18 Fla. L. Weekly Supp. 503a
Online Reference: FLWSUPP 1806GONZ
Insurance — Personal injury protection — Appeals — Appendix — Extra-record documents — Inclusion in appendix to initial appellate brief of Governor’s veto message, in which then-Governor Bush explained his reasons for vetoing legislature’s attempt to re-enact sunsetted PIP law, and reference to this message in initial brief is not such an egregious or flagrant violation of rules of appellate procedure as to warrant striking of appendix or references thereto, especially where trial court’s ruling concerns pure question of law, an issue of statutory construction, and is subject to de novo review on appeal
UNITED AUTOMOBILIE INSURANCE COMPANY, Appellant, v. HOLLYWOOD DIAGNOSTICS CENTER a/a/o FRANCISCA C. GONZALEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-335 AP. L.C. Case No. 09-007349-SP-26. March 22, 2011. Counsel: Michael J. Neimand, Office of the General Counsel, Miami, for Appellant.
ORDER DENYING APPELLEE’S MOTION TO STRIKE APPENDIX TO INITIAL BRIEF
(LEBAN, Judge.) The Court has before it Appellee’s MOTION TO STRIKE APPENDIX TO INITIAL BRIEF, which is directed at “a letter purporting to be from former Governor Jeb Bush, addressed to the Florida Secretary of State, dated May 31, 2006.” Motion at ¶ 1. The Motion is predicated upon the unquestioned rule that items in a brief or appendix “not part of the record below. . . [are] not properly before th[e] [appellate] Court and should be stricken and disregarded. . . [along with] [a]ny reference to the improperly appended document that appears in. . .” the brief of the party who improperly appended what will be referred to herein as the “extra-record” items or matters. Motion at ¶¶ 3 & 4. Appellee cites a string of case law, to be discussed infra, so holding. The Court has also considered Appellant’s RESPONSE TO MOTION TO STRIKE APPENDIX TO INITIAL BRIEF, filed March 18, 2011, in a companion case, Case No. 09-255 AP.
Without reaching the merits of the controversy between the parties, suffice it to say that it involves a matter of statutory construction concerning whether the “medical fee schedules” set forth in the re-enacted PIP statute, effective on January 1, 2008, after that statute had been “sunsetted” on October 1, 2007, were “permissive,” as Appellee perceives Appellant’s argument below and on appeal to be,1 Appellee claiming on appeal that “[n]othing in the statute supports United’s argument below that the permissive fee schedules are ‘mandatory.’ ” See Answer Brief’s SUMMARY OF ARGUMENT at page 12. In any event, both parties agree that the trial court’s order granting summary judgment for Appellee was a ruling “as a matter of law.” Initial Brief at 6, Answer Brief at 12.
The extra-record document sought to be excluded, as set forth above, and which appears as the sole item in Appellant’s Appendix, is former Governor Bush’s veto message in which the Governor explains his reasons for vetoing the legislature’s 2006 attempt to re-enact the sunsetted PIP law, and in particular “Committee Substitute [repeated three times] for Senate Bill 2114.” Appellee also seeks to strike Appellant’s two references to the veto message, appearing at pages 9 and 13 of Appellant’s Initial Brief. The more detailed portion, at page 9, states, in pertinent part, as follows: “Governor Jeb Bush vetoes the bill since it failed to include reforms to address the abuses and extensive litigation within the system. The reforms the Governor sought were a medical fee schedule, a utilization schedule, elimination of the attorneys’ fees multiplier and continued efforts to fight fraud.” [Emphasis added; Website to said veto message excluded].
Before addressing the instant MOTION TO STRIKE, two basic rules are worth noting, aside from the important rule relied upon by Appellee that extra-record material may not be included in a brief or appendix if it was never presented to the lower tribunal.2 The first principle concerns the undisputed agreement between the parties that this summary judgment appeal raises an issue “as a matter of law.” Initial Brief at 6, Answer Brief at 12. “If the ruling consists of a pure question of law, the ruling is subject to de novo review. See, e.g., Philip J. Padovano, Florida Appellate Practice § 9.4 (2nd ed.1997).” State v. Glatzmayer, 789 So. 2d 297, 301 n. 7 (Fla. 2001) [26 Fla. L. Weekly S279a]. See also, Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001) [26 Fla. L. Weekly S465a] (appellate courts “review the grant of a summary judgment using a de novo standard.”). The second principle is that “[t] he interpretation of a statute is a question of law subject to de novo review.” Harden v. State, 932 So. 2d 1152, 1154 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D1749a].
