Fonte v. American Express Bank, FSB ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DENNIS FONTE and HOP-HEDZ, INC., )
)
Appellants, )
)
v. ) Case No. 2D16-1411
)
AMERICAN EXPRESS BANK, FSB, )
)
Appellee. )
)
Opinion filed May 17, 2017.
Appeal from the Circuit Court for
Hillsborough County; William P. Levens and
Paul L. Huey, Judges.
W. Bart Meacham, Tampa, for Appellants.
No appearance for Appellee.
BLACK, Judge.
Dennis Fonte and Hop-Hedz, Inc., appeal the final summary judgment
entered in favor of American Express Bank, FSB, on American Express's action to
collect on a business credit card account. Because genuine issues of material fact
remain in dispute, we reverse the summary judgment.
American Express filed a complaint against Mr. Fonte and Hop-Hedz
seeking to recover a debt in the amount of $84,712.60. In the complaint, American
Express alleged that Mr. Fonte and Hop-Hedz were responsible for paying all amounts
charged to the credit card account at issue. An unsigned Business Platinum Card
Agreement was attached to the complaint. Also attached to and referenced in the
complaint was a statement from American Express addressed to Mr. Fonte and Hop-
Hedz identifying the account balance through September 21, 2009, as $84,712.60. In
their answer, Mr. Fonte and Hop-Hedz denied that they were responsible for all charges
on the account and denied that they owed the debt.
American Express moved for summary judgment and, in support of its
motion, filed an affidavit of indebtedness stating that based on records kept in the
ordinary course of business, Mr. Fonte and Hop-Hedz owed American Express
$84,712.60, plus applicable interest, attorney's fees, and costs. In opposition to the
motion for summary judgment, Mr. Fonte and Hop-Hedz filed the affidavits of Mr. Fonte
and Thomas Ortiz. In his affidavit, Mr. Fonte averred that he had not been a
shareholder of Hop-Hedz since 1999, that when he had been a shareholder the account
was not in default, that he did not owe any money to American Express, that prior to
January 2000 American Express had been notified that Mr. Fonte was no longer a
shareholder of Hop-Hedz and had agreed that Mr. Fonte would not be liable for any
future charges on the account, and that American Express had not produced any
agreement or contract signed by Mr. Fonte evidencing his agreement to be liable for the
business account at issue. Mr. Ortiz averred in his affidavit that he has been the sole
shareholder of Hop-Hedz since 1999, that prior to January 2000 the account at issue
had not been in default, that American Express had agreed that Mr. Fonte would not be
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liable for any charges accruing after 1999, and that American Express had billed Hop-
Hedz for various charges which Hop-Hedz disputed and is not obligated to pay.
Prior to moving for summary judgment, American Express had filed
several account statements, in no particular order and all postdating 2000. The
statements established that Mr. Ortiz was a cardholder for the account in question and
that Mr. Ortiz had disputed more than $15,000 in charges on the account. At least one
statement indicated that there were no charges on the card identified as Mr. Fonte's.
Following a hearing and the submission of written arguments, the trial
court entered final summary judgment in favor of American Express in the amount of
$84,712.60, plus prejudgment interest and costs.
Our review of a final summary judgment is de novo. Volusia County v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). "The party moving
for summary judgment is required to conclusively demonstrate the nonexistence of a
material fact, and the court must draw every possible inference in favor of the party
against whom a summary judgment is sought." Burt v. Hudson & Keyse, LLC, 138 So.
3d 1193, 1195 (Fla. 5th DCA 2014) (quoting Laughlin v. Household Bank, Ltd., 969 So.
2d 509, 513 (Fla. 1st DCA 2007)). The movant bears "the initial burden of
demonstrating the nonexistence of any genuine issue of material fact." Rooker v. Ford
Motor Co., 100 So. 3d 1229, 1231 (Fla. 2d DCA 2012) (quoting Landers v. Milton, 370
So. 2d 368, 370 (Fla. 1979)). It is only once the movant "tenders competent evidence to
support his motion [that] the opposing party must come forward with counterevidence
sufficient to reveal a genuine issue." Id. (quoting Landers, 370 So. 2d at 370).
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American Express did not meets its burden; it failed to establish an
agreement between Mr. Fonte and American Express. The only document attached to
the complaint was a standard corporate credit card agreement, and nothing in that
document indicated that Mr. Fonte or Hop-Hedz was bound by its terms. Cf. Miteva v.
Am. Express Bank, FSB, 149 So. 3d 755, 755 (Fla. 3d DCA 2014). Further, Mr. Fonte's
affidavit, as well as Mr. Ortiz's, states that American Express affirmatively agreed that
Mr. Fonte would not be liable for any debt of Hop-Hedz after 1999.
American Express also failed to prove the amount at issue conclusively.
Mr. Ortiz's affidavit stating that Hop-Hedz disputed some charges and that Hop-Hedz is
therefore not liable for the alleged balance of $84,712.60 is sufficient to preclude
summary judgment. The amount at issue is a material fact in dispute. See Furlong v.
Surf Consultants, Inc., 171 So. 3d 801, 802-03 (Fla. 2d DCA 2015) (reversing summary
judgment where plaintiff failed to prove the amount in dispute); JVN Holdings, Inc. v.
Am. Constr. & Repairs, LLC, 185 So. 3d 599, 600 (Fla. 3d DCA 2016) (reversing
summary judgment where conflicting evidence as to amount in dispute was presented);
Burt, 138 So. 3d at 1196 (reversing summary judgment where plaintiff failed to establish
amount in dispute in account stated claim).
The trial court erred in determining that there were no genuine issues of
material fact in dispute. We therefore reverse the final summary judgment and remand
for further proceedings.
Reversed and remanded.
SILBERMAN and MORRIS, JJ., Concur.
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