17 Fla. L. Weekly Supp. 989a
Online Reference: FLWSUPP 1710INTEInsurance — Appeals — Supplementation of record on appeal — Documents duly filed and made part of record in lower court — Filing of document is controlled by clerk’s stamp, not clerk’s docket entries
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant(s), v. INTERSCAN INC., a/a/o OSMANY SANCHEZ, Appellee(s). Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-342 AP. L.C. Case No. 05-001819-SP-05. July 23, 2010. Counsel: Marlene S. Reiss, Miami. Thomas L. Hunker, Miami.
ORDER DENYING APPELLEE’S MOTION TO STRIKE SUPPLEMENTAL RECORD AND APPELLANT’S INITIAL BRIEF
(LEBAN, Judge.) The Court has before it Appellee’s MOTION TO STRIKE SUPPLEMENTAL RECORD AND APPELLANT’S INITIAL BRIEF, in which Appellee asserts that this Court’s March 3, 2010, order granting Appellant’s motion to supplement the record with the notice of filing of the affidavit of Dr. Pedro Musa-Ris was erroneously entered in that “Dr, Musa-Ris’s affidavit was never part of the record below.” See MOTION TO STRIKE at para. 3. Because of this purported fact, Appellee’s MOTION further requests that this Court strike Appellant’s Initial Brief, since it is based upon the affidavit of Dr. Musa-Ris, which, it is argued, was improperly supplemented as “never part of the record below.” Id.
In support of Appellee’s assertions, Appellee appends to its MOTION TO STRIKE the docket entries of the trial court which reflect that the only “NOTICE OF FILING” entered on the docket on May 8, 2009, was the affidavit of Dennis Kogut, DC. Appellee cites unquestioned authority for the well-settled rule that a party on appeal may not rely upon a record “in the first instance” that was not part of “the proceedings in the lower tribunal.” [Citations omitted].
The Court also has before it Appellant’s RESPONSE TO APPELLEE’S MOTION TO STRIKE SUPPLEMENTAL RECORD AND INITIAL BRIEF, which attaches thereto the notice of filing affidavit of Pedro Musa-Ris, M.D., together with Dr. Musa-Ris’s four page affidavit; the notice of filing bears the stamp of the Clerk of the Circuit and County Court signifying: “ORIGINAL FILED May-8 2009” and further setting forth the name of the Clerk of Court, Harvey Ruvin. Appellant further observes that Appellee “never argued below that the affidavit was not filed. Indeed, the trial court’s decision in this case was based on Appellee’s argument that the affidavit was filed untimely. [Record citation omitted]. Thus, Appellee below conceded that the affidavit was filed.” See RESPONSE para. 4.
Apparently, the subject here at issue is a recurring one, namely the propriety of supplementing records on appeal where the documents sought to be supplemented were or were not duly filed and made of record in the courts below.1
Upon consideration of the pleadings before it, including the notice of filing here at issue, as well as the docket sheets of the lower tribunal, this Court finds and concludes that the filing of a document is controlled by the Clerk’s stamp, and not the Clerk’s docket entries. First, Rule 1.080(e), Fla.R.Civ.P., which defines “filing” provides as follows:
(e) Filing Defined.
The filing of papers with the court as required by these rules shall be made by filing them with the clerk, except that the judge may permit papers to be filed with the judge, in which event the judge shall note the filing date before him or her on the papers and transmit them to the clerk. The date of filing is that shown on the face of the paper by. . . the clerk’s time stamp. . . . [emphasis added].
Decisional law also supports this interpretation of the definition of “filing.” See Sanchez v. Swanson, 481 So.2d 481 (Fla. 1986) (clerk’s stamp controls over docketing); Kroier v. Kroier, 116 So. 751 (Fla. 1928) (same); Hale v. McDonough, 970 So.2d 362 (Fla. 3d DCA 1908) (“file stamped by the clerk” is controlling), review denied, 981 So.2d 1199 (Fla. 1908).
It is accordingly hereby, ORDERED AND ADJUDGED that Appellee’s MOTION TO STRIKE SUPPLEMENTAL RECORD AND APPELLANT’S REPLY BRIEF be and the same is hereby DENIED.
__________________
1The undersigned cannot help but observe that Appellee’s MOTION TO STRIKE is apparently a “cut and paste job” in that it makes reference to a party from a completely different appeal wherein a similar issue is raised. See MOTION TO STRIKE at page 3 referring to a party named “New Jersey.”
