County Civil Court: APPELLATE PROCEDURE – Timeliness – Appellate court does not have jurisdiction to entertain appeal when notice was untimely. Even if Appellant was not procedurally barred, his arguments would fail. Appeal Dismissed. Kacher v. Simpson Environmental Service, Inc., Case No. 09-AP-000011-ES (Fla. 6th Cir. App. Ct. October 13, 2010).
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY
v. Case No: 09-AP-00011-ES
Lower No: 09-SP-2592-ES
Appeal from Pasco County Court
County Judge William Sestak
Val Kacher, Pro Se
Charles D. Waller, Esq.
ORDER AND OPINION
Appellant argues that his company should have been sued instead of him personally and that venue was improper. Appellant’s Notice of Appeal, however, was untimely. Even if Appellant were not procedurally barred, his arguments would fail. Therefore, this Court must dismiss this appeal.
On July 14, 2009, Simpson Environmental Services (Appellee) filed a Complaint against Appellant Val Kacher seeking damages of $4,100.00 resulting from product and labor services Appellee provided for Appellant. Appellant raised the same issues before the trial court that he attempted to raise on appeal.
On September 21, 2009, after considering Appellant’s arguments, the trial court issued an order denying Appellant’s motion to dismiss and motion to change venue. After the final hearing, the trial court entered a final judgment on October 20, 2009 against Appellant. The trial court specifically found that Appellant entered into an oral agreement to pay for demolition and other construction services to be rendered by Appellee. The agreed upon compensation for the services was $4,100.00. Appellee timely and satisfactorily completed the work within the scope of the oral agreement. Appellee promptly forwarded Appellant an invoice for the services with payment due by August 7, 2008. Appellant had not made any payments toward the balance due nor presented any reasons as to why the balance should not be paid. The trial court further found that the action was properly filed against Appellant individually because (a) the oral nature of the agreement between the parties made it impossible for Appellee to know that they were under a contract with anyone but Appellant individually; and (b) although Appellant is the owner of several corporate entities, the evidence is illustrative of the fact that these corporations are in fact Appellant’s “alter ego.” Therefore, the trial court found that Appellant was not shielded from personal liability for acts of said corporations. Appellant filed an untimely notice of appeal on November 23, 2009.
LAW AND ANALYSIS
Since Appellant’s Notice of Appeal was filed more than thirty days past the issuance of the final judgment, this appellate court cannot exercise jurisdiction. Florida Rule of Appellate Procedure 9.110; Cantera v. District Court of Appeal, Third District, 555 So. 2d 360, 362 (Fla. 1990). Even if this Court could entertain this appeal, Appellant’s arguments would not prevail.
Appellant argued that the corporation of which he was an officer should have been sued, instead of Appellant personally. Appellant, however, based his argument on matters not in the record. An appellate court simply cannot guess what may have happened below, assume that issues were not already considered, or reweigh the evidence. The appellate court must defer to the trial court's factual findings that are supported by competent, substantial evidence; conversely, legal conclusions are reviewed de novo. See Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004); Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997). The decision of the trial court is presumed correct, and the burden is on Appellant to demonstrate error. The trial court’s final written judgment could be incorrect in its reasoning, but without a transcript of the proceeding, the matter cannot be reviewed. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). Even so, the lower court’s final judgment indicated these issues were already considered as it made specific factual findings as to why Appellant individually was the proper party. Moreover, an appellate court may not reweigh the evidence. The final judgment cannot be reversed unless reversible error can be demonstrated. Without a transcript of the proceedings, the lower court’s decision must be affirmed.
Assuming arguendo, that this Court was to consider Appellant’s legal argument of improper venue under the Fair Debt Collection Practices Act, that argument would also fail. The Act only applies to consumers, which are defined as “any natural person obligated or allegedly obligated to pay a debt,” it does not apply to businesses, as Appellant suggested should have been the proper party. Moreover, even if the Act were to be applied to Appellant personally, it only covers debts that are “primarily for personal, family, or household purposes,” which was clearly not the services rendered in this case. Thus, the Act does not apply to Appellant’s case, and venue did not have to be limited to where the contract was signed or Appellant’s residence. Venue was proper. Therefore, it is
ORDERED AND ADJUDGED that this cause is DISMISSED.
DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 13th day of October 2010.
Original order entered on October 13, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.