As will be seen, Appellee’s argument about the offending extra-record veto message is both unsupported by controlling Florida law, and also ironically serves Appellee’s opposite purpose in seeking to erase from the Court’s consideration the offending material. As noted nearly a half century ago in a somewhat similar situation, former Chief Judge Sturgis of the First District quipped, “the appellee by moving to strike the admittedly prohibited data found in the appendix to appellant’s brief has served to emphasize whatever point appellant wished to make by the same.” Mitchell v. Gillespie, 161 So. 2d 842, 844 (Fla. 1st DCA 1964), Sturgis, J., concurring in part and dissenting in part.3 4
Perhaps the best statement of the law justifying the propriety of considering a governer’s veto of a precursor statute being construed in an appeal comes from the early cases of our Supreme Court. One such case, decided in 1930, and still “good law” is Amos v. Conkling, 99 Fla. 206, 217-218, 126 So. 283, 288 (Fla. 1930), where the Supreme Court held:
In the construction of a particular statute, or in the interpretation of any of its provisions, all acts relating to the same subject, or having the same general purpose, may be read in connection with it, as together constituting one law. The endeavor may be made, by tracing the history of the legislation on this subject, to ascertain the uniform and consistent purpose of the Legislature or to discover how the policy of the Legislature with reference to the subject-matter has been changed or modified from time to time. With this purpose in view, therefore, it is proper to consider, not only acts passed at the same session of the Legislature, but also acts passed at prior or subsequent sessions, and even those which have been repealed. [Emphasis added].
The propriety of looking at legislative history at the appellate level was made clear in another early case from the Supreme Court of Florida:
In seeking legislative intent by tracing history of legislation, it is proper to consider acts passed at prior or subsequent sessions including those repealed, as well as those passed at the same session.
Watson v. Holland, 155 Fla. 342, 351, 20 So. 2d 388, 393 (Fla. 1944), rev. denied, 325 U.S. 839 (1945) [Internal quotation marks omitted].
It is thus obvious to this Court that if appropriate appellate-level-review of legislative history includes consideration of acts passed at prior, same, and subsequent legislative sessions, as well as acts repealed, such review for-the-first-time-on appeal of vetoed versions of subsequently enacted acts on the identical subject matter is also “proper.” Appellant in the case at bar thus quite “properly” asks this Court to look to Governor Bush’s veto message, together with the legislative act that immediately followed in tracing the legislative history of section 637.736, Florida Statutes (2008), which, Appellant argues, “contained some of the same reforms that were missing from the 2006” version that lead to the Governor’s veto, “including a medical fee schedule.” Quoting from Initial Brief at 9. It will, of course, be for the panel that determines this appeal to afford what weight, if any, it feels the Governor’s veto message deserves. In any event, the Amos-Watson decisions, and their progeny, to be set forth below, clearly allow the parties to argue legislative intent and to present the legislative history to assist the Court in its de novo review of the construction of the 2008 PIP statute here at issue.
More recently, the Third District recognized the same concept flowing from Amos and Watson when it held: “To discern legislative intent, courts must consider the statute as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the statute. ” State v. Anderson, 764 So. 2d 848, 849 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1862a], quoted with approval in E.A.R. v. State, 4 So. 3d 614, 629 (Fla. 2009) [34 Fla. L. Weekly S120a].
Moreover, in Florida Ins. Guaranty Ass’n, Inc. v. State ex rel. Dept. of Ins., 400 So. 2d 813, 817-18 & n. 5 (Fla. 1st DCA 1981), the First District engaged in an extensive analysis of the legislative history of the statute there at issue, notwithstanding its finding that the statute’s meaning “is clear, not ambiguous” and went so far as to note an amendment of the statute at issue, quoting in footnote 5 therein at length from the “Florida House and Senate Staff Reports the Department of Insurance” which the court itself, at the appellate level, obtained, even including the source citation: “Senate Staff Analysis and Economic Impact Statement, April 17, 1979, SB 694 Committee files, Senate Commerce Committee Office, The Capitol; House Committee on Insurance Staff Report, April 20, 1979, HB 1430, Committee files, State Archives Building, Cartons 475-478, and 478T.” Nowhere does it appear to be of the slightest concern to the First District that this legislative history was not first brought to the attention of the trial court nor did it appear in the record on appeal, which should come as no surprise given the ample precedent for considering that history.
