ANTHONY J. IEMMA v. MARGARET HEICHBERGER, as Personal Representative of the ESTATE OF JOSEPH P. D'ANGELO and INGRID PALMER ( 2022 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANTHONY J. IEMMA,
Appellant,
v.
MARGARET HEICHBERGER, as Personal Representative of the ESTATE
OF JOSEPH P. D’ANGELO, and INGRID PALMER,
Appellees.
No. 4D21-3149
[December 21, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No.
CACE20001287 (13).
Alan D. Sackrin of Sackrin & Tolchinsky, P.A., Hallandale Beach, for
appellant.
Virginia Wolf Gilliam of Law Offices of Gilliam & Gilliam, LLC, Miami,
for appellees.
KUNTZ, J.
The circuit court entered a final summary judgment after concluding
that Anthony Iemma’s suit against the Estate of Joseph P. D’Angelo was
barred by the expiration of the statute of limitations. As he did in response
to the summary judgment motion, Iemma argues the Estate is equitably
estopped from asserting the statute of limitations defense. The Estate
argues summary judgment was appropriate and the circuit court correctly
rejected Iemma’s “own self-serving testimony provided in his affidavit in
opposition” to the summary judgment motion. We conclude that Iemma’s
affidavit filed in opposition to the Estate’s summary judgment motion was
sufficient to preclude summary judgment. Therefore, we reverse.
Background
Iemma filed a complaint against the Estate alleging that he lent Joseph
D’Angelo, the Decedent, and Ingrid Palmer money two times. First, on
August 23, 2002, Iemma lent the Decedent and Palmer $800,000. This
transaction was memorialized in a one-page “promissory note” that states
the principal is payable “on demand” with “interest at the rate of 10% per
annum payable monthly.” Second, on August 26, 2002, Iemma lent the
Decedent and Palmer $2,000. This second transaction was also
memorialized in a one-page “promissory note” that was “payable on
demand” and included the same provision about interest as the first note.
In his complaint, Iemma demanded repayment of the notes, interest, and
compensatory damages.
The Estate moved for summary judgment and argued summary
judgment should be granted because the statute of limitations ran on both
promissory notes “and there [was] no promise to pay the barred debt that
would revive the same.” Iemma filed an affidavit arguing the claims were
not barred by the statute of limitations because the Decedent “repeatedly
told [Iemma] not to demand payment due to the fact that [the Decedent]
said he did not have the financial resources to pay Iemma.” Iemma argued
that he “delayed demanding payment from [the Decedent due to the
Decedent’s] repeated requests and his statements that he didn’t have the
funds to pay.”
After two days of hearings on the summary judgment motion, the
circuit court rejected Iemma’s equitable estoppel argument and entered
judgment for the Estate. The court noted that the promissory notes were
executed in August 2002, and that no principal or interest payments were
ever made to Iemma under the two notes. So, the court concluded, default
occurred in September 2002, and the five-year statute of limitations
expired in September 2007. This appeal followed.
Analysis
The sole issue we address is the circuit court’s conclusion that Iemma’s
summary judgment evidence was insufficient to support Iemma’s
argument that equitable estoppel precluded the Estate from asserting the
statute of limitations as a defense to his suit. 1
1The statute of limitations on a note payable on demand does not begin to run
until written demand for payment is made. See § 95.031(1), Fla. Stat. (2002).
See also In re Eddy, 572 B.R. 774, 779 (Bankr. M.D. Fla. 2017). This statutory
section “changed the common law regarding when a cause of action arising from
nonpayment of a negotiable or nonnegotiable note accrues.” Mosher v. Anderson,
817 So. 2d 812, 815 (Fla. 2002) (Pariente, J., dissenting) (emphasis omitted).
Now, in Florida, the statute of limitations for an oral or written loan “payable
upon demand begins to run only after there has been a breach by the debtor, i.e.,
2
Equitable estoppel is “a valid defense to a limitations-periods defense.”
Morsani v. Major League Baseball, 739 So. 2d 610, 614 (Fla. 2d DCA 1999).
While equitable estoppel does not “toll” the statute of limitations, it can
prevent a party from raising a defense which the party otherwise could
have raised. Meyer v. Meyer, 25 So. 3d 39, 42 (Fla. 2d DCA 2009) (quoting
Major League Baseball v. Morsani, 790 So. 2d 1071, 1077 (Fla. 2001)). So
equitable estoppel can apply even where the statute of limitations has
already run. See Delco Oil, Inc. v. Pannu, 856 So. 2d 1070, 1073 (Fla. 5th
DCA 2003) (explaining equitable estoppel applies when defendant’s
conduct “induced the plaintiff into forbearing suit within the applicable
limitations period”).
