NOTICE:  THIS OPINION IS SUBJECT TO REVISION OR WITHDRAWAL

UNTIL TIME EXPIRES FOR REHEARING OR FURTHER APPELLATE

REVIEW AND, IF FILED, DETERMINED

 

County Civil Court:  STANDARD OF REVIEW – preservation of error - non-jury trial – trial court’s findings are clothed with a presumption of correctness and these findings will not be disturbed unless clearly erroneous – trial court is charged with resolving conflicting evidence - Appellant unable to demonstrate findings are clearly erroneous and judgment is supported by competent substantial evidence - Court cannot rule on issues not presented to the trial court - Final Judgment affirmed.  Sabala v. Harper, Kynes, et. al., Appeal No. 07-0026AP-88A (Fla. 6th Cir. App. Ct. Dec. 21, 2007). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

BOZENA SABALA,

                        Appellant,

 

vs.                                                                                    Appeal No. 07-0026AP-88A

                                                                                        UCN522007AP000026XXXXCV

 

HARPER, KYNES, GELLER &

BUFORD, P.A.,

                        Appellee.

______________________________________/

Appeal from Pinellas County Court

Small Claims Division

 

Bozena Sabala

Appellant, pro se

 

Charles A. Buford, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Bozena Sabala (Sabala), from the Final Judgment, entered April 25, 2007, in favor of Harper, Kynes, Geller & Buford, P.A. (Harper).  Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.

On November 16, 2006, Harper filed a Statement of Claim against Sabala seeking judgment in the principal sum of $ 687.50 for unpaid legal fees.  The fees were generated as a result of a 2 ½ hour consultation Sabala had with Harper on June 23, 2006.  Sabala filed a Counterclaim asserting that Harper was engaging in a frivolous lawsuit and sought damages in the amount of $ 2,000.00.  The matter was tried without a jury on April 25, 2007.  After considering the testimony and evidence presented, the trial court entered Final Judgment in favor of Harper in the principal sum of $ 687.50, plus interest and costs.  The trial court reserved jurisdiction to consider the award of attorney’s fees.  The trial court ruled that Sabala recover nothing on her Counterclaim.   

Before this Court, Sabala raises two issues:  (1) Whether the trial court committed reversible error by failing to apply federal and state laws to an advertisement containing the word “free”?; and, (2) Whether the trial court committed reversible error by failing to properly evaluate Appellee’s inconsistent and misleading testimony regarding the facts and circumstances of the case?  This Court must determine if the Final Judgment is supported by competent substantial evidence.  See  Shaw v. Shaw, 334 So.2d 13, 16 (Fla. 1976).  “When a case is tried without a jury, the trial judge’s findings are clothed with a presumption of correctness on appeal, and these findings will not be disturbed unless the appellant can demonstrate that they are clearly erroneous.”  See Universal Beverages Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005); see also Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998)(same).

            In addressing the first issue, Sabala did not assert either a violation of Federal or State statutory law as a defense to Harper’s billing for legal services.  The well-settled law is that issues not presented to the trial court cannot be considered on appeal.  See Florida Emergency Physicians-Kang and Associates, M.D., P.A. v. Parker, 800 So.2d 631 (Fla. 5th DCA 2001)(explaining that it is the function of the appellate court to review errors allegedly committed in the trial court, not to entertain for the first time on appeal issues the complaining party could have, but did not, present to the trial court); see also Herskovitz v. Hershkovich, 910 So.2d 366, 367 (Fla. 5th DCA 2005)(same).

In addressing the second issue, the trial court is charged with observing the credibility of the witnesses and resolving conflicts in the testimony and evidence.  See Shaw, supra.  Sabala is not able to overcome the presumption of correctness afforded the trial court’s ruling and there is competent substantial evidence in the record to support the Final Judgment.      

Therefore, it is,

ORDERED AND ADJUDGED that the Final Judgment is affirmed. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of December 2007.

 

 

 

                                                     ________________________________

                                                     R. TIMOTHY PETERS

                                                     Circuit Judge, Appellate Division

 

 

 

 

 

______________________________                        ______________________________

GEORGE M. JIROTKA                                          CYNTHIA J. NEWTON

Circuit Judge, Appellate Division                               Circuit Judge, Appellate Division

 

 

 

Copies furnished to:

 

Honorable Dorothy L. Vaccaro

County Court Judge

 

Bozena Sabala

50 South Belcher Road, Suite 124

Clearwater, FL  33765

 

Charles A. Buford, Esquire

2560 Gulf to Bay Blvd., Suite 300

Clearwater, FL  33765