TONY LAVON WAITES
v.
FRANK MIDDLETON, SR. AND ROSA M. MIDDLETON
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An unapproved statement of the evidence cannot serve as a substitute for a trial transcript, and when no transcript exists and no approved statement is in the record, the appellate court must affirm the trial court's judgment.
[1] An appellate court cannot properly resolve underlying factual issues to conclude a trial court's judgment is unsupported without an adequate record of trial proceedings.
[2] A trial court's decision is presumed correct on appeal, and the burden rests on the appellant to demonstrate error.
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Join FLexlaw to unlock all legal intelligence“Thereafter, the statement and any objections or proposed amendments shall be filed with the lower tribunal for settlement and approval.”
Court quoting Florida Rule of Appellate Procedure 9.200(b)(5) to emphasize the mandatory nature of trial court approval of statements of evidence
Appellant appealed from a circuit court judgment without providing a trial transcript. Instead, he submitted a statement of the evidence that was neve…
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA _____________________________
No. 1D19-414 _____________________________
TONY LAVON WAITES,
Appellant,
v. FRANK MIDDLETON, SR. and ROSA M. MIDDLETON,
Appellees.
_____________________________
On appeal from the Circuit Court for Escambia County. J. Scott Duncan, Judge.
September 10, 2020
PER CURIAM.
“In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.” Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). The supreme court in Applegate went on to declare:
Without a record of the trial proceedings, the appellate court . . . [cannot] properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.
Id. (alteration added).
In Applegate, there was neither a transcript of the proceedings, nor “a proper substitute.” Id. The supreme court viewed the combination of those omissions as “fatally flawing the appellate court’s ruling.” Id.
Similarly, in the present case, there is no transcript of the hearing. But Appellant claims his “proper substitute” is his statement of the evidence filed pursuant to Florida Rule of Appellate Procedure 9.200(b)(5). He relies on Ham v. Nationstar Mortgage, LLC, 164 So. 3d 714 (Fla. 1st DCA 2015), for the proposition that Applegate does not apply when a statement of the evidence has been prepared and submitted. In Ham, however, the record before this Court consisted of an “approved statement of the evidence.” Id. at 716.
In contrast, Appellant’s statement of the evidence was never approved by the trial court. Appellant’s claim that Appellees “waived” approval by not submitting objections to Appellant’s proposed statement ignores the unmistakable requirement of the rule: “Thereafter, the statement and any objections or proposed amendments shall be filed with the lower tribunal for settlement and approval.” Fla. R. App. P. 9.200(b)(5) (emphasis added).
Because Appellant’s statement of the evidence was not approved by the trial court, this case is indistinguishable from Burke v. Burke, 864 So. 2d 1284 (Fla. 1st DCA 2004), in which this Court held that where “[n]o trial transcript was submitted in the record on appeal and the ‘statement of evidence’ submitted by the former husband was not agreed to by the parties, nor approved of by the trial court,” the statement “must” be rejected for failure to comply with the rule. Id. at 1284 (citing Walt v. Walt, 596 So. 2d 761 (Fla. 1st DCA 1992) (finding that the “statement of evidence” purportedly reflecting evidence presented at a child custody hearing would be rejected on appeal where the statement was not fully agreed to by the adverse party’s counsel and had not been approved by the trial court)). Furthermore, as was true in Burke, because no fundamental error of law appears on the face of the instant final judgment, this Court must affirm. Id. at 1284-85 (citing Lafaille v. Lafaille, 837 So. 2d 601, 604 (Fla. 1st DCA 2003)).
AFFIRMED.
B.L. THOMAS, WINOKUR, and JAY, JJ., concur.
_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
_____________________________
Michael R. Rollo of Michael R. Rollo, P.A., Pensacola, for Appellant. Artice L. McGraw of Artice L. McGraw, P.A., Pensacola, for Appellees.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thurman v. Davis (Fla. 1st DCA 2021)…ed to a consideration of any fundamental error which appears on the face of the order’” and, finding none, must affirm the final judgment. Carney v. Carney, 861 So. 2d 1272, 1273–74 (Fla. 1st DCA 2003) (citation omitted); accord Waites v. Middleton, 302 So. 3d 1082 (Fla. 1st DCA 2020). Additionally, the lack of a transcript or a proper substitute “frustrates” a harmless error analysis conducted under section 59.041, Florida Statutes. Klette v. Klette, 785 So. 2d 562, 563–64 (Fla. 1st DCA 2001) (“Here appellant…
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Thurman v. Davis (Fla. 1st DCA 2021)…ed to a consideration of any fundamental error which appears on the face of the order’” and, finding none, must affirm the final judgment. Carney v. Carney, 861 So. 2d 1272, 1273–74 (Fla. 1st DCA 2003) (citation omitted); accord Waites v. Middleton, 302 So. 3d 1082 (Fla. 1st DCA 2020). Additionally, the lack of a transcript or a proper substitute “frustrates” a harmless error analysis conducted under section 59.041, Florida Statutes. Klette v. Klette, 785 So. 2d 562, 563–64 (Fla. 1st DCA 2001) (“Here appellant…
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Thurman v. Davis (Fla. 1st DCA 2021)…ed to a consideration of any fundamental error which appears on the face of the order’” and, finding none, must affirm the final judgment. Carney v. Carney, 861 So. 2d 1272, 1273–74 (Fla. 1st DCA 2003) (citation omitted); accord Waites v. Middleton, 302 So. 3d 1082 (Fla. 1st DCA 2020). Additionally, the lack of a transcript or a proper substitute “frustrates” a harmless error analysis conducted under section 59.041, Florida Statutes. Klette v. Klette, 785 So. 2d 562, 563–64 (Fla. 1st DCA 2001) (“Here appellant…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Walt v. Walt, 596 So. 2d 761 (Fla. 1st DCA 1992)
- HAM v. Nationstar Mortg., LLC, 164 So. 3d 714 (Fla. 1st DCA 2015)
- Eddy Lafaille v. Lafaille, 837 So. 2d 601 (Fla. 1st DCA 2003)
- Burke v. Burke, 864 So. 2d 1284 (Fla. 1st DCA 2004)