PASQUALE ENZO FASANO, APPELLANT,
v.
HENRY W. HICKS, P.A., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court reversed summary judgment against Fasano because he raised valid affirmative defenses to a promissory note modification claim that required factual development.
Summary judgment is improper when a defendant raises valid affirmative defenses unsupported by contradicting proof.
[1] Summary judgment is improper when a defendant raises valid affirmative defenses unless the plaintiff presents proof contradicting or opposing those defenses.
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In the absence of some proof contradicting or opposing an affirmative defense, entry of a summary judgment is improper.”
Court's statement of the legal standard for summary judgment when affirmative defenses are raised.
Fasano was held liable under a promissory note modification in a third-party complaint. Fasano raised defenses of estoppel based on material misrepres…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Payment cases and more on FLexlaw
PRANK, Acting Chief Judge.
Pasquale Enzo Fasano has appealed from a final summary judgment entered against him and Allen Uter. The judgment holds Fasano hable 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 plaintiffs 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.,
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Fatherly v. Cal. Fed. Bank, FSB, 703 So. 2d 1101 (Fla. 2d DCA 1997)…st, summary judgment is precluded. See Snyder v. Cheezem Development Corp., 373 So. 2d 719 (Fla. 2d DCA 1979). “In the absence of some proof contradicting or opposing an affirmative defense, entry of a summary judgment is improper.” Fasano v. Hicks, 667 So. 2d 1033, 1034 (Fla. 2d DCA 1996). Here, California Federal’s affidavit failed to contradict Fatherly’s assertion that her payments had not been properly credited. To the contrary, the affidavit confirmed that the bank had received sums that it had not appli…
-
Naywin Maung v. Nat'l Stamping, LLC, 842 So. 2d 214 (Fla. 3d DCA 2003)…by affidavit or other sworn evidence, negate or deny that defense, the plaintiff is not entitled to summary judgment. Johnson & Kirby, Inc. v. Citizens Nat’l Bank of Fort Lauderdale, 338 So. 2d 905, 906 (Fla. 3d DCA 1976); see also Fasano v. Hicks, 667 So. 2d 1033, 1034 (Fla. 2d DCA 1996) (finding that in absence of some proof contradicting or opposing affirmative defense, entry of summary judgment is improper). In this case, although National Stamping averred by affidavit that the merchandise delivered to Ma…
-
Chen v. Whitney Nat'l Bank, 65 So. 3d 1170 (Fla. 1st DCA 2011)…refute or disprove the affirmative defenses or establish that the defenses are insufficient as a matter of law. See Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 566 So. 2d 52 (Fla. 1st DCA 1990); see also Fasano v. Hicks, 667 So. 2d 1033, 1034 (Fla. 2d DCA 1996) (“In the absence of some proof contradicting or opposing an affirmative defense, entry of a summary judgment is improper.”). With respect to the ECOA affirmative defense, Whitney argued below and on appeal that the defense…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Emile v. First Nat'l Bank OF Miami, 126 So. 2d 305 (Fla. 3d DCA 1961)
- Harrison v. McCOURTNEY, 148 So. 2d 53 (Fla. 2d DCA 1962)
- Canny v. Michael Saunders & Co., Inc., 543 So. 2d 433 (Fla. 2d DCA 1989)