA 1969). In Vineberg the appellate court affirmed Judge Fulton’s decision that a confession of judgment clause was null and void, but was severable from the remainder of the promissory note. The clause is set forth in a footnote to the…
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Duprey v. United Servs. Auto. Ass'n, 254 So. 2d 57 (Fla. 1st DCA 1971)…r and undisputed, there being only a question of law to be determined, it is proper for the trial judge to enter a summary judgment. Richmond v. Florida Power & Light Co., 58 So. 2d 687 (Fla.1952) ; Hawke v. Broward National Bank of Fort Lauderdale, 220 So. 2d 678 (Fla.App. 4th, 1969). And, where a determination of a lawsuit depends upon the written instrument of the parties and the legal effect to be drawn therefrom, the question at issue is essentially one of law only, and ordinarily may be determinable by…
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Gene's Gulf, Inc. v. Walnut Equip. Leasing Co., Inc., 391 So. 2d 753 (Fla. 5th DCA 1980)…In Florida, confession of judgment provisions are invalid,1 although contracts are not necessarily invalid in their entirety because of the inclusion of such provision where the clause is severable. Hawke v. Broward National Bank of Fort Lauderdale, 220 So. 2d 678 (Fla.4th DCA 1969). Here, the provision is severable, and appel-lee did not rely on it in obtaining the judgment. However, it is clear that the “25% collection fee” is part and parcel of the confession of judgment clause, and must fall with it. Bec…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ribaudo v. Citizens Nat'l Bank OF Orlando, 261 F.2d 929 (5th Cir. 1958)
- Griffin v. Gulf Life Ins. Co., 146 So. 2d 901 (Fla. 1st DCA 1962)
- Hazlett v. Willaume, 76 Fla. 514 (Fla. 1918)
- McKEE v. Hood, 312 F.2d 394 (5th Cir. 1963)
- Bank OF W. Orange v. Assocs. Disc. Corp., 197 So. 2d 858 (Fla. 4th DCA 1967)
- Raudabaugh v. State, 197 So. 2d 858 (Fla. 1st DCA 1967)