Opinion
Nos. 1D18-5279 1D19-3178 1D20-3472
05-24-2021
Blake M. THURMAN and Samantha Thurman, Appellants, v. Debbie Rose DAVIS, f/k/a Debbie Rose Thurman, Rhonda S. Clyatt, and Mark Mcilwain Thurman (deceased), Appellees.
Jeremy Mutz, Chipley, and Michelle Blankenship Jordan of Blankenship Jordan, P.A., Chipley, for Appellants. Kerry Adkison, Chipley, for Debbie Rose Davis f/k/a Debbie Rose Thurman.
Jeremy Mutz, Chipley, and Michelle Blankenship Jordan of Blankenship Jordan, P.A., Chipley, for Appellants.
Kerry Adkison, Chipley, for Debbie Rose Davis f/k/a Debbie Rose Thurman.
Jay, J.
Appellants, Blake Thurman and Samantha Thurman, appeal the Final Judgment in which the trial court ruled against Appellants on their Second Amended Complaint against Appellee, Debbie Rose Davis, but found in favor of Appellee on her Amended Counterclaim for deed cancellation and ejectment. For the following reasons, we affirm the court's judgment as to the Second Amended Complaint and the Amended Counterclaim, but reverse as to Appellee's entitlement to attorney's fees on her ejectment claim.
I.
This case was heard at a bench trial—involving multiple parties and multiple counts—as manifested in Appellants’ Second Amended Complaint, Appellee's Amended Counterclaim, and several attendant cross-claims. The rightful title to twenty-one acres of property was at stake, arising from a dissolution of marriage action between Appellee and the now-deceased Mark Thurman, which proceeding plowed through fourteen years of contentious litigation and supplemental motions for contempt, while addressing in no small part the equitable distribution of marital property including the property at issue here. The current cause of action was first filed five years after entry of the supplemental final dissolution judgment in 2010.
At the bench trial, Appellants sought the discharge of two notices of lis pendens that were filed by Appellee in 2015 and to quiet title to the property in Appellants. In addition, they included a count for slander of title and prayed for the ejectment of Appellee from the property. In turn, Appellee counterclaimed for deed cancellation in—and ejectment as to—Appellants concerning the subject twenty-one acres. (As stated above, additional cross-claims were argued, but their outcome is not pertinent to this appeal.) In resolving the disputes and reaching its ultimate conclusions of law, the trial court heard testimony from the parties and argument from counsel, and reviewed the evidence adduced at trial.
Now the case resides with us on appeal but, regrettably, Appellants have not provided the testimony and the arguments of counsel heard by the lower court because they, admittedly, have no intention of filing the transcript of the hearing—presumably because one may not be procured—or a proper statement of the evidence and proceedings as permitted by Florida Rule of Appellate Procedure 9.200(b)(5). Appellants posit that a transcript or statement of the evidence is unnecessary to support their appeal since the issues they have raised present pure questions of law that may be reviewed without the benefit of the transcript. We respectfully disagree.
First, while Appellants have set forth the standard of review under certain of their points on appeal as being "de novo," we are at a loss without the transcript to resolve for ourselves how the law relates to the facts and testimony as presented at the hearing. Second, two of Appellants’ points on appeal expressly address whether competent, substantial evidence supported the trial court's rulings. The questions raised by Appellant clearly involve underlying issues of fact. How can we possibly determine whether the court's rulings lack the support of competent, substantial evidence without a proper record of the evidence? Our ability to review this appeal is stymied by the lack of a transcript or its substitute. As then-Judge Canady observed: "The most salient impediment to meaningful review of the trial court's decision is ... the absence of a transcript." Esaw v. Esaw , 965 So. 2d 1261, 1264 (Fla. 2d DCA 2007).
We cannot emphasize too strongly the fundamental principle of appellate review that "a trial court's findings and judgment come to a reviewing court with a presumption of correctness, and cannot be disturbed absent a record demonstrating reversible error." JP Morgan Chase Bank v. Combee , 883 So. 2d 330, 331 (Fla. 1st DCA 2004) (citing Applegate v. Barnett Bank of Tallahassee , 377 So. 2d 1150, 1152 (Fla. 1979) ; Lafaille v. Lafaille , 837 So. 2d 601, 604 (Fla. 1st DCA 2003) ). "The burden is on the appellant to demonstrate reversible error and present an adequate record for review." Combee , 883 So. 2d at 331 (citing Applegate , 377 So. 2d at 1152 ; Lafaille , 837 So. 2d at 604 ). As we stressed in Combee :
Without an adequate record of the proceedings below, the appellate court cannot properly resolve factual issues to conclude the trial court's judgment is not supported by evidence or an alternate theory. See Applegate , 377 So. 2d at 1152. Moreover, "[w]ithout knowing the factual context, neither can an appellate court reasonably conclude that the trial court so misconceived the law as to require reversal." Id. The trial court's decision "could well be supported by evidence adduced at trial [or hearing] but not stated in the judge's order or otherwise apparent in the incomplete record on appeal." Id.
