RONALD G. MORETTO ET AL., APPELLANTS,
v.
IRVING SUSSMAN, AS TRUSTEE, APPELLEE
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Appellants challenged an interlocutory order denying their request for a jury trial and dismissing their amended counterclaim seeking punitive damages for alleged usury. The court affirmed, holding that usury violations provide only statutory remedies and that a legally inadequate amended pleading cannot reopen the time period for demanding jury trial.
Punitive damages are not allowable for usury violations; only those penalties and relief provided by statute are permitted. A legally inadequate amended pleading cannot justify reopening the time period for demanding jury trial, as allowing such would render the time limit rule meaningless.
[1] Punitive damages are not recoverable for violations of usury statutes; relief is limited to statutory penalties.
[2] A legally insufficient amendment to a pleading does not revive a waived right to demand a jury trial.
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Join FLexlaw to unlock all legal intelligence“Usury is a creature of statute. Thus, usury violations are statutorily governed and give rise only to those penalties and relief statutorily contained or provided. Other damages, compensatory or punitive, are not recognized or permitted.”
Establishes the core holding that usury remedies are strictly limited to those provided by statute, with no additional damages permitted.
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Join FLexlaw to unlock all legal intelligencePlaintiff sued defendants for multiple relief including mortgage foreclosure due to defendants' defaults. Defendants counterclaimed alleging usury and…
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This is an appeal from an interlocutory order which denied defendants’ request for jury trial and dismissed defendants’ amendment to their counter-claim, which amendment sought punitive damages because of plaintiff’s alleged violation of the' usury statute. We affirm.
The details of the financial dealings between the parties are unimportant here. Because of defendants’ defaults, plaintiff sued for multiple relief, including the foreclosure of a mortgage. Defendants counterclaimed, charging usury and seeking statutory sanctions and penalties under F. S. 687.02, 687.04 and 687.071, Laws of 1969, F.S.A. The time for jury trial demand came and went per Rule 1.430, F.R. Civ.Proc., 30 F.S.A., and neither party timely requested such. Much later, with the cause being at issue and set for non-jury trial, the defendants undertook to amend and file a second count to their counter-claim. It again charged the same usury but, this time, demanded punitive damages thereby. Additionally, defendants thereafter demanded a jury trial. The instant order resulted.
First, are punitive damages allowable in addition to the statutory penalties and relief as a consequence of usury? The answer is “no”.
Defendants assert that they are so entitled, resting their position on Chakford v. Sturm, Fla.1953, 65 So.2d 864. With respect, they misplaced their confidence, as this case provides for no relief other than that allowed by statute. The statute of that time provided in certain instances for the forfeiture of principal and interest. The particular holding was that usurious payments previously made could be recovered and statutorily forfeited.
Usury is a creature of statute. Thus, usury violations are statutorily governed and give rise only to those penalties and relief statutorily contained or provided. Other damages, compensatory or punitive, are not recognized or permitted. See Coral Gables First National Bank v. Constructors of Florida, Fla.App.1960, 119 So.2d 741; Coe v. Muller, Fla.1917, 74 Fla. 399, 77 So. 88; Tel Service Co. v. General Capital Corp., Fla.1969, 227 So.2d 667; Spinney v. Winter Park Building & Loan Ass’n., Fla.1935, 120 Fla. 453, 162 So. 899.
Second, as to the re-opening of the closed period for demanding a jury trial, we feel that had the defendants been able to plead a new and valid cause of action, they would newly be entitled to request and receive jury trial for the whole case or such part of it as would be appropriate. Rule 1.430, F.R.Civ.Proc.
However, we are of the opinion that the new pleading being legally inadequate, does not justify a new entitlement. If it were so, the time limit rule for demanding a jury trial would be rendered impotent and meaningless. A tardy pleader could simply file an abortive and insufficient pleading and thereby nullify the rule maker’s intent and the trial court’s discretion by using the worthless pleading as a vehicle to remedy his earlier default in failing to timely request jury trial.
No reversible error having been demonstrated, the order appealed is
Affirmed.
CROSS and MAGER, JJ., concur.
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Hollywood, Inc. v. City OF Hollywood, 321 So. 2d 65 (Fla. 1975)…a jury trial is revived although the party making the demand may have waived the right to a jury trial at the time of the initial responsive pleadings. See Leopold v. Richard Bertram and Co., 276 So. 2d 225 (Fla. 3d DCA 1973) and Moretto v. Sussman, 274 So. 2d 259 (Fla. 4th DCA 1973). It is not contended that Respondent failed to make a demand for jury trial timely to its amended answer and cross-claim. [*73] The determination of whether a trial judge abused his discretion in denying a demand for jury trial m…
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Cerrito v. Kovitch, 457 So. 2d 1021 (Fla. 1984)…effect that an action predicated on remedies provided by the usury statutes creates no vested substantive right but only an enforceable penalty.” Tel Service Co. v. General Capital Corp., 227 So. 2d 667, 671 (Fla.1969). See also Moret-to v. Sussman, 274 So. 2d 259 (Fla. 4th DCA 1973). Except when usurious interest has already been paid and the party is seeking its return plus the statutory penalties, see Dezelle v. King, 91 So. 2d 624 (Fla.1956), we conclude that section 687.04 does not create a legal cause…
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Cerrito v. Kovitch, 423 So. 2d 1008 (Fla. 4th DCA 1982)…raised in a compulsory counterclaim filed in an equitable action. We have no quarrel with the correctness of that proposition. Its extension to equate the defense of usury with such a “legal issue” is in our view unjustified. In Moretto v. Sussman, 274 So. 2d 259, 260 (Fla. 4th DCA 1973), we noted that: Usury is a creature of statute. Thus, usury violations are statutorily governed and give rise only to those penalties and [*1010] relief statutorily contained or provided. Other damages, compensatory or puni…
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
- TEL Serv. Co., Inc. v. Gen. Cap. Corp., 227 So. 2d 667 (Fla. 1969)
- Spinney v. Winter Park Bldg. & Loan Ass'n, 120 Fla. 453 (Fla. 1935)
- Coe v. Muller, 74 Fla. 399 (Fla. 1917)
- Coral Gables First Nat'l Bank v. Constructors OF Fla. Inc., 119 So. 2d 741 (Fla. 3d DCA 1960)
- Chakford v. Sturm, 65 So. 2d 864 (Fla. 1953)