Without a transcript of a hearing or trial, an appellate court cannot provide meaningful review of many of the issues that are disputed in an appeal. In the absence of a transcript, the appellate court cannot evaluate the sufficiency of evidence, analyze the reasoning of the trial judge, or determine if proper arguments or objections were made to preserve a claim for appeal.
The seminal Florida case on this issue is Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). In Applegate, the Florida Supreme Court noted that in appellate proceedings, the decision of a trial court has the presumption of correctness. Therefore, the appellant has the burden to demonstrate reversible error. Thus, if the issue on appeal involves underlying questions of fact, the reviewing court is being asked to draw conclusions about the evidence. In the absence of a transcript or a proper substitute, the appellate court cannot resolve underlying factual issues, nor can it conclude that the trial judge improperly applied the law to the facts.
The Applegate case has been cited by Florida’s appellate courts more than 1,400 times since it was issued in 1979. Thus, Florida’s attorneys and judiciary continue to grapple with the consequences of the failure to bring a court reporter to a proceeding.
However, appellate review is possible under certain circumstances even if there is no transcript. Most significantly, an appellate court can reverse an order if fundamental error appears on the face of the order. This usually involves situations where the trial court is required to make specific findings in its order.
Also, an appellate court can usually review a summary judgment order in the absence of the transcript. By rule, summary judgment evidence must be filed in advance of the hearing. Appellate review of a summary judgment motion is a question of law subject to de novo review. Thus, the appellate court usually has the same information before it as the trial court did. A major limitation, however, is that any arguments made orally at the hearing, but not included in the written motion or opposition, are not preserved if there is no transcript.
Finally, Florida Rule of Appellate Procedure 9.200(b)(5) allows a party to “prepare a statement of the evidence or proceedings from the best available means.” The statement can be based upon the party’s recollection. However, such a statement must either be stipulated to by the parties, or settled and approved by the trial court. In practice, it is rare for the parties to reach sufficient agreement to be able to successfully prepare a statement of the evidence or proceedings.
Therefore, if any issue being heard in the trial court could potentially result in an appealable issue, it is wise to have the proceedings recorded by a court reporter.