Any Florida appellate attorney worth their salt is familiar with the Applegate line of cases requiring the appellate court to affirm the judgment on appeal when the appellant has not provided a record adequate to demonstrate reversible error. Although it may be tempting to rely on such caselaw when your opponent fails to provide the appellate court with a transcript from a summary judgment hearing, you should think twice before doing so. Here’s why.
The Applegate line of cases generally applies when the issue on appeal involves underlying factual issues that would require the reviewing court to draw conclusions about the evidence. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). The Florida Supreme Court explained that the trial court’s decision should have been affirmed because, without a trial transcript, the appellate court could not “properly resolve the underlying factual issues so as to conclude that the trial court’s judgment [was] not supported by the evidence or by an alternative theory.” Id.
By contrast, a transcript is often unnecessary to review the entry of summary judgment. The Third District Court of Appeal has explained the rationale behind this principle as follows:
Where the appeal is from a summary judgment, the appellant must bring up the summary judgment record, that is, the motion, supporting and opposing papers, and other matters of record which were pertinent to the summary judgment motion. Those are the portions of the record essential to a determination whether summary judgment was properly entered. However, the hearing on the motion for summary judgment consists of the legal argument of counsel, not the taking of evidence. Consequently, it is not necessary to procure a transcript of the summary judgment hearing, although it is permissible and often helpful to do so.
Seal Prods. v. Mansfield, 705 So. 2d 973, 975 (Fla. 3d DCA 1998) (citation omitted); accord Gonzalez v. Chase Home Fin. LLC, 37 So. 3d 955 (Fla. 3d DCA 2010) (reversing summary judgment and explaining that hearing transcript was unnecessary where appellant relied on opposing affidavit submitted to trial court).
Where the opposing papers are not in the record, however, a transcript of the summary judgment hearing should be provided to the appellate court. Zarate v. Deutsche Bank Nat’l Tr. Co., 81 So. 3d 556, 557 (Fla. 3d DCA 2012) (affirming summary judgment where appellant filed no papers or affidavits opposing the motion and provided no hearing transcript; explaining that since “the record contains no transcript of the summary judgment hearing at which such issues should and could have been raised . . . we do not know if [the appellant] argued these concerns at the hearing or if any objection was made to the court’s consideration of the issues”); see also Rose v. Clements, 973 So. 2d 529, 530 (Fla. 1st DCA 2008) (affirming summary judgment where reviewing court could not “determine on what basis, if any, Appellant argued against the motion for summary judgment because the hearing” was not transcribed).
In sum, the answer to the question, “do I need to provide the appellate court with a transcript of a summary judgment hearing” is more nuanced than it appears at first glance. One cannot blindly rely on Applegate and its progeny, but instead must assess whether opposing papers, such as affidavits, verified pleadings, and legal memoranda, were submitted to the trial court below and included in the record on appeal.
Amy Wessel Jones is a Partner in the Fort Lauderdale office of Shutts & Bowen LLP, where she is a member of the Appellate Practice Group.
Amy is board certified in Appellate Practice by the Florida Bar. She represents clients in a wide ...
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