Opinion
No. 4D00-1455.
Opinion filed November 29, 2000.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey E. Streitfeld, Judge; L.T. Case No. 99-6568 CACE (14).
Affirmed in part and Reversed in part.
Robert J. Orovitz of Hayt, Hayt Landau, Miami, for appellant.
No appearance for appellee.
American Express Travel Related Services, Inc. (American Express) appeals a final judgment entered against Zoltan Polgar and awarding no money damages. We reverse.
American Express brought suit against Polgar to recover monies charged to a credit card account. At the bench trial, an American Express records custodian testified that Polgar was the authorizing officer on the account and, as such, he was liable for the charges incurred when he used the credit card and when supplemental cardholders used the credit card. American Express entered into evidence a summary of charges on the account and the cardholder agreement. The agreement was not signed by Polgar. The statement of account indicates that it is a corporate account in the name of Polgar and Internet Technology, various persons including Polgar made charges on the account, and the balance due on the account totals $48,361.53.
Polgar failed to appear at the bench trial. In his answer to the complaint, he admitted that he executed a cardholder agreement and caused certain charges to be made on the credit card. He asserted as an affirmative defense that the credit card account was opened by Internet Technology Group, Inc., the company which employed him. He also asserted that under the express terms of the cardholder agreement, the credit card was to be used for business purposes. Polgar contended that the cardholder agreement failed to set forth his individual liability to American Express.
At trial, the judge indicated that there was no documentation to support American Express's contention that Polgar was the authorizing officer and that he would "enter a judgment against Polgar for his charges." However, the court did not award American Express any money damages.
American Express argues that Polgar is liable for the charges he made on the account and those made by others. The statute of frauds requires a signed writing in actions charging the defendant with the debt of another. Section 725.01, Florida Statutes (1999), states in pertinent part:
No action shall be brought . . . whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person . . . unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.
The cardholder agreement was not signed by Polgar, the party charged in this action. In the absence of an agreement that would satisfy the statute of frauds, the court did not err when it decided that Polgar was not liable for charges made by others on the account.
There remains the question of whether Polgar is liable for charges made in his name. Whether Polgar made any charges on the account is a question of fact. On review, a factual decision is reversible when it is not supported by competent evidence. Shaw v. Shaw, 334 So.2d 13, 16 (Fla. 1976).
The only evidence before the trial court indicated that Polgar had made charges on the account. Polgar admitted in his answer to the complaint that he made charges on the credit card. The statement of account reflects that charges were made in Polgar's name. Polgar was not at trial and there was no indication that charges were fraudulently made in his name. Therefore, there is no competent evidence to support the trial court's decision that Polgar did not owe American Express any sum of money.
Accordingly, we reverse and remand with instructions to enter judgment against Polgar for the amount charged on the account in his name, plus interest thereon.
Warner, C.J., Shahood and Hazouri, JJ., Concur.
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.