The parol evidence rule is not an evidentiary rule, but a substantive rule of law. Madsen, Sapp, Mena, Rodriguez & Co., P.A. v. Palm Beach Holdings, Inc., 899 So.2d 435, 436 (Fla. 4^th DCA 2005). It is an important substantive rule of law when it comes to cases that involve the rights, liabilities, and remedies of parties pursuant to a written agreement.

The parol evidence rule precludes the admissibility of extrinsic “verbal agreements [evidence] between the parties to a written contract which are made before or at the time of execution of the contract.” Pavolini v. Williams, 915 So.2d 251, 254 (Fla. 5^th DCA 2005). It does not bar the admissibility of verbal / oral agreements made after the execution of the written contract “that alter, modify, or change the former existing agreement between the parties.” Id.; accord J. Lynn Const., Inc. v. Fairways at Boca Golf & Tennis Condominium Ass’n, Inc., 962 So.2d 928 (Fla. 4^th DCA 2007).

In other words, parol or extrinsic evidence as to what the parties purportedly agreed to BEFORE or AT THE TIME a contract was entered into is inadmissible to interpret the parties’ contract. “Parol evidence is inadmissible to contradict, vary, or modify terms which are unambiguously contained within a written agreement.” Prime Homes, Inc. v. Pine Lake, LLC, 84 So.3d 1147, 1152 (Fla. 4^th DCA 2012).  The reason being is that if a contract is unambiguous, there is no reason for extrinsic evidence to aid in the interpretation of that contract—“[t]he operation of the parol evidence rule encourages parties to embody their complete agreement in a written contract and fosters reliance upon the written contract.” Jenkins v. Eckerd Corp., 913 So.2d 43, 53 (Fla. 1^st DCA 2005).

There are exceptions to the parol evidence rule.   For instance, if a contract contains a latent ambiguity, extrinsic evidence may be admissible in furtherance of interpreting the contract properly. See Fi-Evergreen Woods, LLC v. Robinson, 135 So.3d 331, 336 (Fla. 5^th DCA 2013). A latent ambiguity in a contract is not clear from the face of the contract but becomes clear through extrinsic evidence where contractual language is reasonably interpreted in two or more possible ways. Prime Homes, Inc., 84 So.3d at 1152. “A latent ambiguity arises when a contract on its face appears clear and unambiguous, but fails to specify the rights or duties of the parties in certain situations.” Jenkins, 913 So.2d at 52-53

A patent ambiguity, on the other hand, is an ambiguity on the face of the contract.   Prime Homes, Inc., 84 So.3d at 1152. Extrinsic evidence is typically disallowed to interpret a patent ambiguity in a contract because the court is not in the business of rewriting contracts. Id. However, even with a patent ambiguity, a court could allow parol evidence to explain the identity, capacity, or relationship of the parties since this evidence does not go to the interpretation or rewriting of the contract. Id. 

Another exception is that parol even may be introduced to establish fraud in the procurement of a written contract. Ton-Will Enterprises, Inc. v. T&J Losurdo, Inc., 440 So.2d 621, 622 (Fla. 2d DCA 1983).

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Florida Statutes s. 90.952, 90.953 and 90.954 codify what is called the “best evidence rule.”

“The best evidence rule requires that if original evidence is available, then no evidence should be received which is merely substitutionary in nature….The best evidence rule is applicable only to exclude evidence where the contents of a writing is at issue.” State v. Eubanks, 609 Do.2d 107, 109 (Fla. 4^th DCA 1992);

These statutes provide:

90.952

Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.

90.953

A duplicate is admissible to the same extent as an original, unless:

(1) The document or writing is a negotiable instrument as defined in s. 673.1041, a security as defined in s. 678.1021, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.

(2) A genuine question is raised about the authenticity of the original or any other document or writing.

(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.

90.954

The original of a writing, recording, or photograph is not required, except as provided in s. 90.953, and other evidence of its contents is admissible when:

(1) All originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith.

(2) An original cannot be obtained in this state by any judicial process or procedure.

(3) An original was under the control of the party against whom offered at a time when that party was put on notice by the pleadings or by written notice from the adverse party that the contents of such original would be subject to proof at the hearing, and such original is not produced at the hearing.

(4) The writing, recording, or photograph is not related to a controlling issue.

 

For example, in Sun Bank of St. Lucie County v. Oliver, 403 So.2d 583, 583-84 (Fla. 4^th DCA 1981), a bookkeeper testified regarding her company’s deposit slips, books, and records without introducing such documents into evidence. The appellate found that this testimony violated the best evidence rule: “The best evidence in the instant case would be the company records and only after their admission would Ms. Rogers’ [bookkeeper] testimony as to her findings be proper.”.

In another example, T.D.W. v. State, 137 So.3d 574 (Fla. 4^th DCA 2014), a detective described the contents of what she viewed on a surveillance videotape. The detective’s testimony was offered to prove the truth of the contents of the video. The video was not introduced at trial. The appellate court held the detective’s testimony violated the best evidence rule: “Typically, useful surveillance video shows the commission of a crime; when offered to prove the crime without introduction of the video in evidence, a witness’s in-court description of the actions depicted on the video is content-based testimony that violates the best evidence rule.” T.D.W., 137 So.3d at 576.  But, in J.J. v. State, 170 So.3d 861 (Fla. 3d DCA 2015), the appellate court held that if a fact witness observed live events that were also recorded by video, the witness can describe the events even if the video is not admitted into evidence without violating the best evidence rule.

