Opinion
No. 92-00813.
March 19, 1993.
Appeal from the Circuit Court, Hillsborough County, Robert H. Bonanno, J.
Neil E. Polster, Tampa, for appellant.
Corey R. Stutin of Trapp, Chastain and Uiterwyk, Tampa, for appellee.
Nisa Vichaikul questions the trial court's order granting the appellee's motion for summary judgment on its complaint and on Vichaikul's counterclaim. We hold that summary final judgment was improper: genuine issues of material fact remain unresolved. Moore v. Morris, 475 So.2d 666 (Fla. 1985); Holl v. Talcott, 191 So.2d 40 (Fla. 1966).
We agree with appellant that a failure of consideration is a defense to the contract. Howdeshell v. First National Bank of Clearwater, 369 So.2d 432 (Fla. 2d DCA 1979). The affirmative defense of fraud is usually considered a jury question. L S Food Services, Inc. v. Roberts Cafeteria, Inc., 422 So.2d 45 (Fla. 2d DCA 1982). There remains a factual dispute as to whether Vichaikul's agents relied upon the advertisement in advising her to enter into the contract in dispute.
Reversed and remanded for further proceedings consistent with this opinion.
SCHOONOVER and THREADGILL, JJ., concur.