by Amy L. Miles
Preserving the record for appeal is a crucial aspect of the litigation process. In seminars and in law articles, attorneys are frequently instructed on how to ensure that if and when error occurs, the issue is preserved for appeal. Preservation is important because an appellate court will presume that a trial court’s decision is correct until the party challenging that decision shows otherwise.1 Without a record to demonstrate that error, an appeal will almost certainly result in an affirmance.2 The rare exception to this principle is when the order on appeal demonstrates reversible error on its face.3
Preserving the issue on appeal requires, among other things, making specific and timely objections, proffering excluded evidence on the record, and obtaining definitive rulings on motions and objections.4 Even taking all of these steps, however, to ensure that there is an accurate record will be ineffective when no court reporter recorded the proceedings and when no transcript can be made for the appellate court to review. The absence of a court reporter not only at trial, but at any hearing — especially where evidence is presented — is a detriment that is difficult to overcome when a party finds the need to appeal the trial court’s decision.
The Florida Rules of Appellate Procedure provide a method by which a party can attempt to overcome the lack of record evidence or of a transcript in order to obtain appellate review of an erroneous decision.5 Although far from ideal, Rules 9.200(a)(4) and (b)(4) permit a party to provide the appellate court with a stipulated statement of the record or with a statement of the evidence, recreated by the parties.
Rule 9.200(a)(4): A Stipulated Statement in Lieu of the Record
Rule 9.200(a) describes the content of the record on appeal that is to be transmitted to the appellate court for review. The rule provides that the clerk of the trial court will transmit a record consisting of “the original documents, exhibits, and transcript(s) of proceedings, if any, filed in the lower tribunal, except summonses, praecipes, subpoenas, returns, notices of hearing or of taking deposition, depositions, other discovery, and physical evidence.”6 Depending on the issue on appeal, a party — within 10 days of filing the notice of appeal — may make a special direction to the clerk to include additional documents or to exclude certain documents or exhibits in the record.7 If the appellant directs less than the entire record, “the appellant shall serve with such direction a statement of the judicial acts to be reviewed.”8 The appellee then has 20 days to respond with directions to the clerk “to include additional documents and exhibits.”9
Rule 9.200(a)(4) allows the parties to dispose of having the trial court record transmitted and instead to prepare a stipulated statement, which the clerk of the trial court transmits to the appellate court in lieu of the record on appeal. The rule requires that the statement show “how the issues to be presented arose and were decided in the lower tribunal.”10 The parties must attach “a copy of the order to be reviewed and as much of the record in the lower tribunal as is necessary to a determination of the issues to be presented.”11 They are to notify the clerk “of their intention to rely on a stipulated statement in lieu of the record as early in advance of filing as possible,” and file the statement in the trial court “within the time prescribed for transmittal of the record” to the appellate court.12 Preparing the stipulated statement requires the cooperation of both parties, but the rule does not explicitly require that the stipulated statement be approved by the trial court before being filed and transmitted to the appellate court.
Rule 9.200(b)(4): A Statement of the Evidence in the Record on Appeal
The appellate rules also provide for transcripts of the proceedings — which may not always have been transcribed by the time the notice of appeal is filed — to be designated, transcribed, and included in the record before it is transmitted to the appellate court.13 On those occasions in which the proceedings were not reported or a “transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection.”14
The rule specifically outlines the procedure an appellant must follow to enable it to submit its statement of the evidence to the appellate court. After preparing the statement, the appellant must serve it on the appellee, who then “may serve objections or proposed amendments to it within 10 days of service.”15 The appellant then submits “the statement and any objections or proposed amendments” to the trial court “for settlement and approval.”16 Once the statement of the evidence is approved, it “shall be included by the clerk of the lower tribunal in the record.”17
Under certain circumstances, the ability to prepare a stipulated statement rather than to transmit an entire trial record — or to create a statement of the evidence if the parties did not hire a court reporter and obtain a transcript — may be the only means by which the appellate court can review the record associated with an appeal. Unexpected complications can thwart even the most diligent of parties, and transcripts can be destroyed, lost, and become otherwise unrecoverable. Rules 9.200(a)(4) and (b)(4) provide a means by which parties can get the trial record to the appellate court for review when all other avenues fail.
Just because a party can, however, does not mean it should rely on these methods of providing a record. Providing a stipulated statement or a statement of the evidence does not guarantee that the appellate court will accept the submission as being sufficient enough to afford appellate review.18 Depending on the circumstances, the appellate court may or may not allow an appellant a second opportunity to provide a sufficient statement before affirming the order on appeal.