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I previously talked about petitions for writs of certiorari and the certiorari standard of review. A recent Florida Fourth District Court of Appeals explained: “Certiorari review is appropriate when an order [from the trial court] departs from the essential requirements of law, causing material injury throughout the remainder of proceedings below and effectively leaving no adequate remedy on post-judgment appeal.” Robinson v. Florida Peninsula Insurance Co., 40 Fla.L.Weekly D2547b (Fla. 4^th DCA 2015).

In this matter, a homeowner filed a lawsuit against his homeowner’s insurance carrier. The insurer moved to abate the lawsuit for purposes of compelling the homeowner to allow the insurer to exercise its right to repair under the policy. However, the homeowner already initiated repairs.   The trial court granted the insurer’s motion to abate and the homeowner filed a petition for writ of certiorari.

The Fourth District granted the petition quashing the trial court’s order to abate the case. The Court held that the trial court departed from the essential requirements of the law by abating the homeowner’s lawsuit because if the homeowner performed the repairs the abatement would serve as a dismissal of the case thereby causing material injury to the homeowner. In other words, if the homeowner did the repairs, there were no repairs for the insurer to perform and/or exercise its rights to perform.

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I previously discussed that the “no reasonable possibility test” is the harmless error test in civil trials. This means that even if the trial judge committed an error, the recipient of the error (generally the appellee) has to prove that the error was harmless in that there was no reasonable possibility that the error contributed to the verdict (against the appellant).

Here is a case where the trial court committed error but the appellee that prevailed at trial was unable to establish that the error was harmless. Thus, the error committed by the trial court was deemed to be reversible error entitling the appellant (losing party) to a new trial.

In Maniglia v. Carpenter, 40 Fla. L. Weekly D2485c (Fla. 3d DCA 2015), the plaintiff sued the defendant over injuries sustained in a car accident.   Less than a month after the accident, the plaintiff was involved in a golf tournament where he got inebriated and drove the golf car into the street, collided with a car, fell off the golf cart, and then got into a physical altercation with the police.   The defendant naturally wanted to introduce these events during trial for multiple reasons. First, the defendant wanted to establish that the plaintiff never told his treating chiropractor about these events, which could have affected the plaintiff’s credibility to the jury. And, second, these other events could have served as a jury instruction relating to other intervening causes for the plaintiff’s injuries.

The trial court granted a motion in limine finding that these events were unfairly prejudicial to the plaintiff. As a result, the jury never heard the true nature of the events and a verdict was entered against the defendant.

On appeal, the appellate court held that it was error for the trial court to exclude this evidence since the evidence was probative and was not outweighed by the danger of unfair prejudice. Based on this error, the appellate court held that the plaintiff was required to prove that the error was harmless – there was no reasonable possibility that the error contributed to the jury’s verdict. The plaintiff, however, was unable to meet this burden meaning that the defendant was entitled to a new trial.

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Sometimes hearsay statements are introduced at trial not to show the truth of the matter asserted by the out-of-court statement, but to prove a certain state of mind of the person that heard the out-of-court statement. In this situation, the out-of-court statement would be admissible and not considered hearsay.

Florida Statute 90.803(3)(a) provides the following hearsay exception:

(a) A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, [is an exception to hearsay] when such evidence is offered to:

1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.

For example, in a medical malpractice action, a CT Scan interpreted by a radiologist revealed an aortic tear (Type I dissection) that needed to be repaired. A test was conducted by a cardiologist to determine the extent and precise location of the tear and the patient died during or immediately after the test. The plaintiff (estate) argued that the test performed caused another tear and this tear caused the patient’s death. During trial, and over the objection of the plaintiff, the cardiologist testified that he was told by the radiologist (the declarant) that read the CT Scan of the aortic tear (Type I dissection). The plaintiff argued that this constituted hearsay since what the radiologist told the cardiologist was an out-of-court statement. The appellate court held that this did not constitute inadmissible hearsay because the out-of-court statement was not offered to prove the truth of the matter asserted, but simply to prove that the cardiologist had notice of the aortic tear (Type I dissection).   See Dorsey v. Reddy, 931 So.2d 259 (Fla. 5^th DCA 2006).

In a civil action involving the termination of a county employee, the terminated employee sued a third party for intentionally interfering with the employee’s employment causing the county to terminate the employee. The third party wanted a report introduced at trial. The report was prepared by another county employee that depicted various wrongdoings of the terminated employee. The trial court ruled that this report constituted hearsay. The appellate, however, found that the exclusion of the report was reversible error since the report was not offered to prove the truth of the matter asserted, but to prove the fact that the county had knowledge (notice) of the terminated employee’s alleged wrongdoings prior to terminating the employee. See Spatz v. Kirby, 705 So.2d 657 (Fla. 2d DCA 1998).

Finally, in a criminal action involving grand theft of a van, the defendant was arrested with a passenger in the van. The defendant’s defense was that he had the good faith belief that the van was owned by the passenger. At trial, the defendant called a witness. The witness testified that the day before the arrest, the defendant was driven to his house by the passenger.   The trial court, however, excluded the witness from testifying that the passenger told the witness in front of the defendant that the passenger owned the van. The appellate court held that this testimony was not hearsay because it was offered to prove the defendant’s state of mind–that the defendant had a good faith belief that the passenger actually owned the van. See Alfaro v. State, 837 So.2d 429 (Fla. 4^th DCA 2002).

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