IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT RECEIVED, 6/14/2017 4:56 PM, Joanne P. Simmons, Fifth District Court of Appeal MICHAEL CONNOLLY, Plaintiff/Appellant, Case No.: 5D17-1172 Trial Court Case No.: 2017-CA-000168-O and GABRIEL MURPHY, GCM HOLDINGS LTD, Defendants/Appellees. / APPELLEES MOTION TO STRIKE APPELLANT S PETITION FOR WRIT OF CERTIORARI AND APPENDIX AND RELATED MOTION FOR SANCTIONS THERETO COMES NOW, Defendants/Appellees, GABRIEL MURPHY and GCM HOLDINGS LTD ( Appellees ), by and through their undersigned counsel, file this Motion to Strike Appellant s Petition for Writ of Certiorari and Appendix and Related Motion for Sanctions Thereto ( Motion ), against Plaintiff/Appellant, MICHAEL CONNOLLY ( Appellant ), and in support thereof asserts the following: 1. On or about, April 19, 2017, Appellant filed his Petition for Writ of Certiorari ( Petition ) and his Appendix to Petition for Writ of Certiorari of Petitioner ( Appendix ) to appeal the Order Compelling Deposition of Plaintiff dated April 17, 2017 based upon a hearing on March 7, 2017 ( Order ). Page 1 of 11
2. In this appeal and for the first time, Appellant included new documents in the Appendix which were not part of the trial court record, never filed in the trial court or used as evidentiary exhibits in the trial court, and/or were never reviewed by the trial court including, without limitation, court pleadings/proceedings outside the record in A-7 and A-11 and various internet screenshots and/or communications with third parties in A-10, A-12, A-13, A-14, A-15, A-16, and A-18 (collectively the Extra-Record Documents ). 3. In addition to the wholly inappropriate appearance of the Extra- Record Documents in the Appendix, the Appellant sprinkled the Extra-Record Documents and arguments thereto throughout the Petition in his Statement of the Case and Facts, various argument sections, and citations throughout. See Appendix and Petition. 4. Thus, Appellant based argument on the Extra-Record Documents to support his position that this Court should consider additional purported facts and evidence not before the trial court in making its decision as to whether the trial court erred in its Order. See Appendix and Petition. 5. Because these Extra-Record Documents were never before the trial court, their inclusion violates the integrity of the record on appeal. Page 2 of 11
6. The Extra-Record Documents, and all argument based upon the Extra- Record Documents, should be stricken as violative of Florida Rules of Appellate Procedure 9.200 and 9.220. 7. Florida Appellate Courts have the inherent authority to dismiss an appeal and impose other sanctions for violations of the appellate rules, including striking briefs and pleadings and awarding attorney s fees. See Fla. R. App. P. 9.410(a). Further, in order to preserve the integrity of the record, [a]ny party may enforce the provisions of this rule by motion. Fla. R. App. P. 9.200(e). 8. Rule 9.200, Florida Rules of Appellate Procedure, defines the content of the record as those documents filed in the trial court, to wit: [e]xcept 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... Fla. R. App. P. 9.200(a). 9. Likewise, Rule 9.220, Florida Rules of Appellate Procedure explicitly limits the content of the appendix to include only those portions of the record deemed necessary to an understanding of the issues presented. Fla. R. App. P. 9.200(a) (emphasis added). Further, [t]he appendix may contain any other portion of the record and other authorities. Fla. R. App. P. 9.220(b). 10. Implicit in these rules, and further defined by Florida case law, is the concept that the record and appendix may only contain material relied upon by the Page 3 of 11
trial court in making its ruling. See Hillsborough County Bd. of County Com'rs v. Pub. Employees Relations Com'n, 424 So. 2d 132, 134 (Fla. 1st DCA 1982) ( [a]n appeal has never been an evidentiary proceeding; it is a proceeding to review a judgment or order of a lower tribunal based upon the record made before the lower tribunal ); see also Rosenberg v. Rosenberg, 511 So. 2d 593, 595 n.3 (Fla. 3d DCA 1987) ( Appellate review is limited to the record as made before the trial court at the time of the entry of a final judgment or orders complained of ). 11. Indeed, [t]hat an appellate court may not consider matters outside the record is so elemental that there is no excuse for any attorney to attempt to bring such matters before the court. Altchiler v. State, Dept. of Prof'l Regulation, Div. of Professions, Bd. of Dentistry, 442 So. 2d 349, 350 (Fla. 1st DCA 1983). 12. Here, Appellant, without leave of this Court, without stipulation from Appellee, and without first exercising any potential remedies in the trial court, essentially filed his Appendix sua sponte, apparently in an attempt to add the Extra-Record Documents into the record, in blatant violation of the procedures described in Appellate Rule 9.200(f). See Konoski v. Shekarkhar, 146 So. 3d 89, 90 (Fla. 3d DCA 2014) (noting that counsel s conduct in filing extra-record documents and failing to seek leave of the court prior to filing them warranted the court s admonishment). Page 4 of 11
