Catogas v. Southern Fed. Sav. & Loan Ass'n

369 So. 2d 922, 1979 Fla. LEXIS 4553
CourtSupreme Court of Florida
DecidedFebruary 1, 1979
Docket53831
StatusPublished
Cited by2 cases

This text of 369 So. 2d 922 (Catogas v. Southern Fed. Sav. & Loan Ass'n) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Catogas v. Southern Fed. Sav. & Loan Ass'n, 369 So. 2d 922, 1979 Fla. LEXIS 4553 (Fla. 1979).

Opinion

369 So.2d 922 (1979)

E.J. CATOGAS and Miriam Catogas, Appellants,
v.
SOUTHERN FEDERAL SAVINGS AND LOAN ASSOCIATION OF BROWARD COUNTY, Appellee.

No. 53831.

Supreme Court of Florida.

February 1, 1979.
Rehearing Denied May 14, 1979.

*923 Leonard D. Pertnoy of Pertnoy & Greenberg, and Bruce S. Rogow of Pearson & Josefsberg, Miami, for appellants.

Robert L. Wunker of Grimditch, Bentz, Witte & Wunker, Pompano Beach, and John A. Thabes of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellee.

Jim Smith, Atty. Gen., and Randy Schwartz, Asst. Atty. Gen., Tallahassee, for the State of Florida, amicus curiae.

ALDERMAN, Justice.

We have for review by direct appeal the partial final summary judgment of the circuit court for Broward County, holding that section 665.395, Florida Statutes (1975), is constitutional and that Southern Federal Savings and Loan Association of Broward County is exempt from usury by virtue of sections 665.395[1] and 665.511,[2] Florida Statutes (1975). We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

By this appeal we are asked to decide whether Southern Federal comes within the exemption of section 665.395 and to decide the constitutional validity of this section against challenges that it violates the equal protection clause of both the Florida and federal constitutions and that it constitutes a special law prohibited by article III, section 11(a)(9), Florida Constitution. Two subsidiary issues posed by the Catogases are whether the trial court erred in entering summary judgment and whether the trial court erred in refusing to continue the case for more than one day. We hold that section 665.395 is constitutional, that Southern Federal is entitled to this statute's exemption, that partial summary judgment was properly awarded in favor of Southern Federal, and that the trial court did not err in refusing to continue the case for more than one day.

On October 22, 1975, the Catogases executed a promissory note to Southern Federal Savings and Loan Association for the principal sum of $380,000, to be repaid over a period of twenty-four years with interest of ten percent per annum. At closing the bank deducted $20,701.42 as costs from the principal sum loaned. These costs included $15,689 identified as "points" and $1,157.86 identified as prepaid interest. The loan funds, which were used to construct an apartment building, were drawn periodically *924 with the final draw being made on September 22, 1976. Although the loan was closed on October 22, 1975, the loan agreement provided that interest would accrue from December 21, 1975. The first payment of combined principal and interest was due on March 15, 1976. The construction loan agreement provided for a ten percent holdback by Southern Federal which was not to be disbursed until it had been determined that the project was one hundred percent complete, until releases and waivers from all possible lienors had been executed on approved forms, until the contractor's affidavit and owner's affidavit had been executed, and until the certificate of occupancy had been issued by the proper governmental authority. By deed dated February 15, 1976, the Catogases conveyed all their right, title, and interest in the subject property.

The Catogases filed a complaint against Southern Federal, alleging that it intentionally, willfully, and knowingly charged them interest which exceeded the ten percent per annum lawful interest rate and which amounted to usury in violation of section 687.03, Florida Statutes (1975). They alleged that the charging of $15,689 as points in addition to the ten percent interest rate charged on the loan made the loan usurious and that charging interest at the rate of ten percent on the face amount of the loan from the closing date of the loan, although the proceeds of the loan were paid out based on draws at irregular intervals commencing on November 7, 1975, resulted in an effective interest rate of more than ten percent. In an amended complaint, they further alleged that section 665.395, if it is applied to exempt Southern Federal from liability for usury under section 687.03, is unconstitutional. As damages, the Catogases requested forfeiture of the entire interest charged and payment of double the amount of interest paid. They also requested statutory attorney's fees and court costs.

Southern Federal alleged as an affirmative defense that, by virtue of sections 665.395 and 665.511, any interest charged by Southern Federal was not usurious. Southern Federal moved for summary final judgment on January 30, 1978.

On February 21, 1978, the Catogases requested a continuance on the hearing for summary judgment until they completed discovery. The trial court on March 2, 1978, granted a one-day continuance and scheduled the hearing for March 3. Partial summary judgment was thereafter entered in favor of Southern Federal as to counts one and two of the complaint. The trial court expressly held that section 665.395, Florida Statutes (1975), was valid and constitutional and that Southern Federal is exempt from usury by virtue of sections 665.395 and 665.511.

The Catogases contend that this statute exempts only building and loan associations and that since Southern Federal is a savings and loan association, it is not encompassed within this statute.

Southern Federal responds that the Catogases are ignoring section 665.511, which it says makes the usury exemption applicable to savings and loan associations. It also contends that to hold this exemption inapplicable to it would violate the equal protection and supremacy clauses of the Constitution of the United States.

In determining whether the legislature, in retaining the statutory exemption for building and loan associations in section 665.395 (formerly section 665.161) and in promulgating section 665.511 giving federal savings and loan associations the same exemptions as "associations organized under the laws of this state," meant to include federal savings and loan associations within section 665.395, we must consider the entire statute as a whole and give effect to all of its provisions which are related. State v. Gale Distributors, Inc., 349 So.2d 150 (Fla. 1977); Wilensky v. Fields, 267 So.2d 1 (Fla. 1972). Considering these sections in the context of chapter 665, we conclude that the legislature intended that the usury exemption apply to both state and federal savings and loan associations. Further support of this conclusion is found in the legislative history of these statutory provisions.

*925 In 1969, the legislature enacted the Savings Association Act, which repealed former chapter 665, entitled "Incorporation and Operation of Domestic Building and Loan Associations." Chapter 69-39, Laws of Florida. Carried over from this former chapter 665 was the usury exemption relating to building and loan associations. Contained in former chapter 665 was a provision relating to conversion of building and loan associations into federal savings and loan associations which provided:

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