The same appears not to have bothered the Second District in Auto Owners Ins. Co. v. Prough, 463 So. 2d 1184, 1186 (Fla. 2d DCA 1985), where the court, again without any indication that the legislative history from which the DCA itself quoted, was ever first presented below, stated: “Our review of the legislative history of the 1980 amendment requires us to conclude that appellee’s argument is correct.” After quoting from the staff analysis, the DCA revealed its source as follows: “Staff of House Comm. on Insurance, 1980 Fla. Legislature, Reg.Sess., Report on Stacking of Uninsured Motor Vehicles, at 2 (April 28, 1980). See also Senate Staff Analysis and Economic Impact Statement, 1980. . .”.
It should by now be obvious that the mere inclusion of a governor’s veto message to a legislative act later re-enacted in the very next session and in arguable response to that veto message, is totally in keeping with the practice of appellate courts in cases where statutory interpretation is involved, legislative history is relevant, and review on appeal is de novo. That a governor’s veto is contained within and part of the legislative history of a statute should also come as no surprise. See, e.g., North Florida Women’s Health and Counseling Services, Inc. v. State, 862 So.2d 612, 640 (Fla. 2003) [28 Fla. L. Weekly S549a] (noting “the history of the legislation at issue reflects explicit legislative staff warnings and a prior Governor’s veto of the same legislation based on this Court’s precedent”), Anstead, C.J., concurring specially. [Emphasis added].
The only decision expressly striking legislative staff analysis for the reason that, as argued by the Appellee here, “it was not presented as evidence in the trial court and that it is not otherwise properly included in the appendix under Rule 9.220,” is Department of Health and Rehabilitative Services v. Shatto, 487 So.2d 1152, 1153 (Fla. 1st DCA 1986). In so doing, however, the DCA “note[d] that legislative staff reports such as the one here at issue have been previously relied upon by Florida appellate courts in construing statutes.” Id. The court surmised that such reports “may have been first introduced at the appellate level through the advocacy of counsel or through the independent research of the court.” Id. [Emphasis added.] The court cited some of the above-cited cases as demonstrating the first-time-on-appeal submission of such extra-record legislative history, yet held in the case before it that “the preferable method” is for the parties to present the legislative history below so its significance may be developed and perhaps opposed by the other party. In so doing, however, aside from its ignoring the plethora of binding precedent cited in this order to the contrary, the First DCA did expressly limit its striking of the legislative summaries before it to “this particular case,” observing that “we do so because of the interlocutory nature of this appeal” as opposed to it being an appeal from a final order and the court felt it better “to relinquish jurisdiction to the trial court for th[e] limited purpose ” of presenting the legislative history below after which there could be a possible re-briefing of the case on appeal after remand. As demonstrated, Shatto is an outlier case in this regard and even the First District, in subsequent cases, expressly considered legislative history to be presented and analyzed for the first time on appeal to that very court.
While it was deemed “preferable” in the Shatto court’s view that legislative history be first presented to the trail court, it is not a prerequisite, as Appellee would have this Court rule; as noted by the same court in Ellsworth v. Insurance Co. of North America, 508 So. 2d 395, 398 (Fla. 1st DCA 1987):
Although Florida appellate courts may consider legislative staff summaries in construing statutes, judicial notice clearly is not a prerequisite to that consideration. Such reports may be consulted in the course of the court’s independent research, through advocacy, or through introduction into the record at the trial level by judicial notice. Department of Health & Rehabilitative Services v. Shatto, 487 So.2d 1152 (Fla. 1st DCA 1986).
The Ellsworth court went on to observe in footnote 3 of its opinion:
We note however, that this particular type of extrinsic aid to statutory interpretation [referring to Staff Summary and Analysis] is accorded significant respect by Florida courts as well as courts nationally. 508 So. 2d at 401 n. 3.
