County Civil Court: APPELLATE PROCEDURE – preservation of error – appellate court cannot address claims that were not framed by the pleadings or litigated by the parties – without a transcript or statement of the evidence, Appellant has failed to demonstrate error – Amended Final Judgment affirmed.  Hansen v. Manatee Car & Truck Sales, Inc., No. 05-0003AP-88A (Fla. 6th Cir. App. Ct. Jan. 27, 2006). 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

MICHAEL HANSEN,

            Appellant,                                                         Appeal No. 05-0003AP-88A

                                                                                    UCN522005AP000003XXXXCV

vs.

 

MANATEE CAR & TRUCK SALES, INC.,

d/b/a PAYLESS CAR RENTAL and

JENNIFER WEEKS, Regional Manager,

            Appellees,

_______________________________________/

 

Appeal from Amended Final Judgment

Pinellas County Court, Small Claims Division

Judge Henry J. Andringa

 

Michael Hansen

Appellant, pro se

 

David A. Bacon, Esquire

Attorney for the Appellee

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by the Appellant, Michael Hansen (Hansen), from the Amended Final Judgment, entered December 9, 2004, in favor of the Appellees, Manatee Car & Truck Sales, Inc., d/b/a Payless Car Rental and Jennifer Weeks, Regional Manager (Manatee Car & Truck Sales).  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 record shows that Manatee Car & Truck Sales, doing business as Payless Car Rental, employed Hansen from approximately October 22, 2003, until December 29, 2003.  During that time period, Manatee Car & Truck Sales issued payroll checks to Hansen through Bobby Smith Auto Sales, Inc. (Bobby Smith Auto Sales), an affiliated corporation.  After Hansen’s employment was terminated, Hansen sent a demand letter to Manatee Car & Truck Sales requesting payment in the amount of $1,772.70, which he asserted was the amount of outstanding unpaid commissions.  Manatee Car & Truck Sales did not respond to the letter.  Thereafter, Hansen filed a Statement of Claim alleging breach of contract for failure to pay $ 1,772.70 in commissions and wrongful discharge as a result of defamation by Jennifer Weeks.  Following a non-jury trial, the trial court entered a Final Judgment in favor of Manatee Car & Truck Sales.

Before this Court, Hansen argues that the trial court erred in its ruling as the Statute of Frauds bars payments made by Bobby Smith Auto Sales to Hansen on behalf of Manatee Car & Truck Sales.  Hansen also argues, under the doctrine of account stated, that certain amounts became due when Manatee Car & Truck Sales failed to respond to his demand letter.  Initially, the Court finds that it cannot address these issues as there is no record evidence that these claims were framed by the pleadings or litigated by the parties.  See Herskovitz v. Herskovitz, 910 So.2d 366, 367 (Fla. 5th DCA 2005)(explaining that appellate court will not consider issues raised on appeal that were not presented to the trial court);  see also Gordon v. Gordon, 543 So.2d 428, 429 (Fla. 2d DCA 1989)(stating that issues not framed by the pleadings, noticed for hearing, or litigated by the parties are not proper for the court’s determination). 

Further, and more importantly, the Court finds that there is not a transcript, nor statement of the evidence, from the trial below.  The well-settled law in Florida is that the decision of the trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.  See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979);  see also Bei v. Harper, 475 So.2d 912, 914 (Fla. 2d DCA 1985).  The Court finds that Hansen has failed to meet his burden.

Therefore, it is,

ORDERED AND ADJUDGED that the Amended Final Judgment is affirmed.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ day of January 2006.

 

 

                                               

                                                ________________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

 

 

_______________________________                      ______________________________

LAUREN LAUGHLIN                                              JAMES CASE

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

Judge Henry J. Andringa

 

Michael Hansen

10307 North Ashley Street

Tampa, Florida 33612

 

David A. Bacon, Esquire

Post Office Box 13576

St. Petersburg, Florida 33733