Wells v. Wells

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D2025-2777
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DERRICK WELLS,

Appellant,

v.

ANGELA WELLS,

Appellee.
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On appeal from the Circuit Court for Alachua County.
Susanne Wilson Bullard, Judge.

June 24, 2026

TREADWELL, J.

Appellant challenges a supplemental judgment modifying his
timesharing and parental responsibility. He argues that the trial
court’s decision and the evidence it relied on were flawed for
various reasons, all of which require a record of the trial below.
Because no trial transcript or suitable substitute was included in
the record, we provided Appellant with an opportunity to provide
the omitted transcript within 10 days, pursuant to rule 9.200(f)(2),
Florida Rules of Appellate Procedure. Failure to do so, we warned,
could result in affirmance under Applegate v. Barnett Bank of
Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979).

Conceding that no transcript exists, Appellant sought to avoid
affirmance under Applegate by moving for an extension of time to
create a statement of the evidence or proceedings pursuant to rule
9.200(b)(5), Florida Rules of Appellate Procedure. We write to
explain why we are denying Appellant’s last-minute motion and
affirming under Applegate.

Rule 9.200(b)(5) provides,

If no report of the proceedings was made, or if the
transcript is unavailable, a party may prepare a
statement of the evidence or proceedings from the best
available means, including the party’s recollection. The
statement must be served on all other parties, who may
serve objections or proposed amendments to it within 15
days of service. Thereafter, the statement and any
objections or proposed amendments must be filed with
the lower tribunal for settlement and approval. As settled
and approved, the statement must be included by the
clerk of the lower tribunal in the record.

Fla. R. App. P. 9.200(b)(5).

Although there is no explicit time limit in rule 9.200(b)(5) for
a party to prepare and serve a statement of the evidence or
proceedings, the plain text indicates that any “settled and
approved” statement “must be included by the clerk of the lower
tribunal in the record.” Id. The rule thus contemplates the
preparation of such a statement during the time period when the
clerk is preparing the record for appeal.

The Fifth District has accordingly interpreted the rule to
include “time strictures” requiring an appellant to take steps to
prepare and serve a statement, then submit the matter to the
lower tribunal for settlement and approval, “so that the clerk of
the lower tribunal could include it in the record on appeal.”
Thomas v. Thomas, 498 So. 2d 668, 669—70 (Fla. 5th DCA 1986)
(declining to extend the opportunity to create a statement “after
the filing of the appellate record with the appellate court”). * The

* Rule 9.200(b)(5) was previously designated as (b)(4) until
January 1, 2019. In re Amendments to Florida Rules of Appellate
Procedure-2017 Regular-Cycle Report, 256 So. 3d 1218 (Fla. 2018).

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Third District has adopted the same time limitations. See
Chisholm v. Chisholm, 538 So. 2d 961, 962–63 (Fla. 3d DCA 1989)
(“As stated in Thomas, . . . any necessary reconstruction of a
missing transcript must be undertaken within the time prescribed
in the rule so that the clerk of the lower court can include the
reconstructed transcript in the record on appeal.”); Miranda v.
RBS Citizens, 253 So. 3d 746, 748–49 (Fla. 3d DCA 2018) (“Here,
as in Chisholm, Appellants have not demonstrated that they took
the timely steps to include a reconstructed transcript in the record
on appeal.”). The Fourth District, on the other hand, has eschewed
any time limitations in rule 9.200(b)(5), concluding that the trial
court maintains jurisdiction to recreate the record even after the
transmittal of the record on appeal. Terry v. State, 263 So. 3d 799,
805–06 (Fla. 4th DCA 2019).

