ROBERT E. KUENSTLER, JR., APPELLANT,
v.
ARLAND M. ANDREASEN, APPELLEE

Fla. 1st DCA | 1980-08-19
No. UU-91
McCORD, SHIVERS and WENT-WORTH, JJ., concur.
386 So. 2d 896 Florida District Court of Appeal, First District (1980) Caution
Cited by 15 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

This appeal concerns the procedural requirements for reconstructing a trial record when no court reporter attended trial. The appellate court held that the appellee must file specific objections and proposed amendments to the appellant's statement of proceedings, and remanded for the trial court to attempt to settle disputes over the reconstructed record.


Holding

The appellee must file specific objections and proposed amendments to the appellant's statement of proceedings, and the trial court must then act as arbiter of any factual disputes. The trial court may then approve the statement as settled. The rule does not require the appellee to certify the statement prior to trial court approval.


Headnotes

[1] An appellate court may remand a case to the trial court to allow a party to file objections or proposed amendments to a statement of proceedings when the initial attempt…

[2] A party's failure to serve objections or proposed amendments to a statement of proceedings, after being served with the statement, may prevent the appellate court from co…

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Key Quotes

“There is no requirement in the above-cited Rule that Appellee certify Appellant's statement of the proceedings prior to its approval by the trial court and subsequent inclusion in the record. Rather, we think the cited Rule requires Appellee to make specific objections and proposed amendments (if he has any) going to the factual basis of Appellant's document.”

Establishes that the appellee's role is to file specific objections and amendments, not to certify the statement, and that the trial court approves the statement after such objections are filed.

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Facts & Procedural History

No court reporter was present at the trial, so no transcript was made. Appellant prepared a substitute statement of the proceedings and served it on A…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal from a final order determining a dispute as to possession and title to certain real property in favor of Appellee (Defendant and Counter-Plaintiff below). No report or transcript of the trial proceedings was made, for neither party secured the attendance of a court reporter at trial. Appellant thus prepared and served upon Appellee a substitute statement of the proceedings.1 Appellee did not serve any ob jection or proposed amendments thereto; however, he did move to strike the document on the ground that he had not certified it. Appellant then filed with the trial court a motion to settle and approve his statement of the proceedings without amendment. Appellant’s motion was denied by the trial judge, who ruled that he could not sufficiently recall the proceedings to approve or reconstruct a record thereof. Appellant now moves the court to recognize his statement of the proceedings as if it had been settled and approved pursuant to Florida Rule of Appellate Procedure 9.200(b)(3). He moves, in the alternative, that the Court direct Appellee to review the document and submit any objections or proposed amendments thereto to the trial court for settlement of differences and ultimate approval in accordance with the above-cited Rule.

We are of the view that the ends of justice will be better served by a second attempt to reconstruct a record of the trial proceedings. There is no requirement in the above-cited Rule that Appellee certify Appellant’s statement of the proceedings prior to its approval by the trial court and subsequent inclusion in the record. Rather, we think the cited Rule requires Appellee to make specific objections and proposed amendments (if he has any) going to the factual basis of Appellant’s document. Such a requirement is consonant with Ap-pellee’s duty to assist in the preparation of the record and thus insure that the appeal be decided on its merits. The trial judge should then act as arbiter of any factual dispute between the parties. In remanding this cause, we are not unmindful of the trial judge’s professed inability to recall the proceedings, and he may or may not have sufficient recollection to settle specific disputes as to objections or proposed amendments filed by Appellee. Such is unknown at this point, however, because Appellee has not complied with the Rule. A second attempt should be made to reconstruct the record of the trial proceedings which substantially complies with Florida Rule of Appellate Procedure 9.200(b)(3).

Accordingly, for the reasons expressed above, this Court remands jurisdiction in this cause to the trial court with directions that Appellee be required to file specific objections and proposed amendments (if any) to Appellant’s statement of the proceedings and then for the trial court to take such further measures as are necessary and proper in accordance with Florida Rule of Appellate Procedure 9.200(b)(3).

McCORD, SHIVERS and WENT-WORTH, JJ., concur. . Florida Rule of Appellate Procedure 9.200(b)(3):

If no report of the proceedings was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days of service. Thereafter the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.

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Citator

Cited By

  • Starks v. Starks, 423 So. 2d 452 (Fla. 1st DCA 1982)
    …the appellant elected to prepare a statement of the evidence or proceedings, it was the appellee’s duty to cooperate by either approving the statement, registering objections to the statement or proposing amendments (if any). Kuenstler v. Andreasen, 386 So. 2d 896 (Fla. 1st DCA 1980). The appellant has filed a stipulated statement signed by counsel for both parties which reveals, among other things, that there is no transcript from the initial hearing, because no court reporter was present. Unfortunately, th…
  • Kauffmann v. Baker, 392 So. 2d 13 (Fla. 4th DCA 1980)
    …els this determination. The trial judge is not obliged to transcend his recollection and trial notes to establish a record. Haist v. Scarp, 366 So. 2d 402 (Fla.1978). We have considered the First District’s recent opinion in Kuenstler v. Andreasen, 386 So. 2d 896 (Fla. 1st DCA 1980), and find it inapplicable to this case as appellant herein has never sought this court’s aid to supplement the record. To the extent Kuenstler places an affirmative duty upon the appellee to assist in preparation of the record, w…
  • Fields v. Zinman, 394 So. 2d 1133 (Fla. 4th DCA 1981)
    …financially unable to pay for the preparation of the record. If utilized in good faith, Rules 9.200(a)(3) and (b)(3), Fla. R.App.P., should afford an expeditious and inexpensive method for appellate review. See, for example, Kuenstler v. Andreasen, 386 So. 2d 896 (Fla. 1st DCA 1980), but note the caveat in Kauffmann v. Baker, 392 So. 2d 13 (Fla. 4th DCA 1980). . In 1975, approximately 1,225,000 persons in Florida had incomes below the poverty level. This group comprised 14.4% of the state’s population. Flor…

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