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HELP! I DIDN’T GET A COURT REPORTER… CAN I STILL APPEAL?

Believe it or not, this is a common question that comes up time and time again. You have a hearing, you get a ruling that you didn’t anticipate and you immediately think… I NEED TO APPEAL! However, there is one big snafu – and that is – you didn’t hire a court reporter so there is no record of the proceeding. The question then becomes – with a panicky smack to the head - Did I blow the appeal because I don’t have a transcript of the proceeding?

Unfortunately, your initial panic is generally correct, because in many cases the failure to provide a transcript of the underlying proceeding to the appellate court is usually fatal to the appeal. Miller v. Balcanoff, 566 So. 2d 1340, 1342 (Fla. 1st DCA 1990). However, depending on what the issue was before the trial court, you may still be able to save your appeal without a transcript.

COMMON SCENARIOS WHERE YOU CAN STILL APPEAL WITHOUT A TRANSCRIPT

If the trial court determined a pure issue of law, a transcript, although still helpful to the appellate court, is not required for appellate review. Bockoven v. Bockoven, 444 So. 2d 30, 33 (Fla. 5th DCA 1983) (the appellate court did not require the transcript of the proceeding, because the question before the court was primarily a question of law and not a question of fact). Thus, if your hearing concerned a pure question of law – you can appeal without having a transcript. As such, transcripts are not required for appeals from a motion for summary judgement, because the hearings consist largely of argument of counsel and not the taking of evidence. Seal Prods. v. Mansfield, 705 So. 2d 973, 975 (Fla. 3d DCA 1998) (motion for summary judgment hearings consist of legal argument of counsel, and not the taking of evidence, accordingly, it is not necessary to procure a transcript of the hearing, although it is helpful to do so). However, with all hearings on motions for summary judgment, it is wise to obtain a court reporter to preserve objections and arguments that may be made to the trial court which are outside of the argument contained in the written motions. See Zarate v. Deutsche Bank Nat’l Trust Co., 81 So. 3d 556, 557-58 (Fla. 3d DCA 2012) (in absence of the record of the summary judgment hearing it was unknown as to whether objections were made to the trial court, and thus, the appellate court assumed that the trial court decided the issue correctly).

Also, if the judgment or order in question is fundamentally erroneous on its face, a transcript will not be required and the appellate court may take review. Holmes v. Holmes, 578 So. 2d 323, 324 (Fla. 4th DCA 1991)

But what happens when the trial court did take evidence? Can you still appeal without the all-important transcript?

THE TRIAL COURT DETERMINED AN ISSUE OF FACT

If the trial court determined an issue of fact, in all likelihood, the appellate court will dismiss your appeal. This is because “in appellate proceedings, the decision of the trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.” Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). Without a transcript, the appellate court will presume that the trial court’s finding of fact following an evidentiary hearing are correct. Peters Machinery Corp. v. Blairsville Machine Products Co., 413 So. 2d 802 (Fla. 3d DCA 1982); Crusaw v. Crusaw, 637 So. 2d 949, 950 (Fla. 1st DCA 1994). Under the same reasoning, where witness testimony is taken, a transcript will be needed for appellate review. Ahmed v. Travelers Indem. Co., 516 So. 2d 40, 40 (Fla. 3d DCA 1987). Thus, any time where witness testimony is taken or the trial court determines an issue of fact, a court reporter should be hired.

WHETHER THE ISSUE WAS PRESERVED FOR APPELLATE REVIEW

Additionally, if a defense on appeal is whether the issue was properly preserved for appellate review - for example, whether an objection was made - a transcript will be required. See Balsam v. South Palm Beach Fin. Corp., 695 So. 2d 1267, 1268 (Fla. 4th DCA 1997) (a lack of the transcript prevents the appellate court from determining whether the issue was properly preserved by objection below). Accordingly, even if you win the hearing, you may need a transcript to properly defend the trial court’s holding.

WHEN THE DEFENSE OF HARMLESS ERROR IS ASSERTED

Again, a transcript will be needed when you allege the defense of harmless error on appeal. The appellate courts are clear that in order to make the defense of harmless error on appeal, a transcript or statement of the proceedings is required for the appellate court to review. Lewis v. Lewis, 807 So. 2d 777, 778 (Fla. 1st DCA 2002).

ONE LAST CHANCE TO RECREATE THE RECORD WITHOUT A TRANSCRIPT

Fla. R. App. P. 9.200(b)(4) provides a safe guard which allows you to reconstruct the underlying proceeding when no report of the proceedings was made or a transcript is unavailable. This procedure allows you to prepare a statement of the evidence or proceedings from “the best available means,” which includes your own recollection. Once drafted, the statement must be served on opposing counsel, who can then object or serve proposed amendments within ten days of service. Thereafter, the statement and any objections or proposed amendments must be filed with the trial court for settlement and approval. Once the factual disputes are settled and approved by the trial court, the statement shall be included by the clerk as part of the record on appeal. See Chisholm v. Chisholm, 538 So. 2d 961, 962-63 (Fla. 3d DCA 1989).

However, there is a steep hurdle to obtaining the statement – opposing counsel must approve of it or if there are disagreements, the trial court must settle the factual disputes. Schmidt v. Schmidt, 997 So. 2d 451, 451-452 (Fla. 2d DCA 2008).  If the trial court does not approve it, the statement cannot be used to replace the transcript and you are back to square one – an inadequate record and dismissal of the appeal. Id. Moreover, you may be able to obtain an approved statement from the trial court, but only to find that the appellate court rejects the statement as inadequate and dismisses the appeal for lack of an adequate record. O’Byrne v. Miller, 965 So. 2d 316, 317 (Fla. 2d DCA 2007). There are also time restraints on preparing the statement, and therefore, the approved statement must be made a part of the record before the clerk transmits the record on appeal to the appellate court. See Thomas v. Thomas, 498 So. 2d 668, 669 (Fla. 5th DCA 1986).  Simply put, it ends up being cheaper, less time consuming, and less stressful to simply hire a court reporter rather than trying to recreate the record via a statement of the proceeding after the fact.

THE HARD LESSON LEARNED

Of course, to avoid the question of whether you can appeal without a transcript in the first place, it is always smart to err on the side of caution and hire a court reporter for any hearing that has an iota of importance to your case. Some examples of when the question of “Should I hire a court reporter?” has been posed are hearings relating to entitlement and reasonableness of prevailing party attorney’s fees and costs, hearings regarding whether a privilege is applicable to discovery requests (i.e. “cat out of the bag” discovery hearings), and hearings where testimony and evidence are being taken, but the client’s budget is tight. In those scenarios, always hire the court reporter – it is easier to be safe now rather than sorry later. As eloquently stated by the Florida Supreme Court: “It is the duty of the parties to a lawsuit to properly establish and preserve the record on appeal. Conversely, it is they who must suffer the consequences, not the court, when this duty is no fulfilled.” Haist v. Scarp, 366 So. 2d 402, 404 (Fla. 1978).

 

** Disclaimer ** The intent of this article is to provide general information as to when an attorney can proceed on appeal when there is no transcript of the underlying proceeding, and it is by no means a complete dissertation on this subject and is not intended to as a substitute for obtaining legal advice from an appellate attorney. As every attorney knows, each case is unique and it is advised to seek appellate counsel should an appeal be necessary and a transcript is lacking.