standard of appellate review

Know Your Standard of Appellate Review Regarding the Admissibility of Evidence

Posted by David Adelstein on March 21, 2015
Appeal, Standard of Review, Uncategorized / Comments Off on Know Your Standard of Appellate Review Regarding the Admissibility of Evidence

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The standard of appellate review regarding the trial court’s admissibility of evidence is an abuse of discretion. See Vavrus v. City of Palm Beach Gardens, 927 So.2d 992 (Fla. 4th DCA 2006); Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass’n, Inc., 884 So.2d 1087 (Fla. 4th DCA 2004).  Naturally, a party needs to preserve this issue by objecting to the admissibility of the evidence.  If a trial court sustains an objection and excludes the evidence, the party trying to introduce the evidence should make a proffer / offer of proof

On the other hand, the standard of review for the trial court’s interpretation of a contract, which is a question of law, is subject to the much more favorable de novo standard of appellate review. See Jenkins v. Eckard Corp., 913 So.2d 43 (Fla. 1st DCA 2005); RNK Family Limited Partnership v. Alexander-Mitchell Associates, 788 So.2d 1035 (Fla. 2d DCA 2001). This means the appellate court can examine the contract and reach a completely different legal interpretation than the trial court. See Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163 (Fla. 4th DCA 2003). Best explained by the Fourth District Court of Appeal in Gilman Yacht Sales, Inc. v. FMB Investments, Inc.766 So.2d 294, 296 (Fla. 4th DCA 2000) (internal citations omitted):

The interpretation of a written contract is a question of law to be decided by the court. An appellate court is not bound to give the trial judge’s interpretation or construction of a contract any weighted presumption of correctness. To the contrary, a decision construing a contract is reviewable on appeal under a de novo standard of review, and therefore we are required to consider for ourselves anew the meaning of the disputed contractual language.

It is important for parties to know the standard(s) of appellate review they may confront when appealing a trial court’s ruling as the standard of review will dictate the amount of deference the appellate court is required to give the trial court’s ruling. A de novo standard of review is much more favorable than an abuse of discretion standard of review.  The appellate standard of review is an essential component of appellate practice and will be identified in an appellate brief.   And, besides the standard of review, a party defending an appeal (appellee) may argue that to to the extent the trial court erred, such error was nothing more than a harmless error that did not contribute to the verdict.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Voir Dire and Reasonable Opportunity to Examine Prospective Jurors

Posted by David Adelstein on January 25, 2015
Appeal, Standard of Review, Voir Dire / Comments Off on Voir Dire and Reasonable Opportunity to Examine Prospective Jurors

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Voir dire, as mentioned in prior postings, is a very important part of the jury trial process.   Voir dire is when the parties have an opportunity to examine and question prospective jurors in the context of their theme and case in order to determine which six jurors (and alternate) should be sworn in on the jury panel. The objective behind voir dire is to ensure that parties have a fair and impartial jury. Williams v. State, 424 So.2d 148 (Fla. 5th DCA 1982).

 The right of parties (and even the trial court) in civil dispute to engage in voir dire is set forth in Florida Rule of Civil Procedure 1.431 which provides in pertinent part:

(b) Examination by Parties. The parties have the right to examine jurors orally on their voir dire. The order in which the parties may examine each juror shall be determined by the court. The court may ask such questions of the jurors as it deems necessary, but the right of the parties to conduct a reasonable examination of each juror orally shall be preserved.”

The trial court has discretion to control voir dire including limiting argumentative or repetitive examination. Leamon v. Punales, 582 So.2d 8 (Fla. 3d DCA 1991); Allen v. Se-Go Industries, Inc., 510 So.2d 1097 (Fla. 3d DCA 1987) (trial court had discretion to conduct voir dire and then limit each party to 20 minutes to examine prospective jurors); but see Carver v. Niedermayer, 920 So.2d 123 (Fla. 4th DCA 2006) (trial court limiting parties voir dire to 30 minutes to examine 19 prospective jurors was arbitrary and constituted reversible error).

