D & K REHAB CENTER
v.
INFINITY AUTO INSURANCE

11th Cir. Ct. App. Div. | 2020-05-26
No. 2018-264-AP-01
1 FLCA 6874 Eleventh Judicial Circuit Court, Appellate Division (2020)

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Synopsis

D & K Rehab Center appealed an insurance dispute with Infinity Auto Insurance regarding the interpretation of an auto insurance policy. The appellate court granted Infinity's unopposed emergency motion to supplement the appellate record with missing documents, including the disputed insurance policy and supporting affidavit that were central to the appeal.


Holding

The appellate court granted Infinity's emergency motion to correct and supplement the record. The court ordered that the appendix containing the missing insurance policy and affidavit be included in the original record on appeal pursuant to Fla. R. App. P. 9.200.


Headnotes

[1] An appellate court may grant a motion to correct or supplement the record on appeal if the record contains an error or omission.

[2] The record on appeal shall consist of all documents filed in the lower tribunal, unless specifically excluded by rule.

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Key Quotes

“Except 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, except summonses, preacipes, subpoenas, returns, notices of hearing or of taking deposition, depositions, and other discovery.”

Establishes the general composition of the record on appeal under Fla. R. App. P. 9.200(a)(1)

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Facts & Procedural History

D & K Rehab Center, acting on behalf of Eusebia Lopez, filed suit against Infinity Auto Insurance regarding coverage under an auto insurance policy. T…

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Opinion of the Court

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

APPELLATE DIVISION

CASE NO. 2018-264 AP D & K REHAB CENTER, INC. A/A/O EUSEBIA LOPEZ,

Appellant,

vs.

INFINITY AUTO INSURANCE COMPANY,

Appellee.

* * * * * * * * * * * * * * * * * * * * * * * * * * * APPELLEE’S UNOPPOSED EMERGENCY MOTION TO CORRECT THE RECORD PURSUANT TO FLA R. APP. P. 9.200 * * * * * * * * * * * * * * * * * * * * * * * * * * *

APPEAL FROM THE COUNTY COURT

IN AND FOR MIAMI-DADE COUNTY LAW OFFICE OF DEBORAH N. PEREZ &

ASSOCIATES

Employees of Infinity Insurance Company 8400 NW 36th Street, Suite 250 Miami, Florida 33166 Telephone: (305) 714-3300 [email protected] By:_________________________________ Meghan E. Wood. Florida Bar No. 96964 Filing # 107823947 E-Filed 05/21/2020 04:25:35 PM [*2] IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

APPELLATE DIVISION

CASE NO. 2018-264 AP D & K REHAB CENTER, INC. A/A/O EUSEBIA LOPEZ,

Appellant,

vs.

INFINITY AUTO INSURANCE COMPANY,

Appellee.

__________________________________________________________________ APPELLEE’S EMERGENCY UNOPPOSED MOTION TO CORRECT THE RECORD PURSUANT TO FLA R. APP. P. 9.200 __________________________________________________________________

[*3] APPELLEE’S EMERGENCY UNOPPOSED MOTION TO CORRECT THE RECORD PURSUANT TO FLA R. APP. P. 9.200 COMES NOW, Defendant, INFINITY AUTO INSURANCE COMPANY, by and through the undersigned counsel and pursuant to Florida Rules of Appellate Procedure 9.200 and 9.225 files this Emergency Motion to Correct the Record as grounds thereof states as follows:

1.

The Oral Argument for this matter is set before the Court on May 26, 2020 at 1:30PM.

2.

In a final review of the matter for oral argument, the undersigned became aware that the Original Record On Appeal compiled and filed by Deputy Clerk Tanya D. Bennett is missing relevant court filings which were filed in the lower case, D & K Rehab Center, Inc. a/a/o Eusebia Lopez v. Infinity Auto Insurance Company, Case No. 15-014474 CC 05.

3.

Overall, the Original Record on Appeal fails to include dispositive documents which were individually filed with the lower court. Please see Exhibit “A” of the attached Appendix, the docket from Case No. 15-14474 CC 05.

4.

Although the majority of those documents are not relevant for purposes of this appeal, the following documents are dispositive and form the entire basis of the argument taking place on May 26, 2020: [*4] a. Docket Entry No. 12, February 5, 2018 – Notice of Filing: Certified Auto Insurance Policy of Uldarico A. Lopez Minaya. Attached hereto as the Appendix, Exhibit “B” b. Docket Entry No. 10, February 5, 2018 – Notice of Filing: Affidavit of Michael Sanford. Attached hereto as the Appendix, Exhibit “C”.

5.

Florida Rule of Appellate Procedure 9.200, The Record pertains to the compilation and submission of the record from the lower tribunal. The sections at issue here in this motion are as follows: a. Fl. R. App. P. 9.200(a)(1) – “Except 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, except summonses, preacipes, subpoenas, returns, notices of hearing or of taking deposition, depositions, and other discovery. b. Fla. R. App. P. 9.200(e) – “Duties of Appellant or Petitioner. The burden to ensure that the record is prepared and transmitted in accordance with these rules shall be on the petitioner or appellant. Any party may enforce the provisions of this rule by motion. (Emphasis added). [*5] c. Fl. R. App. P. 9.200(f)(1) Correcting or Supplementing Record. If there is an error or omission in the record, the parties by stipulation, the lower tribunal before the record is transmitted, or or the court may correct the record. (Emphasis Added). d. Fl. R. App. P. 9.200(f)(2) Correcting or Supplementing Record. If the court finds the record incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined because of an incomplete record, until an opportunity to supplement the record has been given. (Emphasis Added).

