††††††††††† Appellants,

vs.†††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††† Appeal No. 99-003962CI-88B


††††††††††† Appllee.


Opinion Filed 4-20-2001.

Appeal from a decision of the Pinellas County Court,

County Judge Stephen Rushing

Edward C. McFadden, Jr., Esquire,
Attorney for the Appellant.

Thomas G. Hersem, Esquire,
Attorney for the Appellee.


††††††††††† THIS MATTER is before the Court on Cindy and Andrew Jablonskyís appeal from a decision of the Pinellas County Court granting Theresa Ertleís Motion for Summary Judgment. After reviewing the briefs and record, the Court affirms the trial courtís decision in part, and reverses and remands the trial courtís decision in part.

††††††††††† Ms. Ertle, the appellee, pled that she had an oral lease when Mr. and† Mrs. Jabolonsky, the appellants, filed suit for her failure to vacate the premises. The trial court granted Summary Judgment in favor of Mrs. Ertle. Mr. and Mrs. Jablonsky suggest that the trial court erred in finding that there was such a lease in granting Summary Judgment. Mr. and Mrs. Jablonsky argue that they were in possession pursuant to a purchase agreement. The trial judge rejected that position.

††††††††††† All of the contentions made by Mr. and Mrs. Jablonsky involve resolution of evidentiary conflicts and interpretation of evidence. Mr. and Mrs. Jablonsky have failed to present a transcript or any other record that would permit this court to review such a claim. As indicated in Larrea v. Larrea, 745 So.2d 440 (Fla. 2d DCA 1999), it is impossible for the court to evaluate these concerns when such a transcript has not been provided. Furthermore, without a transcript present in the record on appeal, the trial courtís Final Judgment cannot be reversed unless the trial court made an error of law. See Casella v. Casella, 659 So.2d 848 (Fla. 4th DCA 1990). Therefore, the trial court was correct in granting Summary Judgment regarding this matter.

††††††††††† Mr. and Mrs. Jablonsky further assert that they had some legal right to the property pursuant to an option agreement. This is incorrect because an option agreement does not provide them with any legal or equitable right in the property. In Gautier v. Lapof, 91 So.2d 324, 326 (Fla. 1956), the court clearly indicated that the presence of an option does not establish an estate for the optionee. The court further stated that until the optionee actually exercises the right to purchase the property, he or she has no legal or equitable right to the property. See id. Therefore, this court affirms the trial courtís decision regarding this matter.

††††††††††† Finally, Mr. and Mrs. Jablonsky argue that the trial judge erred in dismissing the counterclaim for failure to pay a filing fee as ordered. They are correct regarding this matter.

†Rule 1.170(j) of the Florida Rules of Civil Procedure clearly provides that if the filing fee for transfer is not paid, the case should remain pending and proceed within the jurisdictional limits of the court where the counterclaim was filed. The rule specifically states that, ďfailure to make the service charge deposit at the time the counterclaim or cross claim is filed, or within such further time as the court may allow, shall reduce a claim for damages to an amount within the jurisdiction of the court where the action was pending and wave the claim in other cases.Ē† Although it is unlikely that Mr. and Mrs. Jablonsky pointed that out to the trial judge, it is nevertheless the law and they should be permitted to proceed in county court on their counterclaim. However, the damages in any event cannot exceed $15,000, which is the county courtís jurisdictional limit.

††††††††††† Accordingly, this court finds that the trial court ruled correctly on Ms. Ertleís claim that she did in fact have an oral lease, and that an option agreement does not give Mr. and Mrs. Jablonsky a legal or equitable right in the property. However, the court reverses the trial courtís order dismissing the counterclaim and remands this cause to the trial court for action consistent with this opinion.

††††††††††† IT IS THEREFORE ORDERED that the order of the trial court is affirmed in part and reversed and remanded in part.

††††††††††† DONE AND ORDERED at St. Petersburg, Pinellas County, Florida this 20th day of April 2001.


Circuit Judge


Copies to: Edward C. McFadden, Jr., Esquire

††††††††††† †††† Thomas G. Hersem, Esquire