Bresky Law Defeats Motion to Take Judicial Notice of Matters Outside Record on Appeal

Bresky Law recently defeated a motion by the opposing party in an appellate proceeding asking the court to take judicial notice of matters outside the record on appeal.

We represented the appellant landlord in an appeal of a trial court’s order granting a motion to dismiss after trial in a civil action between the landlord and its former tenants. One issue at trial had been that the spelling of our client’s name on the Complaint differed slightly from the correct legal spelling with the Florida Department of State. Counsel for the former tenants argued to the trial court that the landlord’s misspelling of its legal name on the Complaint was intentional, and that the landlord had previously filed other actions under different names. Counsel for the former tenants offered no support for his assertion, admitted that he could not prove the assertion, and failed to provide any other case numbers.

We filed our Initial Brief on appeal. We noted that opposing counsel offered no support for the suggestion that our client’s misspelling of its name was anything but an honest mistake. The former tenants filed an Answer Brief and a Motion to Take Judicial Notice. In the Motion to Take Judicial Notice, the former tenants asked the court to allow the former tenants to argue matters outside the record on appeal, explaining why they had argued to the trial court that the landlord intentionally misspelled its name in the Complaint.

We opposed the Motion to Take Judicial Notice. We argued that the existence of other cases was not a “record” appropriate for judicial notice pursuant to section 90.202(6), Fla. Stat. We also argued that the former tenants’ request should be denied because it was an improper attempt to supplement the record on appeal with outside material in order to cure the failure to make a record in support of the argument in the trial court. We stressed that it is inappropriate for the record on appeal to contain material that was never presented to, or considered by, the trial court. Konoski v. Shekarkhar, 146 So. 3d 89, 90 (Fla. 3d DCA 2014) (“It is axiomatic that appellate review must be limited to the record made before the trial court…”); Dorsett v. Dorsett, 902 So. 2d 947, 950 n.2 (Fla. 4th DCA 2005).

The appellate court denied the former tenants’ Motion to Take Judicial Notice. This result helped ensure that the appellate panel will consider our client’s appeal based upon the appropriate record rather than the opposing parties’ unsupported allegations.