A trial court’s control or limitations imposed on voir dire will not be disturbed unless the trial court abused its discretion. Sisto v. Aetna Cas. and Sur. Co., 689 So.2d 438 (Fla. 4th DCA 1997). Hence, the standard of appellate review is abuse of discretion. A trial court will be deemed to abuse its discretion in controlling the voir dire process if it prevents a party of its right in conducting a reasonable examination to ensure a fair and impartial jury is selected.   A reasonable voir dire examination assists the parties “in determining whether a particular juror should be the subject of either a challenge for cause or a peremptory challenge.Carver, 920 So.2d at 124 (quotation and citation omitted). Thus, it would be an abuse of discretion to deprive a party of this right to reasonably identify prospective jurors to challenge. See id.

For instance, in the personal injury case Sisto, the trial court prevented the plaintiff from inquiring as to prospective jurors’ views concerning personal injury lawsuits and damage awards. This limitation prevented the plaintiff from going into prospective jurors’ views and feelings on non-economic damages that are largely the type of damages awarded in a personal injury case. Naturally, this is an important aspect of a personal injury case that impacted the plaintiff’s exercise of peremptory challenges or excusing a prospective juror for cause based on that juror’s feelings and views about non-economic damages awarded in the personal injury context. The jury found for the plaintiff but did not award the plaintiff any non-economic damages. The plaintiff appealed and the appellate court found that the trial court abused its discretion in limiting the plaintiff’s voir dire examination and remanded the case for a new trial.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Application of the Business Records Exception to the Hearsay Rule

Posted by David Adelstein on January 18, 2015
Appeal, Evidence, Standard of Review / Comments Off on Application of the Business Records Exception to the Hearsay Rule

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Hearsay (an out-of-court statement offered at trial for the truth of the matter asserted) is inadmissible at trial. But, there are exceptions to this exclusionary hearsay rule to allow such evidence / testimony to be admissible at trial.

Previously, I wrote about one exception known as the business records exception contained in Florida Statute s. 90.803. The business records exception is commonly relied on in business disputes in order to admit business records as evidence.  

What if there is an appeal concerning the admissibility of evidence introduced at trial under an exception to the hearsay rule?

 

Standard of Appellate Review

 

Whether evidence is admissible under an exception to the hearsay rule, such as the business records exception, is subject to a de novo standard of appellate review. See Browne v. State, 132 So.3d 312, 316 (Fla. 4th DCA 2014).   

 

Application of Business Records Exception

 

Landmark American Insurance Company v. Pin-Pon Corp., 2015 WL 71849 (Fla. 4th DCA 2015) is recent a case where the appellate court remanded the dispute back to the trial court for a new trial as to damages because the trial court improperly allowed evidence to fall within the business records exception to the hearsay rule.  The evidence should have been deemed hearsay and should not have been admissible under the business records exception.

This case involved an insurance coverage dispute over damages a hotel sustained from a hurricane. After trial, the hotel received a judgment against its insurer. The insurer appealed and an issue on appeal concerned whether the trial court erred in admitting the hotel’s repair (damages) estimate.

The hotel, to support its repair damages, introduced into evidence a composite exhibit through its architect.   The exhibit contained the architect’s repair scope of work (to repair the damage stemming from the hurricane). The exhibit also contained cost information (pricing the architect’s repair scope of work) that was not prepared by the architect. Rather, the cost information was prepared by the hotel’s general contractor with subcontractor invoices and proposals as the supporting back-up.

Because documents within the composite exhibit (such as the cost information) were not prepared by the architect and, thus, would ordinarily constitute hearsay, the hotel tried to establish that the cost information generated by the contractor and subcontractors would be admissible under the business records exception to the hearsay rule.

The architect testified that in its normal course of business it prepared a repair scope of work (drawings) to address the hurricane damage. This repair scope of work was given to the hotel’s contractor to cost / price. The contractor then submitted the cost / pricing information to the architect for review. The architect testified that these were the types of records it would ordinarily maintain in its ordinary course of business.   Based on this testimony, the trial court ruled that the business records exception applied (since the cost information would be hearsay) and allowed this composite exhibit to be introduced as evidence.

The appellate court, in a detailed discussion about the business records exception to the hearsay rule, explained:

For a record to be admissible under the business records exception, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. However, the fact that a witness employed all the “magic words” of the exception does not necessarily mean that the document is admissible as a business record.

To lay a foundation for the admission of a business record, it is not necessary for the proponent of the evidence to call the person who actually prepared the business records. The records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation. Stated another way, the witness just need be well enough acquainted with the activity to provide testimony.   To the extent the individual making the record does not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity.