Risks of Replacing a Nonexistent Transcript
A trial court’s decision enjoys a “presumption of correctness” in the appellate court.19 When a claim of error comes before it, the appellate court must have a record that provides it enough information to review the evidence and the issues and to determine whether the trial court erred.20 Only when the order on appeal or the record clearly reflects error on its face is the appellate court able to conduct a review without a transcript of the proceedings or a complete record on appeal.21 In some cases, the lack of a transcript can be solved by including specific, factual findings in the order to be reviewed.
Otherwise, the appellant bears the burden to provide a record to the court.22 Although a statement of the evidence can suffice, the difficulties an appellant may encounter in producing that statement may result in the appellate court finding the record insufficient for review and affirming the order on appeal.
The statement of evidence must be more than a mere “recitation of the final judgment.”23 It should include a thorough summary of the evidence presented in the trial court, the arguments the parties made, the trial court’s rulings, and its reasoning for those rulings.24 It must show the “factual context” of the case “as presented to the lower court.”25 If the statement of evidence does not meet these requirements, the appellate court will affirm, even if the appellant’s brief recites uncontradicted facts indicating that the trial court erred.26
Once the appellant has prepared its statement, the appellee has the opportunity to object or provide amendments to the statement.27 The appellee cannot simply ignore the appellant’s statement of the evidence, then object to it at a later time.28 Even with no official record of the proceedings, the appellee still has a “duty to assist in the preparation of the record and thus insure that the appeal be decided on its merits.”29 On motion of the appellant, the First District Court of Appeal has relinquished jurisdiction and directed the appellee to “file specific objections and proposed amendments (if any) to [a]ppellant’s statement of the proceedings” when the appellant objected to the statement by only a motion to strike in the trial court.30
When the appellee has made its objections, the appellant submits the statement — with appellee’s objections or amendments — to the trial court to settle any disputes and approve the statement.31 Merely filing the statement with the clerk of the trial court does not comply with the rule.32 If the court never actually approves the statement, the result may be an affirmance from the appellate court based on the lack of an adequate record to review. The appellant must be proactive and may need to set the matter for hearing in the trial court in order to ensure that the court actually rules on and approves the proposed statement. The trial court has concurrent jurisdiction with the appellate court to resolve these procedural matters up until the record on appeal is transmitted to the appellate court.33
An appellant should not file its brief without resolving outstanding record issues, as the appellate rules require briefs to contain specific citations to the record on appeal.34 The appellant must also abide by the time requirement for obtaining an approved statement. The statement must be filed within the time for transmittal of the record, or within 110 days of the filing of the notice of appeal in civil appeals.35 If additional time is needed, the appellant should advise the trial court clerk and appellate court of the status of the proceedings and obtain an appropriate extension from the appellate court.
The trial court is not required to expend heroic efforts to assist the parties in reconstructing the evidence, especially when the lack of a transcript is due to the parties’ failure to provide a court reporter in the first place.36 If the trial court cannot remember the proceeding or is otherwise unable to settle the parties’ disputes, the appellate court deems the evidence incomplete and inadequate for review and has “no alternative but to affirm the judgment below.”37 The appellate court, which is empowered only to review, and which was not present when the evidence was originally received, cannot resolve any evidentiary dispute between the parties.38
Even if the statement of the evidence is settled and approved by the trial court, the appellate court may still find that the statement provides an insufficient basis for review.39 When it does, the most likely outcome is that the court will issue an affirmance of the order on appeal.40 Occasionally, on its own motion and pursuant to Florida Rule of Appellate Procedure 9.200(f)(2), the appellate court will give the appellant a second chance and direct it to file a sufficient statement of the evidence.41
Under exceptional circumstances, when the lack of a transcript was due to reasons outside of the appellant’s control — such as erased transcription tapes — the appellate court may remand for a hearing de novo in order to create an adequate record for appeal.42 It is important to note that in each case when the appellate court granted a new trial or hearing de novo for the purpose of reconstructing the missing record, not only did a circumstance exist beyond the parties’ control that caused the transcript to be unavailable, but the parties also informed the appellate court that they were unable to produce statement of the evidence pursuant to Rule 9.200(b).43 When the parties made no attempt to create a statement of the evidence, even though the court reporter’s notes had been stolen, the appellate court was not persuaded by the appellant’s “excuse for not exercising this available remedy.”44 Again, it is important to remember that the appellant must be proactive in seeking relief and must fulfill its obligation to provide a complete record on appeal.
