Opinion
No. 87-1747.
May 25, 1988. Rehearing Denied July 12, 1988.
Appeal from the Circuit Court for Broward County; M. Daniel Futch, Jr., Judge.
Rex E. Russo of Weitzner Russo, P.A., Miami, for appellants.
Jerard C. Heller, Fort Lauderdale, for appellees.
This appeal arises out of a dispute over demurrage charges for retention of cargo trailers. The trial court granted appellees' motion for summary judgment and this appeal follows.
Appellants raised as an affirmative defense the contention that they timely notified appellee that the trailers were ready to be picked up by appellees. At oral argument, appellees contended that the applicable tariffs provided that it was appellants' responsibility to return the trailers. Those tariffs are not part of the appellate record and there is no indication they were part of the record below. Similarly, there is no indication that any evidence was made part of the record below which would allow the trial court to pierce the corporate veil, holding Felipe Cos personally liable for the judgment.
Accordingly, we reverse and remand the summary final judgment and the award of attorney's fees to appellees as questions of fact remain precluding the entry of summary judgment. See Coca-Cola Bottling Company v. Clark, 299 So.2d 78, 82 (Fla. 1st DCA 1974) (an appellate court reviewing a summary judgment may only consider that which was properly made part of the trial record).
REVERSED and REMANDED.
HERSEY, C.J., and WALDEN, J., concur.