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f
In a per curium decision handed down yesterday by Florida's Fourth District Court of Appeals, we are reminded that an appellant can even LOSE a case when the other side fails to SHOW UP and answer the appeal when the appellant fails to follow the Appellate Rules and present the Court with a transcript and record.

The decision is in the case 3L Real Estate, LLC v. U.S. Bank, N.A.:

3L Real Estate, LLC v. U.S. Bank, N.A., No. 4D11-1988 (Fla. 4th Dist. 2012)

http://www.4dca.org/opinions/Feb%202012/02-01-12/4D11-1988.op.pdf


At first, the per curium affirmance of the trial court decision appears curious, since the decision shows "No appearance for appellees."

How does an Appellant LOSE a case when the Appellee FAILS TO MAKE AN APPEARANCE AND FILE A BRIEF IN OPPOSITION TO THE APPEAL?

There are two clues. 

First, we are advised that this is an "Appeal of a non-final order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County".

Most non-final orders are not appealable at all.

The second and better clue is the court's citation of this case in support of its decision without further elaboration:

Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979)

http://scholar.google.com/scholar_case?case=18038473446461037528


In Applegate, there was no trial transcript.  From the decision:
"The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error. E.g., South Florida Apartment Association, Inc. v. Dansyear, 347 So.2d 710 (3d DCA Fla. 1977); Strickland v. Lewis, 328 So.2d 244 (1st DCA Fla. 1976); Troutman v. Couture, 98 Fla. 889, 124 So. 443 (1929).  See also cases cited above for conflict."

If there is a hearing or trial, make sure that there is a court reporter present.  Make a written request for a court reporter.

 

If going up on appeal, make sure to obtain the record and transcript and to pay for these to be prepared and presented to the court of appeal.  Without a record, YOU LOSE.

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Bill
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If going up on appeal, make sure to obtain the record and transcript and to pay for these to be prepared and presented to the court of appeal.  Without a record, YOU LOSE.

I think this also shows that just because someone is an attorney does NOT mean they are correct, they know and follow the rules, or have any idea what they are doing.  

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Jonathan J. Alfonso of Wesoloski Carlson, P.A., Miami, for appellant

This should give EVERYONE pause before they decide just to copy Internet pleadings/motions EVEN IF PREPARED BY AN ATTORNEY.  Their arguments and motions can be WRONG.  You have to do the research.
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George Burns

So the Supreme Court, without a transcript of the Appeals Court proceedings, ruled that the Appeals Court was wrong to rule against the Trial Court without having a transcript of the Trial Court proceedings. Or did I miss something?

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f
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So the Supreme Court, without a transcript of the Appeals Court proceedings, ruled that the Appeals Court was wrong to rule against the Trial Court without having a transcript of the Trial Court proceedings. Or did I miss something? 


Trial court decisions are entitled to some deference.  An appellant has the responsibility of assembling and paying for the Clerk's record and reporter's record (transcript) in most jurisdictions.

When the appellant fails to present a proper record of the proceedings in the court below, then the appellate court cannot usually reach a valid decision to disturb or reverse the trial court's judgment.

In Applegate, the Supreme Court found that it was error for the intermediate appellate court to second guess the trial court without a transcript.

The moral of the story is to make sure that a record is taken and make sure that on appeal the appellate court is presented with an adequate record upon which to consider the appellate issues.
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Hi All

In what states are court hearings and or trials not recorded?  MARS maybe?

In NJ every hearing, trial, traffic court case is recorded.

I would also think that all courts are now required to record the proceeding's not only for additional judiciary review but because of OPRA open public records act law etc..

It would be interesting to hear about courts that are still not recording the procedure...

Best regards

Acesfull
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Ray

Quote:
In NJ every hearing, trial, traffic court case is recorded.

I would also
think that all courts are now required to record the proceeding's not only for
additional judiciary review but because of OPRA open public records act law
etc..

It would be interesting to hear about courts that are still not
recording the procedure... 

 

Aces

 

You are showing your ignorance.  It is very common for there to be no court reporter or recording of proceedings in a wide variety of courts nationally, but especially inferior courts.

 

For example, just across the Delaware River from you in Pennsylvania, it is quite common for there to be no record kept in District Justice cases.  A record in these cases is mostly unnecessary as any appeal is typically tried de novo in the Commonwealth's Common Pleas Court.  In other words, it is not as if the next higher court is going to look at the record and overrule the District Court.  The matter is simply going to be tried all over again.

 

Similarly, in the Court of Common Pleas in Philadelphia County, some matters under a certain dollar threshold are first heard before an arbitration panel.  This is a panel of lawyers rather than judges.  Again, no record is kept.  An appeal of the arbitration panel's decision is to the Common Pleas Court and is also tried de novo.  Since the Common Pleas Court isn't going to look at the record before the panel, no record is really necessary. 

