HAZEL E. WALLMAN BARTH, APPELLANT,

v.

FLORIDA STATE CONTRACTORS SERVICE, INC., APPELLEE

Fla. 3d DCA | 1974-10-22

No. 74-329

Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.

302 So. 2d 476 Florida District Court of Appeal, Third District (1974) Negative Treatment

Cited by 8 cases

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Holding

The court held that the appellant waived her right to a jury trial and that there was substantial competent evidence to support the trial court's findings regarding substantial performance and the attorney's fees award.

Facts & Procedural History

Appellant appealed a foreclosure judgment on a mechanic's lien, raising issues about a denied jury trial, substantial performance of the contract, and…

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Topics

Substantial Performance Mechanic'S Lien Foreclosure Mechanic'S Lien Waiver Of Jury Trial

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Opinion of the Court

PER CURIAM.

This is an appeal from a judgment of foreclosure on a mechanic’s lien.

Appellant raises three points on appeal. First, appellant contends that the trial judge committed reversible error by denying her a jury trial on a legal counterclaim seeking damages for labor performed in an unworkmanlike manner. However, our review of the record in the instant case convinces us that the appellant waived her right to a trial by jury. May v. Arnold Const. Co., Fla.1955, 78 So. 2d 705; Hightower v. Bigoney, Fla. 1963, 156 So. 2d 501.

By her second point, appellant attacks the judgment on the merits, arguing that the appellee failed to prove substantial performance of the contract and an adequate excuse for not completing the remaining ten percent of the job, which the trial court found remained to be completed. We have reviewed the testimony and have concluded that there is substantial competent evidence to support the trial court’s determination.

Thirdly, appellant argues that there is no testimony in the record of any evidence concerning the reasonableness of the attorney’s fees awarded to the appellee. However, the record contains a notice of hearing for October 31, 1973 on the award of attorney’s fees. Appellee contends that expert testimony was presented at this hearing on the question of attorney’s fees.

A point on appeal directed to the amount of the attorney’s fees may not be considered in the absence of a record of the testimony upon which the award is based. Worcester Mutual Fire Insurance Co. v. Eisenberg, Fla.App.1962, 149 So. 2d 575.

For the reasons stated and upon the authorities cited, the judgment appealed is affirmed.

Affirmed.

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Citator

Cited By

Barth v. Fla. State Constructors Serv., Inc., 327 So. 2d 13 (Fla. 1976)

…BOYD, Justice. This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 302 So. 2d 476, Fla.App. Our jurisdiction is based upon conflict between the decision sought to be reviewed and Hightower v. Bigoney. Respondent-Company was engaged by a written contract to furnish certain services to Petitioner’s home, i. e., hydro pressure blas…
Grant v. Wester, 679 So. 2d 1301 (Fla. 1st DCA 1996)

…the time Mr. Grant stopped work was also at issue under the pleadings.0 Substantial performance is a question of fact. But a clearly erroneous determination of this factual question requires reversal. Barth v. Florida State Contractors Serv., Inc., 302 So. 2d 476 (Fla. 3d DCA 1974) (reversing failure to find substantial performance where evidence showed work was ninety per cent complete), decision quashed on other grounds, 327 So. 2d 13 (Fla.1976); Ocean Ridge Dev. Carp. v. Quality Plastering, Inc., 247 So.…
Barth v. Fla. State Contractors Serv., Inc., 330 So. 2d 220 (Fla. 3d DCA 1976)

…PER CURIAM. WHEREAS, the judgment of this court was entered in this cause on October 22, 1974 (302 So. 2d 476) affirming the judgment of the Circuit Court for Dade County, Florida, in the above styled cause; and WHEREAS, on review of said judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed January 21, 1976, 327 So. 2d 13…

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Authorities Cited

Hightower v. Bigoney, 156 So. 2d 501 (Fla. 1963)
MAY v. Arnold Constr. Co., 78 So. 2d 705 (Fla. 1955)

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