Urban v. City of Daytona Beach, A-23

• Decision Date: 18 February 1958
• Docket Number: No. A-23,A-23
• Citation: 101 So.2d 414
• Parties: Germaine URBAN, Appellant, v. CITY OF DAYTONA BEACH, a municipal corporation organized and existing under the laws of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 414

101 So.2d 414

Germaine URBAN, Appellant, v. CITY OF DAYTONA BEACH, a municipal corporation organized and existing under the laws of the State of Florida, Appellee.

No. A-23.

District Court of Appeal of Florida, First District.

Feb. 18, 1958.

Horn & Ossinsky, Daytona Beach, for appellant.

Alfred A. Green, Daytona Beach, for appellee.

WIGGINTON, Judge.

This cause arose out of a claim by appellant, plaintiff at trial, for alleged damages resulting from injuries sustained when she slipped and fell on defendant-appellee's dance floor. Defendant answered denying negligence and interposed the defense that plaintiff's negligence was the proximate cause of her injuries. Defendant took plaintiff's deposition and thereafter moved for the entry of summary judgment. After hearing and upon consideration. of the record in the cause, including plaintiff's deposition, the trial court granted defendant's motion. It is from the summary judgment that this appeal is taken.

Appellant filed in this court her brief together with an appendix thereto as contemplated by Rule 3.3, Florida Appellate Rules. The appendix, however, does not contain either a copy or a summary of plaintiff's deposition which was considered by the trial court in the entry of its summary judgment.

Appellee filed its brief in which its entire argument is confined to the single point that, having failed to include the plaintiff's deposition in her appendix, appellant cannot demonstrate error in the face to the presumption of correctness which accompanies the actions of a trial court on appeal. Having relied upon this single question, appellee elected not to include an appendix in its brief.

In apparent appreciation of the merit in appellee's argument, appellant promptly filed its reply brief, as permitted under Rule 3.7, subd. c, F.A.R., and attached thereto an appendix consisting of the deposition, previously omitted. This appendix is purported to have been attached to appellant's reply brief under Rule 3.7, subd. h, F.A.R.

The cause is now before the Court upon appellee's motion to strike the appendix to appellant's reply brief as, inter alia, not within the scope of appendices authorized and permitted by the Florida Appellate Rules.

We are not here dealing with a mere procedural technicality which bears no relationship to the merits of the cause. On the contrary, we are called upon to pass on a question of compliance with an essential and indispensable phase of established procedure governing the appellate process.

Rules of appellate procedure have been adopted in order that the reviewing court may be advised with certainty as to what it is being called upon to decide. It is axiomatic that appellate courts in this jurisdiction cannot and will not retry cases on appeal; nor will they comb the record in search of errors or grounds for reversal of the trial court's rulings, such being clothed with a presumption of correctness of which they will not be divested in the absence of error clearly shown. The Florida Appellate Rules expressly provide that all appeals will be heard and determined on assignments of error, appendices and briefs filed in accordance with the rules; the record on appeal being referred to only when necessary to settle material conflicts between the parties. ¹ This rule, and the cases in which it has been construed, ² document the importance of filing in the appellate court proper briefs and appendices as directed by the rules. They are the tools with which counsel must present the issues on appeal for determination. Properly used they make possible a speedy and just determination of those issues. When misused or ignored, the appellate court is powerless to insure complete justice between the parties.

The importance of the function of an appendix becomes doubly apparent when it is realized that most appeals are taken on the original record, which is returned to the trial court when a decision is rendered. The appendices constitute the only record of the proceedings upon which the appellate court's decision is based that remains in the archives of that court. The occasions are not infrequent when it is necessary and expedient to refer to those records for a more complete understanding of the basis upon which the decision therein was rendered. Thus, appellate proceedings are not governed by rules without reason, but, on the contrary, each rule so adopted is of the utmost importance in its particular sphere and may not be twisted or ignored if the parties to a...