Opinion
No. 92-754.
August 28, 1992.
Appeal from the Circuit Court, Orange County, Emerson R. Thompson, Jr., J.
Randall E. Denker of Lehrman and Denker, Tallahassee, for appellant.
Christopher C. Skambis and Edward P. Jordan, II, of Foley Lardner, Orlando, for appellee.
ON MOTION TO SUPPLEMENT RECORD
The appellee, Firstate Financial, a Savings Bank, has moved pursuant to rule 9.200(f)(2), Florida Rules of Appellate Procedure, to supplement the record in this appeal. The motion was filed on June 18, 1992, after the appellant filed its initial brief on May 29, 1992. While we grant the motion, we do so only because the appellant was deficient in its directions to the clerk.
Rule 9.200(a)(2), Florida Rules of Appellate Procedure, requires an appellant to serve upon an appellee a statement of judicial acts to be reviewed when it directs that less than the entire record or less than the transcript of all testimony in a proceeding is to be transmitted to the appellate court. The 1988 revision of the committee notes indicates that the purpose of the rule is so that the opposing party may determine whether additional portions of the record are required. The omission of such a statement which was required by the rule to be served with appellant's directions to the clerk in the instant case may have been the source of a problem that required the appellee to file its motion to supplement the record after the appellant's initial brief had been filed. The brief would have specifically described the judicial acts to be reviewed. We also note that the appellee had twenty days within which to direct the clerk to include additional documents and exhibits after the appellant's directions and statement were served. Appellee in the instant case served its motion to supplement the record within twenty days of service of the appellant's brief — an unprescribed time period, but certainly timely using the rule as a standard had the appellant complied with the requirement of a statement.
While appellee moved to supplement the record pursuant to subsection (f)(2) of the rule, we note that subsection (e) is perhaps the more appropriate authority. The rule states:
(e) Duty 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.
The burden was upon the appellant to ensure that the record was prepared and transmitted in accordance with the rules. It did not when it failed to file the required statement of judicial acts to be reviewed with the special directions to the clerk of the circuit court.
The appellant shall have 25 days from the date of this order within which to file an amended initial brief should it choose to do so.
Motion GRANTED.
GOSHORN, C.J., concurs.
DAUKSCH, J., concurs in conclusion only.