25 December

Sticky

How the Defense of Set-Off Applies

Set-off is a popular topic or defense raised in civil disputes. In contract actions, set-off must be raised as an affirmative defense and proven at trial (and determined by the trier of fact) or else the defendant waives the right to assert set-off. See Felgenhauer v. Bonds, 891 So.2d 1043, 1045 (Fla. 2d DCA 2004). What about tort actions such as negligence actions in disputes involving personal injury or property damage? For instance, say a plaintiff sues three defendants in negligence for the same damage. Prior to trial, the plaintiff settled with two of the defendants for a total of $100,000 and...

09 December

0 Comments

Sticky

Witness Laying the Foundation for the Admission of Business Records

Posted by David Adelstein

in Evidence

More on the business records exception to the hearsay rule and the importance of laying the proper foundation to introduce business records under this exception. This is a must-know hearsay exception to any business-related dispute; and, it is imperative to understand the required testimony of the witness utilized to lay the foundation for the business records exception. In Sanchez v. Suntrust Bank, 4D14-2457 (Fla. 4th DCA 2015) – yes, a mortgage foreclosure case—the lender introduced a screenshot of its record keeping system, the payment history with the borrower, default letters, and a payoff calculation. The lender introduced this documentation through the...

04 December

0 Comments

Sticky

Inadmissible Testimony / Evidence Should Not be Considered on a Summary Judgment

Posted by David Adelstein

in Depositions

Speculative and inadmissible testimony should not be considered on a summary judgment. This point is illustrated in the wrongful death case of Panzera v. O’Neal, 40 Fla. L. Weekly D2661a (Fla. 2d DCA 2015). In this case, the undisputed evidence was that the decedent, wearing a dark colored shirt, was killed trying to cross an interstate at 3am. He was killed by a semi tractor-trailer driving under the speed limit that tried to avoid the accident. The Florida Highway Patrol responded to the accident and reported that the decedent caused the accident and the driver of the semi could have...

26 November

0 Comments

Sticky

Parol Evidence Rule — A Substantive Rule of Law

Posted by David Adelstein

in Evidence

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. 4th 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...

18 November

0 Comments

Sticky

Best Evidence Rule

Posted by David Adelstein

in Evidence

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. 4th 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...

13 November

0 Comments

Sticky

The Certiorari Standard of Review

Posted by David Adelstein

in Appeal, Standard of Review

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. 4th 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...

05 November

0 Comments

Sticky

Recipient of Trial Court’s Error Needs to Prove Harmless Error

Posted by David Adelstein

in Evidence

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...

01 November

0 Comments

Sticky

State of Mind Hearsay Exception

Posted by David Adelstein

in Evidence

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: Prove the declarant's state of mind,...

15 October

0 Comments

Sticky

Authentication of Document and the “Reply Letter Doctrine”

Posted by David Adelstein

in Evidence

Authenticating evidence, such as a document, is important to show that the document being admitted into evidence is what it purports to be. See Fla. Stat. s. 90.901 ("Authentication...

06 October

0 Comments

Sticky

Ruling on Admissibility of Evidence Reviewed Under Abuse of Discretion

Posted by David Adelstein

in Evidence, Standard of Review

The trial court allowed certain testimony / evidence to be introduced at trial. I objected, but the trial court overruled my objection. That evidence was introduced and I lost the trial. I am considering an appeal based on the trial court's admissibility of this evidence. "Rulings on the admission of evidence are reviewed [on appeal] under the abuse of discretion standard [of review]." Cantore ex rel. Cantore v. West Boca Medical Center, Inc., 2015 WL 5603449 (Fla. 4th DCA 2015). This discretion, however, is limited by the Florida Rules of Evidence. Johnston v. State, 863 So.2d 271, 278 (Fla. 2003). For...

Author: David Adelstein