This Court has never imposed a strict time limit for the
preparation of a statement under rule 9.200(b)(5). Even after the
transmittal of the record, this Court and the Florida Supreme
Court have relinquished jurisdiction to allow a party to attempt to
supplement the record with a statement of the evidence or
proceedings. See, e.g., Craig v. State, 510 So. 2d 857, 860–61 (Fla.
1987); Bass v. State, 304 So. 3d 786, 790–91 (Fla. 1st DCA 2018).
Sometimes this Court has explained the circumstances that
justified the relinquishment of jurisdiction in pursuit of a
statement. See, e.g., Kuenstler v. Andreasen, 386 So. 2d 896, 896–
97 (Fla. 1st DCA 1980) (relinquishing jurisdiction where the
moving party made an earlier attempt to prepare and approve a
statement of the proceedings, but the responding party did not
comply with the procedure); Bay Med. Ctr. v. Haynes, 667 So. 2d
216, 217 (Fla. 1st DCA 1995) (relinquishing jurisdiction where the
lower tribunal expressed an ability to settle and approve a
statement of the record); Newton v. Lionel Playworld, 557 So. 2d
247 (Fla. 1st DCA 1990) (explaining that the tapes of the final

Before that, the rule was designated as 9.200(b)(3) from 1977 until
July 1, 1987. The Florida Bar re Amendments to Florida Rules of
Appellate Procedure & Rules of Judicial Admin., 509 So. 2d 276
(Fla. 1987). References to rule 9.200(b)(5) in this opinion
encompass the prior numbering, as well, to avoid confusion where
courts discussed the rule under its prior designations.

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hearing could not be transcribed); Montgomery Truck Lines v.
Southworth, 550 So. 2d 567, 567 (Fla. 1st DCA 1989) (same). At
other times, this Court has relinquished jurisdiction with little
explanation at all. See, e.g., State, Dep’t of Health & Rehab. Servs.
v. Christman, 635 So. 2d 94, 95 (Fla. 1st DCA 1994) (relinquishing
jurisdiction because “justice would be better served” by giving the
Department an opportunity to prepare a proper statement); E.H.
v. Dep’t of Health & Rehab. Servs., 571 So. 2d 50, 50–51 (Fla. 1st
DCA 1990) (relinquishing jurisdiction “upon motion”). This Court
has even permitted attempts to supplement the record after
briefing commenced. See, e.g., Morgan v. S. Atl. Prod. Credit Ass’n,
528 So. 2d 491, 491–92 (Fla. 1st DCA 1988).

Here, Appellant seeks to prepare a statement after the record
has been transmitted and after briefing has been completed. He
provides no explanation as to why he did not attempt to prepare a
statement earlier. He merely contends that he “must utilize” the
procedure under rule 9.200(b)(5) because no transcript exists. As a
result, he could not meet the 10-day deadline to provide a
transcript, pursuant to rule 9.200(f)(2), but instead would need a
45-day extension of time to provide a statement of the evidence or
proceedings.

Given that Appellant’s motion for extension of time is in
response to our order under rule 9.200(f)(2), we take this
opportunity to clarify that rule 9.200(f)(2)’s requirement to give an
appellant “an opportunity to supplement the record” only applies
to portions of the record that were “omitted” from the transmitted
record in the first place. Fla. R. App. P. 9.200(f)(2) (applying when
the record on appeal is “incomplete”). Rule 9.200(f)(2) does not
entitle the appellant to an opportunity to supplement the record
by creating a substitute for the transcript. Snowden v. Wells Fargo
Bank, 172 So. 3d 506, 508 (Fla. 1st DCA 2015). This is because rule
9.200(f)(2) “is not intended to cure inadequacies in the record that
result from the failure of a party to make a proper record during
the proceedings in the lower tribunal.” Id. (quoting Fla. R. App. P.
9.200 comm. notes (1977)); Saunders Contracting v. Clemens, 492
So. 2d 1379, 1379–80, 1380 n.1 (Fla. 1st DCA 1986) (same); see also
Thomas, 498 So. 2d at 669 (explaining that rule 9.200(f)(2) “does
not encompass a situation where there is an absence of record
below, as opposed to a failure by the parties to include parts of an

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extant record below”); Chisholm, 538 So. 2d at 963 (same); Se.
Bank, N.A. v. David A. Steves, P.A., 552 So. 2d 292, 293 (Fla. 2d
DCA 1989) (explaining that rule 9.200(f)(2) does not apply “where
there is a complete lack” of a transcript or a statement of the
proceedings). Thus, rule 9.200(f)(2) does not permit Appellant to
prepare a previously nonexistent statement of the evidence or
proceedings under rule 9.200(b)(5).

