County Civil Court:  CONTRACTS – summary judgment is reviewed de novo – without a transcript appellant is unable to demonstrate that fact issues were ever brought before the trial court – terms of cardholder agreement expressly provides that appellant is responsible for all charges made in conjunction with the account, regardless of who had possession of the credit card or the issuance of additional cards under the account – Final Summary Judgment affirmed.  Hoffman v. American Express Travel, Appeal No. 03-5023AP-88A (Fla. 6th Cir. App. Ct. Dec. 21, 2004). 









vs.                                                                                    Appeal No. 03-5023AP-88A








Appeal from Final Summary Judgment

Pinellas County Court

Judge Myra Scott McNary


John F. McGuire, Esquire

Attorney for Appellant


Robert J. Orovitz, Esquire

Attorney for Appellee






            THIS CAUSE came before the Court on appeal, filed by Michael Hofmann (Hofmann), from the Final Summary Judgment, entered June 9, 2003, in favor of American Express Travel Related Services, Inc., a New York Corporation (American Express).  Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.

The record shows that American Express filed a complaint against Hofmann seeking to recover the principal amount of $10,923.28, debt incurred from use of a corporate credit card issued by American Express to Hofmann.  Hofmann answered the complaint denying the allegations and asserting that the credit card had been transferred to Heike Scheel and that he was not in his possession of the credit card at the time of the purchases.  American Express then filed a Motion for Summary Judgment, with supporting affidavits, arguing that the pleadings on file failed to show any genuine issue of material fact and that American Express was entitled to judgment as a matter of law.  After a hearing, the trial court entered Final Summary Judgment in favor of American Express for the principal sum of $10,923.28, court costs in the amount of $141.50, pre-judgment interest in the amount of $843.03, and attorney’s fees in the amount of $750.00.      

On appeal, Hofmann argues that the trial court erred in granting summary judgment as genuine issues of fact existed.  Hofmann further asserts that the trial court did not have jurisdiction to enter the Order Vacating Order of Dismissal and that Hofmann was not notified of any “good cause.”  In addressing the second issue first, the Court finds that the Clerk of Court, pursuant to the Florida Rules of Civil Procedure, Rule 1.070, mailed American Express a Notice of Intent to Dismiss for Failure to Obtain Service stating that the complaint would be dismissed unless American Express showed “good cause” for its failure to obtain service on Hofmann.  American Express timely filed a response stating that it had obtained a new address for Hofmann and wished to have an opportunity to serve him.  Although the record shows that the case was never dismissed, the trial court entered an Order Vacating Order of Dismissal. 

The Court finds that the trial court always maintained jurisdiction over the case and, further, that the trial court had no discretion but to grant an extension of time for service once American Express had shown good cause for its failure to serve Hofmann within 120 days as required by Rule 1.070(j).  See Chaffin v. Jacobson, 793 So.2d 102, 104 (Fla. 2d DCA  1992).  Assuming, arguendo, that a dismissal was entered, the trial court did not abuse its discretion in vacating the dismissal under the facts of this case.  Additionally, there was no basis for American Express to serve Hofmann with “good cause” as Hofmann was not yet a party to the action.

  The Court also finds that in reviewing the record de novo, the Final Summary Judgment must be affirmed. See Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla. 2000)(stating that the standard of review of a summary judgment is de novo).  Hofmann argues that the trial court erred in entering summary judgment as there remain several unanswered questions, including: (1) was Hofmann the responsible party for the charges incurred on the credit card; (2) does American Express have a responsibility to communicate with a cardholder about key issues before filing suit; (3) has American Express acted in good faith; and, (4) was there fraud involved in the charges made to the credit card account.  The Court finds that, as to questions (2) and (3), there is no transcript of the summary judgment hearing nor anything in the record to indicate that these issues were ever brought before the trial court.  See e.g. Saka v. Saka, 831 So.2d 709, 711 (Fla. 3d DCA 2002)(explaining that issues raised on appeal were not adequately preserved for appellate review where the record lacked the transcript from the summary judgment hearing and that reviewing courts will not consider points raised for the first time on appeal).

In addressing questions (1) and (4), the Court finds that Hofmann denied the allegations set forth in the complaint and asserted that he was not responsible for the debt due to transferring the credit card to Ms. Scheel, who allegedly had possession of Hofman’s credit card at the time of the purchases.  Hofman also asserts that “fraud was done on the account” to the extent that American Express did not record the alleged transfer.  The Court finds that Hofman does not dispute that he applied for, received and incurred charges on the corporate credit card issued by American Express.  The credit card statements list only Hofman as the “corporate cardmember” even though Ms. Scheel was issued her own credit card under the same corporate account.  While Hofman and Ms. Scheel may have entered into an informal agreement to change primary “ownership” of the account, there is nothing in the cardholder agreement that allows a cardmember to unilaterally transfer ownership of the account and there is no evidence that such a transfer was ever received or acknowledged by American Express. 

Accordingly, the Court finds that the summary judgment in favor of American Express was appropriate in this case since the terms of the cardholder agreement expressly provides that Hofman was responsible for all charges made in conjunction with the account, regardless of who had possession of his credit card or the issuance of additional credit cards under the account.[1]  See Ball v. Florida Podiatrist Trust, 620 So.2d 1018, 1022 (Fla. 1st DCA 1993)(stating that summary judgment is appropriate where the material facts are not in dispute and the judgment is based on the legal construction of documents); Angell v. Don Jones Ins. Agency, Inc., 620 So.2d 1012, 1014 (Fla. 2d DCA 1993)(same).  American Express met its initial burden of demonstrating the nonexistence of any genuine issue of material fact and Hofman failed to counter with evidence sufficient to reveal a genuine issue.  See Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979)(stating that it is not enough for the opposing party merely to assert that an issue does exist).  Hofman could not forestall the entry of summary judgment by merely raising “paper issues” when such defenses were without substance in fact or law.  See Reflex, N.V. v. Umet Trust, 336 So.2d 473, 474-75 (Fla. 3d DCA 1976).

 Therefore, it is,

            ORDERED AND ADJUDGED that the Final Summary Judgment is affirmed.  It is further

            ORDERED AND ADJUDGED that American Express’ Motion for Attorney’s Fees is granted.  The trial court shall determine the amount of reasonable appellate attorney’s fees to be awarded.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of December 2004.




                                                                                    JOHN A. SCHAEFER

                                                                                    Circuit Judge, Appellate Division



Copies furnished to:

Judge Myra Scott McNary


John F. McGuire, Esquire

1173 N.E. Cleveland Street

Clearwater, FL  33755


Robert J. Orovitz, Esquire

7765 S.W. 87th Avenue, Suite 101

Miami, FL  33173                  

[1] See Record, pages 4-5: Cardholder Agreement, # 3., Liability for Charges; # 9., Use of Cards.