BRIAN RIVERA, APPELLANT,
v.
NAOMI A. HARRIS RIVERA, APPELLEE
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Brian Rivera appealed a judgment dissolving his marriage, raising two issues regarding evidence admission and the lack of a trial transcript. The appellate court affirmed, holding that absent a transcript, Rivera failed to demonstrate prejudicial error on the first issue, and that Florida Rule of Appellate Procedure 9.200(b)(4) does not require a trial court to approve a unilateral statement of evidence when the parties disagree.
The court held that Rule 9.200(b)(4) does not require a trial court to approve a unilateral statement of evidence when the parties do not agree. The rule permits approval when feasible, but does not mandate it, particularly when months have passed since trial and the parties dispute the facts. Additionally, without a transcript, Rivera failed to demonstrate prejudicial error on the evidence admission issue.
[1] An appellant cannot demonstrate prejudicial error regarding the admission of evidence without a transcript of the final hearing.
[2] Florida Rule of Appellate Procedure 9.200(b)(4) allows an appellant to prepare a statement of evidence when a transcript is unavailable, but it does not mandate court app…
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Join FLexlaw to unlock all legal intelligence“If no report of the proceedings was made, or if the transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection.”
States the procedure under Rule 9.200(b)(4) for reconstructing the record when no transcript exists
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Join FLexlaw to unlock all legal intelligenceBrian Rivera appealed a marriage dissolution judgment. No transcript of the final hearing was available. Rivera prepared a statement of evidence and s…
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KLEIN, J.
Appellant raises two issues involving the judgment dissolving his marriage. We affirm the first issue, involving the admission of evidence, because, in the absence of a transcript of the final hearing, appellant is unable to demonstrate prejudicial error. The second issue involves appellant’s attempt to address the problem created by the lack of a transcript through Florida Rule of Appellate Procedure 9.200(b)(4), which provides:
If no report of the proceedings was made, or if the transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments to it within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.
Appellant prepared a statement of evidence which he submitted to appellee for her approval, but she did not respond. Appellant then moved the court to approve his statement of the evidence, but after a hearing attended by both parties, in which the appellee did not agree, the court denied the motion, leaving appellant with no record.
Appellant argues that 9.200(b)(4) requires the court to approve a statement of the evidence for proceedings; however, we disagree. In this case, as will often be the case, the appellant’s motion for the court to approve the statement of the evidence was filed months after the case was tried. Expecting a trial judge to confirm the details of a trial, months and numerous other intervening trials later, where the parties do not agree, is not realistic.
Rule 9.200(b)(4), by its terms can be used where there was no court reporter in attendance, or there was a court reporter but the transcript cannot be obtained. The rule is of little practical use in the former situation, because a prevailing party at a trial which was not reported has no incentive to cooperate and therefore make it easier for the nonprevailing party to appeal. That is precisely what happened in this case. If a trial judge is able to approve a unilateral statement, the judge should do so, but the rule does not require it. Affirmed.
MAY, J., and HOROWITZ, ALFRED J., Associate Judge, concur.
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Kriebel v. Nathalie Piedrahita, 219 So. 3d 867 (Fla. 4th DCA 2017)…2 (Fla. 1979). At the same time, and as we have noted in the past, “[ejxpecting a trial judge to confirm the details of a trial, months and numerous other intervening trials later, where the parties do not agree, is not realistic.” Rivera v. Rivera, 863 So. 2d 489, 490 (Fla. 4th DCA 2004). In this case too, it was unrealistic for Kriebel to expect confirmation of her eleven-page statement of the evidence, especially more than five months after the evidentiary hearing. However, to the judge’s credit, the cour…
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Woliner v. Wilmington Sav. Fund Soc'y (Fla. 4th DCA 2024)…the clerk of the lower tribunal in the record. Fla. R. App. P. 9.200(b)(5). Mandamus is not appropriate because the trial court has no ministerial duty to approve Woliner’s statement of the evidence, which respondent opposed. See Rivera v. Rivera, 863 So. 2d 489, 490 (Fla. 4th DCA 2004) (holding that a trial court is not required to approve a statement of the evidence). Many other cases recognize that a trial court is not required to approve a statement of the evidence. Schmidt v. Schmidt, 997 So. 2d 451,…
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Edman v. Carlene Edman (Fla. 4th DCA 2025)
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