13. In addition to Appellant s procedural violation, Appellant attempts to add Extra-Record Documents that were never before the trial court, and their inclusion in the record is inappropriate and violate[s] the integrity of the record on appeal. Thornber v. City of Fort Walton Beach, 534 So. 2d 754, 756 (Fla. 1st DCA 1988). 14. The committee notes to Rule 9.200, Florida Rules of Appellate Procedure, subdivision (f) are clear: [t]he rule is not intended to cure inadequacies in the record that result from the failure of a party to make a proper record during the proceedings in the lower tribunal. The purpose of the rule is to give the parties an opportunity to have the appellate proceedings decided on the record developed in the lower tribunal. Fla. R. App. P. 9.200; see also Thornber, 534 So. 2d at 755. 15. Here, Appellant failed to adhere to the appellate rules and improperly attempts to expand the appellate record with Extra-Record Documents neverbefore-seen by the trial court in this litigation, including, without limitation, court pleadings/proceedings outside the record in A-7 and A-11 and various internet screenshots and/or communications with third parties in A-10, A-12, A-13, A-14, A-15, A-16, and A-18. 16. In so doing, Appellant apparently attempts to supplement the record under Rule 9.200 to allow this Court to review evidentiary matters for the first Page 5 of 11
time. However, reviewing courts have determined that the opportunity to supplement the record pursuant to Rule 9.200(f), Florida Rules of Appellate Procedure, allows for inclusion of an omitted part of the record, not the recreation of the record with entirely new documents: The provision in Rule 9.200(f)(2) does not encompass a situation where there is an absence of record below, as opposed to a failure by the parties to include parts of an extant record below in the record of appeal. If a record exists below that is needed to complete the appellate record, then this court cannot determine the cause without affording a party the opportunity to supply the omitted part of the record. But if no record was created in the first place either by court reporting or a submitted statement per Rule 9.200(b)(3) then there is no obligation on this court's part to afford a party on appeal a second opportunity to create a record simply because he ignored the rule the first time around. Thomas v. Thomas, 498 So. 2d 668, 669 (Fla. 5th DCA 1986); see also Bei v. Harper, 475 So. 2d 912, 914-15 (Fla. 2d DCA 1985) (stating that Rule 9.200(f) was not intended to cure inadequacies in the record which are the result of a party's failure to make a record during proceedings in the trial court ). 17. It is axiomatic that an appellate court cannot review documents or argument outside the record, and it is improper for Appellant to supplement/expand the appellate record with documents that were never before the trial court. See Altchiler, 442 So.2d at 350. 18. Further, [a]n appellate court will not consider evidence that was not presented to the lower tribunal because the function of the appellate court is to Page 6 of 11
determine whether the lower tribunal committed error based on the issues and evidence before it. Hillsborough County Bd. of County Com'rs, 424 So. 2d at 134; see also Dep't of Transp. v. Baird, 992 So. 2d 378, 382 (Fla. 5th DCA 2008). 19. As a result of Appellant s disregard of the appellate rules, it is appropriate for this Court to strike the Extra-Record Documents, in order to preserve the record on appeal. Altchiler, 442 So. 2d at 350 ( When a party includes in an appendix material or matters outside the record, or refers to such material or matters in its brief, it is proper for the court to strike the same ). 20. Finally, because of the seriousness of this abuse, this Court may impose sanctions for any violation of these rules. Fla. R. App. P. 9.410(a). 21. Reviewing courts have found sanctions appropriate where a party violates the integrity of the record by supplementing the record with material not considered by the trial court. See Thornber, 534 So. 2d at 755-56. In fact, [i]t is inappropriate and will subject movant to sanctions to inject matters into the appellate proceedings which were not before the trial court. Appellant sought to supplement the record on appeal with matters clearly outside the record. Id. (citation omitted); see also Konoski, 146 So. 3d at 90 (noting sanctions are appropriate when an appellant injects matters into the appellate proceeding not presented at the trial court). Page 7 of 11
