County Civil Court: CIVIL PROCEDURE—Default:  Trial court’s refusal to vacate default proper where defendant failed to show mistake, inadvertence, surprise or excusable neglect.  Lazaro v. Robert A. Dempster Reporting Co., No. 04-0013AP-88A (Fla. 6th Cir. App. Ct. Jan. 24, 2005).


County Civil Court: APPELLATE PROCEDURE—Record:  Appellate court had to accept propriety of trial court’s denial of motion to vacate when no transcript or approved statement of evidence was filed.  Lazaro v. Robert A. Dempster Reporting Co., No. 04-0013AP-88A (Fla. 6th Cir. App. Ct. Jan. 24, 2005).


County Civil Court: CIVIL PROCEDURE—Jurisdiction:  Trial court had subject matter jurisdiction to determine whether attorney had obligation to pay court reporter for appearance at divorce hearing, notwithstanding that divorce decree ordered attorney’s client to pay half of the reporter’s fee.  Lazaro v. Robert A. Dempster Reporting Co., No. 04-0013AP-88A (Fla. 6th Cir. App. Ct. Jan. 24, 2005).










vs.                                                                                Appeal No. 04-0013AP-88A








Opinion Filed  ______________


Appeal from Final Judgment

Pinellas County Court

Judge Karl B. Grube


Louis Daniel Lazaro, Esq.

Pro Se


James Casesa, Esq.

Attorney for Appellee





            This matter is before the Court on an appeal filed by Louis Daniel Lazaro (Lazaro) from the Order entered on February 3, 2004, denying Lazaro’s Motion to Vacate Default, Summary Judgment, Dismissal of Counterclaims and Crossclaims, and Writ of Garnishment.   Having fully reviewed the briefs, the record, and pertinent legal authority, this Court hereby affirms the Order.

            Robert A. Dempster Reporting Company (Dempster) provided court reporting services at a divorce proceeding in which Lazaro represented the husband, Marc Colombo.  The Final Judgment of Dissolution of Marriage issued in that proceeding directed Colombo and his former wife to split the cost of the reporting services.  While Colombo’s former wife paid her share of these services, Marc Colombo did not.

Therefore, on April 18, 2002, Dempster instituted the present action against Lazaro for payment of half of the reporter’s fee.  Lazaro filed an answer, counterclaim and motions for relief on August 13, 2002,[1] listing his address as P.O. Box 3863, Brandon, Florida  33509-3863.  Lazaro also listed this address on the third-party claim he filed against Colombo dated September 10, 2002.

The matter was set for a pretrial conference on April 16, 2003, and notice was sent to Lazaro at the above address.  However, he failed to appear, and accordingly, Default and Default Judgment was entered against him on April 25, 2003.

Defendant did not seek to have the default vacated until September 26, 2003, which was also the first time any of his pleadings listed his address as 1055 US Highway 17 North, Bartow, Florida  33830.  The court denied this motion without prejudice so that Lazaro could file a verified motion, which he did on October 23, 2003.  However, he did not set this motion for hearing until January 13, 2004.

            Following the January 22, 2004, hearing, the court issued an order denying Lazaro’s motion, finding that “the Motion fails to establish any factual basis upon which this Court can find mistake, inadvertence, surprise or excusable neglect nor does is [sic] state the existence of any valid defense.”  After Lazaro’s motion for rehearing was also denied, he filed the present appeal.

            Lazaro’s primary contention is that the county court lacked subject matter jurisdiction over Dempster’s claim because the Colombo divorce decree dictated who was to pay the court reporter and the circuit court retained jurisdiction to enforce the decree.  However, regardless of whether Dempster could have sought to enforce the divorce decree as a third party beneficiary, Florida law recognizes circumstances in which an attorney may be held liable for court reporting fees.  See Florida Court Reporting Co. v. Dennis, No. AP92-4866AY (Fla. 15th Cir. Ct. Nov. 1992) (affirming county court opinion noting that when attorney ordered transcript, he made an ancillary contract on his own behalf to allow him to run his business and represent his client and that consequently, he was acting as a principal on his own behalf); Bakst v. Stephens, 21 Fla. Supp. 47, 49 (Fla. Cir. Ct. Dade Co. 1963) (better rule is that when attorney orders transcripts from a court reporter, the attorney is liable for payment unless he makes it expressly known that he is ordering the transcripts as an agent for his client).[2]

            While the facts developed at a trial might have ultimately established that Lazaro was not liable to Dempster, the county court clearly had subject matter jurisdiction to determine Lazaro’s liability.   Further, the fact that no trial was held was solely the fault of Lazaro, who failed to keep the court apprised of his proper address for service.

            Finally, this Court finds no other grounds upon which to disturb the county court’s ruling.  While Florida Rule of Civil Procedure 1.540(b)(1) provides that a court may relieve a party from a final judgment upon a finding of mistake, inadvertence, surprise, or excusable neglect, the county court specifically found that none of these factors existed, nor did Lazaro offer a legitimate defense.  As Lazaro has filed neither a transcript nor an approved statement of the evidence or proceedings below,[3] this Court must accept the propriety of the county court’s findings.   See Lynn v. Allstar Steakhouse & Sports Bar, Inc., 736 So. 2d 722, 722 (Fla. 2d DCA 1999) (court is compelled to affirm where there is no transcript or stipulation as to evidentiary hearing).

            Therefore, it is

            ORDERED AND ADJUDGED that the Order Denying Defendant’s Verified Motion Seeking to Vacate Default, Summary Judgment, Dismissal of Counterclaims and Cross Claims, and Writ of Garnishment is AFFIRMED.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida, this ____ day of January, 2005.                                                                       


                                                                                    JOHN A. SCHAEFER

                                                                                    Circuit Judge, Appellate Division


Copies furnished to:


Judge Karl B. Grube


Louis Daniel Lazaro, Esq.

1055 U.S. Highway 17 N.

Bartow, FL  33830


James Nicholas Casesa, Esq.

3845 4th St. N.

St. Petersburg, FL  33713                                                                   


[1]The Complaint was not served until July 31, 2002.

[2] This Court recognizes that these decisions are from sister circuits and are therefore not binding precedent.  However, they are in accord with the modern view holding the lawyer liable to court reporters unless he makes it clear at the time he retains the reporter that only the client is responsible for payment.  See Williams v. North Ala. Court Reporting Serv., 833 So. 2d 622, 625-26 (Ala. Civ. App. 2001) (citing Joseph M. Perillo, The Law of Lawyers’ Contracts is Different, 67 Fordham L. Rev. 443, 471 (1998)).

[3] Rule 9.200(b)(4) provides that where evidentiary proceedings are not recorded, the appellant


may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection.  This statement shall be served on the appellee, who may serve objections or proposed amendments to it within 10 days of service.  Thereafter, the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.