Opinion
No. 3D19-1753
04-29-2020
Daniel A. GONZALEZ, Appellant, v. FORT DALLAS TRUSS CO., LLC, et al., Appellees.
James H. Greason, for appellant. Keith J. Merrill, P.A., and Keith J. Merrill, Miami, for appellees.
James H. Greason, for appellant.
Keith J. Merrill, P.A., and Keith J. Merrill, Miami, for appellees.
Before EMAS, C.J., and FERNANDEZ and GORDO, JJ.
PER CURIAM. Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (holding: "The question raised by [appellant] clearly involves underlying issues of fact. When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal. The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error"); E & A Produce Corp. v. Superior Garlic Int'l, Inc., 864 So. 2d 449, 452 (Fla. 3d DCA 2003) (noting: "We are unable [ ] to determine under what grounds the attorneys' fees here were awarded and whether or not the trial court made the requisite findings because there is no transcript of the hearing on the entitlement to attorney's fees. Without a transcript, the record is inadequate for us to review E & A's contention, and we cannot find that the trial court abused its discretion in making the award.") See also Stockman v. Downs, 573 So. 2d 835, 838 (Fla. 1991) (holding that, as a general rule, a claim for attorney's fees must be pled, but recognizing an exception: "Where a party has notice that an opponent claims entitlement to attorney's fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement that party waives any objection to the failure to plead a claim for attorney's fees"); Margolis v. Klein, 184 So. 2d 205, 206 (Fla. 3d DCA 1966) (trial court dismissed counterclaim and appellant contended on appeal that trial court should have granted leave to amend; this court, noting there was nothing in the record to indicate appellant had sought leave to amend the counterclaim, affirmed, holding: "It is elementary that before a trial judge will be held in error, he must be presented with an opportunity to rule on the matter before him").