883 So. 2d at 331–32 (emphasis added.)
Furthermore, in direct response to Appellants’ aforementioned argument, we have held that "[e]ven under a de novo standard of review, the trial court's final judgment ‘has the presumption of correctness and the burden is on the appellant to demonstrate error.’ " Snowden v. Wells Fargo Bank , 172 So. 3d 506, 507 (Fla. 1st DCA 2015) (quoting Applegate , 377 So. 2d at 1151 ). " ‘Without an adequate record of the proceedings below, this court cannot reasonably conclude that the trial court so misconceived the law as to require reversal.’ " Id. at 508 (quoting Estes v. Sassano , 47 So. 3d 383, 385 (Fla. 1st DCA 2010) ). For our purposes, the Third District in GMAC Mortgage, LLC v. Palenzuela , 208 So. 3d 181 (Fla. 3d DCA 2016), expressed it best:
This case may or may not have had a failure of proof. However, it does suffer from the failure of a record, and that is the significant datum for decision purposes. As we have often said, "[w]here there is no record of the testimony of witnesses or of evidentiary rulings, and where a statement of the record has not been prepared pursuant to Florida Rule of Appellate Procedure 9.200(a)(3) or (b) [5], a judgment which is not fundamentally erroneous on its face must be affirmed." Zarate v. Deutsche Bank Nat. Trust Co. , 81 So. 3d 556, 558 (Fla. 3d DCA 2012). There is nothing fundamentally erroneous on the face of the order on appeal in this case.
Id . at 183 (alteration added) (emphasis added). Without a transcript or statement of the evidence, the reviewing court is " ‘limited to a consideration of any fundamental error which appears on the face of the order’ " and, finding none, must affirm the final judgment. Carney v. Carney , 861 So. 2d 1272, 1273–74 (Fla. 1st DCA 2003) (citation omitted); accord Waites v. Middleton , 302 So. 3d 1082 (Fla. 1st DCA 2020).
Additionally, the lack of a transcript or a proper substitute "frustrates" a harmless error analysis conducted under section 59.041, Florida Statutes. Klette v. Klette , 785 So. 2d 562, 563–64 (Fla. 1st DCA 2001) ("Here appellant has provided neither a transcript nor a statement as provided by [then] Rule 9.200(b)(4), Florida Rules of Appellate Procedure. Because of this, we cannot conduct ‘an examination of the entire case’ as we are directed by section 59.041.") In Esaw , the Second District examined Klette and found its "reasoning" to be "persuasive," declaring: "It takes seriously the provision of section 59.041, Florida Statutes (2004), that ‘[n]o judgment shall be set aside or reversed ... for error as to any matter of ... procedure, unless’ it is apparent ‘that the error complained of has resulted in a miscarriage of justice.’ " 965 So. 2d at 1264. It added:
The appellant has the burden of providing a proper record to the reviewing court, and the failure to do so is "usually fatal" to the appellant's claims. Casella v. Casella , 569 So. 2d 848, 849 (Fla. 4th DCA 1990). Without such a record, it will ordinarily be impossible for the appellant to establish that an asserted error is harmful.
Id. at 1264–65.
Appellants in the present case have failed in their duty to provide this Court with a proper record. That decision has proved "fatal" to a review of their appellate claims. Consequently, we must affirm the trial court's judgment on the Second Amended Complaint and the Amended Counterclaim.
II.
The lack of a proper record, however, does not limit our ability to consider the merits of Appellants’ attorney's fee argument—i.e., that the trial court erred in awarding attorney's fees as to the ejectment claim. The award of attorney's fees on that basis is fundamental error clearly appearing on the face of the Final Judgment.
According to the "the custom in American law" "each party is responsible for his or her own attorney's fees, regardless of the outcome of the action," except in cases "when an agreement of the parties or a statute states otherwise." Johnson v. Omega Ins. Co. , 200 So. 3d 1207, 1214–15 (Fla. 2016) (citing State Farm Fire & Cas. Co. v. Palma , 629 So. 2d 830, 832 (Fla. 1993) ). In common legal parlance, this doctrine is known as the "American Rule," which courts have zealously guarded from erosion by the incursion of exceptions. See, e.g. , League of Women Voters of Fla. v. Detzner , 188 So. 3d 68 (Fla. 1st DCA 2016). In the present case, it is undisputed that Appellee sought, and was awarded, attorney's fees in relation to her ejectment count. Appellee correctly concedes that an award of attorney's fees is not authorized by section 66.021, Florida Statutes —Florida's ejectment statute. Appellee attempts to justify the award under section 57.105, Florida Statutes, but nothing in the Final Judgment even remotely suggests that the award of fees was tethered to anything but Appellee's claim for ejectment. Accordingly, the award of attorney's fees must be reversed.
III.
In sum, we affirm the Final Judgment in all respects with the singular exception of the award of attorney's fees to Appellee related to her claim for ejectment. On remand, the trial court is ordered to strike that particular award of attorney's fees.
AFFIRMED , in part, REVERSED , in part, and REMANDED with instructions.
B.L. Thomas and Winokur, JJ., concur.
GMAC Mortg. , 208 So. 3d at 183 ("GMAC has hung itself on its own petard in this case. It seeks reversal on the basis of a non-existent, proper record.").