Opinion
No. 95-4123.
September 4, 1996.
Appeal of a non-final order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; James R. Stewart, Jr., Judge.
Lynn G. Waxman and Michael A. Noto, West Palm Beach, for appellant.
Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, and J. Michael Burman of Burman, Critton Luttier, North Palm Beach, for appellee.
This is an appeal of a non-final order granting summary judgment in favor of the plaintiff in an action for nonpayment of a promissory note. We reverse because we conclude that there is sufficient record evidence raising issues of material fact as to each element of the defense's claim of usury. See Dixon v. Sharp, 276 So.2d 817 (Fla. 1973); Abramowitz v. Barnett Bank of West Orlando, 356 So.2d 329 (Fla. 4th DCA), cert. denied, 364 So.2d 880 (Fla. 1978). Therefore, it was error to enter summary judgment in favor of the plaintiff. Additionally, we cannot agree with the trial court that the undisputed facts of this record establish that appellant abandoned his defense of usury or that Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla. 1971), is controlling on that issue.
REVERSED.
GLICKSTEIN, STONE and STEVENSON, JJ., concur.