SUE MILLS, APPELLANT,
v.
LILLIAN S. HEENAN, APPELLEE

Fla. 5th DCA | 1980-04-23
No. 78-1656/T4-172
DAUKSCH, C. J., and COBB, J., concur.
382 So. 2d 1317 Florida District Court of Appeal, Fifth District (1980) Positive Treatment
Cited by 28 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.


Holding

The appellate court affirmed the trial court's order because the appellant failed to provide an adequate record to demonstrate error and the issues may be moot.


Headnotes

[1] An appellate court will not determine a controversy where the issues have become moot.

[2] The findings and judgment of a trial court are presumed correct and may not be disturbed on appeal absent a record demonstrating errors of law.

Previewing 2 of 4 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

Facts & Procedural History

The trial court granted a petition to enjoin burial in Florida and permit removal of a body to New York. The appellate court had no record of the proc…

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.


Opinion of the Court
UPCHURCH, Judge.

UPCHURCH, Judge.

This is an appeal from an order granting the petition of appellee, Lillian S. Heenan, to enjoin the burial of her sister Kathleen Heenan within the State of Florida and to permit removal of the body to New York.

Two questions were presented by this appeal:

1. Whether the trial court erred in entering an order in favor of appellee within seventeen hours of filing the complaint.

2. Whether the trial court erred in entering an order permitting the sister to remove the body instead of permitting the natural mother control over the burial of her daughter. The proceeding in the lower court was not reported and there has been no stipulated statement of facts as permitted by Florida Rules of Appellate Procedure 9.200(a)(3). The record on appeal consists only of the pleadings and the order appealed.

It is apparent from the briefs that the parents of the dead girl are divorced. The sister, appellee, and the natural father, who was not a party, desired burial in New York. The body was transported soon after entry of the order and, we assume, has rested in New York for more than six months.

The findings and judgment of the trial court come to the appellate court clothed with a presumption of correctness and may not be disturbed upon appeal in the absence of a record demonstrating errors of law. White v. White, 306 So. 2d 608 (Fla. 1st DCA 1975). It is the duty of appellant to bring before the appellate court a record adequate to support his appeal. Pierson v. Sharp, 283 So. 2d 880 (Fla. 4th DCA 1973). Both parties appeared before the trial court. We have nothing before us on which to base a determination that the trial court acted erroneously.

While in most instances seventeen hours notice of suit is grossly inadequate to enable the opposing party to respond and defend, it is not universally so. The very fact that the trial court held a hearing upon such short notice indicates to us that it was a matter of urgency.

In addition, an appellate court will not determine a controversy where issues have become moot. DeHoff v. Imeson, 153 Fla. 553, 15 So. 2d 258 (1943). The efficacy of our reversal of the trial court’s order at this date is at best questionable. While we are not unsympathetic with appellant’s grief and her desire to have her daughter buried close by, the same desire would naturally apply for the sister. The wisdom of disturbing the resting place of this girl, even if our order was enforceable, is also questionable.

This case was before this court on January 15,1980 for oral argument, and we then expressed doubt whether the points raised could be reached without a record. Counsel for appellant asked for time to attempt to reach a stipulated factual statement. An order was entered granting the parties to February 15, 1980 to submit a statement of facts on which they could agree. On January 30, 1980 appellant moved for a continuance until March 1, 1980. This was denied because of movant’s failure to comply with Florida Rules of Appellate Procedure .9.300(a).1

Motions for extension of time have been and will continue to be summarily denied by this court when the moving party fails to comply with the requirement of the rule to contact opposing counsel and to state whether he agrees or objects to an extension. We have observed that the provisions of this rule are ignored by the Bar practicing before us as often as followed and we take the opportunity to call to their attention the necessity of compliance before a motion for extension will be considered.

AFFIRMED.

DAUKSCH, C. J., and COBB, J., concur. . Contents of Motion; Response. Unless otherwise prescribed by these rules, an application for an order or other relief available under these rules shall be made by filing a motion therefor. The motion shall state the grounds on which it is based, the relief sought, argument in support thereof and appropriate citations of authority. A motion for an extension of time shall, and other motions where appropriate may, contain a certificate by the mov-ant’s counsel that he has consulted opposing counsel and that he is authorized to represent that opposing counsel either has no objection or will promptly file an objection. A motion may be accompanied by an appendix, which may include affidavits and other appropriate supporting documents not contained in the record. A party may serve one response to a motion within 10 days of service of the motion. The court may shorten or extend the time for response to a motion. Fla.R.App.P. 9.300(a).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (14 total)

  • Wright v. Huretta Moss Wright, 431 So. 2d 177 (Fla. 5th DCA 1983)
    …tain factual disputes. It is well established that the findings and judgment of the trial court comes to the appellate court with a presumption of correctness and may not be disturbed in the absence of a record demonstrating error. Mills v. Heenan, 382 So. 2d 1317 (Fla. 5th DCA 1980). It is equally well established that the burden is on the appellant to bring before the appellate court a record adequate to support his appeal. Id. We believe that a statement of evidence as provided in rule 9.200(b)(3) may be s…
  • Kauffmann v. Baker, 392 So. 2d 13 (Fla. 4th DCA 1980)
    …t 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, we choose not to follow it and instead adopt the Fifth District’s rationale in Mills v. Heenan, 382 So. 2d 1317 (Fla. 5th DCA 1980). The appellant retains the burden of overcoming the presumption of correctness attributed to a trial court’s final judgment. Appellant’s burden includes a demonstration of error from the record, which he must supply. Litigants wh…
  • ALL Am. Soup & Salad, Inc. v. Colonial Promenade, 652 So. 2d 911 (Fla. 5th DCA 1995)
    …uate to support his or her appeal); Pertz v. Zohar, 556 So. 2d 459 (Fla. 2d DCA 1990) (absent an appropriate record for review by appellate court, appellant must demonstrate that trial court order is fundamentally erroneous); accord Mills v. Heenan, 382 So. 2d 1317, 1318 (Fla. 5th DCA 1980). The Tenant’s contention that its written closing argument is a “proper substitute” for a transcript of the trial court proceedings is without merit. AFFIRMED. HARRIS, C.J., and DAUKSCH, J., concur.…

Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw