CHRISTOPHER D. FREEMAN, Appellant,
OMEGA CONDOMINIUM NO. 10, INC., Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judge; L.T. Case No. CACE
Christopher Freeman, Plantation, pro se.
appearance for appellee.
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.
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.
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
(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.
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.
Damoorgian and ...