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).
IN THE CIRCUIT COURT FOR
THE SIXTH JUDICIAL CIRCUIT
IN AND
FOR PINELLAS COUNTY, FLORIDA
APPELLATE
DIVISION
MICHAEL HOFMANN,
Appellant,
vs. Appeal No. 03-5023AP-88A
UCN522003AP005023XXXXCV
AMERICAN EXPRESS TRAVEL
RELATED SERVICES, INC., a NEW
YORK CORPORATION,
Appellee.
_________________________________________/
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
ORDER
AND OPINION
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. 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