Konoski v. Shekarkhar

Third District Court of Appeal
State of Florida
Opinion filed August 27, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-2027
Lower Tribunal No. 13-8132
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Jason Robert Konoski,
Appellant,
vs.
Dariush Shekarkhar, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Maria Espinosa
Dennis, Judge.
Roberto D. Stanziale (Fort Lauderdale), for appellant.
Silvia Perez, for appellee.
Before LAGOA, SALTER and EMAS, JJ.
EMAS, J.
Jason Konoski appeals from the trial court’s entry of a final judgment of
injunction for protection against domestic violence. He contends that 1) the final
judgment is not supported by competent substantial evidence, and 2) the trial court
erred in excluding testimony Appellant attempted to elicit from Appellee during
cross-examination.
Our review of the record reveals competent substantial evidence to support
the trial court’s entry of the final judgment of injunction. As to the evidentiary
issue, we hold that Appellant failed to properly preserve the issue for appeal. See
Frances v. State, 970 So. 2d 806 (Fla. 2007); Greenwald v. Eisinger, Brown, Lewis
& Frankel, P.A., 118 So. 3d 867 (Fla. 3d DCA 2013); A. McD. v. State, 422 So. 2d
336 (Fla. 3d DCA 1982).
Finally, and although having no effect on our ultimate determination, we
note with substantial concern the actions of Appellee’s appellate counsel in filing
an appendix containing documents outside the record which were never presented
to, or considered by, the trial court. In fact, the documents contained in the
appendix were generated, and pertain to events occurring, after the filing of the
notice of appeal in this case. Appellee never sought leave before filing these extra-
record documents, and it appears there would have been be no proper basis for
granting leave had it been sought. It is axiomatic that appellate review must be
limited to the record made before the trial court and it is “entirely inappropriate
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and subjects the movant to possible sanctions to inject matters in the appellate
proceedings which were not before the trial court.” Rosenberg v. Rosenberg, 511
So. 2d 593, 595 n.3 (Fla. 3d DCA 1987). As our sister court has noted:
When a party includes in an appendix material or matters outside the
record, or refers to such material or matters in its brief, it is proper for
the court to strike the same. That an appellate court may not consider
matters outside the record is so elemental that there is no excuse for
any attorney to attempt to bring such matters before the court.
Altchiler v. State, 442 So. 2d 349, 350 (Fla. 1st DCA 1983) (internal
citations omitted).
We strike Appellee’s appendix to the answer brief and admonish counsel for
her conduct in filing it.
Affirmed.
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