County Small Claims Court: CIVIL PROCEDURE – Discovery – Appellant was not entitled to pre-trial discovery, trial court did not abuse its discretion in admitting evidence and witness testimony that were not previously disclosed to Appellant prior to trial.  Judgment affirmed.  Georgianna Garcia v. David R. Vogel, Appeal No.12-AP-0003-WS (Fla. 6th Cir.App.Ct. Feb. 21, 2013).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

GEORGIANNA GARCIA,     

                        Appellant,

                                                                        UCN:              512012AP000003XXXXWS

v.                                                                     Case No:       2012-AP-3-WS

                                                                        Lower No:    2011-SC-002222-WS

 

DAVID R. VOGEL,                                      

                        Appellee.                                                      

______________________________/

 

Appeal from Pasco County Court

 

County Judge Anne Wansboro  

 

Georgianna Garcia, Pro Se 

Appellant

 

David R. Vogel, Pro Se   

Appellee

 

 

 

ORDER AND OPINION

Appellant seeks a reversal of the trial court’s award of contract damages and dismissal of the action, or in the alternative, a new trial.  Appellant argues that the trial court abused its discretion in allowing Appellee to submit evidence and witnesses that were not previously disclosed to Appellant prior to trial.  Since Appellant was not entitled to the pre-trial discovery, the trial court’s judgment must be affirmed, as set forth below.

 

 

FACTUAL BACKGROUND

On November 3, 2011, David Vogel (Appellee) filed a claim in the amount of $3,207.99 against Georgiana Garcia (Appellant).  Appellee claimed that Appellant, who was his former next door neighbor, asked him to be her agent for the purpose of repairing her house of 22 years and to prepare it as rental property.  In exchange, Appellee claimed that he was to receive 15% of the rents, plus interest based on the amount of the balance for incurred expenses.  Appellee further claimed that he was to be repaid within ten months.  The renters were to pay Appellee directly, and he would forward the net amount to Appellant; however, after five months, Appellant sent a letter to send the rental payment directly to her.  Appellee claimed that Appellant still owed him $3,207.99 for the repairs, which included an air conditioner and carpeting. 

A trial was held before Judge Wansboro on January 3, 2012.  Appellee testified that his neighbor (Appellant) was going to be foreclosed upon, and she did not have anyone to move into the property once Appellant moved out.  Appellee’s sister elected to move into the property.  When Appellee’s sister was to move in, they noticed that the carpet was 22 years old and there were numerous other problems including an air conditioner and pool pump that did not work.  Mr. Vogel testified that he had all the receipts and wished to be reimbursed.  The written agreement was stolen from his office and not available for trial.

After Mr. Vogel testified, the trial court asked Mrs. Garcia whether she had enough time to look at the paperwork and commented that it appeared that she was not even looking at it.  Mrs. Garcia responded that she just glanced at it.  Mrs. Garcia said nothing when the trial court suggested that she hand the paperwork to the clerk to be marked.  The trial continued with four more witnesses testifying on behalf of Appellee.    Appellant read from her notes that she objected to any documents or witnesses being submitted other than the documents attached to the summons complaint in that Appellee had not exchanged a witness list or exhibit list.  Appellant submitted her exhibit and witness list.  The trial court responded that her objection is partly overruled because when Appellee was presenting documents, the bailiff gave them to Appellant, who did not attempt to look at them except briefly.  Appellant testified that she did not have an agreement with Appellee and that she did not sign anything.  Appellee made improvements without her permission and has been fully compensated already.  After Appellant’s witness testified, the trial court allowed Appellant to further testify.  At the end of the trial, the judge took it under advisement.                            

A Final Judgment was entered on January 4, 2012.  The trial court found that there was a verbal agreement between the parties for Appellee to advance the money to fix up and repair Appellant’s property and for Mr. Vogel to manage the property.  The trial court, however, was not convinced that there was an agreement on 14% interest.  The trial court specifically found that Mr. Vogel advanced $3,469.06 to fix up and repair the property and that he loaned Ms. Garcia $500.00 cash.  The total advanced money to fix up and repair the property plus the cash loan was $3,969.06.  Mr. Vogel was already reimbursed $1,829.89 was still owed $2,139.17.  Appellant filed a timely Notice of Appeal on February 1, 2012. 

 

              

LAW AND ANALYSIS

Appellant seeks a reversal of the trial court’s award of contract damages and dismissal of the action, or in the alternative, a new trial.  Appellant argues that the trial court abused its discretion in allowing Appellee to submit evidence and witnesses that were not previously disclosed to Appellant prior to trial over her objection.  Appellant, however, was not entitled to such pre-trial discovery. 

Pursuant to Florida Small Claim Rule 7.010(b), the Florida Small Claims Rules apply to civil actions in county court where the damages do not exceed $5,000.  These rules do not incorporate all of the Florida Rules of Civil Procedure.  The only rules incorporated are 1.090(a)-(b), 1.190(e), 1.210(b), 1.260, 1.410, and 1.560; however, other rules may apply if ordered by the court. See Fla. Sm. Cl. R. 7.020(a), (c).  Only when a party is represented by an attorney is the party subject to discovery pursuant to Florida Rules of Civil Procedure 1.280-1.380 without order of court.  See Fla. R. Sm. Cl. R. 7.020(b).  If a party proceeding without an attorney directs discovery to a party represented by an attorney, the represented party may also use discovery pursuant to the above-mentioned rules without leave of court.  In this case, however, neither party was represented by an attorney.  As such, pursuant to Small Claim Rule 7.020(b), when a party is unrepresented and has not initiated discovery pursuant to Florida Rules of Civil Procedure 1.280-1.380, the opposing party is not entitled to initiate discovery without leave of court.  The record is devoid of any order pertaining to discovery.  Without such an order to disclose discovery from the trial court, Appellant was not entitled to the pre-trial discovery.  It is therefore,

 

            ORDERED AND ADJUDGED that the trial court’s judgment is hereby AFFIRMED. 

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 21st day of February 2013.

 

Original order entered on February 21, 2013 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Copies to:

Georgianna Garcia, Pro Se 

David R. Vogel, Pro Se