County Civil Court: CONTRACTS –
summary judgment – filing of pro se pleadings when represented by counsel –
claim for account stated – litigant represented by counsel had no authority to
file pleadings and documents on her on behalf – trial court had authority to
strike such pleadings – record irrefutably established claim for account stated
– there were no opposing affidavits filed by Defendant such that there were no
disputed issues of material fact - Final Summary Judgment affirmed. Schumacher
v. Citibank (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
LINDA B. SCHUMACHER,
vs. Appeal No. 06-0028AP-88B
Linda B. Schumacher, pro se
Louis M. Ursini, III, Esquire
Jason T. Gaskill, Esquire
Attorneys for Appellee
ORDER AND OPINION
THIS CAUSE came before the Court on appeal, filed by Linda B. Schumacher (Schumacher), from the Final Summary Judgment, entered March 28, 2006. 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 on April 6, 2005, Citibank (
On June 3, 2005, Citibank served Schumacher with a Request for Production of Documents and Request for Admissions to Defendant. On June 29, 2005, Citibank filed its Motion for Summary Judgment arguing that Schumacher failed to specifically deny the allegations of the Complaint, that her affirmative defense had no legal or factual basis, and that there was otherwise no disputed genuine issues of material fact. On August 2, 2005, Schumacher filed her Response to Request for Admissions, admitting the first three requests that she had applied to Citibank for a credit card account, that Citibank established a credit card account for her, and that she used the credit card account to purchase goods and services. Schumacher answered the remaining requests, numbered 4 through 7, “without knowledge.” Schumacher did not respond to Citibank’s Motion for Summary Judgment.
Citibank then filed its Motion to Strike Defendant’s Responses to Plaintiff’s Request for Admissions Nos. 4, 5, 6 and 7 or in the Alternative Deem them Admitted. As a result, the trial court entered an Agreed Order, on October 11, 2005, in which the trial court permitted Schumacher to file an amended response to Citibank’s Request for Admissions, Numbers 4 through 7, within 10 days from the date of the order or, in the alternative, the requests would be deemed admitted. Schumacher failed to respond to this order, thereby admitting the remaining requests that she failed to fully pay for purchases, that she was given a copy of the agreement related to the use of the account, that the exhibits attached to the Complaint were true and correct, and that she owed Citibank the amount sought in the Complaint.
On January 9, 2006, Schumacher, acting pro se, filed an Answer and Counterclaim, to which Citibank responded by filing its Motion to Strike Counterclaim and Answer. On January 31, 2006, Schumacher’s counsel filed his Motion to Withdraw. A hearing was held on March 21, 2006, on Citibank’s Motion to Strike following which the trial court granted Citibank’s Motion to Strike and entered, on March 28, 2006, Final Summary Judgment in favor of Citibank. On April 10, 2006, Schumacher, through her attorney of record, filed a Motion for Rehearing. Without addressing the Motion for Rehearing, the trial court granted the Motion to Withdraw. On April 25, 2006, Schumacher, again acting pro se, filed her Notice of Appeal, thereby abandoning the Motion for Rehearing.
Court, Schumacher argues that the trial court erred in granting final summary
judgment in favor of Citibank. The Court
conducts a de novo review of summary
judgment. Summary judgment can only be
granted when the moving party irrefutably establishes that the nonmoving party
cannot prevail. See Hervey v.
Alfonso, 650 So.2d 644, 645-46 (Fla. 2d DCA 1995). As emphasized by the Second District Court of
Appeal in Hervey, “if the record reflects the existence of any genuine
issue of material fact or the possibility of any issue, or if the record raises
even the slightest doubt that an issue might exist, that doubt must be
resolved against the moving party and summary judgment must be denied.”
Schumacher argues that summary
judgment was inappropriate as there was no evidence that a binding contract was
entered into, because she lacked adequate representation, and that Citibank
failed to prove the validity of the debt.
Initially, the Court finds that up until the point that the trial court
relieved Schumacher’s counsel of his duties, in its Order Granting Motion to
Withdraw, Schumacher had no authority to file motions and pleadings on her on
behalf. Therefore, it was appropriate
for the trial court to strike such motions and pleadings. See Waite v. Wellington Boats, Inc.,
459 So.2d 431, 432 (Fla. 1st DCA 1984).
The appellate briefs indicate that Schumacher was represented at the
final hearing below. There is nothing in
the record to support Schumacher’s contention that she was not adequately
represented during the proceedings below or that Schumacher objected to her
attorney’s representation. See Saka v. Saka, 831 So.2d
709, 711 (
Citibank was suing on the theory of
claim for account stated. “For an
account stated to exist as a matter of law, there must be an agreement between
the parties that a certain balance is correct and due and an express or
implicit promise to pay this balance.” See
Merrill-Stevens Dry Dock Company v. “Corniche Express”, 400 So.2d 1286,
1286 (Fla. 3d DCA 1981). An account
stated comes into being when a creditor periodically bills a debtor for a
certain amount, which amount is not objected to within a reasonable time. See Dudas v.
In this case, Citibank attached the
final account statements to its Complaint.
Citibank also filed with the trial court the credit card statements that
were periodically sent to Schumacher from Citibank from January 2003 through June
2005. There is nothing in the record to
show that Schumacher ever disputed the statements up until the time suit was
filed. The Requests for Admissions, all
of which were either answered in the affirmative or deemed to be answered in
the affirmative, show that Schumacher admitted to having the credit card
accounts with Citibank, buying goods and services with the credit card, and not
fully paying for those purchases. As set
forth by the Florida Rules of Civil Procedure, Rule 1.370(b), “[a]ny matter admitted
under this rule is conclusively established unless the court on motion permits
withdrawal or amendment of the admission.”
In this case, Schumacher’s admissions, which she never sought to amend,
support final summary judgment in favor of Citibank. See Assest Management Consultants of
Virginia, Inc. v. City of
As to Schumacher’s one affirmative
defense, Citibank denied the affirmative defense and requested the production
of documents to support the affirmative defense, to which Schumacher never
responded. A party opposing summary
judgment cannot rest on mere allegations.
See Gay Brothers Construction Co. v. Florida Power & Light
Co., 427 So.2d 318, 320 (Fla. 5th DCA 1983); Landers v.
Therefore, it is,
ORDERED AND ADJUDGED that Final Summary Judgment is affirmed.
ORDERED in Chambers, at
DAVID A. DEMERS
Circuit Judge, Appellate Division
AMY M. WILLIAMS PETER RAMSBERGER
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Judge Myra Scott McNary
Linda B. Schumacher
Louis M. Ursini, III, Esquire
Jason T. Gaskill, Esquire
 The record shows that Schumacher, acting pro se, filed several other documents with the trial court, including Defendant’s Request for Production, filed February 28, 2006, and Defendant’s Emergency Motion to Dismiss for Cause, received by the trial court on March 23, 2006.
 Schumacher argues that her attorney sent substitute counsel in his place and that the substitute counsel was not informed about the case. Without a transcript of the proceedings, the Court cannot adequately address this issue.