Have you ever found yourself without record proof of a negative—in other words, that you or opposing counsel did not take certain action in a case—only to then have to prove it at a later stage at trial or on appeal?  In an older case that recently caught our attention, Winn Dixie Stores, Inc. v. Miles, 616 So. 2d 1108 (Fla. 5th DCA 1993), the appellant learned the hard way what happens with respect to negatives in the absence of record proof.

In Winn Dixie, a personal injury case, the defendant wanted to show that the treating chiropractor was biased in favor of plaintiffs. To do so, defendant requested everything that had occurred in the twelve months prior to the treatment, and  that the chiropractor identify every case that resulted in a lawsuit.

When plaintiff’s counsel sought a protective order, the chiropractor’s counsel made a special appearance and orally argued that the discovery request was burdensome because his client was a treating physician rather than an expert witness.  The chiropractor prevailed, and the defendant was ordered to pay attorneys’ fees based on its discovery request.

On appeal, the defendant contended that there was nothing in the record to show that the chiropractor was ever a “moving party,” as required by the Florida statutes authorizing attorneys’ fees provisions. The chiropractor’s counsel argued that he did make a motion for a protective order ore tenus at the plaintiff’s hearing, but no court reporter was present at the hearing.

The appellate court found for the chiropractor on the basis that the rules of appellate procedure required the appellant to provide the record that it deemed necessary to support its argument(s), which the defendant here could not do.  Because the defendant had lost on this point below, the court applied the rule to, in effect, hold that it was the defendant’s duty to produce a record to show that something never occurred, rather than the typical requirement of showing that something did occur.

Preservation Issue:

• Failing to prove something did not happen results in waiver of the alleged error.

Tip: 
In this case, the traditional notion that “if it wasn’t raised on the record, it didn’t happen for purposes of appeal” was turned on its head.  Because the appellant could not show on the record that something did not happen  – i.e., that no motion for fees was made at the unreported hearing – the appellant lost. 

In the event there are gaps in the record, there sometimes are ways to reconstruct and build the record going forward.  One option would be to get a stipulation from opposing counsel and file it in the record, whether with the trial court or on appeal.  Another option if the court has not ultimately ruled on an issue would be to move for reconsideration and reference the previously omitted action in the motion. 

Being mindful of any gaps in the record, and taking the steps to fill in those gaps, should avoid the waiver problem illustrated in Winn Dixie.