Adolfo Pazmino Lopez v. Mel-Mont Medical, LLC

• Court: District Court of Appeal of Florida
• Decided: October 16, 2024
• Docket: 3D2023-1068
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 16, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1068 Lower Tribunal No. 21-10516 ________________

Adolfo Pazmino Lopez, Appellant,

vs.

Mel-Mont Medical, LLC, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Valerie R. Manno Schurr, Judge.

EPGD Attorneys at Law, P.A., and Andrea Natale, Joanna Andrade Lehmann, and Oscar A. Gomez, for appellant.

Salazar Law, and Luis Salazar and Jose A. Ceide, for appellees.

Before LOGUE, C.J., and GORDO and BOKOR, JJ.

LOGUE, C.J.

Adolfo Pazmino Lopez appeals the trial court’s summary judgment

entered against him. In it, the trial court ruled that he could not enforce the promissory note he held because it was usurious. We agree and affirm the

trial court’s grant of summary judgment in this regard.

Because the note was usurious, the trial court also entered summary

judgment in favor of the maker, Mel-Mont Medical, LLC, on its counterclaim

against Lopez for criminal usury, awarding Mel-Mont, LLC damages. On this

issue, Mel-Mont, LLC commendably confesses error. Specifically, the parties

agree on appeal the trial court miscalculated damages when it ordered that

Lopez pay Mel-Mont, LLC $105,750.00. This award was the amount of

principal Mel-Mont, LLC paid plus double the interest paid. The parties agree

the trial court should only have ordered Lopez to pay actual damages—i.e.

the amount actually paid in principal and interest, which was $77,875.00.

They are correct.

They maintain the reason for the miscalculation is because the trial

court incorrectly cumulated the damages permitted under the “criminal”

usury statue, § 687.071, Florida Statutes, with the “civil” usury statute, §

687.04, Florida Statutes. Because Mel-Mont, LLC brought its claim under the

criminal usury statute, they argue, the trial court could only award the

damages permitted under this statute. Such damages do not include double

interest. They are correct. See Velletri v. Dixon, 44 So. 3d 187, 192 (Fla. 2d

DCA 2010) (“When a debt is criminally usurious, the remedy is cancellation

2 of the debt itself and a return of any amounts paid. There is no authority for

cumulating the penalties for both civil and criminal usury, and, in fact, the

authority is to the contrary.” (citations omitted)). We therefore reverse the

trial court’s damage award and remand with instructions that the trial court

correct the award by canceling the debt and ordering Lopez pay Mel-Mont,

LLC damages in the amount of $77,875.00.

Finally, the trial court also entered summary judgment in favor of non-

movant, Mel-Mont Medical, Inc. However, neither Mel-Mont, Inc. or Lopez

moved for summary judgment on this claim. Lopez sued Mel-Mont, Inc. along

with Mel-Mont, LLC, but made a different claim against Mel-Mont, Inc. And

the trial court never indicated before entering the order that it was

considering a summary judgment for Mel-Mont, Inc. Accordingly, summary

judgment for Mel-Mont, Inc. was not properly before the trial court when it

granted Mel-Mont, Inc. summary judgment. See Ness Racquet Club, LLC v.

Ocean Four 2108, LLC, 88 So. 3d 200, 202 (Fla. 3d DCA 2011) (holding that

sua sponte summary judgment may be entered under certain circumstances,

but not “[w]here a party has not filed a summary judgment motion or where

no notice or opportunity to be heard has been given”); cf. Fla. R. Civ. P.

1.510(f)(1) (“After giving notice and a reasonable time to respond, the court

may . . . grant summary judgment for a nonmovant[.]”). See also Serrano v.

3 Epstein, 389 So. 3d 586, 586 (Fla. 3d DCA 2023) (“[W]e reverse the entry of

final summary judgment relating to [plaintiff]'s claims alleged against

defendant [ ] because [defendant] did not move for summary judgment, and

[plaintiff] was not provided with notice and with an opportunity to respond

and prepare for the hearing as to her claims asserted against [defendant].”).

We therefore reverse the trial court’s entry of summary judgment in favor of

Mel-Mont, Inc.

Affirmed in part, reversed in part, and remanded with instructions.