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CONSOLIDATED CASES - ISSUES WITH CREATING A RECORD ON APPEAL

As every practicing attorney knows, companion cases may be consolidated for discovery, trial or both. A quirky issue that arises in consolidated cases is how to create a record for appellate purposes. Each jurisdiction usually has its own rules on how and when a case may be consolidated. Thus, the first thing you should do is to check your local court rules on case consolidation.

For example, in Palm Beach County, Florida (see Administrative Order 2.302-9/08), when cases are consolidated, each case file remains separate and the Clerk requires that pleadings shall continue to be filed in their appropriate file (“[c]ompanion cases shall not be consolidated into one pleading file.”). The administrative rule further states that all motions and orders must be filed separately in each case and the caption of any pleading or order shall only bear the underlying case number with no reference to the companion case number.

One issue that commonly occurs in consolidated cases is that an attorney fails to file relevant pleadings/documents in one of the consolidated cases, and thus, inadvertently fails to make a record. In other words, the trial docket of one of the consolidated cases reflects everything that has been filed in both cases and the other consolidated case is devoid of any filed pleadings or motions. The appellate issue becomes – what happens when you file an appeal in the consolidated case which lacks the records which you need to support your appellate brief.

Fla. Rule of Appellate Procedure 9.200(e) states that it is Appellant’s/Petitioner’s burden to ensure that the record is prepared and transmitted. Accordingly, the appealing party must make sure that an appropriate record is before the appellate court. Making sure that you have an appropriate record before the appellate court is of utmost importance, because appeals have been lost due to an insufficient record on appeal. See Davis v. State, 184 So. 3d 1259, 1259 (Fla. 5th DCA 2016) (the burden is on the appellant to ensure that the appellate record is complete and transmitted in accordance with the appellate rules, because the appellate record was devoid of any support for appellant’s position, the appellant failed to meet his burden that the trial court abused its discretion, thus, trial court was affirmed). 

To avoid this problem and to ensure that you have an appropriate record, you should make sure that all pleadings, orders, discovery and any other relevant documents are filed separately in the correct case file and that you are not filing everything in only one of the consolidated cases. Legal assistants and paralegals should be made aware to check the local rules and to be particularly careful when filing documents in companion cases which have been consolidated. However, you unfortunately cannot control the other side, and the failure to file the appropriate documents in the right file might have been caused by the failure of opposing counsel to follow the local rules. Thus, you may still find yourself with a deficient record. 

As such, one of the first things you should do when you file the notice of appeal in a consolidated case is to review the trial docket to confirm that all documents which support your appeal are contained in it. If documents are missing and you have a problem of an incomplete record, you can still perfect the record on appeal before it has been transmitted to the appellate court. Prior to the Clerk transmitting the record on appeal to the appellate court you can file under a notice of filing the missing records in order to “re-create” the record. This means filing everything that the trial court considered or reviewed, including any and all relevant pleadings and motions. It is not recommended to cherry pick only the documents which assist your position, because the duty falls upon the appellant/petitioner to transmit the appropriate record, not the other side. Failing to include all relevant documents may open yourself up to a motion to strike or motion to dismiss for failure to perfect the appellate record. 

Should the Clerk have already transmitted the record on appeal to the appellate court, the appellate court provides you with an opportunity to supplement the record. Fla. Rule of Appellate Procedure 9.200(f) provides that “no proceeding shall be determined because the record is incomplete until an opportunity to supplement the record has been given.” Therefore, you can seek leave of the court via motion to provide a Supplemental Record containing the missing documents. However, keep in mind, you can waive supplementing the record if your request is not timely or if you are aware of the record deficiencies and you fail to correct them. See Estrada v. Unemployment Appeals Comm’n, 693 So. 2d 1091, 1092 (Fla. 5th DCA 1997) (appellant waived his opportunity to supplement the record on appeal by failing to timely request a transcript); Kaufmann v. Baker, 392 So. 2d 13 (Fla. 4th DCA 1981) (“where the record deficiencies are apparent and the record itself reflects appellant’s awareness of them, we find no need to award a second opportunity to supplement the record, to hold otherwise would necessitate our leading the parties by the hand in an attempt to get an adequate record.”). It also must be pointed out that Florida Rule of Appellate Procedure 9.220 was recently amended and there are now formatting guidelines that you must follow when submitting a supplemental record or appendix. For instance, it must be submitted in a searchable PDF, contain bookmarks, be numbered appropriately, contain a cover page and an index. Therefore, before filing a Supplemental Record, you will need to confirm that it complies with the new guidelines or you could be subject to the appellate court striking it. 

In conclusion, do not fret if you find that the record is not complete when appealing a case that was consolidated. As stated above, there are avenues available to make sure that you meet your burden and transmit an appropriate record to the appellate court.  

 ** Disclaimer ** The intent of this article is to provide general information on preparing and transmitting a record on appeal in consolidated cases. It is by no means a complete dissertation on this subject and is not intended to as a substitute for obtaining legal advice from an appellate attorney. As every attorney knows, each case is unique and it is advised to seek appellate counsel should an appeal be necessary in a consolidated action and there is an incomplete record on appeal.

Jeanette Bellon