WILLIAM F. FRICKE, APPELLANT,
v.
GAINES CONSTRUCTION CO., APPELLEE
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Fricke appealed a summary judgment dismissing his breach of contract action for construction damages. The trial court granted summary judgment based on an equity decree foreclosing a lien that was obtained during the pendency of the law action, treating it as a bar to the damages claim.
The court affirmed the summary judgment, holding that it could not review the trial court's order because the evidentiary matters and record upon which the summary judgment was based were not included in the appeal transcript, making meaningful appellate review impossible.
“where the findings of the lower Court were based upon evidentiary matters or a record which is not included in the transcript on appeal, it is impossible for this Court to review the orders of the lower Court.”
Establishes the legal standard that appellate courts cannot review orders when the underlying record is not in the appeal transcript
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Join FLexlaw to unlock all legal intelligenceFricke filed a law action for damages for breach of a construction contract against Gaines Construction Co. During the pendency of this law action, Fr…
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This is an appeal from a summary judgment for the defendant, in an action for damages for breach of a contract for certain construction.
The appellant assigned as error and argued that the trial court erred in vacating a default in the law action and in granting the summary judgment.
On 'the first point we find that the record shows no abuse of discretion in the .action 'O'f .the court in vacating the default.
On the second point, the question raised is whether a decree obtained by the appellant in his equity suit foreclosing a lien under Chapter 84, Fla.Stat., F.S.A., which was filed and progressed to conclusion during the pendency of the law action, was determinative of the matters involved in the latter so as to justify its dismissal on defendant’s motion for summary judgment.
The record discloses that on motion of defendant in the law action (after the equity suit was in progress) the trial thereof was delayed or continued pending completion of the equity suit; and that after the equity decree was entered an amended answer was filed in the law action reciting that decree and pleading it as a bar to the action. The defendant then moved in the law action for the summary judgment, which the court granted.
Appellant, the plaintiff below, argues that the court was in error in granting the summary judgment and dismissing his claim for damages in the law action, because the particular damages which he sought had not been litigated and included in the equity suit.
The trial court’s order granting summary judgment recited that it was made on consideration of the record and exhibits in the equity case, “and upon the admissions of counsel.”
The matters thus referred to by the court as a predicate for its action were not brought before us in this record. In that circumstance, as stated in Cohen v. Cohen, Fla.1954, 70 So.2d 362, 363, “where the findings of the lower Court were based upon evidentiary matters or a record which is not included in the transcript on appeal, it is impossible for this Court to review the orders of the lower Court.”
For the foregoing reasons the judgment appealed from must be and hereby is affirmed.
Affirmed.
HORTON and PEARSON, JJ., concur.
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Citator
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Althouse v. State Farm Fire & Cas. Co., 183 So. 2d 859 (Fla. 2d DCA 1966)…contention. See also United States v. Dahlberg, Fla.App.1959, 115 So. 2d 86 and Ellison v. Anderson, Fla.1954, 74 So. 2d 680. And a case involving an identical procedural situation to the instant case is Fricke v. Gaines Const. Co., Fla.App.1958, 105 So. 2d 374. In Fricke the lower court had granted summary judgment in behalf of the defendant based upon the record, exhibits and other matter of record, namely, the admissions of counsel. In affirming the judgment, the Third District Court held that an appell…
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Frank v. Jensen, 114 So. 2d 331 (Fla. 3d DCA 1959)…ndings of the lower Court were based upon evidentiary matters or a record which is not included in the transcript on appeal, it is impossible for this Court to review the orders of the lower Court.’ ” Fricke v. Gaines Construction Co., Fla.App.1958, 105 So. 2d 374, 375. See, also, Greene v. Hoiriis, Fla.App.1958, 103 So. 2d 226; Hall v. Davis, Fla.App.1958, 106 So. 2d 599; 3 Am.Jur., Appeal & Error, § 568. Accordingly, the judgment appealed from should be and hereby is affirmed. Affirmed. HORTON, C. J., an…
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Peters Mach. Corp. v. Blairsville Mach. Prods. Co., Inc., 413 So. 2d 802 (Fla. 3d DCA 1982)…s also claimed as error. As to the first issue, the appellant has failed to provide a proper record for our review. Accordingly, we presume the trial court’s findings following an evidentiary hearing are correct. Fricke v. Gaines Construction Co., 105 So. 2d 374 (Fla. 3rd DCA 1958). Nor did Peters allege a meritorious defense required by Fla.R.Civ.P. 1.540. GACL, Inc. v. Zeger, 276 So. 2d 552 (Fla. 3rd DCA 1973). The claim was liquidated and judgment entered on plaintiff’s theory of money had and received w…
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- Cohen v. Cohen, 70 So. 2d 362 (Fla. 1954)