IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

BERNARD G. WHITE, KAREN S. SCRAGG,
and BRENDA JANEY POTTHAST,

                        Appellants,

vs.                                                                                                        Appeal No. 98-8369-CI-88A

KENNETH R. BOAZ,  d/b/a
REVIVAL REMODELERS,

                        Appellee.

____________________________________/

Opinion filed ________________________

Appeals from Final Judgment

County Court, Civil Division, Pinellas County

The Honorable Karl B. Grube

Karen S. Scragg
9085 Leisure Lane North
Largo, Florida 33773
Appellant, Pro Se

Brenda Janey Potthast
34719 82nd Avenue South
Roy, WA 98580
Appellant, Pro Se

Warren J. Knaust, Esquire
2730 Central Avenue
St. Petersburg, Florida 33712
Attorney for Appellee

ORDER AND OPINION

            THIS CAUSE came before the Court on appeal, filed by Karen S. Scragg and Brenda Janey Potthast (“Appellants”), from the Final Judgment, entered October 28, 1998, by the Pinellas County Court, Civil Division.  Upon review of the record and the Appellant’s brief  (Kenneth R. Boaz, d/b/a Revival Remodelers (“Appellee”), failed to file an answer brief),  the Court finds the Final Judgment is reversed and remanded for a new trial to re-litigate all damages as set forth by the Circuit Court in its Order And Opinion, entered June 29, 1998, and by the subsequent Mandate, entered July 28, 1998, and as further clarified by this Court as follows.   

            1.  On August 26, 1996, the County Court, Civil Division, entered a Final Judgment that awarded the Appellants damages for potential and actual liens filed by subcontractors hired by the Appellee.  Upon a close review of the transcript of this trial, the County Court arrived at a figure of $2,437.00 for these lien damages by taking the amount of all potential and actual liens related to the subject property, 9085 Leisure Lane North, Largo, Florida, as a result of a contract entered into between Appellants and Appellee, or $6,862.00, and deducting from that, the contractual amount unpaid by the Appellants to the Appellee, or $4,425.00.  The County Court then took this figure, $2,437.00, and added the amount of damages which the County Court determined to be the estimated cost of “corrections, additions, and deletions” for unfinished work for which Appellee was contracted to perform, or $3,359.00, to arrive at the total damages to Appellants of $5,796.00, excluding taxable costs.   (See Certified Copy of transcript of non-jury trial, August 15,1996, pages 247-251).

            2.  Appellee appealed the August 26, 1996 Final Judgment to the Circuit Court, Appellate Division.  On June 29, 1998, the Circuit Court entered its Order And Opinion affirming in part and reversing in part.  In reversing in part, the Circuit Court vacated the total amount of damages awarded by the County Court, or $5,796.00, and ordered the County Court, on remand, to re-litigate the amount of damages.  The amount of damages to be retried were two-fold: (1) the cost to Appellants for “corrections, additions, and deletions,” which was to include live testimony and not be established solely by estimates; and (2) damages for the amount of liens actually filed by subcontractors against Appellants.

            3.    On remand, the County Court entered its Final Judgment on October 28, 1998, only on the damages for the amount of liens actually filed by subcontractors against Appellants.  However, in doing so, the County Court refused to consider the amount unpaid on the contract between the Appellants and the Appellee.  The contractual amount still owed to the Appelle was a necessary component of these damages in lieu of the original calculations of the County Court in reaching its Final Judgment, entered August 26, 1996.  Further, during the remand hearing, the County Court refused to hear testimony on the cost to Appellants to complete, repair, and correct contracted work not performed by Appellee, although the Appellants had witnesses present who were prepared to testify. 

            5.  In vacating the County Court’s Final Judgment, entered August 26, 1996, the Circuit Court ordered that the “parties shall re-litigate the amount of damages.”  This necessarily would entail the County Court not only considering evidence and testimony on the amount of actual liens the Appellants were damaged by, but also any evidence or testimony on the contractual amount still owed to the Appellee and any damages sustained by the Appellants to complete, repair, and correct unfinished contracted work.  

            5.  It was prejudicial error for the County Court to fail to re-litigating all damages as ordered by the Circuit Court’s Order And Opinion and  Mandate.  Falls v. National Environmental Products, 665 So.2d 320 (Fla. 4th DCA 1996).  The County Court, as the trial court, did not have the discretionary power to alter or modify the mandate of the Circuit Court, acting in its appellate capacity, but was limited to obeying the Circuit Court’s Order And Opinion and Mandate.  Basic Energy Corporation v. Hamilton County, 667 So.2d 249 (Fla. 1st DCA 1995); White Sands v. Sea Club, 591 So.2d 286 (Fla. 2d DCA 1992). 

            5.  On remand from the present appeal, the County Court shall abide by the Order And Opinion, entered June 29, 1998, as clarified in this Order And Opinion, and re-litigate the amount of damages sustained by Appellants.  The amount of damages shall include actual liens filed against the subject property that the Appellants were damaged by, taking into consideration any contractual amount owed by Appellants to Appellee, and the damages to Appellants to complete, repair, and correct work not performed by the Appellee for which he was contracted to perform.  Further, the Appellants may have “live testimony” as it pertains to the damages of actual liens and such damages shall not be established “solely by estimates.”

            It is therefore,

            ORDERED AND ADJUDGED that the Final Judgment, entered October 28, 1998, is reversed and remanded as set forth above.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 29th day of June 2000.

                                                                                                                                                

 

___________________________________
CHARLES W. COPE
Circuit Judge, Appellate Division

 

Copies furnished to:

The Honorable Karl B. Grube

Karen S. Scragg
9085 Leisure Lane
Largo, Florida 33773
Appellant, Pro Se

Brenda Janey Potthast
34719 82nd Avenue South
Roy, WA 98580
Appellant, Pro Se

Warren J. Knaust, Esquire
2730 Central Avenue
St. Petersburg, Florida 33712
Attorney for Appellee

Staff Attorney, Appellate Division