TIMOTHY NEMETH, APPELLANT,
v.
MARIO LUIS DE LAUEGA ET AL., APPELLEES
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Timothy Nemeth appeals from a summary judgment entered in favor of defendants in a personal injury tort action. The trial court based its ruling partly on photographic evidence, but Nemeth failed to include these essential photographs in the appellate record, preventing meaningful review.
The court affirmed the summary judgment based on the appellant's failure to provide essential photographic evidence in the appellate record. An appellant has a responsibility to provide a complete record sufficient for appellate review.
[1] An appellant bears the responsibility to provide an appellate court with a record sufficient to review the assigned errors.
[2] Photographic evidence may form the basis for a summary judgment in certain limited cases.
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Join FLexlaw to unlock all legal intelligence“The law is clear that it is the responsibility and duty of the appellant to provide the appellate court with a record sufficient to review the matter assigned as error.”
Establishes the fundamental principle that appellants bear the burden of creating an adequate appellate record
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Join FLexlaw to unlock all legal intelligenceTimothy Nemeth brought a personal injury tort action against John Duncan, Nancy Duncan, and their insurer State Farm Fire & Casualty Co. The trial cou…
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PER CURIAM.
The plaintiff Timothy Nemeth appeals from a final summary judgment in a personal injury tort action entered in favor of the defendants John Duncan, Nancy Duncan and their insurer, State Farm Fire & Casualty Co. The final summary judgment reflects that the trial court in part based its ruling on certain photographic evidence. The transcript of the hearing on the motion for summary judgment further reflects that the trial judge extensively reviewed a series of photographs pertinent to this case and specifically requested that these photographs be included in the record on appeal for our review. The appellant has failed to include these photographs in the record before us.
The law is clear that it is the responsibility and duty of the appellant to provide the appellate court with a record sufficient to review the matter assigned as error. South Florida Apartment Ass’n, Inc. v. Dansyear, 347 So. 2d 710 (Fla. 3d DCA 1977); Gleim v. Gleim, 176 So. 2d 610 (Fla. 3d DCA 1965) and cases collected. Although we have been critical of the use of photographs as a basis for entering a summary judgment, the law is equally clear that in certain limited cases photographic evidence may form the basis for a summary judgment. See: Bess v. 17545 Collins Avenue, Inc., 98 So. 2d 490 (Fla.1957); Pividal v. City of Miami, 105 So. 2d 502, 504 (Fla. 3d DCA 1958).
For failure of the appellant to include in the record on appeal the essential photographs which form in part the basis for the summary judgment herein, we have no alternative but to affirm the judgment below. South Florida Apartment Ass’n v. Dansyear, 347 So. 2d 710 (Fla. 3d DCA 1977); Reicheck v. Florida Bond & Mortgage Co., 237 So .2d 83 (Fla. 4th DCA 1970); Belfield v. Lochner, 162 So. 2d 668 (Fla. 2d DCA 1964).
Affirmed.
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Hughes v. Home Sav. OF Am., 675 So. 2d 649 (Fla. 2d DCA 1996)…ss without a hearing. There are no notices of hearing regarding Hughes’ motion to dismiss in the record. Hughes, alleges that no such notices of hearing are contained in the court file. Home Savings, in arguing this point, cites Nemeth v. De Lauega, 354 So. 2d 418 (Fla. 3d DCA 1978). In Nemeth, [*651] the party contesting the entry of summary judgment failed to include photographs in the record on appeal. It was undisputed that such photographs did exist and further that they were the basis for the entry of t…
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Povido v. Amterre Dev., Inc., 404 So. 2d 800 (Fla. 3d DCA 1981)…PER CURIAM. Affirmed. Hilgenhurst v. Knight-Ridder Newspaper, Inc., 400 So. 2d 523 (Fla.3d DCA 1981); Nemeth v. DeLauega, 354 So. 2d 418 (Fla.3d DCA 1978); Gottschalk v. Smith, 334 So. 2d 102 (Fla.3d DCA 1976), cert. denied, 341 So. 2d 1085 (Fla.1976).…
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Authorities Cited
- Bess v. 17545 Collins Ave., Inc., 98 So. 2d 490 (Fla. 1957)
- S. Fla. Apt. Ass'n, Inc. v. Dansyear, 347 So. 2d 710 (Fla. 3d DCA 1977)
- Belfield v. Lochner, 162 So. 2d 668 (Fla. 3d DCA 1964)
- Carpenter v. State, 176 So. 2d 610 (Fla. 3d DCA 1965)
- Gleim v. Gleim, 176 So. 2d 610 (Fla. 3d DCA 1965)
- Idalia Pividal v. City OF Miami, 105 So. 2d 502 (Fla. 3d DCA 1958)
- Reicheck v. Fla. Bond & Mortg. Co., 237 So. 2d 83 (Fla. 4th DCA 1970)