APPLEGATE
v.
BARNETT BANK OF TALLAHASSEE
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.
The appellate court denied appellant's motion for reconsideration (treated as a motion for rehearing) of the court's dismissal of her appeal for failure to comply with appellate procedure rules requiring record citations in the brief. The court held that appellant bore the burden of preparing and transmitting the appellate record, and the untimely motion did not address matters the court had overlooked.
The court denied the motion because it was untimely under Rule 9.330(a)(1), did not address matters the court overlooked, and appellant never filed a motion to enforce record preparation requirements under Rule 9.200(e) prior to dismissal. The burden of preparing and transmitting the appellate record rests on the appellant, and absent a proper record, the appellate court must affirm the trial court's decision.
[1] A motion for reconsideration of a final order is procedurally improper; the correct procedure is a motion for rehearing.
[2] A motion for rehearing must be filed within the time prescribed by the rules of appellate procedure.
Previewing 2 of 7 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is axiomatic that it is the petitioner or appellant's burden to ensure that the record is prepared and transmitted in accordance with the rules. Rule 9.200(e), Fla. R. App. P. In the absence of a record, a court is constrained to affirm the trial court's decision.”
Establishes the fundamental principle that the appellant bears the burden of record preparation and that lack of record results in affirmance of the trial court.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant filed a civil appeal on September 5, 2023. The trial proceedings were not recorded. Appellant filed an initial brief that failed to cite to …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Burden Of Proof On Appeal cases and more on FLexlaw
THIS CASE is before the Court on Appellant's March 7, 2024 Motion for Reconsideration (Doc. 15) of this Court's February 15, 2024 Dismissal (Doc. 14). Because the dismissal to which Appellant's Motion (Doc. 15) is directed is a final order, reconsideration is not the correct procedure for review of the order. Being an appellate rather than civil trial proceeding, the rules of appellate procedure apply. The Court will treat the Motion as one for rehearing. Rule 9.330, Fla. R. App. P. The Motion (Doc. 15), filed 20 days after the issuance of the dismissal, is untimely. Rule 9.330(a)(1), Fla. R. App. P. Appellant did not seek an extension of time or leave of court to file the Motion.
Notwithstanding the untimeliness, the Court has reviewed the Motion, and, in turn, the history of this case in depth. The Court previously struck Appellant's first brief because it failed to contain citations to the record (Docs. 9, 10). The Court then struck the second brief Appellant filed for the same deficiencies. (Doc 13). Appellant explained in the second brief (Doc. 13) that no record of the trial exists because “the civil trial wasn't recorded," and "this brief is unable to make references to the specific record of proceedings since none exist...Appellant respectfully suggests that the Court should benefit from hearing counsel explain how the trial court's findings are not supported by the evidence or the lack thereof. Clearly, any testimony is lost in the cold record, and some further elucidation beyond that contained in the written brief would benefit the Court in these proceedings. The Appellant seeks a reversal of the trial court based upon the application of the undisputed facts in this case to the law in addition to other legal errors committed by the trial court, and it is in understanding the nuances in the facts of this matter as applied to the law where oral arguments would benefit.” (Doc. 13, p. 7)
It is axiomatic that it is the petitioner or appellant's burden to ensure that the record is prepared and transmitted in accordance with the rules. Rule 9.200(e), Fla. R. App. P. In the absence of a record, a court is constrained to affirm the trial court's decision.¹ Applegate v. Barnett Bank of Tallahassee, 377 So. 3d 1150, 1152 (Fla. 1979).
Appellant now requests in the Motion that the Court allow Appellant to recreate a record in the absence of a transcript (Doc. 15, para. 13), pursuant to 9.200(b)(5) Fla. R. App. P. Therein, arguing that the trial court should have “shared such knowledge” before the brief was stricken, 3 and suggests that the Court should have sua sponte entered an order relinquishing jurisdiction to enable Appellant to pursue the development of a statement of the evidence.4 (Doc. 15, p. 3-4).
Rule 9.200(e), Fla. R. App. P. states that a party may enforce the provisions of the rule by motion. The Court must order supplementation of the record only if it finds it is incomplete. 9.200(f), Fla. R. App. P. Appellant here not only never filed such a motion to enforce this rule prior to the Court's dismissal (Doc. 14), but Appellant also repeatedly stated that there was no record. Further, the first instance of Appellant referencing the procedure outlined in 9.200(b)(5) was in Appellant's Motion for Reconsideration (Doc. 15), which is being treated as one for rehearing. Rehearings are intended to correct or address matters the court may have overlooked.
Because, the Motion is untimely, pursuant to 9.330 Fla. R. App. P., does not address matters the Court overlooked, and no motion was filed pursuant to 9.200(e), Fla. R. App. P., it is ORDERED that Appellant's Motion for Reconsideration (Doc. 15) is DENIED.
ORDERED on the date imprinted with the Judge's signature.
23-CA-016396 6/18/2024 10:51:30 Appeal number.: 23-CA-016396 Division: K L.T. Case No.: 22-TR-086279
STATE OF FLORIDA Appellee.
ORDER DISMISSING APPEAL
On December 14, 2023 the Court entered an order striking Appellant's initial brief (Doc. #10) because, among other errors, Appellant's brief (Doc. #9) failed to include any references to the record in its statement of the case and facts as required by Florida Rules of Appellate Procedure Rule 9.210(b)(3). This order (Doc. #10) further directed Appellant to submit a corrected initial brief in compliance with the rules. Appellant was forewarned in this order (Doc. #10) that failure to file and serve a brief that complies with the rules would result in dismissal of the appeal without further opportunity to be heard.
Despite this court's explicit order to include citations in the initial brief's statement of the case and facts, Appellant's amended initial brief (Doc. #13) again fails to include any references to the record in its statement of the case and facts. Although Appellant excused this second lapse with the statement that no record of the trial exists,¹ this statement is belied by the fact that the record on appeal appears on the appellate docket. (Doc. #4).2 An appellate record consists of more than a transcript.
It is therefore ORDERED that the appeal is DISMISSED in Tampa, Hillsborough County, Florida, on the date imprinted with the Judge's signature. It is further ORDERED that all pending motions in this appeal are DENIED as moot.
23-CA-016396 2/15/2024 1:30:48 Alvarez, Circuit Judge
1 Doc. #13, p.7 2 Notably, Appellant filed Directions to the Clerk for items to include in the Record on Appeal (Doc. #4, p. 38-39). Copies furnished to:
Alex Stavrou Patrick Leduc Office of the State Attorney Ian Macalister
Additional copies provided through JAWS