County Civil Court:  CIVIL PROCEDURE – Summary Judgment – domesticating foreign judgment – Oklahoma judgment is entitled to full faith and credit when Appellant did not contest or otherwise appeal the Oklahoma judgment after making an appearance in Oklahoma proceedings – Appellant failed to meet burden that trial court committed error  – summary judgment affirmed.  Swan v. First American Transportation Title Ins. Co., Appeal No. 04-0094AP-88A (Fla. 6th Cir. App. Ct. March 7, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

DAVID S. SWAN, JR.,

                        Appellant,

 

vs.                                                                                    Appeal No. 04-0094AP-88A

                                                                                        UCN522004AP000094XXXXCV

 

FIRST AMERICAN TRANSPORTATION

TITLE INSURANCE COMPANY, as

Assignee of TIMOTHY DAWSON,

                        Appellee.

_________________________________________/

 

Appeal from Final Summary Judgment

Pinellas County Court

Judge Walt Fullerton

 

David S. Swan, Jr.

Appellant, pro se

 

Ronald H. Trybus, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by David S. Swan, Jr. (Swan), from the Final Summary Judgment for Plaintiff, entered October 5, 2005,[1] in favor of First American Transportation Title Insurance Company, as assignee of Timothy Dawson (Dawson).  Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.

            The case below stems from the purchase and transfer of an airplane over a twenty-year period.  Swan was one of four individuals who purchased the subject airplane, a Cessna 210, through a corporation, Frankfort Flyers, Inc., in the 1970s.  The airplane was then delivered and sold to an individual, Stewart Wheaton, in 1981, subject to a security interest which Swan, as president of Frankfort Flyers, recorded with the FAA in Oklahoma.  Wheaton made no payments and the airplane was subsequently auctioned off. 

In 2001, Timothy Dawson purchased the airplane and, in 2002, filed a Petition for Declaratory Judgment in Oklahoma to determine what claim, if any, Swan and Frankfort Flyers had in the airplane.  Swan was served with the Petition and, through counsel, filed a motion to dismiss for lack of jurisdiction.  Before the trial court ruled on the motion to dismiss, Swan’s attorney withdrew from representation.  Swan did not appear for the hearing on the motion to dismiss, nor the remaining proceedings.  The Oklahoma court ultimately decided that it had jurisdiction over Swan and entered final judgment in favor of Dawson.  The trial court subsequently granted Dawson attorney’s fees in the amount of $ 12,211.25 and costs in the amount of $ 131.25.  Swan did not appeal or otherwise contest these Oklahoma orders. 

On March 5, 2003, Dawson filed a Notice of Filing Foreign Judgment in Pinellas County, Florida, seeking to record the Oklahoma judgment for attorney’s fees and costs against Swan.  Swan responded by filing a Petition Contesting Foreign Judgment arguing that the Oklahoma judgment was unenforceable.  Dawson then filed a Motion for Summary Judgment as to Swan.  After a hearing on the matter, the trial court granted summary judgment in favor of Dawson, domesticating the Oklahoma judgment.

Before this Court, Swan argues that the trial court erred in domesticating the foreign judgment as Oklahoma did not have personal jurisdiction over him and, even if the Oklahoma court did have personal jurisdiction, the Oklahoma judgment is a nullity as there were no legal issues to resolve in the underlying action.  In reviewing these issues, the Court finds that Swan has failed to cite to any statutory law, case law, or record evidence to support his argument that the Oklahoma judgment should not be entitled to full faith and credit.  See Urban v. City of Daytona Beach, 101 So.2d 414, 417 (Fla. 1st DCA 1958)(stating that it is not the duty of the appellate court to comb the record in search of errors or grounds for reversal of a trial court’s ruling).  Further, the well-settled law is that a decision of the trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.  See id.; see also Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979); American Bankers Insurance Company v. Zapata, 761 So.2d 1216, 1217 (Fla. 2d DCA 2000).  The Court finds that, without a transcript or stipulated statement of evidence, Swan has failed to meet his burden as it is impossible for this Court to ascertain what, if any, objections or arguments may have been presented to the trial court during the proceedings below.  See id.; see also Saka v. Saka, 831 So.2d 709, 711 (Fla. 3d DCA 2002)(explaining that issues raised on appeal were not adequately preserved for appellate review where the record lacked the transcript from the summary judgment hearing and that reviewing courts will not consider points raised for the first time on appeal). 

What is apparent from conducting a de novo review of the record, and as established by Swan’s Petition Contesting Foreign Judgment and supporting Affidavit, is that Swan made an appearance in Oklahoma, through counsel, to contest Oklahoma’s personal jurisdiction, that Swan’s attorney then withdrew from representation with Swan’s knowledge, and that Swan then ignored the pending litigation.  While Swan states that he was unavailable from April through August 2002, the judgment awarding attorney’s fees and costs was not entered until September 27, 2002, and was provided to Swan at his Clearwater residence.  As Swan did not contest or otherwise appeal the Oklahoma judgment, the matter is res judicata and Swan is precluded from now attacking the judgment.  See Dusesoi v. Dusesoi, 498 So.2d 1348, 1349 (Fla. 2d DCA 1986) (explaining that Texas judgment was entitled to full faith and credit in Florida where wife failed to appeal Texas denial of her motion to contest personal jurisdiction).  The Court finds that Swan cannot avoid the entry of summary judgment simply by asserting that issues exist.  See Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979)(stating that it is not enough for the opposing party merely to assert that an issue does exist).  Accordingly, the Court finds that the trial court’s ruling must be sustained.   

Therefore, it is,

            ORDERED AND ADJUDGED that the Final Summary Judgment for Plaintiff is affirmed.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of March 2006.

 

 

 

                                                ________________________________

                                                DAVID A. DEMERS

                                                Circuit Judge, Appellate Division

 

 

 

 

 

_______________________________                      ______________________________

PETER RAMSBERGER                                          ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

Copies furnished to:

 

Judge Walt Fullerton

 

David S. Swan, Jr.

1033 Flushing Avenue

Clearwater, FL  33764

 

Ronald H. Trybus, Esquire

Post Office Box 800

Tampa, FL  33601-0800


[1]  This judgment was entered after the Court relinquished its jurisdiction for the entry of an authorized summary judgment upon discovering that the primary order for which the parties sought review, the Summary Final Judgment, entered on February 9, 2005, was a nullity as it was entered after Swan filed his Notice of Appeal, on December 20, 2004.