Occasionally, though, this Court has offered, alongside an
order to produce a missing transcript pursuant to rule 9.200(f)(2),
the opportunity to prepare a statement of the evidence or
proceedings pursuant to rule 9.200(b)(5), in the absence of a
transcript. See, e.g., Southside Church of Christ of Jacksonville,
Inc. v. Walker, 286 So. 3d 951 (Fla. 1st DCA 2019); Walt v. Walt,
596 So. 2d 761, 762 (Fla. 1st DCA 1992); Starks v. Starks, 423
So. 2d 452, 453 (Fla. 1st DCA 1982). But the Court’s prior
discretion in this regard does not obligate us to afford every party
an opportunity to prepare and approve a statement of the evidence
or proceedings, especially at late stages of an appeal. See
Chisholm, 538 So. 2d at 963 (“An appellate court has no obligation
to afford the appellant a second opportunity to create an entire
transcript because he ignored the rule when the record on appeal
was being prepared.”).

Notably, Appellant was aware that the trial transcript might
be missing more than six months prior to his motion for additional
time to prepare a statement. On November 10, 2025, Appellant
stated to this Court, “There is one (1) requested transcript missing
from the docket, which was requested by Appellant during
proceedings and will be discussed during the initial brief, as it is
connected to [the] Judicial Order which ceased timesharing.”
Thereafter, on February 17, 2026, Appellant filed an initial brief
but did not mention the transcript. His motion for time to prepare
a statement was not filed until May 28, 2026.

Because Appellant was aware of the record deficiency but did
nothing until the eleventh hour of this appeal when he faced
imminent affirmance pursuant to Applegate, we are not inclined to
further delay these proceedings to provide him another
opportunity to recreate a record. See Snowden, 172 So. 3d at 508
(the parties noted in their briefs the incomplete nature of the

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transcript, so the continued deficiency “was not a mere oversight
unknown to” the appellants); E.M. v. Dep’t of Child. & Fams., 327
So. 3d 960, 961 n.* (Fla. 1st DCA 2021) (holding the lack of a record
against the appellant who did not seek to supplement the record
with the transcript (or a statement of the evidence) despite its
absence being recognized in the initial, answer, and reply briefs).
Indeed, an appellant may waive the opportunity to supplement the
record if the appellant “fails to promptly seek to supplement the
record after notice is given of a perceived deficiency.” Fay v. Craig,
99 So. 3d 981, 982 (Fla. 5th DCA 2012); see also Cirillo v. Davis,
732 So. 2d 387, 389 (Fla. 4th DCA 1999) (the appellants waived the
opportunity to supplement the record because they failed to move
to do so after the appellees pointed out the deficiency in the record).
Finally, in custody-related cases, a delay in submitting a
statement of the evidence is “wholly inconsistent with this Court’s
well-known practice of providing expedited review in cases
involving children.” Ours v. Ours, 515 So. 2d 281, 282 n.2 (Fla. 1st
DCA 1987).

For these reasons, we deny Appellant’s motion for an
extension of time to prepare a statement of the underlying
proceedings pursuant to rule 9.200(b)(5), and we affirm the
judgment due to the lack of a transcript. See Jones v. First Fed.
Sav. & Loan Ass’n of Perry, 503 So. 2d 414, 414 (Fla. 1st DCA 1987)
(affirming the judgment after the appellants had “ample
opportunity” to furnish a transcript or stipulate to a statement
pursuant to rule 9.200(b)(5)).

AFFIRMED.

ROBERTS and WINOKUR, JJ., concur.

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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Derrick Wells, pro se, Appellant.

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Darby Fitzgerald Hertz of Hertz & Kearns, Gainesville, for
Appellee.

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