County 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 (Fla. 6th Cir. App. Ct. March 25, 2004). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

RICHARD W.  LONSBERRY,

Appellant,

 

vs.                                                                                                 Appeal No. 03-5010AP-88A

                                                                                                     UCN522003AP05010XXXXCV

STEVE WALLING,

Appellee.

 

________________________________/

 

Opinion Filed ____________________

 

Appeal from Final Judgment

Pinellas County Court

County Judge Walt Fullerton

 

Donna J. Lonsberry, Esquire

Attorney for Appellant

 

Steve Walling

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, [1] the record, and being otherwise fully informed, the Court affirms the Final Judgment as provided below.

Facts

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, [2] 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.

Issues

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.

Discussion

On 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 (Fla. 1992), for the test that Florida uses to determine whether a claim is a compulsory counterclaim.  A compulsory counterclaim is one that arises out of the same transaction or occurrence and would be barred unless raised in the original suit.  See id. at 16.  Lonsberry is correct that his claim against Walling would have been a compulsory counterclaim under this test. 

            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.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of March 2004.

 

________________________________

JOHN A. SCHAEFER

Appellate Division

 

 

 

Copies furnished to:

 

Judge Walt Fullerton

 

Donna J. Lonsberry, Esquire

Bay View Tower, Suite 214

100 First Ave S

St. Petersburg, FL 33701

 

Steve Walling

7812 Powderhorn Circle

Largo, FL 33773



[1] The Appellee failed to file an Answer Brief.

[2] The Court notes that the record of appeal is void of any exhibits entered during the bench trial.