Opinion
No. 92-299.
January 8, 1993.
Appeal from the Circuit Court, Orange County, Frederick T. Pfeiffer, J.
Sam E. Murrell, Jr., in pro per.
Robert G. Murrell, Orlando, for appellant.
James S. Grodin and John R. Hamilton of Foley Lardner, Orlando, for appellees.
This is an appeal from a summary final judgment in a promissory note guaranty case.
Appellee sued appellant after a promissory note fell into default and appellant failed to fulfill his guaranty of the note by paying it. Appellant filed an answer alleging virtually all defenses available under the common law and has raised some provisions of the Uniform Commercial Code as being applicable. Additionally, he filed a counterclaim alleging misrepresentation, breach of fiduciary duty, conversion and breach of contract.
Summary judgment was improvidently granted. It should not have been granted as to the counterclaim because there was no motion for summary judgment on the counterclaim. There were sufficient material factual issues raised concerning the main action to prevent entry of summary judgment on that suit. For example, appellant makes a defense of payment, alleging that appellee received funds for allocation to the note but wrongfully refused to apply them to the note. As a further example, appellant asserts, and a factual issue may exist, that he was fraudulently induced to sign the guaranty. A trial is necessary to establish the true facts and settle the disputed issues. The summary final judgment is reversed and this cause remanded for trial.
REVERSED and REMANDED.
HARRIS and DIAMANTIS, JJ., concur.