Nonetheless, the fact that a document is incorporated into a business’s records does not automatically bring the document within the business records exception to the hearsay rule. Otherwise, every letter which plaintiff’s employer received in connection with the operation of his business and which was subsequently retained as part of his business records ipso facto would be fully competent to prove the truth of its contents.”

Pin-Pon Corp., 2015 WL at *7 (internal quotations and citations omitted).

The appellate court held that the architect did not properly lay the foundation for the cost documentation within the composite exhibit to establish that the documentation fell within the business records exception to the hearsay rule. In particular, the architect could not show: (i) the documentation was made by or from information transmitted by a person with knowledge, (ii) the documentation was made at or near the time of the event since the architect had no knowledge when the documentation was made, and (iii) whether the preparer of the documents had knowledge or received information from a person with knowledge.

Because this documentation should have been deemed inadmissible, the appellate court remanded the case back to the trial court for a new trial on damages since there was a reasonable possibility that the error in admitting this evidence contributed to the jury’s verdict (i.e., the error in admitting this evidence was not a harmless error).

This case demonstrates the importance in properly laying the foundation so that documents are properly admitted into evidence.  As mentioned above, business disputes generally involve parties admitting evidence under the business records exception to the hearsay rule.  Thus, knowing how to properly lay the foundation for such evidence is important because if that evidence is improperly admitted there is a good chance that error in admitting the evidence will not constitute a harmless error

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Moving for a Directed Verdict and, then, a Motion to Set Aside the Verdict

Posted by David Adelstein on January 15, 2015
Appeal, Evidence / Comments Off on Moving for a Directed Verdict and, then, a Motion to Set Aside the Verdict

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Moving for a directed verdict is a standard procedure in a jury trial.  Simply put, after the plaintiff puts on its case-in-chief (evidence supporting its claims against the defendant), the defendant moves for a directed verdict stating that even assuming all of the evidence is true and undisputed, and all inferences relating to that evidence favor the plaintiff, the plaintiff failed to prove its case as a matter of law and a jury cannot reasonably enter a verdict in favor of the plaintiff based on that evidence. See Wald v. Grainger, 64 So.3d 1201 (Fla. 2011); see also Etheredge v. Walt Disney World Co., 999 So.2d 669, 672 (Fla. 5th DCA 2008) (“In other words, a motion for directed verdict shall be granted only if no view of the evidence could support a verdict for the non-moving party and that the trial court therefore determines that no reasonable jury could render a verdict for that party.”)     

This is best explained by the Florida Supreme Court:

“A party moving for a directed verdict admits the truth of all facts in evidence and every reasonable conclusion or inference which can be drawn from such evidence favorable to the non-moving party. A directed verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party [plaintiff or party putting on evidence in support of their claim], support the movant’s case as a matter of law and there is no evidence to rebut it.

 Wald, 64 So.3d at 1205 (Fla. 2011) (citations omitted).

A defendant may move for a directed verdict after the plaintiff puts on all of its evidence.  A plaintiff can move for a directed verdict after the defendant puts on all of its evidence as to an affirmative defense.  And, a plaintiff (referred to as a counter-defendant) can move for a directed verdict after the defendant (referred to as a counter-plaintiff) puts on all of its evidence if the defendant has counter-sued the plaintiff.

A party moves for a directed verdict in accordance with Florida’s Rules of Civil Procedure.  See Fla.R.Civ.P. 1.480.   If the motion for directed verdict is denied, which is not uncommon, the trial continues.   But, and this is a very, very important but:

“When a motion for a directed verdict is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 15 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict [also commonly referred to as a motion for a judgment notwithstanding the verdict]. If a verdict was not returned, a party who has timely moved for a directed verdict may serve a motion for judgment in accordance with the motion for a directed verdict within 15 days after discharge of the jury.” 

