First Union National Bank of Florida

Not overruled or negatively treated on appealinfoCoverage
District Court of Appeal of Florida, First DistrictSep 5, 1990
566 So. 2d 273 (Fla. Dist. Ct. App. 1990)

No. 89-2624.

July 6, 1990. Motion for Rehearing September 5, 1990.

Appeal from the Circuit Court, Alachua County, Chester B. Chance, J.

Allison E. Folds of Watson, Folds, Steadham, Christmann, Brashear, Tovkach Walker, Gainesville, for appellants.

Jeanne M. Singer of Jones, Carter Singer, P.A., Gainesville, for appellees.

Appellants, plaintiffs below, David L. Annis and Janice R. Annis, appeal from a final judgment following a jury verdict in favor of First Union National Bank of Florida and Gene E. Porter in a negligence action growing out of the collision of two automobiles. We find that the trial court erred in precluding appellants from introducing a portion of the transcript of Porter's pretrial deposition during appellants' rebuttal case. Since the deposition transcript would have contradicted critical trial testimony given by Porter, and bolstered by an expert witness who testified in behalf of appellees, we find that the trial court reversibly erred. Consequently, we reverse the final judgment and remand for a new trial.

On September 16, 1987, Joyce Burrows was driving her automobile in a southbound direction on Northwest 43rd Street in Gainesville, Florida. As she approached the intersection of Northwest 43rd Street and Northwest 31st Avenue, Gene E. Porter, an employee of First Union National Bank, drove his vehicle onto Northwest 43rd Street from Northwest 31st Avenue and also headed in a southbound direction. In order to avert a collision with Porter's automobile, Burrows locked her brakes, causing her automobile to drift into the northbound lane of traffic, thus resulting in a collision with a vehicle driven by Janice R. Annis.

Janice R. Annis and her husband, David L. Annis, sued appellees, alleging that Janice Annis had suffered permanent injuries as a result of the collision and that her injuries had been caused by Porter's negligent operation of his vehicle. The theory of appellants' case was that Porter had caused the collision of the Burrows and Annis vehicles by driving his vehicle into the path of the Burrows vehicle under circumstances which gave Burrows inadequate time to slow her vehicle sufficiently to avoid a collision. The defense theory, on the other hand, was that Burrows was a great distance from the intersection when Porter began to drive his vehicle onto Northwest 43rd Street, and that there was ample time, had Burrows been properly attentive, for her to have slowed her vehicle and accommodated the entry of Porter's automobile onto the street.

Particularly relevant to the outcome of the trial was the actual distance of the Burrows automobile from the intersection when Porter began to drive onto Northwest 43rd Street. At trial, witnesses for appellants testified that Burrows was practically entering the intersection when Porter drove onto Northwest 43rd Street, and that Burrows clearly did not have adequate space and time to slow her automobile sufficiently to remain in her lane of traffic and avert a collision. Conversely, Porter testified that the Burrows vehicle was some 240 feet north of the intersection as he began to drive his vehicle onto Northwest 43rd Street. Later in the defense case, an accident reconstruction expert, J. Patrick Parrish, reinforced Porter's testimony on the distance by displaying charts and photographs demonstrative of the 240 foot distance which Porter had related to Parrish in preparation for trial.

On rebuttal, appellants tendered a portion of the transcript of Porter's pretrial deposition in which Porter had testified that he was uncertain as to whether the automobile he had seen well north of the intersection prior to his entering the intersection was the Burrows automobile. In the tendered deposition testimony, Porter explained that just prior to driving into the intersection, he looked first to the left, then to the right, and then back to the left again. His testimony continued as follows:

Q. Okay. How about the second time you saw her, when you looked back to the left again, how far was she at that time?

A. I'm getting confused here because I don't know it was her I saw. All I saw —

Q. Okay, you saw a car coming?

A. — was a car.

Q. What color was the car?

A. I don't even know.

Q. Do you recall what color Ms. Burrows' car was?

A. No.

Q. Or what type it was?

A. No.

Upon an objection by the appellees that the tendered deposition testimony related to a prior inconsistent statement for which a proper predicate had not been laid, the trial court prohibited introduction of the tendered deposition testimony. In making its ruling, the trial court said that the tendered testimony was not proper rebuttal evidence.

