County Civil Court: CIVIL PROCEDURE – Summary judgment – The trial court improperly granted Appellee’s motion for final summary judgment as Appellant was not notified of the statute of limitation issue.  Reversed.  James Balay v. Capital One Bank, No.10-AP-000001-ES, (Fla. 6th Cir.App.Ct. March 9, 2011).

 

 

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

 

JAMES BALAY,     

                        Appellant,

                                                                        UCN:              512010AP000001XXXXES

v.                                                                     Case No:       10-AP-000001-ES

                                                                        Lower No:    08-CC-003349-ES

 

CAPITAL ONE BANK,                                          

                        Appellee.                                                      

______________________________/

 

Appeal from Pasco County Court

 

County Judge Robert P. Cole  

 

James Balay 

for Appellant

 

Hayt, Hayt & Landau, P.A.   

for Appellee

 

 

 

 

ORDER AND OPINION

 

            Appellant argues that the trial court improperly entered a Final Summary Judgment.  The only issue of merit is whether Appellant was properly notified of statute of limitations argument in the hearing on the motion for summary judgment.  We find that Appellant was not.  Therefore, this court affirms in part and reverses in part the trial court’s order as set forth below.

 

FACTUAL BACKGROUND

On August 11, 2008, Capital One filed a complaint against Appellant in the amount of $9,574.31 arising from a credit card issued to Appellant.  On September 19, 2008, Appellant filed a motion to dismiss based on the expiration of the statute of limitations, contending that it had expired under Virginia law.  Capital One filed a motion for Summary Judgment on December 4, 2009.  In the motion, Capital One argued Appellant merely filed a general denial without raising any affirmative defenses and that Capital One had filed an affidavit substantiating its claim.  A hearing was held on Capital One’s motion for Summary Judgment on January 7, 2010, but Appellant did not attend.  A Final Summary Judgment was entered on February 16, 2010, wherein the trial court found that there were no genuine issues as to any material facts, that Capital One had timely filed the lawsuit within five years under Florida or Virginia law, and was thus entitled to a judgment as a matter of law.  Appellant was ordered to pay the principal sum of $9,574.31, court costs in the amount of $330.00, pre-judgment interest in the amount of $2,677.13, and $500.00 in attorney’s fees.  Appellant filed a timely Notice of Appeal on March 16, 2010. 

 

             

LAW AND ANALYSIS

Appellant argues that the trial court erred when it granted Capital One’s Motion for Summary Judgment.  Capital One’s motion did not state any other ground other than Appellant failed to file more than a general denial, no affirmative defenses were raised, and an affidavit substantiating its claim was filed.  No other grounds were asserted. 

Florida Rule of Civil Procedure 1.510(c) states that a motion for summary judgment must state with particularity the grounds upon which it is based and the substantial matters of law to be argued.  In the Final Summary Judgment, the trial court considered the statute of limitations issue of which Appellant was not properly noticed.  Capital One was not only obligated to notice Appellant of what would be argued at the hearing for summary judgment, but to disprove any defenses raised by Appellant.  Since Appellant raised a statute of limitations defense in his motion to dismiss, the trial court improperly entered final summary judgment against Appellant.  To allow Appellant a full opportunity to argue the statute of limitations issue, this court will remand this case solely for reconsideration of this issue.  It is therefore,

 

            ORDERED that the trial court’s order granting Appellee’s motion for Final Summary Judgment is hereby REVERSED in part with regard to the statute of limitations issue only and AFFIRMED in part with regard to all other aspects pending resolution of the statute of limitations issue.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 9th day of March 2011.

            Original order entered on March 9, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.