 

If this sounds at all unjust, it still serves a rather useful function.  For smaller cases, the trial before an arbitration panel serves as a bit of a preview, sharpening exposition of the issues.  It is also a reality check for both the plaintiff and defendant.  The decision of an arbitration panel may very often promote a voluntary settlement between adversaries who better realize the uncertainties of their cases, avoiding trial altogether.

 

The lowest level courts, Justice Courts, Justices of the Peace, etc., are often small and informal.  In some states, the district justice or justice of the peace is an elected position and the justice is often not required to have a law license.

 

Few foreclosure cases begin in these courts, but they bear mention as it is probably less common for there to be a recorder in these courts than for one to be present.  It is simply uneconomic, particularly where court rules provide for de novo appeals anyway.

 

Similarly, there often exist some range of hearings or matters that are so informal that a record is not taken.  For example, in many jurisdictions pre-trial conferences, including mediation conferences and docketing conferences are conducted without a reporter.  Similarly, when argument takes place in chambers, the court reporter might follow the attorneys into chambers or not.  This varies by jurisdiction, court and situation.  In some jurisdictions, summary judgment proceedings are also done without the presence of a recorder.  Realize that there is no oral testimony taken at a summary judgment hearing anyway.

 

For many pre-trial matters, any ruling by the court is going to be an interlocutory order anyway and these orders are usually not appealable until a final order is entered.  Appellate courts are very deferential to most of these decisions, even if there is a record.

 

Occasionally, there are hearings on matters that appear to the court to be informal.  Even where a judge has a reporter available, the judge might dispense with taking a record.

 

There is actually a compelling reason for the judge to do this where taking a record is discretionary.  Often, when a record is taken the appellate court may be more likely to overturn the judge's rulings.  When there is no record, the appellate court will very often be more deferential to the trial court's decision.

 

At the outset of a hearing, if the judge has not had a court reporter in place, it would tend to be incumbent on the parties to request that a court reporter transcribe the hearing.  As with so many issues, if neither party requests or demands a reporter, the issue is usually waived.  

 

While most judicial foreclosures would tend to take place in courts where there is a regular court reporter, it does not follow that a court reporter will transcribe every hearing.

 

I am not familiar with statutes or court rules in New Jersey.  Perhaps your assertion that all courts in NJ have court reporters is correct. I have no information to refute your assertion.  But I seriously doubt that a court reporter transcribes ALL NJ hearings.  There are probably some matters that are deemed so informal that a court reporter is not present unless requested.  If you are a licensed NJ attorney in regular practice and are speaking from knowledge and experience, I would concede that you are right.  If you are a pro se litigant and are guessing, I suggest that you check your facts, because you may be mistaken.  If you are correct, it is probably because NJ is one of the most densely populated states in the U.S.  Almost all other states including both Pennsylvania and New York have areas which are much more rural.

 

I think that f's post is a useful one.  The presence of a court reporter is one other matter to add to a checklist.  If this doesn't apply to you, then please do not ridicule f for his helpful post!

 

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Scott

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At the outset of a hearing, if the judge has not had a court reporter in place, it would tend to be incumbent on the parties to request that a court reporter transcribe the hearing.  As with so many issues, if neither party requests or demands a reporter, the issue is usually waived


While most judicial foreclosures would tend to take place in courts where there is a regular court reporter, it does not follow that a court reporter will transcribe every hearing. 

 

Ray's discussion above would seem to generally be a correct statement as to the law in Texas, at least in the recent past.

 

Texas law regarding court reporters is set forth within the Texas Government Code at Section 52.046:

 

Sec. 52.046.  GENERAL POWERS AND DUTIES. 

(a)  On request, an official court reporter shall:

(1)  attend all sessions of the court;

(2)  take full shorthand notes of oral testimony offered before the court, including objections made to the admissibility of evidence, court rulings and remarks on the objections, and exceptions to the rulings;

(3)  take full shorthand notes of closing arguments if requested to do so by the attorney of a party to the case, including objections to the arguments, court rulings and remarks on the objections, and exceptions to the rulings;

(4)  preserve the notes for future reference for three years from the date on which they were taken;  and

(5)  furnish a transcript of the reported evidence or other proceedings, in whole or in part, as provided by this chapter.

(b)  An official court reporter of a district court may conduct the deposition of witnesses, receive, execute, and return commissions, and make a certificate of the proceedings in any county that is included in the judicial district of that court.

(c)  The supreme court may adopt rules consistent with the relevant statutes to provide for the duties and fees of official court reporters in all civil judicial proceedings.

(d)  A judge of a county court or county court at law shall appoint a certified shorthand reporter to report the oral testimony given in any contested probate matter in that judge's court.


Acts 1985, 69th Leg., ch. 480, Sec. 1, eff. Sept. 1, 1985.

