SOUTHERN SHIPPING COMPANY, CONSTANTINE G. NOMIKOS, MRS. C. G. NOMIKOS AND THOMAS K. SKORDAS, APPELLANTS,
v.
FLAGSHIP FIRST NATIONAL BANK OF MIAMI BEACH, A NATIONAL BANKING ASSOCIATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court correctly granted summary judgment on the usury issue but erred in awarding attorney's fees and costs without proper notice.
[1] A party opposing a motion for summary judgment must present specific facts showing a genuine issue of material fact, and cannot rely on general allegations.
[2] A claim of usury requires a specific factual showing, and a court may grant summary judgment if the defense is not particularized.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceDefendants appealed a summary final judgment for the plaintiff Bank on a promissory note and guarantees, arguing usury. They also challenged the award…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Action On Guarantee cases and more on FLexlaw
PER CURIAM.
The defendants appeal a summary final judgment for the plaintiff Bank in an action on a promissory note and the guarantees thereon. The defendants urge that a genuine issue of material fact exists precluding summary judgment, or that the defendants were entitled to a judgment forfeiting interest charges as a matter of law upon the issue of usury. Defendants did not appear at the hearing on the motion for summary judgment and offered no affidavits in opposition thereto. On this appeal, it is urged that the answers of the plaintiff to certain interrogatories propounded by the defendants and the subsequent amendment of the complaint constituted an admission that the note was usurious on its face with regard to the individual guarantors.
Our review of the record in the light of the briefs and oral argument shows that for the note to be usurious with regard to the guarantors, it is necessary that it be read in an unnatural and unusual manner, and inasmuch as the defendants failed to come forward with any particularization of their defense of usury, we hold that the trial court correctly granted summary final judgment for the plaintiff on the usury issue. See Garris v. Robeison, 146 So. 2d 388, 389 (Fla.2d DCA 1962).
A second problem arises from the fact that at the summary judgment hearing, the trial judge entered a judgment for attorney’s fees and assessed costs according to affidavits submitted to him at that time, the affidavits having been served on the defendants only on the day of the hearing. The effect of this procedure was to deprive the defendants of an opportunity to object to the entitlement to attorney’s fees or to the amount thereof, or to present evidence and argument in contravention of the items claimed as costs. See Fla.R.Civ.P. 1.090(d).
Accordingly, the summary final judgment is affirmed, except that the portions thereof referring to attorney’s fees and costs is stricken therefrom and upon remand a separate order may be entered on costs and attorney’s fees.
Affirmed in part, reversed in part and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Morgan v. Plantation-Sysco, 471 So. 2d 207 (Fla. 5th DCA 1985)…the trial court erred in awarding costs 1 without affording him the opportunity “to object ... or to present evidence and argument in contravention of the items claimed as costs.” Southern Shipping Co. v. Flagship First National Bank of Miami Beach, 366 So. 2d 855, 856 (Fla. 3d DCA 1979); Fla.R.Civ.P. 1.090(b). The appellee has conceded this error. We affirm except as to the cost award and remand for hearing on that issue. AFFIRMED in part; REVERSED in part; REMANDED. DAUKSCH and FRANK D. UP-CHURCH, Jr.…
Authorities Cited
- Garris v. Robeison, 146 So. 2d 388 (Fla. 2d DCA 1962)