Bernhard Law Firm obtains dismissal of appeal in construction lawsuit

Bernhard Law Firm has obtained an immediate dismissal of an appeal filed in a Miami construction lawsuit. (Florida Bar disclaimer: results may not be typical. You may not have as beneficial a result). If you have any questions or need an appellate attorney for a Florida appeal, please contact Bernhard Law Firm at 786-871-3349, abernhard@bernhardlawfirm.com, or www.bernhardlawfirm.com.

Bernhard Law FirmBernhard Law Firm challenged the appellate petition on several bases, including failing to provide a sufficient record for appellate review. Failing to maintain a record is almost always fatal to an appeal. Under Florida law, the failure to provide the Court with a transcript of the trial court hearing on a motion requires affirmance of the order on that motion; the lack of a transcript precludes meaningful appellate review and cannot be overcome unless the error of law appears on the face of the order. G& S Dev. Corp. v. Seitlin, 47 So. 3d 893, 895 (Fla. 3d DCA 2010) (holding appellant’s failure to provide the District Court of Appeal with a transcript of the hearing below required affirmance). Without a record of the hearing, the Court simply cannot determine what issues were raised or argued by the parties during the hearing, and thus cannot conduct a proper appellate analysis. Id.

http://www.acslaw.org/sites/default/files/judiciary3_4.jpg
http://www.acslaw.org/sites/default/files/judiciary3_4.jpg

Bernhard Law Firm also challenged the appeal as time-barred. Under Florida Rule of Appellate Procedure 9.100(c)(1), a petition for certiorari must be filed within 30 days of rendition of the order to be reviewed. A petition for certiorari is not subject to belated filing. Fla. R. App. P. 9.141(c); Russell v. State, 114 So. 3d 483, 483 (Fla. 2d DCA 2013) (holding that Rule 9.141 does not provide for a bleated common law petition for certiorari to the appellate courts).

Bernhard Law Firm also requested that the appellate petition be stricken as a series of allegations outside of the properly preserved record. An appellate court reviews determinations of trial courts based on records established in the trial court. Gonzalez v. Fla. Unemployment Appeals Com’n, 80 So. 3d 335 n.5 (Fla. 3d DCA 2010) (quoting Altchiler v. State, Dept. of Prof. Reg., Div. of Professions, Bd. of Dentistry, 442 So. 2d 349, 350 (Fla. 1st DCA 1983)). When a party includes in an appendix matters outside the record, or refers to such material or matters in its brief, it is proper for the Court to strike the same. Konoski v. Shekarkhar, 146 So. 3d 89, 90 (Fla. 3d DCA 2014) (striking matters outside the record and admonishing counsel for her conduct in filing it); Altchiler at 350. In fact, “[t]hat an appellate court may not consider matters outside the record is so elemental that there is no excuse for any attorney to attempt to bring such matters before the court.” Id. Where allegations are raised outside the record on appeal, the Court should strike them.

If you have any questions or need an appellate attorney for a Florida appeal, please contact Bernhard Law Firm at 786-871-3349, abernhard@bernhardlawfirm.com, or www.bernhardlawfirm.com.

Bernhard Law Firm PLLC - www.bernhardlawfirm.com
Bernhard Law Firm PLLC – http://www.bernhardlawfirm.com
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