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 
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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

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. (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., 
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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).
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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.

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