Indeed, that the First District did not prohibit first-time-on-appeal consideration of legislative analysis and history by its Shatto decision is made clear by its notation in post-Shatto cases that:
The legislative staff summaries and analyses were not part of the record, nor were they cited by the parties. However, they aid this court in interpreting the constitutional provisions at issue. See generally Ellsworth v. Insurance Co. of North America, 508 So.2d 395, 401 (Fla. 1st DCA 1987) (noting, although court’s decision was not predicated on Legislative Staff Summary and Analysis, this particular type of extrinsic aid to statutory interpretation is accorded significant respect by Florida courts). [Emphasis added].
The Justice Coalition v. The First Dist. Court of Appeal Judicial Nominating Com’n, 823 So.2d 185, 191 n. 5 (Fla. 1st DCA 2002) [27 Fla. L. Weekly D1645b].
Our courts resort to the extreme remedy of striking briefs and appendices that fail to comply with the appellate rule regarding reference to “relevant portions of the record” for “flagrant disregard of that rule,” not the type of reliance on legislative history asserted by Appellee here. See, Dayton Tire & Rubber Co. v. Davis, 348 So. 2d 575, 579 (Fla. 1st DCA 1977), quashed on other grounds, 358 So. 2d 1339 (Fla. 1978). Accord, Adjustment Specialists, Inc. v. Collection Bureau of Orlando, 221 So. 2d 443, 446 (Fla. 4th DCA 1969) (requiring “flagrant violation” of appellate rules before imposition of sanctions).
On the other hand, the cases cited in Appellee’s MOTION TO STRIKE do not reveal the nature or extent of reliance on the extra-record material that caused those courts to strike such matters. Thus, the Altchiler court, upon which the Appellee relies for its unquestioned statement of the law that a party to an appeal cannot rely upon matters outside the record and “not presented to the lower tribunal,” does not set forth the impertinent extra-record material relied upon by the offending attorney in his appendix and brief; rather, the court focused upon the fact that “counsel chose to ignore an order of this court.” Altchiler v. State, Dept. of Professional Regulation, Div. of Professions, Bd. of Dentistry, 442 So. 2d 349, 350 (Fla. 1st DCA 1983).
Similarly, Pedroni v. Pedroni, 788 So. 2d 1138, 1139 & n. 1 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D1717a], fails to reveal the “certain documents” improperly included in the appendix, and more importantly, affirmed because appellant in that case “has not provided this court with a transcript of the hearing which was conducted” in the trial court, thus failing to overcome the “presumption of correctness” that abides all lower court orders. The same is true with respect to Reza v. Ultra Brake, Inc., 637 So. 2d 984, 985 & n. 1 (Fla. 1st DCA 1994), the court there simply referring to “the answer and reply briefs. . . contain[ing] materials not part of the record on appeal.”
Rosenberg v. Rosenberg, 511 So. 2d 593, 595 n. 3 (Fla. 3d DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988), involved appellant’s attempt to seek judicial notice by the appellate court of “newspaper articles. . .[of] events occurr[ing] subsequent to the entry of the final orders under review which might have altered the trial court’s decision,” which the Third District rightly rejected as “entirely inapproprate.”5 No such post-trial, fact-altering material is involved in the case at bar.
Similarly, Thornber v. City of Fort Walton Beach, 534 So. 2d 754, 755 (Fla. 1st DCA 1988), involved “newspaper articles and the recorded minutes of the Fort Walton Beach city council meeting. The council minutes concerned the appearance of the trial court judge before the city council on an issue unrelated to these proceedings.” Moreover, the attorney in question had been placed on the DCA’s “culpa list” for repeated and “flagrant violation of the Florida Rules of Appellate Procedure.” Again, no such transgressions appear in the case at bar and not one of the Appellee’s cited decisions compel the granting of its MOTION TO STRIKE for Appellant’s inclusion of the Governor’s veto letter in its appendix and brief references to it in Appellant’s initial brief as part of the relevant legislative history of the PIP statute involved in this case. See, Amos v. Conkling, 99 Fla. 206, 217-218, 126 So. 283, 288 (Fla. 1930), and Watson v. Holland, 155 Fla. 342, 351, 20 So. 2d 388, 393 (Fla. 1944), rev. denied, 325 U.S. 839 (1945), discussed above.
