Friday, October 5, 2012

5th DCA Opinion Regarding Attempt To Require Appellant To Pay To Supplement Record

In Fay v. Craig (5D12-3224), the Fifth District released an opinion denying the Appellee's "Motion To Compel Appellant To Order A Complete Trial Transcript." The court stated that "She purports  to base her motion  on Florida Rule of Appellate Procedure 9.200(f)(2), contending that the partial transcript designated by Appellant is insufficient to address the issues on appeal.  Because we have recently experienced an increased number of similar  motions, and in an effort to curb this particular practice and conserve this Court’s resources, we have determined that a published opinion is warranted."

Rule 9.200(f)(2) was promulgated in 1977 with the avowed intent to ameliorate the harsh consequences to an appellant when the court’s decision to affirm is based on an incomplete record or transcript...This rule prohibits a court from disposing of a case based on an incomplete record “until an opportunity to supplement the record has been given.” The relief Appellee seeks—to compel Appellant to designate the entire transcript for inclusion in the record—is not available under this rule, especially at this procedural juncture before the briefing period ends.  
The appellate rules do not require the filing of the entire trial transcript; rather, the appellant need only file portions of the transcript “deemed necessary.”....Indeed, depending on the issue(s), an appeal may proceed on the merits with a partial transcript or no transcript at all....
Our decision to deny the motion should not be viewed as a determination that Appellant has met his burden  to furnish the necessary record.  To a large extent appellants proceed at their peril when they furnish a partial transcript. ...Courts often conclude that the “opportunity” to supplement the record afforded by rule 9.200(f) (2) is waived or deemed satisfied when a litigant fails to promptly seek to supplement the record after notice is given of a perceived deficiency.


Post a Comment