6.

The entirety of the Appellant’s Initial Brief rests on the assertion that the language included in the Policy of Insurance at issue is vague and ambiguous. However, the Original Record on Appeal does not include the actual document on which the Appellant’s argument rests, even though that document was clearly filed with the lower court. Furthermore, the additional Affidavit of Michael Sanford was filed and reviewed by the lower tribunal in conjunction with the Appellee’s Amended Motion for Summary Judgment, the decision of which is currently pending on this Appeal.

7.

Pursuant to Rule 9.200, these two documents do not fall within the exceptions listed in Rule 9.200(a)(1). They are substantive filings that are applicable to the pending appeal and upcoming argument. [*6] 8. The undersigned identified the error and reached out to opposing counsel regarding the issue. Counsel for the Appellant advised they had no objection to the inclusion of the attached Appendix.

9.

Based on the above, the Appellee respectfully requests this Court enter an Order supplementing the record with the attached Appendix to be reviewed and considered during the upcoming argument on May 26, 2020.

10.

Such an order is in accordance with the Rules and will not prejudice the Appellant, as the documents are dispositive to the issue the Appellant raised on appeal.

Footnotes
11 The undersigned certifies that she reached out to counsel for the Appellant with this motion to resolve this matter without extensive involvement of the Court.
12 A proposed order regarding this Motion is attached hereto for the Court’s Convenience. WHEREFORE, Appellee, INFINITY AUTO INSURANCE COMPANY, respectfully requests this Court enter an Order Supplementing the Record with the two above documents, and for all other relief it deems just and proper. [*7] CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served on this 15th day of February, 2019, to Steven E. Gurian, Esq. and Carla C. Martinez, Esq. Marin, Eljaiek, Lopez, & Martinez, P.L. [email protected]. LAW OFFICES OF DEBORAH N. PEREZ Employees of Infinity Insurance Company A Kemper Corporation Affiliate 8400 NW 36 Street, Suite 250 Doral, FL 33166 Telephone: (305) 714-3200 Facsimile: (305) 714-3301 E-Service Email: [email protected] Business Email: [email protected] By:__________________________________ Meghan E. Wood, Esquire Florida Bar No.: 96964 [*8] IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA APPELLATE DIVISION CASE NO. 2018-264 AP D & K REHAB CENTER, INC. A/A/O EUSEBIA LOPEZ, Appellant, vs. INFINITY AUTO INSURANCE COMPANY, Appellee. * * * * * * * * * * * * * * * * * * * * * * * * * * * APPENDIX TO APPELLEE’S EMERGENCY MOTION TO CORRECT THE RECORD PURSUANT TO FLA R. APP. P. 9.200 * * * * * * * * * * * * * * * * * * * * * * * * * * * APPEAL FROM THE COUNTY COURT IN AND FOR MIAMI-DADE COUNTY LAW OFFICE OF DEBORAH N. PEREZ & ASSOCIATES Employees of Infinity Insurance Company 8400 NW 36th Street, Suite 250 Miami, Florida 33166 Telephone: (305) 714-3300 [email protected] By:_________________________________ Meghan E. Wood. Florida Bar No. 96964 [*9] Appendix Exhibit "A" [*1] [*10] [*2] [*11] [*3] [*12] [*4] [*13] [*5] [*14] Appendix Exhibit "B" [*6] [*15] [*7] [*16] [*8] [*17] [*9] [*18] [*10] [*19] [*11] [*20] [*12] [*21] [*13] [*22] [*14] [*23] [*15] [*24] [*16] [*25] [*17] [*26] [*18] [*27] [*19] [*28] [*20] [*29] [*21] [*30] [*22] [*31] [*23] [*32] [*24] [*33] [*25] [*34] [*26] [*35] [*27] [*36] [*28] [*37] [*29] [*38] [*30] [*39] [*31] [*40] [*32] [*41] [*33] [*42] [*34] [*43] [*35] [*44] [*36] [*45] [*37] [*46] [*38] [*47] [*39] [*48] [*40] [*49] Appendix Exhibit "C" [*41] [*50] [*42] [*51] [*43] [*52] [*44] [*53] [*45] [*54] [*46] [*55] [*47] [*56] [*48] [*57] [*49] [*58] IN THE CIRCUIT COURT OF THE ELEVENTH JUDICAIL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA D & K REHAB CENTER, INC. A/A/O EUSEBIA LOPEZ, APPEAL CASE NO.: 18-264 AP Appellant/Petitioner, LOWER CASE NO.: 15-14474-CC-05 Vs. INFINITY AUTO INSURANCE COMPANY, Appellee/Respondent. _________________________________/ ORDER GRANTING APPELLEE’S EMERGENCY MOTION TO CORRECT THE RECORD PURSUANT TO FLA. R. APP. P. 9.200 THIS CAUSE having come before the Court upon Appellee’s Emergency Motion to Correct the Record Pursuant to Fla. R. App. P. 9.200, the Court having been apprised of the matter at issue, orders as follows: 1. Appellee, Infinity Auto Insurance Company’s Emergency Motion to Correct the Record is hereby Granted. 2. The Appendix attached to Appellee’s Motion is hereby included in the Original Record On Appeal. DONE AND ORDERED in Chambers at Miami, Dade County, Florida this ________ day of ________________, 2020. _______________________________ CIRCUIT COURT JUDGE Copies furnished to: Meghan E. Wood, Esq., [email protected] Carla C. Martinez, Esq. and Steven Gurian, Esq. at [email protected]

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