       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                      CHRISTOPHER D. FREEMAN,
                             Appellant,

                                     v.

                 OMEGA CONDOMINIUM NO. 10, INC.,
                           Appellee.

                              No. 4D17-1320

                            [February 14, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judge; L.T. Case No. CACE 15-012367
(05).

   Christopher Freeman, Plantation, pro se.

   No appearance for appellee.

PER CURIAM.

   The parties entered into a settlement agreement in 2016, whereby
Appellant Christopher Freeman agreed to provide access to his unit on a
particular day. The settlement agreement stated that, following inspection
by Appellee Omega Condominium No. 10, Inc., the trial court would “hold
a hearing to determine if [Appellee was] entitled to fees and costs” and the
amount awardable. There is no indication in the record that the issue of
Appellee’s entitlement to prevailing party fees was ever subjected to an
evidentiary hearing. Therefore, we reverse.

    The dissent focuses on the fact that the transcript of the May 17, 2016
hearing before Judge Lynch in the appellate record is an excerpt. However,
we are satisfied that the excerpt pages are sequentially numbered, with no
pages missing, and the flow of the dialogue in those pages does not appear
to skip over a portion of the hearing. We acknowledge that at the hearing
to determine the amount of fees, Appellee’s counsel argued to Judge
Bidwill that the transcript of the May 17 hearing is missing sixty pages,
the accuracy of which we question. We conclude that the alleged missing
pages could not have recorded the presentation of evidence on entitlement
for two reasons. First, the trial clerk’s progress notes submitted as part of
the appellate record does not indicate any evidence was presented at the
May 17 hearing. Second, and more importantly, the statements of Judge
Lynch in the transcript excerpt strongly negate the conclusion that
evidence on entitlement was heard earlier in the hearing.

   A review of the first five pages of the excerpt clearly shows a discussion
by Judge Lynch about what was actually set for a hearing that day,
including discussion about a motion for protective order and motion to
compel. There was also discussion about what was heard during
proceedings on May 9. Immediately thereafter, Judge Lynch asked
Appellee’s counsel, “So it is your position that we are here today on the
entitlement issue,” to which Appellee’s counsel replied, “Yes.” Judge
Lynch then turned to Appellant in inquire about his motion to continue
the entitlement hearing, which Judge Lynch received the night before or
that morning, as follows:

      My question is real simple once I figure out what we probably
      are here for. We are here for his motion to determine
      entitlement to attorney’s fees and costs. And you tell me that
      you are requesting that I not go forward with that hearing and
      you want to continue it for what reason?

(emphasis added). It is difficult to read that portion of the excerpt and
conclude that, many pages above that portion of the transcript, there was
testimonial or documentary evidence presented on the issue of entitlement
to fees. It defies logic that the parties would be clarifying to the judge what
was to be heard that day if evidence of entitlement had been presented
earlier in the proceedings that day. The discussion about the motion to
continue the hearing was not in the context of Appellant seeking to present
more evidence; instead, the discussion was in the context of postponing
the hearing altogether. Thus, it defies logic that such a discussion would
occur if evidence had already been presented. The combination of Judge
Lynch’s comments lead us to conclude that no evidence was presented
earlier in the hearing on the motion to determine entitlement.

   Accordingly, we remand this case to the trial court for the purpose of
conducting an evidentiary hearing on the issue of Appellee’s entitlement
to fees and costs. Should the trial court determine that Appellee is the
prevailing party and entitled to fees and costs, it may incorporate the
calculations and findings from the March 31, 2017 hearing regarding the
amount of fees and costs without the necessity of further evidence on that
issue.

   Reversed and Remanded.

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DAMOORGIAN and CONNER, JJ., concur.
FORST, J., dissents with opinion.

FORST, J., dissenting.

   I respectfully dissent. The parties appeared before Judge Lynch at a
hearing on May 17, 2016. The hearing was scheduled to consider Appellee
Omega’s motion to determine entitlement to attorney’s fees and costs, as
well as two motions filed by Appellant Freeman. There is no indication in
the transcript provided in the record submitted by the Seventeenth Circuit
Clerk that the trial court addressed Appellee’s motion during this hearing.
However, the transcript submitted to the Court is an excerpted copy.
Thus, on November 21, 2017, we ordered Appellant to submit “the full
transcript (as opposed to ‘excerpts’) for the hearing held before Judge
Lynch on May 17, 2016.”

   Notwithstanding the specificity of this request, Appellant once again
submitted “an excerpt of the hearing proceeding.” This is consistent with
the contention of Appellee’s counsel at the March 31, 2017 hearing before
Judge Bidwill concerning the amount of fees and costs. At that hearing,
Appellee’s counsel argued that the transcript Appellant provided to Judge
Lynch at a 2016 hearing regarding entitlement to fees was only a “partial
transcript of the prior hearing, in which 60 pages of the transcript are cut
out.” Appellant agreed at the March 31, 2017 hearing that he had only
ordered “excerpts from the Court Reporter.”

    In light of Appellant’s failure to provide us with the full transcript of the
May 17, 2016 hearing, I do not believe that we are able to contradict
Appellee’s claim at the March 31, 2017 hearing that, in 2016, Judge Lynch
heard evidence regarding the issue of entitlement to fees. See Wofford v.
Wofford, 20 So. 3d 470, 473 (Fla 4th DCA 2009) (“A trial court’s ruling is
presumed correct, and where no transcript is provided, the appellate court
cannot determine whether the evidence supports the trial court’s rulings
or the court misconceived the law.”); see also Applegate v. Barnett Bank of
Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“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.”).
Accordingly, I would affirm the trial court’s final judgment against
Appellant.

                             *         *          *


                                       3
Not final until disposition of timely filed motion for rehearing.




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