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 (South Dakota), N.A., Appeal No. 06-0028AP-88B (Fla. 6th Cir. App. Ct. Feb. 27, 2007). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

LINDA B. SCHUMACHER,

                        Appellant,

 

vs.                                                                                     Appeal No. 06-0028AP-88B

                                                                                         UCN522006AP000028XXXXCV

 

CITIBANK (SOUTH DAKOTA) N.A.,

                        Appellee.

______________________________________/

Appeal from Pinellas County Court

 

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 (South Dakota) N.A. (Citibank), filed its Complaint against Schumacher under two separate claims of account stated.  The Complaint sought damages in the amounts of $ 8,030.40, and $ 3,509.96, for two different credit card accounts and attached the final statements for these accounts to the Complaint.  Schumacher, represented by counsel, filed her Answer stating “without knowledge” in response to most of the Complaint’s allegations.  Schumacher also set forth one affirmative defense stating, “the Defendant was induced to cease payment on any obligations by the representations of New Leaf Associates, LLC, which, at this point, appear to be misrepresentations as to the status of payment of the instant account.”

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,[1] 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.

Before this 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.”  Id.

            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.[2]  See Saka v. Saka, 831 So.2d 709, 711 (Fla. 3d DCA 2002).

            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. Dade County, 385 So.2d 1144, 1144 (Fla. 3d DCA 1980); Rauzin v. Kupper, 139 So.2d 432, 432 (Fla. 3d DCA 1962).  An adverse party’s failure to object to the balance due is sufficient to find an agreement with respect to the amount due.  See id.  Where no objection is made within a reasonable time, an objection after a lawsuit is brought will not be considered a reasonable objection to defeat the claim.  See id.

            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 Tamarac, 913 So.2d 1179, 1181 (Fla. 4th DCA 2005).

            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. Milton, 370 So.2d 368, 370 (Fla. 1979).  Since Schumacher affirmatively answered Citibank’s Requests for Admissions, and did not otherwise file an affidavit or other documents in opposition to Citibank’s Motion for Summary Judgment, the Court finds that summary judgment was appropriate in this case.

Therefore, it is,

            ORDERED AND ADJUDGED that Final Summary Judgment is affirmed.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ______ of February 2007.

 

 

                                                         ________________________________

                                                         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

404 Old Mill Pond Road

Palm Harbor, FL  34683

 

Louis M. Ursini, III, Esquire

Jason T. Gaskill, Esquire

1515 Ringling Blvd., Suite 700

Sarasota, FL  34236

 

 

 



 

[1] 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.

[2] 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.