In Ryan v. Lobo De Gonzalez, 841 So. 2d 510 (Fla. 4th DCA 2003), we
explained that equitable estoppel bars the application of the statute of
limitations:
[E]quitable estoppel “presupposes that the plaintiff knows of
the facts underlying the cause of action but delayed filing suit
because of the defendant’s conduct.” See Bell v. Fowler, 99
F.3d 262, 266 n. 2 (8th Cir. 1996) (citing Dring v. McDonnell
Douglas Corp., 58 F.3d 1323, 1329 (8th Cir. 1995)) (emphasis
added). Stated another way, “[e]quitable estoppel arises where
the parties recognize the basis for suit, but the wrongdoer
the debtor has refused to repay the loan at the time the creditor demands
repayment.” Id. at 14.
The notes at issue were payable on demand but also required monthly interest
payments. Did the interest payment change the nature of the obligation into
something other than a note payable on demand? That is a question not relevant
to the sole issue presented—whether Iemma’s summary judgment evidence was
sufficient to defeat the Estate’s argument that equitable estoppel does not apply.
But answering that question is necessary to determine the correct application of
the statute of limitations and, as a result, is a question which the circuit court
will likely need to consider on remand. See, e.g., Reger Dev., LLC v. Nat’l City
Bank, 592 F.3d 759, 765 (7th Cir. 2010) (a provision requiring the monthly
payment of interest does not recharacterize the nature of a note payable on
demand); Bank One, Texas, N.A. v. Taylor, 970 F.2d 16, 31 (5th Cir. 1992)
(conditions in a note defining event of default are rendered meaningless if the
agreement was intended to be payable on demand); Todd v. Third Nat’l Bank, 113
S.W.2d 740, 741 (Tenn. 1938) (“[A] note is none the less payable on demand when
it provides for interest, whether from date or after a specified time.”); Shapleigh
Hardware Co. v. Spiro, 106 So. 209, 210 (Miss. 1925) (a note payable on demand
but with a requirement of interest from signing remains a note payable on
demand).
3
prevails upon the other to forego enforcing his right until the
statutory time has lapsed.” Cook v. Deltona Corp., 753 F.2d
1552, 1563 (11th Cir. 1985) (quoting Aldrich v. McCulloch
Props., Inc., 627 F.2d 1036, 1043 n. 7 (10th Cir. 1980))
(emphasis added).
Id. at 518–19 (emphasis omitted).
In the circuit court, Iemma filed an affidavit opposing the Estate’s
motion for summary judgment. In the affidavit, Iemma explained that he
“did not sue [the Decedent] as he repeatedly asked me not to sue him and
assured me that I would be paid.” Iemma stated that the Decedent
“blamed his poor financial condition as far back as 2006 and 2007 and as
recently as within a year of his death as to why he was not able to make
payments so I did not make a formal demand of him to pay me and I did
not sue him as I trusted what he said.”
Like the statements allegedly made here, in Acoustic Innovations, Inc. v.
Schafer, the “trial court found that Miller’s words and actions repeatedly
assured Schafer that Miller would honor their agreement.” 976 So. 2d
1139, 1144 (Fla. 4th DCA 2008). Based on that finding, we concluded that
“the doctrine of equitable estoppel bar[red] the application of the statute
of limitations.” Id.The assertions in Iemma’s affidavit were sufficient to overcome the
Estate’s summary judgment motion, and the circuit court erred when it
rejected Iemma’s equitable estoppel defense to the statute of limitations.
Brooks Tropicals, Inc. v. Acosta, 959 So. 2d 288, 293 (Fla. 3d DCA 2007)
(“Equitable estoppel exists to bar the application of the statute of
limitations where the parties recognize a basis for a suit, but the
wrongdoer prevails on the other to forego enforcing that right until the
statutory time has elapsed.”).
Conclusion
The circuit court’s final summary judgment is reversed, and the case is
remanded for further proceedings.
Reversed and remanded.
CIKLIN and LEVINE, JJ., concur.
* * *
4
Not final until disposition of timely filed motion for rehearing.
5