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.
- Partner
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 ...
Search Blog
Follow Us
Recent Posts
- Florida’s New Statutory Home Warranty: What Home Builders Need to Know
- Orange County Proposes Temporary Suspension Ordinance on New Development Applications
- SECURE 2.0 and Protecting Your Designated Beneficiaries
- Florida Appellate Court Provides Further Guidance Regarding New Summary Judgment Rule
- SEC Adopts New Cybersecurity Rules
- From 😊 to 💼: Can Emojis Create a Legally Binding Contract?
- HB-3: An Overview of ESG Factors Relating to Public Funds Investment and Financial Industry Impacts
- The Live Local Act Part 2 - Affordable Housing Incentives
- Florida's Live Local Act
- Taking an Appeal to Florida’s New Sixth District Court of Appeal? Three Local Rules You Need to Know
Popular Categories
- Business of Real Estate
- Real Estate Law
- Construction
- Construction Litigation
- Development/Land Use
- Landlord-Tenant
- Trusts and Estates
- Appeals
- Contracts
- Litigation
- Litigation (Appellate)
- Business
- Foreclosures
- Florida Government Contracts
- Property Tax
- Estate planning
- Supreme Court
- Conveyances
- Appellate Blog
- Cyber fraud
- Technology
- Lease
- Wealth planning
- Government
- Florida Bid Protests
- Government Contracts
- Business
- Insurance
- Proposal Writing
- Public Bidding
- Public Contracts
- GAO
- Restrictive Covenants
- Grant Writing
- Bid Protest
- Title
- Cybersecurity
- Data Security
- Promissory Notes
- Construction
- Regulatory Compliance
- Liens and encumbrances
- Creditor's Rights
- Government Contracting
- Florida Public Contracts
- Small Business
- Bidding
- Compliance
- Americans with Disabilities Act
- Federal Government Contracting
- Florida Administrative Law
- Public procurement
- Ad Valorem Assessments
- Attorneys' Fees
- Florida Rules of Appellate Procedure
- Florida Procurement
- Bankruptcy
- Eviction
- Mortgages
- Record on Appeal
- Rehearing
- Loan guaranties
- Attorneys' Fees
- Employment and Labor
- Litigation (Labor & Employment)
- Consumer Protection
- Regulation
- Maritime
- Briefing
- Request for Proposal
- Commercial Brokerage
- Bid Writing
- Florida Bidding Strategies
- Renewal
- Florida Public Procurement
- Attorneys' Fees
- Florida County Lands
- Florida Economic Incentive Packages
- Jury Instructions
- Stay
- Certiorari
- email hacking
- Assignment of Contract
- Assignment of Proceeds
- State Government Contracts
- Lis Pendens
- Appellate Jurisdiction - Deadlines
- Federal Rules of Appellate Procedure
- Finality
- Preservation
- Technology
- Evidence
- Expert
- Federal Supply Schedule
- Florida Public Records Law
- Government Vendor
- Mootness
- Public Private Partnership
- Socio-Economic Programs
- Sunshine Law
- Veteran Owned Business
- Homestead
- Partnerships and LLCs
- Standing
Editors
- Of Counsel
- Partner
- Partner
- Partner
- Partner
- Associate
- Partner
- Partner
- Partner
- Partner
- Partner
- Associate
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Of Counsel
- Senior Associate
- Associate
- Partner
- Partner
Archives
- June 2024
- May 2024
- November 2023
- August 2023
- July 2023
- June 2023
- May 2023
- January 2023
- December 2022
- October 2022
- September 2022
- July 2022
- June 2022
- March 2022
- February 2022
- January 2022
- December 2021
- October 2021
- September 2021
- August 2021
- July 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- October 2020
- September 2020
- July 2020
- June 2020
- April 2020
- March 2020
- February 2020
- January 2020
- October 2019
- August 2019
- July 2019
- May 2019
- April 2019
- March 2019
- February 2019
- November 2018
- October 2018
- July 2018
- June 2018
- May 2018
- March 2018
- February 2018
- January 2018
- December 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016