vs. Appeal No. 01-557-CI-88A
LIBERTY MUTUAL INSURANCE COMPANY
THIS CAUSE came before the Court on the Appellee’s Motion to Strike Documents Filed by Appellant for Inclusion in Record on Appeal and Appellee’s Motion for Attorney’s Fees Pursuant to Section 57.105, Florida Statutes, in Connection with Motion to Strike. Upon review of said motions and being otherwise fully advised in the premises, the Court finds that the Motion to Strike is granted and the Motion for Attorney’s Fees is denied, as set forth below.
The Appellant is appealing the Order on Motion to Tax Supplemental Attorney’s Fees and Costs, entered by the lower court on December 20, 2000. The Notice of Filing, filed by the Appellant on January 11, 2001, attached three documents, correspondence between the parties’ respective counsel, dated April 18, 2000, June 26, 2000, and June 27, 2000 (documents). Appellant’s Second Amended Designation to the Clerk, filed January 22, 2001, directs the clerk to include these documents in the record on appeal.
In responding to the Appellee’s Motion to Strike, this Court reviewed the record developed below and found that these documents were not before the lower court in entering its Order on Motion to Tax Supplemental Attorney’s Fees and Costs. Therefore, these documents will not be considered in deciding the merits of this appeal and the clerk shall disregard directions to include them in the appellate record. See Thornber v. City of Fort Walton Beach, 534 So.2d 754, 755 (Fla. 1st DCA 1988)(stating that the function of the appellate court is to determine whether the lower tribunal committed error based on the issues and evidence before it)(citations omitted).
Further, it is inappropriate, and will subject the movant to sanctions, to inject matters into the appellate proceedings that were not before the lower court. See id. However, the Appellant is not precluded from correcting or supplementing the record as authorized by the Florida Rules of Appellate Procedure. See Fla. R. App. P. Rule 9.200(2000); but see Thornber, 534 So.2d at 755 (stating that Rule 9.200(f) is not intended to correct inadequacies in the record which result from a failure of a party to make a record below).
On the Appellee’s Motion for Attorney’s Fees, this Court finds that there is an insufficient basis to award fees pursuant to 57.105, Florida Statutes.
Therefore, it is,
ORDERED AND ADJUDGED that the Appellee’s Motion to Strike Documents Filed by Appellant for Inclusion in Record on Appeal is granted. The appellate clerk shall disregard the Appellant’s directions to include the above-cited documents in the appellate record. It is further
ORDERED AND ADJUDGED that the Appellee’s Motion for Attorney’s Fees Pursuant to Section 57.105, Florida Statutes, in Connection with Motion to Strike, is denied.
DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 6th day of February 2001.
W. DOUGLAS BAIRD
Circuit Judge, Appellate Division
Copies Furnished To:
Wendy Coxhead, Esquire
14119 SE 83rd Street
Newcastle, WA 98059
Attorney for Appellant
Manuel J. Alvarez, Esquire
Kerry McGuinn, Esquire
109 N. Brush Street, Suite 500
Tampa, FL 33601
Attorney for Appellee