D & K REHAB CENTER
v.
INFINITY AUTO INSURANCE
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D & K Rehab Center appealed an insurance dispute with Infinity Auto Insurance regarding the interpretation of an auto insurance policy. The appellate court granted Infinity's unopposed emergency motion to supplement the appellate record with missing documents, including the disputed insurance policy and supporting affidavit that were central to the appeal.
The appellate court granted Infinity's emergency motion to correct and supplement the record. The court ordered that the appendix containing the missing insurance policy and affidavit be included in the original record on appeal pursuant to Fla. R. App. P. 9.200.
[1] An appellate court may grant a motion to correct or supplement the record on appeal if the record contains an error or omission.
[2] The record on appeal shall consist of all documents filed in the lower tribunal, unless specifically excluded by rule.
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Join FLexlaw to unlock all legal intelligence“Except as otherwise designated by the parties, the record shall consist of all documents filed in the lower tribunal, all exhibits that are not physical evidence, and any transcript(s) of proceedings filed in the lower tribunal, except summonses, preacipes, subpoenas, returns, notices of hearing or of taking deposition, depositions, and other discovery.”
Establishes the general composition of the record on appeal under Fla. R. App. P. 9.200(a)(1)
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Join FLexlaw to unlock all legal intelligenceD & K Rehab Center, acting on behalf of Eusebia Lopez, filed suit against Infinity Auto Insurance regarding coverage under an auto insurance policy. T…
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IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
APPELLATE DIVISION
CASE NO. 2018-264 AP D & K REHAB CENTER, INC. A/A/O EUSEBIA LOPEZ,
Appellant,
vs.
INFINITY AUTO INSURANCE COMPANY,
Appellee.
* * * * * * * * * * * * * * * * * * * * * * * * * * * APPELLEE’S UNOPPOSED EMERGENCY MOTION TO CORRECT THE RECORD PURSUANT TO FLA R. APP. P. 9.200 * * * * * * * * * * * * * * * * * * * * * * * * * * *
APPEAL FROM THE COUNTY COURT
IN AND FOR MIAMI-DADE COUNTY LAW OFFICE OF DEBORAH N. PEREZ &
ASSOCIATES
Employees of Infinity Insurance Company 8400 NW 36th Street, Suite 250 Miami, Florida 33166 Telephone: (305) 714-3300 [email protected] By:_________________________________ Meghan E. Wood. Florida Bar No. 96964 Filing # 107823947 E-Filed 05/21/2020 04:25:35 PM [*2] IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
APPELLATE DIVISION
CASE NO. 2018-264 AP D & K REHAB CENTER, INC. A/A/O EUSEBIA LOPEZ,
Appellant,
vs.
INFINITY AUTO INSURANCE COMPANY,
Appellee.
__________________________________________________________________ APPELLEE’S EMERGENCY UNOPPOSED MOTION TO CORRECT THE RECORD PURSUANT TO FLA R. APP. P. 9.200 __________________________________________________________________
[*3] APPELLEE’S EMERGENCY UNOPPOSED MOTION TO CORRECT THE RECORD PURSUANT TO FLA R. APP. P. 9.200 COMES NOW, Defendant, INFINITY AUTO INSURANCE COMPANY, by and through the undersigned counsel and pursuant to Florida Rules of Appellate Procedure 9.200 and 9.225 files this Emergency Motion to Correct the Record as grounds thereof states as follows:
1.
The Oral Argument for this matter is set before the Court on May 26, 2020 at 1:30PM.
2.
In a final review of the matter for oral argument, the undersigned became aware that the Original Record On Appeal compiled and filed by Deputy Clerk Tanya D. Bennett is missing relevant court filings which were filed in the lower case, D & K Rehab Center, Inc. a/a/o Eusebia Lopez v. Infinity Auto Insurance Company, Case No. 15-014474 CC 05.
3.
Overall, the Original Record on Appeal fails to include dispositive documents which were individually filed with the lower court. Please see Exhibit “A” of the attached Appendix, the docket from Case No. 15-14474 CC 05.
4.
Although the majority of those documents are not relevant for purposes of this appeal, the following documents are dispositive and form the entire basis of the argument taking place on May 26, 2020: [*4] a. Docket Entry No. 12, February 5, 2018 – Notice of Filing: Certified Auto Insurance Policy of Uldarico A. Lopez Minaya. Attached hereto as the Appendix, Exhibit “B” b. Docket Entry No. 10, February 5, 2018 – Notice of Filing: Affidavit of Michael Sanford. Attached hereto as the Appendix, Exhibit “C”.
5.
Florida Rule of Appellate Procedure 9.200, The Record pertains to the compilation and submission of the record from the lower tribunal. The sections at issue here in this motion are as follows: a. Fl. R. App. P. 9.200(a)(1) – “Except as otherwise designated by the parties, the record shall consist of all documents filed in the lower tribunal, all exhibits that are not physical evidence, and any transcript(s) of proceedings filed in the lower tribunal, except summonses, preacipes, subpoenas, returns, notices of hearing or of taking deposition, depositions, and other discovery. b. Fla. R. App. P. 9.200(e) – “Duties of Appellant or Petitioner. The burden to ensure that the record is prepared and transmitted in accordance with these rules shall be on the petitioner or appellant. Any party may enforce the provisions of this rule by motion. (Emphasis added). [*5] c. Fl. R. App. P. 9.200(f)(1) Correcting or Supplementing Record. If there is an error or omission in the record, the parties by stipulation, the lower tribunal before the record is transmitted, or or the court may correct the record. (Emphasis Added). d. Fl. R. App. P. 9.200(f)(2) Correcting or Supplementing Record. If the court finds the record incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined because of an incomplete record, until an opportunity to supplement the record has been given. (Emphasis Added).
6.
The entirety of the Appellant’s Initial Brief rests on the assertion that the language included in the Policy of Insurance at issue is vague and ambiguous. However, the Original Record on Appeal does not include the actual document on which the Appellant’s argument rests, even though that document was clearly filed with the lower court. Furthermore, the additional Affidavit of Michael Sanford was filed and reviewed by the lower tribunal in conjunction with the Appellee’s Amended Motion for Summary Judgment, the decision of which is currently pending on this Appeal.
7.
Pursuant to Rule 9.200, these two documents do not fall within the exceptions listed in Rule 9.200(a)(1). They are substantive filings that are applicable to the pending appeal and upcoming argument. [*6] 8. The undersigned identified the error and reached out to opposing counsel regarding the issue. Counsel for the Appellant advised they had no objection to the inclusion of the attached Appendix.
9.
Based on the above, the Appellee respectfully requests this Court enter an Order supplementing the record with the attached Appendix to be reviewed and considered during the upcoming argument on May 26, 2020.
10.
Such an order is in accordance with the Rules and will not prejudice the Appellant, as the documents are dispositive to the issue the Appellant raised on appeal.