The Fourth District Court of Appeal today gives us a humorous reminder of the importance of making a proper record before the trial court, and ensuring that record is before the appellate court. In this mortgage foreclosure action, the trial court granted involuntary dismissal because the Bank moved a copy of the Original Note, rather than the note itself, into evidence. On appeal, the Bank argued that the trial court erred because the original note was eventually surrendered, but the Court of Appeal correctly dismissed this argument, because it relied on evidence outside of the record:
Appellant maintains that it surrendered the note in a â€œpackageâ€ to the clerk following the trial and requests this court to make the â€œlogical and equitableâ€ presumption that the original note was in the â€œpackageâ€ surrendered to the court. However, this court does not make â€œlogical and equitableâ€ leaps of faith, as it cannot (and should not) make any such determination unsupported by the record before it. Appellant further contends that the trial courtâ€™s decision should be reversed because â€œthe proof was in the pudding.â€ This may be true as, for all we know, the original promissory note was in that pudding. Nonetheless, it was not admitted into evidence at trial (although a copy of the note was moved into the record) and there is no indication that the original note has been previously filed with the court or the court clerk.
If you are ever tempted to make arguments based on items outside the record, don’t do it. I will henceforth call this the “pudding rule.”
The case is Deutsche Bank v. Huber, No. 4D12-3696 (April 23, 2014) [.pdf].