Fla.R.Civ.P. 1.480(b).  This means that if a party moves for a directed verdict and that motion is denied, the trial continues and will be submitted to the jury to render a verdict.  If the verdict favors a party (e.g., plaintiff), the opposing party (e.g., defendant) within 15 days can file a motion for the court to set aside the verdict and enter a judgment in accordance with the earlier motion for directed verdict.   This is important because if a party does NOT timely move for the court to set aside the verdict and enter judgment in accordance with the directed verdict, the party will NOT have properly preserved the directed verdict for appealSee Murray v. State, 27 So.3d 781 (Fla. 3d DCA 2010) (defense failed to timely preserve directed verdict for appeal because it did not move the court to set aside the verdict and enter judgment in accordance with the directed verdict).

(Notably, it used to be that a party needed to renew a motion for a directed verdict at the conclusion of the trial—close of all of the evidence.  Florida Rule of Civil Procedure 1.480 was amended in 2010 removing the requirement to renew a motion for directed verdict at the close of all of the evidence in order to preserve the right to file a motion to set aside the verdict.  Now, a party just needs to timely move for a directed verdict at the close of the opposing party’s evidence and then timely file the motion to set aside the verdict.)

Oftentimes, a party at the conclusion of a trial will move the court to set aside the verdict and enter judgment notwithstanding the jury’s verdict or, alternatively, move the court for a new trialSee Fla.R.Civ.P. 1.480(b).   Hence, if the court is considering granting a motion for directed verdict, it may deny the motion to see how the jury decides the evidence.  If the jury still finds in favor of a party, the judge can (if a party timely moves for a judgment not withstanding the verdict) still enter a judgment notwithstanding the verdict.

The standard of appellate review if a trial court grants a directed verdict is de novoSee Merritt v. OLMHP, LLC, 112 So.3d 559 (Fla. 2d DCA 2013).   This is the same standard of review if a trial court grants a motion to set aside the verdict and enter judgment in accordance with the motion for direct verdict (again, also called a motion for judgment notwithstanding the verdict).  See Specialty Marine & Industrial Supplies, Inc. v. Venus, 66 So.3d 306 (Fla. 1st DCA 2011).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Expert Opinion Testimony and the Standard of Appellate Review

Posted by David Adelstein on January 11, 2015
Appeal, Expert Testimony, Standard of Review / Comments Off on Expert Opinion Testimony and the Standard of Appellate Review

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Previously, I discussed expert opinion testimony and the Daubert gatekeeping test employed by trial courts to determine the admissibility of the expert testimony. But, there is much more to expert opinion testimony. 

An expert witness is NOT allowed to serve as a conduit for inadmissible hearsay so that a party is using an expert witness to simply get in testimony/evidence that is otherwise inadmissible. Doctors Co. v. State, Dept. of Ins., 940 So.2d 466, 470 (Fla. 1st DCA 2006) (“The rule is well established that if an expert is called merely as a conduit to place inadmissible evidence before the jury, the trial court appropriately exercises its discretion by excluding such evidence.”); accord Tolbert v. State, 114 So.3d 291, 294 (Fla. 4th DCA 2013) (internal quotation and citation omitted) (“Although an expert may rely on hearsay in reaching the expert’s opinion, an expert’s testimony may not merely be used as a conduit for the introduction of the otherwise inadmissible evidence.”)

Moreover, an expert is NOT permitted to bolster his/her credibility on direct examination by testifying that he/she relied on communications/consultations (hearsay) with other experts in order to reach his/her expert opinion. See Linn v. Fossum, 946 So.2d 1032 (Fla. 2006). Stated differently, an expert cannot bolster his/her credibility by testifying that a treatise, article, study, or colleague (e.g., hearsay) agrees with his/her opinion before the expert has been impeached on cross-examination. See Duss v. Garcia, 80 So.3d 358 (Fla. 1st DCA 2012).

What if the trial court allows or disallows expert testimony? In other words, what if the trial court grants a motion to strike an expert (or certain expert testimony) or denies a motion to strike an expert (or certain expert testimony)? 

“The standard of [appellate] review for trial court decisions concerning the qualifications of expert witnesses and the scope of their testimony is abuse of discretion.”   County of Volusia v. Kemp, 764 So.2d 770 (Fla. 5th 2000) (reversing final judgment because trial court erred in allowing expert opinion testimony). This means that a trial court’s acceptance of expert opinion testimony or rejection of expert opinion testimony will NOT be disturbed on appeal unless the trial court abused its discretion. Doctors Co., 940 So.2d 466 (finding the trial court did not abuse its discretion in disallowing expert testimony).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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