FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; William P.
Levens and Paul L. Huey, Judges.
Bart Meacham, Tampa, for Appellants.
appearance for Appellee.
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.
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.
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
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.
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 card holder 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.
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.
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
counter evidence sufficient to reveal a genuine issue."
Id. (quoting Landers, 370 So.2d at 370).
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.
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).
trial court erred in determining that there were no genuine
issues of material fact in dispute. We therefore reverse the