Fact witnesses may only testify as to matters within their personal knowledge.   Fla.Stat. s. 90.604. “[A fact] witness is limited to testifying to facts that are within the witness’s knowledge rather than the witness’s speculation and conjecture.” A&A Electric Services, Inc. v. Jurado, 40 Fla.L.Weekly D1963a (Fla.2d DCA 2015).

For example, in Jurado, the plaintiff was testifying as to a document he signed and the principal of the defendant signed. In doing so, he testified as to the principal’s intent in signing the document. But, how did he know the principal’s intent? Wasn’t he merely speculating as to the principal’s intent? Of course he was. The Second District Court of Appeal held that while the plaintiff could testify as to the principal’s actions or statements made about signing the document, he was not competent to testify as to the principal’s actual intent in signing the document. Why? Because such testimony would not be based on the plaintiff’s personal knowledge, but solely on speculation. See also Roseman v. Town Square Ass’n, Inc., 810 So.2d 516, 521 (Fla. 4^th DCA 2001) (trial court properly excluded testimony of witness that he suspected condominium residents were adjusting door at-issue [that caused plaintiff’s personal injury] because witness had no personal knowledge of this fact).

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When a party prevails in litigation, the party should be entitled to recover its “costs” incurred in connection with the litigation. This is different than that party’s attorney’s fees. See Fla. Stat. s. 57.041 (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment.”).

While the taxable or recoverable costs a party is entitled to is within the discretion of the trial court, there are important guidelines to be followed known as the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. See Fla.R.Civ.P. Taxation of Costs.

The guidelines set forth: (A) costs that should be a recoverable / taxable cost (e.g., deposition transcripts, court reporter fees, documents and exhibits, testifying expert witnesses, subpoena costs); (B) costs that may be a recoverable / taxable cost (e.g., mediation fees, reasonable travel expenses of expert, electronic discovery costs); and (C) costs that should not be a recoverable / taxable cost (e.g., travel time and expenses of attorney, travel time of expert, non-testifying experts, long distance calls, privilege review of documents).  Se below for the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions:

Download (PDF, 72KB)

A losing party may appeal the award of costs to the prevailing party, especially if those costs are unreasonable or do not comport to the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions.

For example, in a recent case, a losing party appealed the trial court’s award of expert costs. The expert did not testify at trial for the prevailing party. The appellate court reversed the award of costs to the prevailing party maintaining that costs of non-testifying experts or experts that are not qualified to testify at trial are not recoverable / taxable costs. See Woodbridge Holdings, LLC v. Prescott Group Aggressive Small Cap Master Fund, 2015 WL 4747174, *1-*2 (Fla. 4^th DCA 2015).

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Oh no. I have lost the appeal. Now what? Do I file an appellate motion for rehearing?

Florida Rule of Appellate Procedure 9.330(a) states in pertinent part:

“A motion for rehearing…a written opinion may be filed within 15 days of an order or within such other time set by the court. A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding.…A response may be served within 10 days of service of the motion.”

Unfortunately, there is the strong sentiment, however, that motions for rehearing are misused. These motions are NOT grounds for raising arguments for the first time. See Cleveland v. State, 887 So.2d 362, 364 (Fla. 5^th DCA 2004). They are NOT grounds for rearguing the merits of the appeal. See Seslow v. Seslow, 625 So.2d 1248 (Fla. 4^th DCA 1993). And, they are NOT to be used for expressing displeasure with the written opinion. See Ayala v. Gonzalaez, 984 So.2d 523, 526 (Fla. 5^th DCA 2008).

Then what are motions for rehearing really for? As set forth in the above rule, these motions are for raising “points of law or fact that…the court has overlooked or misapprehended.”

“Motions for rehearing are strictly limited to calling our attention-without argument-to something we have obviously overlooked or misapprehended. The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy. It should be demonstrative only-i.e. merely point to the overlooked or misunderstood fact or circumstance. If we want additional argument, we know how to say so.”

Goter v. Brown, 682 So.2d 1255, 1256 (Fla. 4^th DCA 1996).

What if the court does not issue a written opinion and instead issues a per curiam affirmance (known as a PCA) without opinion? In other words, how could the court overlook something if it doesn’t issue a written opinion? Generally, it cannot. In this instance, motions for rehearing “are [very] rare and are most often limited to occasions when a relevant decision of the Supreme Court or another District Court of Appeal is rendered after briefing and oral argument and not considered by the court.”

Now, even more rare is a motion for rehearing en banc pursuant to Florida Rule of Appellate Procedure 9.331. “A party may move for an en banc rehearing [of all the district court of appeal’s judges in regular active service] solely on the grounds that the case or issue is of exceptional importance or that such consideration is necessary to maintain uniformity in the court’s decisions.”  Fla.R.App.P. 9.331(d)(1).  

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Florida Statute s. 90.108(1) provides:

“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously. An adverse party is not bound by evidence introduced under this section.”

This is referred to as the rule of completeness. The objective behind this rule of completeness is to avoid misleading the jury with a statement that is based on incomplete information. See Harden v. State, 87 So.3d 1243,1249 (Fla. 4^th DCA 2012) (“The purpose of the rule [of completeness] is to avoid the potential for creating misleading impressions by taking statements out of context.”). See, e.g., Robinson v. C.S.X. Transp., Inc., 103 So.3d 1006, 1009 (Fla. 5^th DCA 2012) (finding that once party introduced redacted report, this opened the door for opposing party to introduce the redacted portion of report).

The rule of completeness does NOT warrant the exclusion of evidence; it just means a party can request that fairness dictates the complete statement be introduced, even if that complete statement includes hearsay statements. See Harden, supra. “The proper standard for determining the admissibility of testimony under the rule [of completeness] is whether, in the interest of fairness, the remaining portions of the statements should have been contemporaneously provided to the jury. This determination of fairness falls within the discretion of the trial judge.” See Whitfield v. State, 933 So.2d 1245, 1248 (Fla. 1^st DCA 2006) (internal citations and quotations omitted).

Think e-mails, and particularly, an e-mail chain when it comes to the rule of completeness. Sometimes, but certainly not all of the time, fairness may dictate that the entire e-mail chain be contemporaneously introduced to avoid taking a statement in an e-mail out of context. In this context, a party may request under Florida Statute s. 90.108 that the rule of completeness applies so that the entire e-mail chain is contemporaneously introduced.

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