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
APPELLATE DIVISION
VAL KACHER,
Appellant,
UCN: 512009AP000011XXXXES
v. Case
No: 09-AP-00011-ES
Lower
No: 09-SP-2592-ES
SIMPSON ENVIRONMENTAL
SERVICE, INC.,
Appellee.
______________________________/
Appeal from Pasco County Court
County
Judge William Sestak
Val Kacher, Pro Se
for Appellant
Charles
D. Waller, Esq.
for Appellee
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.
FACTUAL
BACKGROUND
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.