ALFRED MART AND ADELAIDE MART, HIS WIFE, APPELLANTS,
v.
JOSEPH LEIBMAN, APPELLEE
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Trial court's finding against usury in a trust deed foreclosure is affirmed because appellants' vague and contradictory testimony failed to clearly prove usury despite suspicious circumstances.
A trial court's finding that usury was not proved is sustainable when the defendant's testimony is vague, indefinite, and contradictory, even if the transaction raises suspicion of usury.
[1] A trial court's finding that usury was not proved is sustainable on appeal when the defendant's testimony regarding the alleged usurious transaction is vague, indefinite,…
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Join FLexlaw to unlock all legal intelligence“It is also fundamental that an order of a court rendered in the exercise of its lawful discretion is clothed with a presumption of correctness, and will be disturbed on appeal only upon a clear showing that it is contrary to the manifest weight of the evidence, the burden being on the appellant to make error clearly appear.”
Standard of review for appellate disturbance of trial court orders
Appellants were defendants in a trust deed foreclosure action and claimed the entire transaction was usurious because it originated in a usurious loan…
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The appellants were defendants in an action to foreclose a trust deed on real property. Their defense was that the whole transaction was usurious because it had its inception in a usurious loan which the appellee and another made to the defendant, Alfred Mart. The trial court, in its final judgment, found against the defendants upon the issue of an alleged usurious transaction. On this appeal, the single question presented is, “Can the final judgment in this cause be sustained against the appellants’ claim of usury in the transaction?” In essence, appellants’ argument is that the trial judge misconceived the legal effect of the evidence before him. In other words, the appellants contend that the evidence of a usurious transaction was so clear that a finding that it did not exist is not supportable by competent evidence. Our review of the record convinces us that the manner in which the transactions were handled was sufficient to raise a suspicion of usury, but that appellant’s testimony as defendant was so vague and indefinite and in fact contradictory, that the record will support a finding upon the conflicting evidence that usury was not proved. As was stated in In re Estate of Hobein, Fla.App.1970, 238 So.2d 497:
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“It is also fundamental that an order of a . court rendered in the exercise of its lawful discretion is clothed with a presumption of correctness, and will be disturbed on appeal only upon a clear showing that it is contrary to the manifest weight of the evidence, the burden being on the appellant to make error clearly appear.”
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Accordingly, the judgment appealed is affirmed.
Affirmed.
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Ball v. Balint Papp, 317 So. 2d 801 (Fla. 4th DCA 1975)…nt to show, affirmatively, error committed on the part of the Trial Court, and upon failure to do so, the Appellate Court must affirm the judgment appealed from. Punkar v. King Plastic Corporation, 290 So. 2d 505 (2nd DCA Fla.1974); Mart v. Leibman, 281 So. 2d 367 (3rd DCA Fla. 1973); Manis v. Prudhomme, 278 So. 2d 292 (4th DCA Fla.1973); Mitchell v. Morse Operations, Inc., 276 So. 2d 248 (3rd DCA Fla.1973); Haller v. Santona Land Corporation, 275 So. 2d 591 (1st DCA Fla. 1973); American Motor Inns of Florida…
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Ostreyko v. The B. C. Morton Org., Inc., 310 So. 2d 316 (Fla. 3d DCA 1975)…ndamental that this court will sustain the findings of the trial court which resolve conflicting evidence unless the court’s determinations are clearly erroneous. E. g., Morrison v. Smith, Fla.App.1972, 257 So. 2d 623; Mart v. Leibman, Fla.App.1973, 281 So. 2d 367. The record before us reveals testimony by the plaintiff, Mrs. Hamel (Ostreyko), that she had handled the family finances for some twenty years; that she had opened 24 different savings accounts during that period most of which were joint accounts…
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Mori v. Matsushita Elec. Corp. OF Am., 380 So. 2d 461 (Fla. 3d DCA 1980)…Fla.1908). The findings of the trial court arrive here clothed with the presumption of correctness and where the evidence, although conflicting, is not found to be clearly erroneous, the trial court’s findings will not be disturbed. Mart v. Leibman, 281 So. 2d 367 (Fla. 3d DCA 1973); CIC Leasing Corp. v. Dade Linen and Furniture Co., 279 So. 2d 73 (Fla. 3d DCA 1973); Harbor [*464] Yacht Repair, Inc. v. Sanger, 279 So. 2d 64 (Fla. 3d DCA 1973). The issue of damages was subsequently tried, also non-jury, and t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Est. of Thomas Hobein, 238 So. 2d 497 (Fla. 1st DCA 1970)