October 20, 2016

Appellate Court Vacates Prematurely-Entered Order Granting Opponent’s Motion to Supplement Record on Appeal

A district court of appeal recently vacated a prematurely-entered order that had granted our opponent’s motion to supplement the record on appeal.

We represent the appellant in an appeal stemming from a commercial dispute over a limited liability company. The appellate briefs have not yet been filed. There was also a separate derivative action in the trial court related to the underlying case from which our appeal stems. Opposing counsel filed a motion to supplement the record on appeal, claiming that a large amount of documents from the separate derivative action are necessary for the appellate court to resolve the appeal and asserting that the trial court relied upon those records in connection with the ruling that is on appeal.

We disagreed with that motion and began to prepare a response in opposition to it. We calendared 15 days as the time to file a response pursuant to Florida Rule of Appellate Procedure 9.300(a) and Florida Rule of Judicial Administration 2.514(b).

We filed our Response in Opposition at 11:29 a.m. on the 15th day. It turned out that the appellate court had issued an order granting our opponent’s motion about three minutes earlier. Thus, the court had not had an opportunity to consider our Response in Opposition before issuing the order.

However, three days later the appellate court vacated its order that had prematurely granted the motion. The court decided that the motion to supplement the record will be carried with the case for subsequent consideration by the merits panel. This result could spare our client the cost of the trial court clerk’s preparation of an unnecessary supplemental record and could avoid including documents in the record on appeal when they are not actually pertinent to the appeal.