Fasano v. Hicks

667 So. 2d 1033 (1996)

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

No. 94-03868.

District Court of Appeal of Florida, Second District.

February 16, 1996.

Dennis R. Long, Palm Harbor, for Appellant.

No Appearance for Appellee.

FRANK, Acting Chief Judge.

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.,