Luis Romero, Appellant, vs. Midland Funding, LLC, Appellee.
No. 3D22-293
Third District Court of Appeal State of Florida
Opinion filed March 8, 2023.
Not final until disposition of timely filed motion for rehearing.
Lower Tribunal No. 19-33408 SP
An Appeal from the County Court for Miami-Dade County, Luis Perez-Medina, Judge.
Luis Romero, in proper person.
Law Offices of Andreu, Palma & Andreu, PL, and
GORDO, J.
Luis Romero appeals a trial court order granting final summary judgment in favor Midland Funding LLC (“Midland“). We have jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2019, Midland filed a complaint for account stated against Romero for amounts due on a credit card account. Romero did not file an answer or response to the complaint. In August 2021, Midland filed its motion for summary judgment. Romero did not file any response to the motion. In January 2022, the trial court held a hearing and later granted final summary judgment in favor of Midland. This appeal followed.
LEGAL ANALYSIS
“The standard of review on orders granting final summary judgment is de novo.” Orozco v. McCormick 105, LLC, 276 So. 3d 932, 935 (Fla. 3d DCA 2019) (emphasis omitted). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Jones v. Ervolino, 339 So. 3d 473, 475 (Fla. 3d DCA 2022) (quoting
Under the newly amended rule, summary judgment is appropriate when “the evidence is such that a reasonable jury could not return a verdict for the nonmoving party.” In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 75 (Fla. 2021) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When seeking summary judgment, the moving party must identify “each claim or defense--or the part of each claim or defense--on which summary judgment is sought.”
Both parties must support their assertions that a material fact cannot be or is genuinely disputed by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Turning to the instant case, Midland argued in its summary judgment motion that there was no genuine dispute of material fact on its account stated claim. For an account stated claim to exist, “there must be an agreement that a certain balance is correct and due, and an express or implicit promise to pay that balance.” S. Motor Co. of Dade Cnty. v. Accountable Const. Co., 707 So. 2d 909, 912 (Fla. 3d DCA 1998). Attached to its motion, Midland included an affidavit in support from a Midland employee averring that the account belonged to Romero and there were amounts due, the bill of sale and assignment of the account to Midland, and credit card statements showing the past due amounts owed by Romero from the applicable time periods accompanied by an affidavit of costs. Accordingly, we find Midland met its initial burden by identifying the claim on which summary judgment was sought and providing support for its assertion that there was no genuine dispute of material fact in the record.
Once Midland met its initial burden, Romero was required to come forward with evidence demonstrating that a genuine dispute of material fact existed. See Celotex Corp., 477 U.S. at 324. Romero, however, failed to meet this burden. Review of the record establishes that Romero did not file any response to Midland‘s motion for summary judgment and made no filings seeking additional time to respond to the motion.
Further, while Romero asserts on appeal that the trial court erroneously declined to hear his alleged arguments against Midland, absent a transcript of the summary judgment hearing we are confined to the record before us.1 We recognize that under Florida law “the lack of a transcript of a summary judgment hearing will not necessarily thwart an appellate review of a summary judgment.” Johnson v. Deutsche Bank Nat‘l Tr. Co. Americas, 248 So. 3d 1205, 1210 (Fla. 2d DCA 2018). An appellant, however, still has the burden of “presenting an adequate record—one that demonstrates not only what evidence was presented below but also which arguments were preserved.” Id. at 1211. Thus, “while a lack of a transcript, in and of itself, will not necessarily prohibit appellate review of the evidence underlying a summary judgment ruling, it could in some cases stymie the fullness of a legal argument challenging that ruling on appeal if there is a question about whether the argument was preserved.” Id.
Midland contends Romero‘s argument was never presented to the trial court. “In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Sunset Harbour Condo. Ass‘n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985)). The record shows that Romero filed nothing in response to the motion for summary judgment. In fact, the record is devoid of any substantive filing by Romero through the grant of summary judgment.2 As such, we find summary judgment was properly granted.
Affirmed.
GORDO, J.