22. In addition, Appellant improperly bases argument upon the Extra- Record Documents and purported factual inferences/allegations, attempting to improperly bolster his Petition with arguments based upon the Extra-Record Documents. Therefore, the sections referencing the Extra-Record Documents and unsubstantiated factual allegations against Appellees outside the record should also be stricken pursuant to Fla. R. App. P. 9.410(a). 23. It would be highly prejudicial to Appellee if Appellant is allowed to present material that was not before the trial court at the time of the Order under review and, in fact, some of which was actually precluded from review by the trial court as improper and beyond the scope. 1 24. Thereafter, Appellant sought no relief in the trial court for a rehearing or evidentiary hearing as to the Order to introduce the Extra-Record Documents to 1 Counsel for Appellant attempted to present documents at the March 7, 2017 hearing, and the undersigned objected to the same as the hearing was not an evidentiary hearing and more so, no witness was present in which to present/testify as to the purported documents. The trial court agreed and did not consider the materials. At the conclusion of the hearing in determining what would be considered for briefing as to the duces tecum portion of the Notice of Deposition, counsel for Appellant again attempted to leave the materials for the trial court to consider. The undersigned objected and the trial court agreed that the materials would not be reviewed/considered. See A-17, page 24 of hearing transcript, lines 7-23 and A-17, page 42 of hearing transcript, lines 15-18. The briefings were not necessary (and never done) because the undersigned agreed, without prejudice, to eliminate the duces tecum portion making the briefings unnecessary. Based upon the duces tecum being eliminated, the trial court and both counsel then discussed the ruling/conditions to allow the deposition to proceed without the duces tecum. Page 8 of 11
the trial court for consideration that Appellant now attempts to introduce to this Court. 25. Furthermore, when the lower court was fashioning the language to be included in the Order Appellant is now appealing, Appellant agreed that it seemed fair in how the video portion would have limited use. See A-17, hearing transcript page 51, line 3. What was then considered a fair provision in the trial court is included in the provisions Appellant now claims is not only unfair but a departure from the essential requirements of law. 26. Appellee seeks this Court to sanction Appellant by striking everything related to the Extra-Record Documents and unsubstantiated factual allegations against Appellees that are outside the record, as well as awarding attorneys fees to Appellee pursuant to Fla. R. App. P. 9.410(a). WHEREFORE, Appellees respectfully request that the Court 2 : a) Strike Appellant s Petition, or in the alternative, strike all sections and sentences which reference the Extra-Record Documents and unsubstantiated factual allegations against Appellees that are outside the record; 2 See, e.g. Order from this Court granting relief similar to what is requested in this Motion for similar violations, Medeiros v. Firth, Case No. 5D15-3301, Order dated February 3, 2016, including striking Reply Brief and Appendix to Reply Brief. Page 9 of 11
b) Strike Appellant s Appendix, or in the alternative, strike all sections which include the Extra-Record Documents and unsubstantiated factual allegations against Appellees that are outside the record; c) Award Appellees attorneys fees and costs related to this Motion; d) Order Appellant to file a corrected Petition and Appendix within ten (10) days of an Order on this Motion without any reference to, or inclusion of, the Extra-Record Documents and unsubstantiated factual allegations against Appellees outside the record - to which the Appellees shall file a response within ten (10) days thereto; and e) Grant any other such relief as this Court deems just and proper. CERTIFICATE OF GOOD FAITH CONFERENCE I HEREBY CERTIFY that on or about June 13, 2017, I had a good faith conference via telephone with attorney for Appellant, Andrea Kurak, Esquire as to the legal sufficiency of Appellant s Petition for Writ of Certiorari and Appendix and this Motion. We were not able to reach a resolution as to this Motion. Lauren Heatwole, Esq. Florida Bar No. 0674583 Heatwole Law Firm, P.A. 1415 E. Robinson Street, Suite B Orlando, Florida 32801 Telephone: (407) 490-2467 Email: Lauren@HeatwoleLaw.com Page 10 of 11
CERTIFICATE OF SERVICE I HEREBY certify that on June 14, 2017, I filed the foregoing in the eportal which provided a copy via Electronic Mail to attorneys for Plaintiff, Andrea Kurak, Esquire and Kelly Parsons Kwiatek, Esquire, Cobb Cole Attorneys at Law, 149 South Ridgewood Ave, Suite 700, Daytona Beach, Florida 32114, Kelly.Parsons@cobbcole.com, Michele.Staples@cobbcole.com, Jennifer.Baker@cobbcole.com; andrea.kurak@cobbcole and attorneys for Defendant/Appellee, GCM HOLDINGS LTD, Frank Ganz, Esquire and Sarah Metz, Esquire at FGanz@daytonalaw.com and smetz@daytonalaw.com. Lauren C. Heatwole, Esq. Florida Bar No.: 674583 Heatwole Law Firm, P.A. 1415 E. Robinson Street, Suite B Orlando, Florida 32801 Telephone: (407) 490-2467 Facsimile: (407) 641-9530 Email: Lauren@HeatwoleLaw.com Secondary: Kathryn@HeatwoleLaw.com Tertiary: Shalanda@HeatwoleLaw.com Attorney for the Defendants/Appellees, Gabriel Murphy and GCM Holdings Ltd Page 11 of 11