In SunCruz Cainos, LLC v. Stout (5D09-987), the Fifth District affirmed the trial Court's refusal to give a jury instruction. The decision was a 2-1 split with no majority opinion. In a concurring opinion, Judge Cohen discussed the fact that a transcript was attached as an appendix to the initial brief but was not part of the record. He stated:
One might think that in a case where a verdict in excess of $550,000 was rendered, Appellant would provide a complete trial transcript to permit a full review. Instead, only excerpts were prepared until Appellant filed a transcript as an appendix to its initial brief. Because the transcript was not part of the record on appeal, it cannot be considered...
Judge Cohen continued:
To prevail on appeal based upon the denial of a proposed jury instruction, the proponent of the instruction must establish that "the requested jury instruction contained an accurate statement of the law, that the facts of the case support the giving of the instruction, and that the instruction was necessary for the jury to properly resolve the issues in the case."...
However, since a transcript was not provided, Judge Cohen stated that "Given the state of the record, I agree that Appellant cannot establish reversible error and that affirmance is required."
Judge Torpy filed a dissenting opinion that stated:
I would reverse because the trial court failed to adequately instruct the jury on the defense theory. In this slip and fall case, Appellant claimed that Appellee was an “undiscovered trespasser,” as defined by statute – a status that affects Appellant's duty. Although the trial court acknowledged a fact dispute on this issue, it denied a proposed special instruction that would have given the jury the legal framework to resolve this issue.
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