Civil Court: CONTRACTS – appellant is unable to demonstrate that the trial
court abused its discretion in refusing to hear counterclaim – there is nothing
in the record to show that appellant attempted to assert a counterclaim, either
orally or in writing – as there is no transcript of the final hearing, the
Court must accept the trial court’s factual findings - Final Judgment affirmed.
Lonsberry v. Walling, No. 03-5010AP-88A (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
RICHARD W. LONSBERRY,
vs. Appeal No. 03-5010AP-88A
Opinion Filed ____________________
Appeal from Final Judgment
County Judge Walt Fullerton
Donna J. Lonsberry, Esquire
Attorney for Appellant
Appellee/ Pro Se
ORDER AND OPINION
THIS CAUSE came before the Court on appeal, filed by Richard W. Lonsberry
(Lonsberry), from the Final Judgment, entered May 7, 2003, in favor of Steve Walling (Walling). Upon review of the Initial Brief,  the record, and being otherwise fully informed, the Court affirms the Final Judgment as provided below.
On April 7, 2002, Lonsberry contracted with Walling, an architectural draftsman, to design and draft plans for the renovation of Lonsberry’s personal residence for $1.00 per square foot. After Lonsberry refused to pay Walling for services rendered, Walling filed a Complaint, on January 31, 2003, seeking $3,662 for the balance due.
The trial court ordered the parties to appear at a mandatory pretrial conference on March 12, 2003. Following a bench trial on May 6, 2003, in which the trial court received evidence and testimony of both parties,  the trial court found for Walling. As set forth in the Final Judgment, the trial court ordered Lonsberry to pay Walling the Principal amount of $3,662, plus Interest of $219.20 and Court Costs of $136.50, for a Total of $4,018.22.
On appeal, Lonsberry presents two issues. First, Lonsberry claims that the trial court abused its discretion in refusing to hear his counterclaim for a setoff against Walling’s claim. Second, Lonsberry argues that the trial court’s final order requiring Lonsberry to pay $3,662 was clearly erroneous because the blueprints were for 3,216 square feet, and not 3,875 square feet.
the first issue, Lonsberry challenges the trial court’s refusal to allow him
to raise his counterclaim at trial because he did not file any written pleading
for his counterclaim. Lonsberry cites
Londono v. Turkey Creek, Inc. 609 So.2d 14 (
Lonsberry was present during the bench trial and presented his own testimony. He argues that the trial court should have allowed him to raise his claim during the trial, as he would be barred from doing so in a different suit. Lonsberry argues that the trial court did not inform him that he needed to file his compulsory counterclaim, and thus amend his pleadings in writing, by a specific date. He further argues that because he raised his counterclaim orally during the pretrial conference, he had sufficiently pled his counterclaim and should have been allowed to raise this claim during the trial. However, there is nothing in the record to show that Lonsberry attempted to assert a counterclaim, either orally or in writing, and there is no transcript of the trial. Thus, Lonsberry is unable to demonstrate that the trial court committed error in the proceedings below. See Applegate 377 So.2d at 1152.
On the second issue, Lonsberry challenges the trial court’s factual findings. He asserts that the maximum square footage represented in the blueprints was 3,216 square feet and that the contract stated that he was to pay Walling $1.00 per square foot. Therefore, the amount owed Walling could not have exceeded $3,003.00, taking into consideration the $213.00 already paid (3,216 sq. ft. x $1 - $213 = $3,003). However, Lonsberry does not cite to anything in the appellate record to support his argument and, as stated above, did not have the testimony adduced at trial reported. Thus, Lonsberry cannot overcome the presumption of correctness of the Final Judgment and this Court must accept the trial court’s decision to award principle damages in the amount of $3,662.00 (3,875 sq. ft. x $1 - $213 = $3,662). See id.; see also Bei v. Harper, 475 So.2d 912, 915 (Fla. 2d DCA 1985)(finding that the without a sufficient record to review the points raised on appeal, appellate court cannot say that trial court erred in awarding damages).
Therefore, it is,
ORDERED AND ADJUDGED the Final Judgment is affirmed.
AND ORDERED in Chambers, at
Copies furnished to:
Judge Walt Fullerton
Donna J. Lonsberry, Esquire