TRANS-CONTINENTAL FINANCE CORPORATION, PETITIONER,
v.
RAYMOND BAXTER, RESPONDENT
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A Florida appellate court reviews a Circuit Court's affirmance of a County Court judgment based on an incomplete appellate record. The court holds that under current appellate rules, a lower appellate court must give parties an opportunity to supplement an incomplete record before deciding the merits of an appeal.
Yes. An appellate court may not decide an appeal on incomplete records without first giving the appellant a reasonable opportunity to supplement the record. The current Florida Rule of Appellate Procedure 9.200(f)(2) requires that if a record is incomplete, the court must direct a party to supply the omitted parts before determining the proceeding.
[1] An appellate court must provide a party the opportunity to supplement an incomplete record before determining an appeal based on that deficiency.
[2] A circuit court, acting in its appellate capacity, departs from the essential requirements of law by affirming a judgment without affording the appellant an opportunity t…
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Join FLexlaw to unlock all legal intelligence“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 the record is incomplete until an opportunity to supplement the record has been given.”
This establishes the mandatory procedural requirement under Florida Rule of Appellate Procedure 9.200(f)(2) that appellate courts must provide parties an opportunity to supplement incomplete records before deciding cases.
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Join FLexlaw to unlock all legal intelligencePetitioner Trans-Continental Finance Corporation appealed a County Court judgment to the Circuit Court of Lake County. The Circuit Court affirmed the …
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[*1290] ORFINGER, Judge.
Petitioner requests that we issue a writ of certiorari addressed to the Circuit Court of Lake County which, while sitting as an appellate court, affirmed a judgment of the County Court except as to a portion thereof not questioned in these proceedings.
The Circuit Court’s affirmance was based on the fact that, although a transcript of the trial proceedings could have been made available on appeal, no such transcript was made a part of the appellate record. Thus the court concluded that:
[t]he law is quite clear that an appellate court cannot speculate on the ruling of the trial court and the appellate court will have no choice but to uphold the trial court if an adequate record is not presented on appeal.
citing Lyden v. DePiera, 147 So. 2d 573 (Fla. 3d DCA 1963). The court then denied a petition for rehearing and a motion for leave to supplement the record.
The reference in Lyden to the procedure outlined in Moyer v. Moyer, 114 So. 2d 638 (Fla. 3d DCA 1959), makes it appear that no transcript could be made available there. But irrespective of that observation, the present appellate rules no longer support that conclusion where a proper record can be made available to the reviewing court. Florida Rule of Appellate Procedure 9.200(f)(2) says:
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 the record is incomplete until an opportunity to supplement the record has been given. (emphasis added).
Petitioner is not entitled to a second appeal and in order to prevail, it must demonstrate that the circuit court, acting in its appellate capacity, exceeded its jurisdiction or departed from the essential requirements of law in its order or proceedings. McGuire v. Nelson, 388 So. 2d 42 (Fla. 5th DCA 1980). As in McGuire, the circuit court never reached the merits of the appeal because it failed to provide petitioner, as appellant, the opportunity to supplement the record before reaching its conclusion.1 By not giving the petitioner the opportunity to have its appeal decided on the merits, the circuit court departed from the essential requirements of law. McGuire, supra.
The order of the circuit court is quashed and the cause is remanded with directions to afford appellant a reasonable opportunity to supplement the record by including therein such portions of the trial proceedings as the circuit court deems essential to a decision on the merits of the appeal.
Order QUASHED and REMANDED.
DAUKSCH, C. J., and SHARP, J., concur. . As pointed out in the committee notes to Rule 9.200, Florida Rules of Appellate Procedure, the portion of the Rule alluded to here was not intended to cure deficiencies resulting from the failure to make a record in the lower tribunal, but to give the parties the opportunity to have the appellate proceedings decided on the record before the lower tribunal. See R. W. King Construction Co., Inc. v. City of Melbourne, 384 So. 2d 654 (Fla. 5th DCA 1980), and cf, Fuquay v. State, 386 So. 2d 1314 (Fla. 5th DCA 1980).
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The Paul Revere Life Ins. Co. v. Kahn, 873 So. 2d 595 (Fla. 3d DCA 2004)…quash the circuit court order with instructions to grant an extension to June 20, 2004. This Petition is unopposed. It is fundamentally unfair to require a party to prepare a brief without a transcript. Cf. Trans-Continental Fin. Corp. v. Baxter, 402 So. 2d 1289, 1290 (Fla. 5th DCA 1981). Perhaps the circuit court’s order is its response to our decision in United Auto. Ins. Co., v. Total Rehab & Med. Ctr., 870 So. 2d 866 (Fla. 3d DCA 2004) (en banc), wherein we held that it was improper to dismiss an appeal…
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Weisberg v. Wegener, 487 So. 2d 1210 (Fla. 4th DCA 1986)…Opinion PER CURIAM. We grant the petition for writ of certio-rari, quash the order dismissing appellant’s appeal and remand this cause for further proceedings on the authority of Trans-Continental Finance Corp. v. Baxter, 402 So. 2d 1289 (Fla. 5th DCA 1981). There is considerable confusion in the record as to the status of the appeal at the time it was dismissed. It appears that dismissal was ordered before the appellant had an opportunity to prepare a record or to demonstrate that…
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Christman v. N.M.C.R., Inc., 993 So. 2d 601 (Fla. 4th DCA 2008)…w, having failed to comport with Florida Rule of Appellate Procedure 9.200(f)(2). See generally, Coulombe v. State, 837 So. 2d 506 (Fla. 5th DCA 2003); Weisberg v. Wegener, 487 So. 2d 1210 (Fla. 4th DCA 1986); Trans-Continental Fin. Corp. v. Baxter, 402 So. 2d 1289 (Fla. 5th DCA 1981); McGuire v. Nelson, 388 So. 2d 42 (Fla. 5th DCA 1980); Favors v. City of Tampa, 246 So. 2d 172 (Fla. 2d DCA 1971). The opinion of the circuit court is quashed and the case is remanded with directions to afford petitioners an oppo…
Authorities Cited
- Moyer v. Moyer, 114 So. 2d 638 (Fla. 3d DCA 1959)
- Lydem v. Lilia Rojas DePIERA and Henri F. Withington and Gladys Withington, 147 So. 2d 573 (Fla. 3d DCA 1962)
- McGUIRE v. Nelson, 388 So. 2d 42 (Fla. 5th DCA 1980)
- R. W. King Constr. Co., Inc. v. City OF Melbourne, 384 So. 2d 654 (Fla. 5th DCA 1980)
- van Fuquay v. State, 386 So. 2d 1314 (Fla. 5th DCA 1980)