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Fasano v. Hicks

District Court of Appeal of Florida, Second District
Feb 16, 1996
667 So. 2d 1033 (Fla. Dist. Ct. App. 1996)

Summary

finding that in absence of some proof contradicting or opposing affirmative defense, entry of summary judgment is improper

Summary of this case from Maung v. Nat. Stamping

Opinion

No. 94-03868.

February 16, 1996.

Appeal from the Circuit Court for Hillsborough County; Robert W. Bonnano, Judge.

Dennis R. Long, Palm Harbor, for Appellant.

No Appearance for Appellee.


Pasquale Enzo Fasano has appealed from a final summary judgment entered against him and Allen Uter. The judgment holds Fasano liable for principal, interest, costs, and attorney's fees based upon a promissory note modification. Because Fasano raised valid affirmative defenses, we reverse.

It is not necessary to examine the tortured procedural history of this case, other than to say that the final summary judgment in question was entered upon a third party complaint. The trial court erred when it stated that the third party defendants presented no legal or equitable defenses to the plaintiff's cause of action under the note. To the contrary, Fasano raised the defenses of estoppel based upon material misrepresentations of fact concerning the promissory note modification, material breach of contract, lack of consideration, failure of consideration, and payment. In the absence of some proof contradicting or opposing an affirmative defense, entry of a summary judgment is improper. Canny v. Michael Saunders Co., 543 So.2d 433 (Fla. 2d DCA 1989); Harrison v. McCourtney, 148 So.2d 53 (Fla. 2d DCA 1962); Emile v. First Nat'l Bank of Miami, 126 So.2d 305 (Fla. 3d DCA 1961).

Accordingly, we reverse the final summary judgment under review as to Pasquale Enzo Fasano only.

PATTERSON and ALTENBERND, JJ.,


Summaries of

Fasano v. Hicks

District Court of Appeal of Florida, Second District
Feb 16, 1996
667 So. 2d 1033 (Fla. Dist. Ct. App. 1996)

finding that in absence of some proof contradicting or opposing affirmative defense, entry of summary judgment is improper

Summary of this case from Maung v. Nat. Stamping
Case details for

Fasano v. Hicks

Case Details

Full title:Pasquale Enzo FASANO, Appellant, v. Henry W. HICKS, P.A., Appellee

Court:District Court of Appeal of Florida, Second District

Date published: Feb 16, 1996

Citations

667 So. 2d 1033 (Fla. Dist. Ct. App. 1996)

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