Brake v. Murphy, 96-824.

• Decision Date: 18 September 1996
• Docket Number: No. 96-824.,96-824.
• Citation: 773 So.2d 61
• Parties: Robert M. BRAKE and Eileen M. Brake, Appellants, v. Eve E. MURPHY and Richard Murphy, Appellees.
• Court: Florida District Court of Appeals

773 So.2d 61

Robert M. BRAKE and Eileen M. Brake, Appellants, v. Eve E. MURPHY and Richard Murphy, Appellees.

No. 96-824.

District Court of Appeal of Florida, Third District.

September 18, 1996.

Robert M. Brake, in proper person.

Edward I. Golden, Miami, Edward Swan, Coral Gables, Richard T. Kozek, Jr., and Paul M. Kade, Miami, for appellees.

Before COPE, GERSTEN and LEVY, JJ.

PER CURIAM.

In this appeal from the probate division of the circuit court, appellants Robert M. Brake and Eileen M. Brake have filed a motion seeking to require appellees to pay for a portion of the record on appeal. For the reasons which follow, we conclude that the motion is moot.

After filing their notice of appeal, appellants filed directions with the clerk of the circuit court to limit the record to fifty-three specifically identified items. See Fla. R.App. P. 9.200(a)(2). Appellees then filed directions to the clerk, requesting that the entire record be sent up. See id. Appellants contend that the appellees' directions add approximately 126 items to the record on appeal and further contend that the additional items are not pertinent to the appellants' statement of judicial acts to be reviewed. See id. Appellants argue that appellees should either advance the cost of the additional items they have designated, or alternatively, appellees' designations should be refused by the clerk. But see Philip J. Padovano, Florida Appellate Practice § 16.3, at 266 (1988).

While the appellants' motion was pending, the circuit court clerk was paid in full, apparently by appellants, and the record on appeal has been transmitted to this court. Consequently, the issue is moot. At such time as this court rules on appellants' appeal, "the prevailing party has a right to be reimbursed for any charges he or she may have paid for preparing the record or portions of the record." Id. (footnote omitted); Fla. R.App. P. 9.400(a)(2). If appellants prevail on the appeal, they will be entitled to recover the record preparation costs which they advanced.¹

The motion is denied as moot.

COPE and LEVY, JJ., concur.

GERSTEN, Judge, dissenting.

I respectfully dissent. This issue is not moot for the reasons discussed below, and I would grant the motion to require the appellees either to specify the relevant documents to be included at the appellants' expense or to pay for the inclusion of the additional documents themselves. I disagree with the appellees' contention that Rule 9.200 requires the appellants to pay the cost of including irrelevant documents or exhibits in the record.

In March of 1996, co-appellants Robert Brake and Eileen Brake (the "appellants") filed a notice of appeal from an adverse trial court order setting aside a transfer of real property as fraudulent. Thereafter, the appellants filed directions to the clerk to transfer less than one third of the documents into the appellate record. In response, Eve Murphy and Richard Murphy (the "appellees") filed directions to the clerk ordering the inclusion of all documents. The appellants then submitted the instant motion seeking an order directing the appellees to either designate the relevant documents to be added or to pay for the inclusion of any additional documents.

The applicable portions of Rule 9.200 are:

(a)(2) ... If the clerk is directed [by the appellant] to transmit less than the entire record or less than the transcript of all testimony in a proceeding, the appellant shall serve with such direction a statement of the judicial acts to be reviewed. Within 20 days of filing the notice, the appellee may direct the clerk to include additional documents and exhibits.

. . . .

(e) 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.

. . . .

Section (e) places the initial responsibility for preparation of the record on the appellant. Section (a)(2) recognizes the possibility of a partial record as long as the appellant provides notice to the appellee and the appellate court of the specific issues being appealed. The appellee may then order the inclusion of additional documents. The issue here is whether an appellant is responsible for the cost of including all documents requested by an appellee in the record or whether an appellant can force an appellee to pay for the inclusion of irrelevant documents.

Under established law, appellants, in compiling an adequate record, are only required to include those materials relevant to the issues before the appellate court. See Morgan v. Pake, 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 appellants are only financially responsible for the inclusion of those documents and exhibits relevant to the points appealed. See Fox v. Interstate Power Co., 521 N.W.2d 762 (Iowa App.1994)

; Kimberly-Clark Corp. v. Power Authority, 35 A.D.2d 330, 316 N.Y.S.2d 68 (N.Y.App.Div.1970); Spikes v. Hibbard, 226 Ark. 93, 288 S.W.2d 38 (1956).

In Monticello Drug Co. v. Porter Clothing Co., the Florida Supreme Court interpreted Special Rule 2, an appellate procedure rule similar in some ways to Rule 9.200(a)(2). 111 Fla. 55, 149 So. 25 (Fla. 1933). Special Rule 2 provided that once an appellant designated material for the clerk to include in the appellate record, the appellee could then file directions to the clerk requiring the inclusion of additional material. Monticello Drug Co. v. Porter Clothing Co., 111 Fla. 55, 149 So. 25 (Fla. 1933). In addition, Special Rule 2 provided that "no transcript of the record shall contain any papers, matters, or proceedings that are not necessary for a clear and full presentation of some point or question raised by the assignment of errors to be relied upon in appellate court." Id. at 56, 149 So. at 26. The court held that, because the appellant already included in the record all of the documents and materials relevant to the appealed issues, the additional documents requested by the appellee "should not be required to be included in the transcript of the record prepared at appellant's expense...." Id. at 58-59, 149 So. at 27.

This approach results in fairness to both parties on appeal. If the appellees can demonstrate that documents the appellants omitted from the record are relevant to the appealed issues, then, in accordance with Rule 9.200, the appellants are responsible for the costs of inclusion. See Boylan v. Boylan, 571 So.2d 580 (Fla. 4th DCA 1990)

(citing Wright v. Wright, 431 So.2d 177 (Fla. 5th DCA 1983)); Brice v. State, 419 So.2d 749 (Fla. 2d DCA 1982); In re Guardianship of Coolidge, 368 So.2d 426 (Fla. 4th DCA 1979). Moreover, appellants who do not include all relevant documents risk failing to overcome the presumption of correctness of the trial court's findings, thereby facing dismissal, or, at the very least, having to answer a motion to supplement. See McNair v. Pavlakos/McNair Dev. Co., 576 So.2d 933 (Fla. 5th DCA 1991); Ahmed v. Travelers Indem. Co., 516 So.2d 40 (Fla. 3d DCA 1987); Bei v. Harper, 475 So.2d 912 (Fla. 2d DCA 1985). An appellant's interest in efficient litigation management, therefore, suggests that any relevant information initially be placed before the court to avoid the waste of time and money caused by unnecessary court appearances.

A relevancy requirement which places the...