SOUTHEAST BANK, N.A., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JEANNE P. BISSMEYER, DECEASED, ROGER J. BISSMEYER, INDIVIDUALLY AND AS GUARDIAN OF JAMES A. BISSMEYER, CLAIRE B. TIBERIO, AND CAROL B. GRAHAM, APPELLANTS,
v.
DAVID A. STEVES, P.A., A FLORIDA PROFESSIONAL CORPORATION, DINSMORE & SHOHL, AN OHIO PROFESSIONAL CORPORATION, AND FINLEY, KUMBLE, WAGNER, HEINE, UNDERBERG, MANLEY, MYERSON AND CASEY, A PROFESSIONAL CORPORATION, APPELLEES
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The appellate court affirmed the trial court's order because the appellants failed to provide a transcript of the hearing, thus failing to demonstrate error.
Appellants appealed an order awarding attorneys' fees. They did not provide a transcript of the hearing where the order was made.…
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PARKER, Judge.
Southeast Bank, N.A., as personal representative of the estate of Jeanne P. Biss-meyer, decedent, and Roger Bissmeyer, individually, and as guardian of three children of the decedent, appeal from a final order awarding attorneys’ fees to the appellees pursuant to Florida Probate Rule 5.100.
Because this court was not furnished with a transcript of the hearing which generated the order being challenged in this appeal, appellants have failed to demonstrate a basis for reversal in the record, and we must affirm therefor. As this court recently stated in In re Guardianship of Georgina H. Read No. 89-00174 (Fla. 2d DCA Oct. 27,1989) [14 F.L.W. 2518]:
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, 377 So. 2d 1150 (Fla.1979). Mr. Read did not meet this burden. The hearing was not reported by a court reporter, and the appellant did not attempt to furnish us with a stipulated statement of facts as a permissible substitute for a transcript of the evidence. Fla.R.App.P. 9.200(b)(4). Where there is no record of the testimony of witnesses or of evidentiary rulings and where a statement of the record has not been prepared, a judgment which is not fundamentally erroneous on its face must be affirmed. [Citations deleted.]
Slip op. at p. 4.
While Florida Rule of Appellate Procedure 9.200(f)(2) does provide that “[i]f the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record,” that rule is inapplicable under the circumstances of this case where there is a complete lack of a transcript of the record below or of a statement of the proceedings pursuant to Florida Rule of Appellate Procedure 9.200(b)(3). See Carter v. Carter, 504 So. 2d 418 (Fla. 5th DCA 1987).
Affirmed.
SCHEB, A.C.J., and RYDER, J., concur.
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Filmore Chaiken and Robert T. Tenen v. Suchman, 694 So. 2d 115 (Fla. 3d DCA 1997)…g the amount of attorney’s fees, this Court has jurisdiction. Next, the defendant argues that because there is no transcript of the hearing on the motion for attorney’s fees, this Court must affirm. See Southeast Bank, N.A. v. David A Steves, P.A., 552 So. 2d 292, 293 (Fla. 2d DCA 1989); Ahmed v. Travelers Indem. Co., 516 So. 2d 40 (Fla. 3d DCA 1987); E.H. Dev., Inc. v. Kelly Tractor Co., 501 So. 2d 1301 (Fla. 4th DCA 1986). Without a transcript, appellate courts cannot usually determine what issues were eit…
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Giltex Corp. v. Diehl, 583 So. 2d 734 (Fla. 1st DCA 1991)…wise require affirmance, this rule is not applicable in this case because the trial court’s order is fundamentally erroneous on its face for failure to make the express findings required by Rowe. Southeast Bank, N.A. v. [*736] David A. Steves, P.A., 552 So. 2d 292, 293 (Fla. 2d DCA 1989). Appellee’s further contention, that the acceptance by appellant of the benefits of the judgment requires affirmance, was rejected by this court when it denied appellee’s motion to dismiss, filed before consideration of this…
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Shep Harris, Jr. v. Zenoria T. McKINNEY, 20 So. 3d 400 (Fla. 2d DCA 2009)…se the trial court’s order is fundamentally erroneous on its face for failure to make the express findings required by Rowe.” 583 So. 2d at 735. As support for this conclusion, the First District cited Southeast Bank, N.A. v. David A. Steves, P.A., 552 So. 2d 292, 293 (Fla. 2d DCA 1989), in which this court quoted from In re Guardianship of Read, 555 So. 2d 869, 871 (Fla. 2d DCA 1989), as follows: “ ‘Where there is no record of the testimony of witnesses or of evidentiary rulings and where a statement of the…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Carter v. Carter, 504 So. 2d 418 (Fla. 5th DCA 1987)