County Civil Court: APPELLATE PROCEDURE - Principles of Procedure - Appellant attempts to raise new arguments on appeal that were not raised in response to the complaint or in response to the motion for summary judgment.† No transcript of hearing.† As a general rule, absent fundamental error, appellate court will not consider points raised for the first time on appeal.† Trial courtís order granting Motion for Final Summary Judgment affirmed.† Gonzalez v. Midland Funding LLC, No. 11-000039AP-88A (Fla. 6th Cir. App. Ct. May 10, 2012).
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
KURT L. GONZALEZ, SR.,†††††††††††††††††††††††††††††
††††† Appellant,††††††† †††††††††††††††††††††††††††††††††††††††† Case No.: 11-000039AP-88A
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† UCN: 522011AP000039XXXXCV
MIDLAND FUNDING LLC as successor
in interest to Bank of America,
Opinion Filed May 10, 2012
Appeal from Final Judgment
Judge Myra Scott McNary
Kurt L. Gonzalez, Sr., pro se
Jeralyn Adelman Leydig, Esq.
Attorney for Appellee
††††††††† Kurt L. Gonzalez, Sr., appeals the Summary Final Judgment entered in favor of Midland Funding LLC, as successor in interest to Bank of America ("Midland").† The judgment is affirmed.
††††††††† Midland filed a three-count complaint against Mr. Gonzalez for (1) money lent, (2) account stated, and (3) open account.† Mr. Gonzalez filed a Motion to Dismiss and simultaneously filed an unsworn "Written Response to Complaint/Motion to Compel."†
††††††††† Thereafter, Midland filed a Motion for Final Summary Judgment.† In support of the motion, Midland filed an affidavit to evidence the amount due on Mr. Gonzalez's account and an affidavit to evidence the sale of Mr. Gonzalez's account from Bank of America to Midland.†
††††††††† Mr. Gonzalez filed "Defendant's Opposition to Motion for Summary Judgment."† In the unsworn pleading Mr. Gonzalez denied having knowledge of and objected to the validity of the debt.† He sought to have Midland produce an original signed contract and to make an accounting of the payments made and the interest and penalties imposed to verify the total amount claimed to be due on the account.† Mr. Gonzalez also argued that Midland had failed to supply the specific details of the sale of his account from Bank of America to Midland.† Mr. Gonzalez did not direct the trial court or Midland to evidence in the court file to refute the allegations in the motion for summary judgment and he did not file an affidavit in contravention of the motion for final summary judgment. †See Fla. R. Civ. P. 1.510(c), (e). †
††††††††† After a hearing, orders were entered denying Mr. Gonzalez's motion to dismiss and granting Midland's motion for summary final judgment.† On July 14, 2011, Final Summary Final Judgment was entered for a total of $10, 561.82.† This appeal followed.
Standard of Review
††††††††† An order granting summary final judgment is reviewed on appeal by a de novo standard. †Verizzo v. Bank of N.Y., 28 So. 3d 976, 977 (Fla. 2d DCA 2010).† In the trial court, a movant is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
††††††††† On appeal, Mr. Gonzalez complains that summary judgment was improper because Midland did not submit into evidence the contract signed by Mr. Gonzalez or any signed documentation to substantiate the debt.† Additionally, he asserts that Midland failed to plead a viable breach of contract action.† Mr. Gonzalez argues that summary judgment was improper because genuine issues of material fact remain to be determined.
††††††††† Midland did not bring an action against Mr. Gonzales for breach of contract.† As noted above, the causes of action stated were for money lent, account stated, and open account.† It is not necessary for Midland to prove all three causes of action to recover judgment.† Attached to the complaint are credit card statements from Bank of America to Mr. Gonzalez and a "Pre-Legal Notification" by Midland that demands payment. †The affidavits filed by Midland support the allegations that Midland purchased Mr. Gonzalez's account with Bank of America and that a balance of $8,597.24 was due as of October 24, 2010.
††††††††† In his appellate brief, Mr. Gonzalez presents new arguments that were not raised in the response to the complaint or in the unsworn response in opposition to the motion for summary final judgment.† There is no transcript of the proceedings in the trial court. †The additional issues raised by Mr. Gonzalez have not been adequately preserved for appellate review.† As a general rule, unless fundamental error is involved, reviewing courts will not consider points raised for the first time on appeal. †Saka v. Saka, 831 So. 2d 709, 711 (Fla. 3d DCA 2002); see Johnston v. Hudlett, 32 So. 3d 700, 703 (Fla. 4th DCA 2010).† Mr. Gonzalez does not raise any issues of fundamental error.
††††††††† There are no documents in the record that create a genuine issue of material fact as to Midland's right to summary judgment.† The trial court properly granted Midland's Motion for Final Summary Judgment.
††††††††† ††††††††† DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 10th day of May, 2012.
Original order entered on May 10, 2012, by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.
Copies furnished to:
Kurt Gonzalez, Sr.
1548 Pennsylvania Ave.
Palm Harbor, FL 34683
Jeralyn Adelman Leydig, Esq.
2775 Sunny Isles Blvd., Ste. 100
Miami, FL 33160
Hon. Myra Scott McNary