FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D19-414
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TONY LAVON WAITES,

    Appellant,

    v.

FRANK MIDDLETON, SR. and
ROSA M. MIDDLETON,

    Appellees.
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On appeal from the Circuit Court for Escambia County.
J. Scott Duncan, Judge.

                       September 10, 2020



PER CURIAM.

     “In appellate proceedings the decision of a trial court has the
presumption of correctness and the burden is on the appellant to
demonstrate error.” Applegate v. Barnett Bank of Tallahassee, 

, 1152 (Fla. 1979). The supreme court in Applegate went
on to declare:

    Without a record of the trial proceedings, the appellate
    court . . . [cannot] properly resolve the underlying factual
    issues so as to conclude that the trial court’s judgment is
    not supported by the evidence or by an alternative theory.
    Without knowing the factual context, neither can an
    appellate court reasonably conclude that the trial judge
    so misconceived the law as to require reversal.

Applegate, there was neither a transcript of the
proceedings, nor “a proper substitute.”

viewed the combination of those omissions as “fatally flawing the
appellate court’s ruling.”

present case, there is no transcript of the
hearing. But Appellant claims his “proper substitute” is his
statement of the evidence filed pursuant to Florida Rule of
Appellate Procedure 9.200(b)(5). He relies on Ham v. Nationstar
Mortgage, LLC, 

(Fla. 1st DCA 2015), for the
proposition that Applegate does not apply when a statement of the
evidence has been prepared and submitted. In Ham, however, the
record before this Court consisted of an “approved statement of the
evidence.”

     In contrast, Appellant’s statement of the evidence was never
approved by the trial court. Appellant’s claim that Appellees
“waived” approval by not submitting objections to Appellant’s
proposed statement ignores the unmistakable requirement of the
rule: “Thereafter, the statement and any objections or proposed
amendments shall be filed with the lower tribunal for settlement
and approval.” Fla. R. App. P. 9.200(b)(5) (emphasis added).

     Because Appellant’s statement of the evidence was not
approved by the trial court, this case is indistinguishable from
Burke v. Burke, 

(Fla. 1st DCA 2004), in which this
Court held that where “[n]o trial transcript was submitted in the
record on appeal and the ‘statement of evidence’ submitted by the
former husband was not agreed to by the parties, nor approved of
by the trial court,” the statement “must” be rejected for failure to
comply with the rule.

(citing Walt v. Walt, 

(Fla. 1st DCA 1992) (finding that the “statement of evidence”
purportedly reflecting evidence presented at a child custody
hearing would be rejected on appeal where the statement was not
fully agreed to by the adverse party’s counsel and had not been
approved by the trial court)). Furthermore, as was true in Burke,
because no fundamental error of law appears on the face of the
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instant final judgment, this Court must affirm.

-85
(citing Lafaille v. Lafaille, 

, 604 (Fla. 1st DCA
2003)).

    AFFIRMED.

B.L. THOMAS, WINOKUR, and JAY, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Michael R. Rollo of Michael R. Rollo, P.A., Pensacola, for Appellant.

Artice L. McGraw of Artice L. McGraw, P.A., Pensacola, for
Appellees.




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