Extrinsic or parol evidence is inadmissible to determine the meaning or intent of an unambiguous agreement. See Restoration 1 CFL v. State Farm Ins. Co., 2016 WL 1600331 (Fla. 5^th DCA 2016) (error to allow deposition testimony regarding party’s interpretation of assignment when assignment agreement was unambiguous).  

“The parol-evidence rule is a substantive rule of law and reduced to its essence, provides that a written document intended by the parties to be the final embodiment of their agreement may not be contradicted, modified or varied by parol evidence.” King v. Bray, 867 So.2d 1224, 1226 (Fla. 5^th DCA 2016).   While there is an exception if the document or agreement is ambiguous and needs parol evidence to assist in the document’s interpretation, if the document is clear, it will be ERROR to allow parol evidence to demonstrate the intent of the parties. Id.

Remember, if you enter into an agreement, there is a strong chance the agreement will be clear and parol evidence will NOT be allowed to demonstrate the parties’ intent or meaning of the document. This reinforces the importance of ensuring the agreement you enter is clear and reflects your intent.  Further, if a crafty party tries to introduce parol evidence to establish such intent, it is important to OBJECT to the introduction of the parol evidence to preserve this issue for appeal. King, 867 So.2d at 1226.

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You retained an expert witness.  You want the expert witness to serve as a testifying expert — to testify at trial to help support a claim or a defense.  But, is your expert qualified to render the opinions you want him/her to render?   Stated differently, does the expert have the expertise, knowledge, skill, education, training, or experience to render the opinion (as required by Florida Statute s. 90.702)?  This is crucial since if he/she does not, he/she will NOT be qualified as an expert witness.  Make sure the expert you retain is qualified to render the opinions you want him/her to render.  If not, you could wind up with an expert that either (a) is not allowed to testify or (b) testifies at trial which potentially results in a new trial due to an unqualified expert testifying.  

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A promissory note is NOT regarded as hearsay. This means a party introducing a promissory note does not need to lay down the foundation to a hearsay exception such as the business records exception in order to admit the note into evidence.

The Fifth District Court of Appeal in Deutsche Bank National Trust Co., Etc. v. Alaqua Property, Etc., 41 Fla.L.WeeklyD994b (Fla. 5^th DCA 2016) explained that a promissory note in a foreclosure action is NOT hearsay because it is NOT being offered to prove the truth of the matter asserted; rather, the note has independent legal significance, that being “to establish the existence of the contractual relationship and the rights and obligations of the parties to the note.” Deutsche Bank National Trust Co., supra.

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Oftentimes, a plaintiff will plead alternative claims or theories of liability against a defendant(s).   Pleading in the alternative is allowed under Florida Rule of Civil Procedure 1.110(g).   The plaintiff is entitled to elect–between two mutually exclusive (alternative) remedies–the remedy it prefers any time prior to the entry of final judgment. See Liddle v. A.F. Dozer, Inc., 777 So.2d 421 (Fla. 4^th DCA 2001); see also  Burr v. Norris, 667 So.2d 424, 426 (Fla. 2d DCA 1996) (“Plaintiffs are also allowed to plead inconsistent or alternative actions and need only elect remedies before final judgment.”) This allows the plaintiff to present alternative and mutually exclusive theories to the jury selecting the remedy it prefers prior to the court entering final judgment based on the jury’s verdict. This is certainly a benefit to a plaintiff that is not punished from presenting such alternative theories–the plaintiff is just precluded from the windfall of a double recovery.

For example, in Liddle, the plaintiff moved to foreclose a construction lien and, alternatively, moved to foreclose an equitable lien based on unjust enrichment. The plaintiff could not recover on both because if it did it would allow the plaintiff to engage in a double recovery. After the close of all of the evidence in the jury trial and prior to closing argument, the defendants wanted the court to order the plaintiff to elect a remedy: either foreclosing the construction lien or the equitable lien. The trial court did not rule and ultimately entered judgment against the defendants on both theories of recovery.   The Fourth District held:

Here, Dozer [plaintiff] sought the same relief under two mutually exclusive remedies. The trial court entered judgment in favor of Dozer on its claim to foreclose its statutory mechanic’s lien and entered judgment in favor of Dozer on its claim for foreclosure on an equitable lien based on unjust enrichment for the same amount. Since Dozer proceeded under mutually exclusive remedies and the final judgment allows for double recovery under both theories, the trial court erred in not requiring an election of remedies prior to entry of the final judgment. Because Dozer is in a “win/win” situation under either theory, we affirm Dozer’s entitlement to recovery but remand for election of a remedy and entry of final judgment solely upon that remedy.

