SHAW
v.
SHAW
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.
In this appellate case, Brisbane appeals a final judgment entered against her in a non-jury trial against K.N.N. Check Cashing. The court affirmed the lower court's decision, holding that without a trial transcript, the appellate court must presume the trial judge's credibility determinations were correct and supported by competent evidence.
The appellate court cannot substitute its judgment for that of the trial court in evaluating witness credibility and must affirm the trial court's judgment when no trial transcript has been provided. The appellate court is required to give utmost credence to the trial judge's fact findings and assume the best imaginable evidence supported them.
[1] An appellate court must give utmost credence to a trial court's fact findings and assume the existence of the best imaginable evidence to support them when no transcript…
[2] An appellate court lacks the authority to set aside a trial judge's decision and is required to affirm when the appellant has not provided a transcript of the trial testi…
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“It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it.”
Establishes the core principle that appellate courts cannot second-guess a trial judge's witness credibility determinations
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBrisbane sued K.N.N. Check Cashing. The case proceeded to a non-jury trial before a trial judge. Brisbane presented testimony from herself and three w…
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Before POWELL, M. SMITH, and GRINCEWICZ, J.J.
PER CURIAM.
FINAL ORDER AFFIRMING LOWER COURT
Appellant/plaintiff Brisbane appeals from a final judgment entered in favor of appellee/defendant K.N.N. Check Cashing following a non-jury trial.
From a review of their pro se briefs, it can be seen that the only issue in this appeal involves the credibility (believability) of the witnesses, that is to say, who the trial judge believed– Brisbane and her three witnesses or the two witnesses representing K.N.N. Check Cashing. “It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it.” Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976). The appellate court can, however, review whether there was substantial competent evidence to support the judge’s decision if the appellant has provided a transcript of the testimony presented to the trial judge. Id. But where, as in this case, an appellant has not provided such a transcript, the appellate court “must give utmost credence to his fact findings, and assume there was the best imaginable evidence available to support them.” Hudson Pest Control, Inc. v. Westford Asset Mgt. Inc., 622 So. 2d 546, 547 (Fla. 5th DCA 1993). Thus, where no transcript has been provided, the appellate court has no authority to set aside the trial judge’s decision and is required to affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979); see generally 3 Fla. Jur 2d Appellate Review §§334-338.
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that the trial court’s Final Judgment is AFFIRMED.
DONE AND ORDERED at Orlando, Orange County, Florida, this __17___day of
_______August___________________, 2009.
_________/s/___________________
ROM W. POWELL Senior Judge
_________/s/_____________________
________/s/____________________ MAURA T. SMITH DONALD E. GRINCEWICZ Circuit Judge
Circuit Judge CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. mail or hand delivery to Lucy Brisbane, 4233 Gaither Street, Orlando, Florida 32811 and K.N.N Check Cashing, 4119 South Orange Blossom Trail, Orlando, Florida 32839 on this __17____day of ______August______________, 2009.
_______/s/_____________________
Judicial Assistant
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Citator
Authorities Cited
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)
- Hudson Pest Control, Inc. v. Westford Asset Mgmt., Inc., 622 So. 2d 546 (Fla. 5th DCA 1993)