Florida’s appellate rules provide a remedy if the available record on appeal is insufficient to provide a proper review. Even so, overcoming the difficulties of creating a complete statement of the proceeding, obtaining the cooperation of and coming to an agreement with the appellee, and relying on the trial court’s ability to recall the proceeding and settle the statement makes the remedy tenuous at best. Then, when the statement has been settled and approved, the appellate court still may find it insufficient for review. The best approach is to be proactive and preventative. Knowing that error happens, having a court reporter present during all proceedings is the best way to preserve the record for appeal. “If a case is worthy of litigating, the testimony adduced at trial should be reported and transcribed for the appellate court to have a record for consideration if any appeal is deemed necessary.”45
1 Harrison v. Harrison, 909 So. 2d 318, 319 (Fla. 2d D.C.A. 2004) (noting that the appellate court must presume that the “trial court’s decision is correct unless the appellant provides the appellate court with a record that is sufficient to evaluate the appellant’s contentions of error”).
2 See, e.g., Morgan v. Pake, 611 So. 2d 1315, 1316 (Fla. 1st D.C.A. 1993) (noting the court was “constrained to affirm” when appellants “failed to include in the record on appeal” all the evidence before the trial court when it made its decision).
3 Chirino v. Chirino, 710 So. 2d 696, 697 (Fla. 2d D.C.A. 1998) (“[T]he absence of a transcript does not preclude reversal where an error of law is apparent on the face of the judgment.”).
4 See, e.g., Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010) (noting a “party must make a timely, contemporaneous objection at the time of the alleged error,” stating the legal ground for the objection, to preserve an error for appellate review); L.B. v. State, 10 So. 3d 1161, 1162 (Fla. 3d D.C.A. 2009) (stating that a party must proffer what the excluded testimony would have been to preserve the issue of admissibility for appellate review); Simpson v. State, 3 So. 3d 1135, 1146 (Fla. 2009) (“[F]ailure to obtain a ruling on a motion fails to preserve the issue for appeal.”).
5 Fla. R. App. P. 9.200(a) and (b).
6 Fla. R. App. P. 9.200(a)(1).
7 Fla. R. App. P. 9.200(a)(3).
10 Fla. R. App. P. 9.200(a)(4).
13 Fla. R. App. P. 9.200(b).
14 Fla. R. App. P. 9.200(b)(4).
18 Starks v. Starks, 423 So. 2d 452, 453 (Fla. 1st D.C.A. 1983) (finding the stipulated statement, signed by counsel for both parties, insufficient to substitute for a hearing transcript, even when the appellant’s uncontradicted statement of facts indicated that the trial court may have erred).
19 Applegate v. Barnett Bank, 377 So. 2d 1150, 1152 (Fla. 1979) (“In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.”).
20 Harrison, 909 So. 2d at 319.
21 Soto v. Soto, 974 So. 2d 403, 404 (Fla. 2d D.C.A. 2007) (finding the statement of the evidence to be insufficient, but reversing the trial court’s order that was erroneous on its face); Reinoso v. Fuentes, 932 So. 2d 536, 537 (Fla. 3d D.C.A. 2006) (finding a transcript of the hearing was not required when the record clearly reflected the procedural error in question).
22 Fla. R. App. P. 9.200(e); Corallo v. Fla. Dep’t of Children & Family Servs., 971 So. 2d 966, 967 (Fla. 3d D.C.A. 2008).
23 Soto, 974 So. 2d at 404.
24 Starks, 423 So. 2d at 453.
25 Id. at 453-54.
26 Id. at 453.
27 All-Brite Aluminum, Inc. v. Desrosiers, 626 So. 2d 1020, 1021 n.1 (Fla. 2d D.C.A. 1993) (outlining the steps required by Rule 9.200(b)(4), and describing how the trial court settled the parties’ differences to produce a sufficient statement of the evidence).
28 Kuenstler v. Andreasen, 386 So. 2d 896, 897 (Fla. 1st D.C.A. 1980) (recognizing that the rule “requires [a]ppellee to make specific objections and proposed amendments (if he has any)”).
31 All-Brite Aluminum, Inc., 626 So. 2d at 1021 n.1.
32 Bei v. Harper, 475 So. 2d 912, 915 (Fla. 2d D.C.A. 1981) (noting, on rehearing, that by filing the statement with the clerk, appellant failed to comply with the rule).