Liddle, 777 So.2d at 422.

In another example, Levitt-ANSCA Towne Park Partnership v. Smith & Co., Inc., 873 So.2d 392 (Fla. 4^th DCA 2004), a contractor sued a developer for breach of contract and unjust enrichment for work the contractor performed outside the contract. The jury returned a verdict in favor of the contractor that included damages under both theories. The Fourth District held:

In this case, however, the contractor sought both damages on the contract and an additional sum for work performed outside the contract under the theory of quantum meruit. We hold that because the contract provided the method for obtaining payment for additional work, the contractor could not seek equitable relief for additional work at the same time it sought legal relief in the form of lost profits for the breach. Therefore, on remand the contractor must elect between legal damages on the contract and equitable relief under quantum meruit.

Levitt-ANSCA Towne Partnership, 873 So.2d at 395 (internal citations omitted).

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Although I have numerous blog articles regarding the appellate standard of review when it comes to the admissibility of evidence, it is important to remember that “[a] trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion; however, the trial court’s interpretation of the evidence code is reviewed de novo.” L.L. v. The State of Florida, 41 Fla.L.Weekly D854a (Fla. 3d DCA 2016).

In L.L., a criminal case, a police officer testified that he smelled the strong odor of marijuana from the defendant and that a plastic bag in defendant’s possession contained marijuana. The defendant objected that the officer’s opinions about the smell being marijuana and the substance in the bag being marijuana was an improper lay opinion and constituted expert opinion testimony (governed by the Daubert standard). The trial court allowed this testimony and the issue on appeal was whether such testimony was expert opinion testimony or proper lay opinion (fact witness) testimony.

The appellate court held that the officer’s testimony or opinions about the smell and substance being marijuana was proper lay witness opinion testimony governed under Florida Evidence Code 90.701:

If a witness is not testifying as an expert, the [lay] witness’s testimony about what he or she perceived may be in the form of inference and opinion when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

The appellate court’s holding included a very good discussion explaining in detail why the officer’s opinion was proper lay opinion testimony as opposed to expert opinion testimony governed by the Daubert standard:

In addition to the requirement that lay opinion testimony be based on the personal knowledge and perception of the witness, the Advisory Committee Notes explain that courts should consider the witness’s method of reasoning: “the distinction between lay and expert witness testimony is that lay testimony ‘results from a process of reasoning familiar in everyday life,’ while expert testimony ‘results from a process of reasoning which can be mastered only by specialists in the field.‘ ” …As one scholar has explained:

[T]he distinction lies in whether the witness’s reasoning process entails a reliable methodology beyond everyday reasoning. A lay witness, however experienced, offers no methodology beyond ordinary reasoning. An expert is equipped to draw more sophisticated, yet still reliable, inferences. The crux of expert testimony is that it presents inferences that are supported through the application of a reliable methodology. Thus, the witness who relies on experience to support an expert opinion cannot simply claim insights arrived at by applying everyday reasoning to that experience base, but must explain the methodology employed to reach that opinion. An experienced witness who does not bring such methodology to bear should be subject to the restrictions of the lay opinion rule.

***

One important reason the Daubert standard [governing the admissibility of expert witness opinions] imposes a more demanding reliability inquiry upon expert opinion testimony is that the opinion results from a methodology or reasoning process that might be foreign to the trier of fact….But in cases such as the one now before us, even if the trier of fact does not have the personal experience necessary to identify the substance in question, the reasoning process is not “foreign in kind.” Many people who have seen and smelled marijuana would be able to recognize it in the same way they recognize anything else they have seen or smelled before.

***

Here, Officer Munecas’s reasoning process is nothing that requires a specialist in the field of drug identification; it is reasoning familiar in everyday life.

***

Finally, we hasten to add that although the more demanding Daubert admissibility standard does not apply to lay opinion testimony, there is nevertheless a reliability inquiry. Not only must lay opinion testimony be based on the witness’s personal knowledge, section 90.604, Florida Statutes, and perceptions, section 90.701, Florida Statutes, but the witness must have sufficient personal knowledge to support the opinion.

L.L., supra (internal citations omitted).

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