Appellant argues on appeal that the tendered deposition testimony was proper rebuttal evidence in that it contradicted and tended to impeach Porter's critical trial testimony, which had been bolstered by the testimony of Parrish. We agree. Otherwise admissible impeachment evidence in response to evidence which has been presented for the first time in the defense case is proper rebuttal evidence. The type of impeachment evidence introduced here, evidence that prior statements of an adverse witness are inconsistent with his in-court testimony, is probably the most common form of impeachment evidence. See Section 90.608(1)(a), Florida Statutes (1989).

Appellees' basis for objection at trial, that appellants had not laid a proper predicate for presentation of impeachment evidence as to a prior inconsistent statement, is clearly without merit. Section 90.614(2), Florida Statutes (1989), provides, "Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate him on it" However, the subsection is expressly inapplicable to admissions of a party-opponent, as was Porter. Further, Rule 1.330(a)(2), Fla.R.Civ.P., provides, in relevant part, "The deposition of a party . . . may be used by an adverse party for any purpose."

Appellees also contend that the tendered deposition testimony was cumulative to testimony developed during the examination of Porter. However, our review of Porter's trial testimony does not confirm appellees' contention.

Because the excluded deposition testimony was relevant impeachment evidence going to the issue of the credibility of trial testimony on a question central to the issue of liability, we find the trial court's exclusion of the evidence to be reversible error. Consequently, we reverse the final judgment and remand for a new trial.

ZEHMER and MINER, JJ., concur.


In their motion for rehearing, appellees argue that although the proffered deposition testimony of Porter would have been admissible during the appellants' case-in-chief, it was not admissible for purposes of impeachment during rebuttal, absent the foundation required by Section 90.614(2), Florida Statutes, which provides:

(2) Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate him on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit that he has made the prior inconsistent statement, extrinsic evidence of such statement is admissible. This subsection is not applicable to admissions of a party-opponent as defined in s. 90.803(18).

(Emphasis supplied). What the appellees essentially argue is that the last sentence of the subsection does not apply where the admission of a party-opponent is offered for the purpose of impeaching the party-opponent.

In support of their argument, appellees cite only one civil case which postdates the adoption of the Florida Evidence Code. That case, Hoctor v. Tucker, 432 So.2d 1352 (Fla. 5th DCA 1983), is not applicable to the issue presented here, because the prior inconsistent statement there was not the statement of a party-opponent. The person who had made the statement in question was not a party to the litigation. Id. at 1353, n. 1.

Appellees also cite several criminal cases, wherein the prosecution attempted, during rebuttal, to offer prior inconsistent statements of defendants, for the purpose of impeaching the defendants' in-court testimony. In the cited cases, the courts held that the Section 90.614(2) predicate was a condition precedent to use of the prior inconsistent statements for impeachment purposes. These cases are equally inapplicable.

Each of the criminal cases cited involve statements taken in violation of the defendants' rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but which could be used for impeachment purposes under the holdings in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and Nowlin v. State, 346 So.2d 1020 (Fla. 1977). As we explained in Saucier v. State, 491 So.2d 1282 (Fla. 1st DCA 1986), statements taken in violation of the holding in Miranda do not qualify as admissions under Section 90.803(18), Florida Statutes. Consequently, the last sentence of Section 90.614(2), Florida Statutes, simply does not apply to such statements.

Virtually all jurisdictions which require a predicate for the admission of prior inconsistent statements agree that the requirement is excused where the statement is by a party-opponent. In some of these jurisdictions, however the predicate is nevertheless required where the inconsistent statement of a party-opponent is offered only for impeachment. This qualification appears to us to be required by neither the language of the Florida Evidence Code, nor the case law thereunder. We agree with the observation that such "niggling qualifications seem hardly worth their salt and in jurisdictions which otherwise require the foundation question[,] the sensible practice is the simple one of dispensing with the `foundation' entirely in respect to the parties' admissions." McCormick, Evidence § 37, at 81 (3d ed. 1985). See generally, McCormick, Evidence § 37 (3d ed. 1985) and 81 Am.Jur.2d Witnesses, § 605 (1976).

Accordingly, the motion for rehearing is denied.

ZEHMER and MINER, JJ., concur.