Florida’s view on extra-record materials appearing in briefs and appendices is shared throughout the nation. See, e.g., Baker v. Jones, 199 S.W. 3d 749, 753 (Ky. App. 2006) (“Although the presentation of extraneous material in briefs is improper, it is not always sufficiently egregious to warrant the drastic relief urged by Baker. Here, the presentation of material not in the record on appeal does not warrant striking the entire brief of either Jones or the City. Therefore, we will deny the motion to strike but observe that we have not considered any extraneous material in reaching the decision on the merits”), review denied, Sept. 13, 2006. See also, In re Green’s Estate, 133 Cal. App. 2d 451-452, 284 P. 2d 202, 203 (Cal. App. 2d DCA 1955) (“So far as the motion to strike irrelevant portions of the brief is concerned, it is concluded that it will be better to consider the appeal on all of the briefs submitted, rather than to spend time determining what, if any, portions of briefs are or are not relevant, or should or should not be stricken out. Irrelevant matters in briefs do not have any persuasive weight in determining an appeal. And, in any event, this is a matter committed to the discretion of the reviewing court.”).
Finally, this Court finds highly persuasive, if not binding on the Motion to Strike before it, the Third District’s decision in Byte Intern. Corp. v. Maurice Gusman Residuary Trust No.1, 629 So. 2d 191, 192 (Fla. 3d DCA 1993), where the Court in its opinion actually quoted from the LEGISLATIVE DEBATE before the State House in considering the construction of the statute there at issue, observing, “The debate before the Florida House of Representatives on the final passage of section 83.231, Florida Statutes (1991) reflects this construction. . .”; the DCA went so far as to hold that “[t]he legislative history of the adoption of a statute may be judicially noticed by the court to . . . illuminate the judiciary as to legislative intent. ” Id. at192. [Emphasis added].
Viewed against this vast backdrop of appellate courts’ consideration of such non-record materials as legislative history as a prelude to a statute’s reenactment, this Court easily concludes that Appellant’s inclusion of the Governor’s veto message in its Appendix and reference to the same in its Initial Brief comes nowhere near such an egregious or flagrant violation of the rules of appellate procedure as to warrant the striking of the Appendix or references thereto in the Appellant’s brief, especially where, as here, the trial court’s ruling concerns a pure question of law, an issue of statutory construction, and is subject to de novo review on appeal.
Accordingly, the Appellee’s MOTION TO STRIKE APPENDIX AND INITIAL BRIEF is hereby DENIED.
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1Appellant asserts on appeal that “the fact that the [statutory] section is permissive is not the determining factor as to whether it is incorporated into United Auto’s policy. The operative language is contained in § 627.7407 (2), which requires that the entire statute be incorporated into the policy.” See Initial Brief’s SUMMARY OF THE ARGUMENT at page 6. Appellant goes on to argue that the statute’s “medical fee schedule must be read into every policy.” Id.
2See, e.g., Rules 9.220 (a) & (b), Fla. R. App. P., which each refer to “portions of the record” which a party must include in any appeal, as well as the requirement to make “references to the appropriate. . . pages of the record or transcript. . .”. Rule 9.200 (b) (4), Fla. R. App. P.
3The Appellee’s arguments in support of striking the Appendix and references to the offending exhibit in Appellant’s Initial Brief are reminiscent of two of the Bard’s plays,“Much Ado About Nothing”by William Shakespeare, and the well-known quotation from Hamlet, Act III, Scene II: “The Lady doth protest too much, methinks.”
4The phrase from Hamlet has come to mean that one can “insist so passionately about something not being true that people suspect the opposite of what one is saying.” GoEnglish.com Idioms = “Protest Too Much” = Today’s English Idioms.
5That Rosenberg does not stand as authority for disapproval of an appellate court’s use of legislative history for the first time on appeal is made clear in such post-Rosenberg Third DCA cases as State v. Anderson, 764 So. 2d 848, 849 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1862a], discussed earlier herein. See also, Byte Intern. Corp. v. Maurice Gusman Residuary Trust No. 1, 629 So.2d 191 (Fla. 3d DCA 1993), to be discussed, infra.
