County Civil Court: APPELLATE PROCEDURE – Record – Since an appellate court cannot consider facts outside the record, the judgment must be affirmed.  Cheryl Wise v. Citibank, N.A., No. 12-AP-000011-WS (Fla. 6th Cir. App. Ct. March 19, 2013).

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

 

CHERYL WISE,     

                        Appellant,

 

v.                                                                                 UCN: 512012AP000011XXXXWS

                                                                                    Appeal No:   2012-AP-11-WS

L.T. No:         2010-SC-002265-WS 

CITIBANK, N.A.,                                         

                        Appellee.                                                      

__________________________________/

 

Appeal from Pasco County Court

County Judge Anne Wansboro

 

Cheryl Wise, Pro Se

Appellant

 

Patrick A. Carey, Esq.

for Appellee

 

 

 

 

ORDER AND OPINION

 

Appellant seeks a reversal of the trial court’s judgment or a new trial.  Appellant argues that the evidence presented was insufficient as a factual and legal matter.  Since this court cannot consider facts outside the record and Appellant’s legal arguments lack merit, this Court can find no basis for overturning the trial court’s ruling.  The judgment must be affirmed, as set forth below.

 

FACTUAL BACKGROUND

            On September 29, 2010, Appellee Citibank filed a three-count complaint against Appellant Cheryl Wise for unpaid credit card charges of $3,729.32.  Citibank’s witness list and evidence stated that a witness was expected to testify as to the authenticity of the following business records: payment copies, statements, and credit card holder agreement, which were later introduced into evidence at trial.  At the May 24, 2012 non-jury trial before Judge Wansboro, two witnesses for Citibank testified and Appellant defended herself. 

The trial court entered a Final Judgment on May 29, 2010.  The final judgment stated that Citibank submitted in evidence the account statements from December 6, 2004 to March 4, 2010, but that the December 6, 2004 to January 5, 2005 statement had a previous balance, which meant that there was account activity for which Citibank did not provide statements in evidence.  Citibank was not seeking any pre-judgment interest.  Appellant made and was credited for various payments, and she testified that she never objected to any statement from the time the account was opened.  As to Count 1 (Account Stated), the trial court stated that Citibank proved that before the lawsuit that Citibank and Appellant had business transactions between them.  The statement which shows account activity between February 4, 2010 and March 4, 2010 was rendered by Citibank to Appellant and showed the resulting balance of $3729.32.  Appellant did not object to the resulting balance.  As to Count 2 (Money Lent), the trial court found that Citibank did not prove the dates of all money lent because there was some money lent prior to December 6, 2004 for which Citibank did not provide statements.  As to Count 3 (Open Account), the trial court found that Citibank did not prove the items, time of accrual of each, and amount of each because the pre-December 6, 2004 statements were not submitted into evidence.  Based on the Statement of Claim, Citibank was awarded $3,729.32.  Appellant filed a motion to vacate final judgment to dispute the amount of damages.  Subsequently, Appellant filed a timely notice of appeal on June 22, 2012. 

 

                    

LAW AND ANALYSIS

Appellant argues that Citibank did not provide sufficient evidence to prove all of its claims.  Essentially, Appellant asks this court to reconsider her case and reach a different conclusion than that reached by the trial court that heard the evidence.  Such relief is beyond the power of this court.  Appellant should also be aware that an appeal is not a new trial.  Since the decision of the trial court comes to this appellate court with a presumption of correctness, this court must presume that the trial court’s findings are correct unless Appellant can demonstrate that a reversible error was made.  Hirsch v. Hirsch, 642 So. 2d 20 (Fla. 5th DCA 1994); Casella v. Casella, 569 So. 2d 848 (Fla. 4th DCA 1990).  Significantly, what is missing from the appellate record is a transcript of the proceedings below or any record that would substantiate Appellant’s claims.  Although the absence of a transcript does not automatically preclude reversal, this court cannot find any error of law that is apparent on the face of the judgment or any other part of the record.  Further, Appellant’s argument that certain Florida Rules of Civil Procedure were not followed lacks merit because those rules do not apply in small claims.  Without anything in the appellate record to conclusively determine that an error was made, Appellant cannot overcome the presumption of correctness of the trial court’s decision, and this court is compelled to affirm the trial court’s decision.  See, Chirino v. Chirino, 710 So. 2d 696 (Fla. 2d DCA 1998).  It is therefore,

 

            ORDERED AND ADJUDGED that the trial court’s judgment is hereby AFFIRMED. 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 19th day of March 2013.

Original order entered on March 19, 2013 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Shawn Crane.

 

 

Copies to:

Cheryl Wise, Pro Se

Patrick A. Carey, Esq.