TOWN OF LARGO, FLORIDA, A MUNICIPAL CORPORATION, ET AL., APPELLANTS,
v.
IMPERIAL HOMES CORPORATION, APPELLEE
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The Florida District Court of Appeal, Second District denied the appellee's motion to dismiss the appeal based on the appellant's failure to include certain depositions and exhibits in the appellate record. The court held that appellants have discretion in what to include in the record but bear the risk that omitted materials supporting the lower court judgment may result in affirmance.
The motion to dismiss was denied. While appellants have some discretion in avoiding redundant or extraneous matter in the record, they bear the obligation to ensure omitted materials are not relevant to the questions presented; the court reserves the right to affirm based on omitted portions that may support the judgment if the appellant has failed to bring necessary matters to the court.
[1] An appellate court will presume that the record transmitted contains all proceedings material to the points presented for decision unless the record shows to the contrary…
[2] Appellate courts will not make the decision for the appellant as to the relevance of portions of the record on appeal.
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Join FLexlaw to unlock all legal intelligence“Unless the record shows to the contrary, it shall be presumed, upon appellate proceedings, that the record transmitted to the Court contains all proceedings in the lower court material to the points presented for decision in the Court.”
Establishes the presumption that appellate records are complete absent evidence to the contrary, citing Florida Appellate Rule 3.6(1).
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Join FLexlaw to unlock all legal intelligenceThe Town of Largo appealed a lower court decision against it. The appellee (Imperial Homes Corporation) moved to dismiss the appeal, arguing that the …
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MANN, Chief Judge.
We are asked to dismiss this appeal because of the failure of appellant to include in the record certain depositions and exhibits admitted into evidence at the trial. We deny the motion.
“Unless the record shows to the contrary, it shall be presumed, upon appellate proceedings, that the record transmitted to the Court contains all proceedings in the lower court material to the points presented for decision in the Court.” Rule 3.6(1) F.A.R. In considering this motion we are aware of a certain dilemma which faces an appellant who is under an obligation to cause error clearly to appear and at the same time to avoid “imposing an extra burden on the court and unnecessary expense to the litigant” by the inclusion of redundant matter.1 Our Supreme Court admonished in Rubinow v. Rubinow,2 that a record of 1,000 pages could well be reduced to ISO. We are fully sympathetic with the view that extraneous matters should not be included in the record on appeal, yet we.reserve the right to affirm in a case in which the appellant has failed to bring to the court matters which may support the judgment. The decision is not an easy one to make and we leave it to the appellant to assure itself that omitted matters cannot be relevant to the questions presented. We are confident that if it determines upon review that portions of the record may be necessary, it will request permission to supplement the record. In cases in which there is no dispute as to the superfluous nature of omitted material, it would be well for the appellee to refrain from making such a motion as this one. For example, if a question were presented to us which went solely to the matter of liability, portions of the transcript of testimony relevant only to damages would be extraneous.
In denying the motion we want to express a caveat as to a paragraph in- eluded in the appellant’s response. It states:
“It is clearly within this Court’s power under Florida Appellate Rule 3.6(7) to correct or complete the Record-on-Appeal at this time.”
We have no intention of making for the appellant the decision as to the relevance of portions of the record. The judgment appealed from may ultimately be affirmed on the assumption that omitted portions contain support for it. It is the appellant’s duty to bring an adequate record, and the court will grant leave to supplement the record for that purpose. By denying this motion we do not intend to state that we have no reservations about the adequacy of this record.
Motion denied.
HOBSON and GRIMES, JJ., concur. . Brinson Construction Co. v. Leach, Fla. 1956, 86 So. 2d 889, 891.
. Fla.1949, 40 So. 2d 561.
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Citator
Cited By
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Howell v. State, 337 So. 2d 823 (Fla. 1st DCA 1976)…he alleged omission must be timely raised. To hold otherwise would be contrary to the obvious intent of the rest of Rule 3.6 l. which provides for the method of correcting such an omission. (See Largo v. Imperial Homes Corporation, Fla.App. 2d 1974, 300 So. 2d 311) We have not overlooked our holdings in Merritt v. Williams, Fla.App. 1st 1974, 295 So. 2d 310 and White v. White, Fla.App. 1st 1975, 306 So. 2d 608, wherein we held that an appellate court may not consider a case unless the record reveals all evid…
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Miranda v. State, 309 So. 2d 8 (Fla. 1975)…Certiorari denied. 300 So. 2d 311. ROBERTS, DEICLE, OVERTON and ENGLAND, JJ., concur. ADKINS, C. J., and McCAIN, J., and ERVIN, Ret. J., dissent.…
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Brake v. Eve E. Murphy and Richard Murphy, 773 So. 2d 61 (Fla. 3d DCA 1996)…d, are only required to include those materials relevant to the issues before the appellate court. See Morgan v. Poke, 611 So. 2d 1315 (Fla. 1st DCA 1993); Conner v. Coggins, 349 So. 2d 780 (Fla. 1st DCA 1977); Town of Largo v. Imperial Homes Corp., 300 So. 2d 311 (Fla. 2d DCA 1974) (analyzing record under Rule 3.6, the predecessor to Rule 9.200); Morceau v. Meader, 179 So. 2d 242 (Fla. 3d DCA 1965) (same); Wilder v. Altman, 179 So. 2d 250 (Fla. 3d DCA 1965) (same). Common sense, therefore, dictates that app…
Authorities Cited
- Rubinow v. Rubinow, 40 So.2d 561 (Fla. 1949)
- Brinson Constr. Co. v. Leach, 86 So. 2d 889 (Fla. 1956)