### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

ANTHONY J. IEMMA
, Appellant,

v.

MARGARET HEICHBERGER, as P ersonal R epresentative of the ESTATE

OF JOSEPH P. D ’ ANGELO
, and INGRID PALMER
, Appellee s

.

No. 4D 21

- 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.

K UNTZ

, 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 limitation s

. 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 opposit ion” 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 Esta te alleging that he lent Joseph D’Angelo, the Decedent

, and Ingrid Palmer money two times . First, on August 23, 20 0 2, Iemma lent the Decedent and Palmer $800,000. This2 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, 20 0 2, 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.

T he Estate moved for summary judgment and argued summary judgment should be granted because the statute of limitation s 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 st atute of limitation s 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 20 0 2

, and that no principal or interest payments were

ever made to Iemma under the two notes. So, the court concluded, default occurred in September 20 0 2

, and the five

- year statute of lim itations 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 in sufficient to support Iemma’s argument that equitable estoppel preclude d the Estate from asserting the

statute of limitation s as a defense to his suit

. 1

1 The 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. (20 0 2)

. S ee also In re Eddy , 572 B.R. 774, 779 (Bankr. M.D. Fla. 2017). This statutory

section “ changed th e 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 limit ation s for an oral or written loan “p ayable upon demand begins to run only after there has been a breach by the debtor, i.e.,3 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. Morsa ni , 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? T hat is a question not relevant to the sole issue pres ented

— 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 limitation s and, as a re sult, 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)

.4 prevails upon the other to f orego 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 o mitted).

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 t he 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 ma ke 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 rep eatedly 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 a ssertions in Iemma’s affidavit were sufficient to overcome the Estate’s summary judgment motion

, and t he circuit court erred when it rejected Iemma’s equitable estoppel defense to the statute of limitations

. Brooks Tropicals, Inc. v. Acosta , 959 So. 2d 28 8, 293 (Fla. 3d DCA 2007) (“ E quitable 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 e lapsed.”)

.

Conclusion

The circuit court’s final summary judgment is reversed

, and the case is remanded for further proceedings.

Reversed and remanded

.

C IKLIN and L EVINE
, JJ., concur.

* * *5 Not final until disposition of timely filed motion for rehearing.