33 Fla. R. App. P. 9.600 (a); see also Fla. R. Civ. P. 1.540 (permitting the trial court to correct clerical mistakes in judgments “or other parts of the record”…“[d]uring the pendency of an appeal . . . before the record on appeal is docketed in the appellate court”); Lurs v. State, 394 So. 2d 137, 139 (Fla. 5th D.C.A. 1981).
34 See Fla. R. App. P. 9.210(b)(3) (requiring the Initial Brief statement of the case and of the facts to contain “[r]eferences to the appropriate volume and pages of the record”); see also Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829, 830 (Fla. 1st D.C.A. 1989) (striking a brief that contained inadequate citations to the record on appeal); Dowell v. Sunmark Ind., 521 So. 2d 377, 378-79 (Fla. 2d D.C.A. 1988) (sanctioning counsel for failing to supply, among other things, proper citations to the record after multiple motions by appellee and orders by the court).
35 See Fla. R. App. P. 9.110(e) (“Within 50 days of filing the notice [of appeal], the clerk shall prepare the record prescribed by [R]ule 9.200 and serve copies of the index on all parties. Within 110 days of filing the notice, the clerk shall transmit the record to the court.”); see also Rule 9.140(f)(1) (regarding similar time deadlines in criminal appeals).
36 Hast v. Scarp, 366 So. 2d 402, 403 (Fla. 1978) (commenting that requiring the trial court to “search beyond his memory to reconstruct a record” would result in a “mini-trial conducted solely to determine what transpired at the original proceeding”); see also Wright v. Wright, 431 So. 2d 177, 178 (Fla. 5th D.C.A. 1983) (observing the trial court was able to settle only “certain factual disputes” where the appellant’s request to settle the statement came more than five months after the hearing).
37 Wright, 431 So. 2d 177, 178 (Fla. 5th D.C.A. 1983).
38 Wood v. Fla. Unemployment Appeals Comm’n, 525 So. 2d 340, 341 (Fla. 1st D.C.A. 1988) (“[T]his court has no function in preparation and approval of the statement of evidence or proceedings.”).
39 Soto, 974 So. 2d at 404; O’Byrne v. Miller, 965 So. 2d 316, 317 (Fla. 2d D.C.A. 2007); Bei, 475 So. 2d at 914 (finding a statement of the evidence, to which there was no objection and the trial court approved, was inadequate).
40 O’Byrne, 965 So. 2d at 317; Starks, 423 So. 2d at 453.
41 Bei, 475 So. 2d at 914 (directing appellant to file a more complete statement of the evidence); Hu v. Crockett¸ 426 So. 2d 1275, 1277 (Fla. 1st D.C.A. 1983) (noting that the court had afforded the appellant an opportunity to file a transcript or a statement of the evidence where the record on appeal was insufficient, and commending counsel for both parties for working together to provide an adequate statement for review). Fla. R. App. P. 9.200(f)(2) provides “If the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined, because of an incomplete record, until an opportunity to supplement the record has been given.”
42 See Acrocrete v. Derck, 935 So. 2d 594, 594 (Fla. 1st D.C.A. 2006) (portion of transcript missing); Special Disability Trust Fund v. Sch. Bd., 550 So. 2d 566, 567 (Fla. 1st D.C.A. 1989) (inaudible transcription tapes); Moser v. Dep’t of Labor & Employment, 450 So. 2d 582, 582 (Fla. 1st D.C.A. 1984) (inadvertently erased transcription tapes); J.E. v. State, 404 So. 2d 845, 846 (Fla. 5th D.C.A. 1981) (mislaid or erased transcription tapes).
43 See Acrocrete, 935 So. 2d at 594; Special Disability Trust Fund, 550 So. 2d at 567; Moser, 450 So. 2d at 582; J.E., 404 So. 2d at 846.
44 D’Angelo v. D’Angelo, 655 So. 2d 1262, 1263 (Fla. 4th D.C.A. 1995).
45 Bei, 475 So. 2d at 915 (citing Gordon v. Burke, 429 So. 2d 36, 37 (Fla. 2d D.C.A. 1983)).
Amy L. Miles graduated cum laude from Stetson University College of Law. She served as staff attorney for Judge Douglas Wallace, Second District Court of Appeal. Miles is an associate at McCumber, Daniels, Buntz, Hartig & Puig, P.A., in Tampa. Her practice focuses on civil appeals and trial support.
This column is submitted on behalf of the Appellate Practice Section, Raoul G. Cantero III, chair, Kristin A. Norse, editor, and Brandon Christian, assistant editor.