 

See http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.52.htm#52.046 

So what happens when a reporter is not requested?  The Texas Supreme Court explains:

"We are not persuaded that Minns satisfied the Rule's requirement that he show he was without fault in the loss of the notes and records.  The duty to protect the record does not spring into being only at the conclusion of trial, when the appellant begins the steps to perfect an appeal.  At every stage of the proceedings in the trial court, litigants must exercise some diligence to ensure that a record of any error will be available in the event that an appeal will be necessary.  For example, the Texas Government Code does not require reporters to automatically record every proceeding, but provides that the court reporter will take notes of testimony "on request." Tex.Gov't Code § 52.046(a)(2) (1988).  A litigant who fails to request that the reporter record pretrial proceedings risks waiver of any complaint with respect to error occurring during those proceedings.  See, e.g., Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992) (orig. proceeding) (discovery hearing); 4M Linen & Uniform Supply Co. v. W.P. Ballard & Co., 793 S.W.2d 320, 322-23 (Tex.App.—Houston [1st Dist.] 1990, writ denied) (hearing on plea in abatement); Christie v. Price, 558 S.W.2d 922, 923 (Tex. Civ.App.—Texarkana 1977, no writ) (plea of privilege)."

Piotrowski v. Minns, 873 S.W.2d 368, 370-71, 37 Tex. Sup. Ct. J. 264 (Tex. 1993)

http://scholar.google.com/scholar_case?case=4275685673880204492 

 

While I am not aware of the extent to which this is an issue in other states, Ray's post seems to make sense and I would encourage Forum participants to check the law of their jurisdiction as suggested by f and not to rely on the uninformed post by Acesfull.

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Walt

First, I want to thank f for posting this case and starting this thread.  In my view, it is very useful.

 

I also believe that both Ray's and Scott's posts are thoughtful and generally correct.

 

In Texas, some judges, especially in rural areas have long used a trick to dispose of contested cases in which a pro se borrower comes to court.  When a contested matter involving a pro se litigant comes up for hearing or trial, the judge delay the matter until the end of the session and then will announce a brief recess and then send the court reporter on break or to early lunch.

 

At the end of the recess, the court resumes, but without the reporter.

 

While all Texas attorneys know the scam, the pro se litigant doesn't.  The hearing resumes without the court reporter and the pro se litigant is too clueless to notice or object.

 

The judge then rules for the party represented by an attorney.  The matter can rarely be appealed, because the pro se litigant waived the absence of a reporter and failed to preserve any issues for appeal.

 

Even if the pro se litigant objects, when the pro se litigant shows up alone and is in a court room that now contains only the judge, the opposing attorney and a bailiff or clerk (but no reporter), it is almost impossible for the pro se litigant to prove that any objection was made.  

 

This suggests two rules for pro se litigants.  First, always object when no reporter is present.  Second always bring one or more trustworthy friends to witness a proceeding.

 

This having been said, things are no longer quite as bad in Texas as they once were.  And the case Scott cites is probably no longer controlling Texas law.  See, for example, Michiana Easy Livin' Country, Inc. v. Holten, a more recent Texas Supreme Court case:

 

Michiana Easy Livin' Country, Inc. v. Holten, No. 04-0016, 168 S.W.3d 777, 2005 Tex. LEXIS 420, 48 Tex. Sup. J. 789 (Tex. 2005)
http://scholar.google.com/scholar_case?case=9826411752686864447

 

I would encourage pro se litigants everywhere to take f's post to heart, check the statutes, rules and cases for your jurisdiction and to always request that a record be kept.  When there is no court reporter present, assume the worst, but be polite and persistent in requesting that a record be taken. 

 

Thanks Ray and Scott for your thoughtful posts!

 

Acesfull:  Be careful about giving advice about the law when your knowledge is so limited.  It might be better to listen and learn rather than pretending to teach on subjects where you really do not know what you are talking about.

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Chuck

Although the opinion is silent as to the reason that a transcript wasn't furnished to the Court of Appeals, the recent Connecticut appellate decision in Carmichael v. Stonkus reflects the challenge when an Appellant fails to present the appellate court with a transcript:

"The defendant, as the appellant, bears the burden to provide this court with an adequate record and has failed to do so.  See Practice Book § 61-10.  In   the present case, the defendant has failed to provide any record of the court's reasoning in severing the cross complaint from the foreclosure case.  The defendant did not provide a transcript of the April 14, 2010 hearing.  For this reason, we are precluded from reaching the issue of whether the court properly exercised its discretion in severing the cross complaint.  The record is inadequate for our review of this claim.  See Sinnott v. Sinnott, 44 Conn. App. 153, 154, 687 A.2d 556 (1997)."

Carmichael v. Stonkus, No. AC 32549, 2012 Conn. App. LEXIS 51 (Conn. App. 2012)

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Unregistered
Friday  10 February 2012


Bystander Notes!  Bystander Notes!
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