Evidence Rules Matter: Best Evidence Rule and Hearsay Require Reversal

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In an appellate victory for DPW Legal, the Second District Court of Appeal issued an opinion today reaffirming that banks seeking to foreclose on homes must strictly adhere to evidentiary rules governing negotiable instruments and business records.

In Heller v. Bank of America NA, No. 2D14-3530 (Fla. 2d DCA. Jan. 27, 2017) [.pdf], the Bank at a foreclosure trial offered into evidence a copy of the note, rather than the original note, with its counsel asserting that the original had been recently filed with the court clerk. The trial court admitted the copy over defense counsel’s objection, citing the Best Evidence Rule, Section 90.953, Florida Statutes. The Bank also admitted into evidence (again over the homeowner’s objections) testimony of its representative based not on personal knowledge, but on his review of business records that were not in evidence or elsewhere in the court file.

DPW Legal attorney Dineen Pashoukos Wasylik argued on appeal that both rulings were abuses of discretion and an erroneous interpretation of the evidence code, and the Second District agreed. First, the Court held that Section 90.953 of the Florida Evidence Code requires any party seeking to enforce a negotiable instrument—such as the promissory note involved here—to produce and surrender the original of the instrument to the court. The Court rejected the Bank’s argument that the trial court was entitled to rely upon counsel’s assertions that the original had been filed with the clerk. The Court reaffirmed the longstanding tenet of law that a trial court may not “rely on an unsworn statement of counsel to make a factual determination.”

Florida Supreme Court Announces New Test for Harmless Error in Civil Cases

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One of the most important tasks in evaluating an appeal is determining not just whether the trial court committed legal error, but also determining whether that error is harmful enough to warrant reversal. And one of the more frustrating parts of that analysis — particularly where the evidence statute is at play — has been determining how the legal rules for evaluating whether error is harmful set out in criminal cases apply to civil appeals. The Florida Supreme Court last month helped civil practitioners along in this task by expressly defining the harmless error test in civil appeals, and holding that it is exactly the same as in criminal appeals. The case came to the court in the context of a certified question from the Fourth District Court of Appeal, asking:

IN A CIVIL APPEAL, SHALL ERROR BE HELD HARMLESS WHERE IT IS MORE LIKELY THAN NOT THAT THE ERROR DID NOT CONTRIBUTE TO THE JUDGMENT?

Special v. West Boca Med. Ctr., No. SC11–2511, 39 Fla. L. Weekly S676, 2014 WL 5856384 at *1 (Fla. Nov. 13, 2014) [.pdf]. The court answered NO to this question, and instead held civil appeals to the same (and more difficult) standard found in crimnal appeals. The court first discussed in-depth its leading criminal case on the issue, State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). It then announced the following rule:

To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.

Id. at * 3 (italics added). Applying this test, the court explained that the appellate court analyzing the alleged error must focus on the effect on the trier-of-fact, not merely the result. Id.. Specifically:

As the appellate court evaluates whether the beneficiary of the error has satisfied its burden, the court’s obligation is to focus on the effect of the error on the trier-of-fact and avoid engaging in an analysis that looks only to the result in order to determine harmless error. Could the admission of evidence that should have been excluded have contributed to the verdict? Could the exclusion of evidence that should have been admitted have contributed to the verdict? Unless the beneficiary of the error proves that there is no reasonable possibility that the error contributed to the verdict, the error is harmful.

Id. at *4. The Court explained that this “no reasonable possibility test” properly places the burden on the party who invited the error, and “will foster consistency in appellate courts’ analyses of harmless error.”

The Dissenters: Too Far, or Not Enough?

The announced rule garnered the support of only 4 out of the Court’s 7 Justices, however. Justice Pariente wrote a detailed dissent setting out her alternative proposed test but finding reversible error even under her proposed less-strict test. Justices Polston and Canaday sided with Justice Pariente on the proper test, but in their view the trial court did not commit reversible error under the proper test. Justice Lewis also dissented in part, but only because he would have gone further in finding error.

Justice Pariente’s Dissent in Part: “More Likely Than Not” Test

Justice Pariente dissented in part, focussing on the difference between criminal and civil cases. Her dissent explained:

I dissent, however, from the majority’s decision to adopt the same harmless error standard for civil cases as is used in criminal cases, despite the different burdens of proof and constitutional interests that are implicated in the civil and criminal contexts.

Id. at *13 (Pariente, J. dissenting). Justice Pariente would have made the test ““more likely than not” rather than “no reasonable possibility.” She explained:

[B]ecause of the differing burdens of proof and constitutional rights at stake, I disagree with the majority’s adoption of the identical standard for harmless error in civil cases as applies in criminal cases. By adopting the test for harmless error that applies to criminal cases without even referencing the different burdens and interests that apply in the civil context, the majority favors form over substance and offers no compelling explanation as to why the “no reasonable possibility” language from DiGuilio, which is rooted in the “beyond a reasonable doubt” burden of proof, should be used in civil cases. As stated by the Fourth District, the harmless error test for civil cases “should acknowledge the particular attributes of those cases.

Id. at *14 (Pariente, J. dissenting).

Justices Polston’s Dissent: Wrong Test, Wrong Result

Justice Polston, joined by Justice Canaday, agreed with Justice Pariente and took her anlysis one step further: Not only should the “more likely than not” standard apply in civil cases because of the different burdens of proof, but applying that test to the facts of this case, they would have found any error harmless.

Justice Lewis: “Our Courts Will Not Review Allegations of Error Lightly”

Justice Lewis, on the other hand, agrees with the test adopted by the Court. His quibble was mostly with the nuts and bolts of the tests’ application in this case, and not the adoption of the “no reasonable possibility” test. Indeed, the concurrence portion of his opinion explains that:

Equity and logic demand that the burden of proving an error to be harmless must be placed on the party who improperly introduced the evidence. Placing the burden on the party that introduced the error serves not only to penalize the offending party, but also discourages future efforts to introduce error into proceedings…. [B]y applying the DiGuilio test in the civil context, we signal to litigating parties that our courts will not review allegations of error lightly, nor perpetuate such errors by affording them less scrutiny than the “reasonable possibility of affecting the verdict” standard provides.

Id. at *21. Justice Lewis also pointed out that the statutory test for harmless error, as set out in § 59.041, Fla. Stat., is identical for both civil and criminal cases, so the courts’ application of the test should be identical as well.

My Take

It will be interesting to see how this decision ripples through the courts of appeal. It likely should result in more reversals, but I will be curious to see, statistically, whether it actually does. I suspect an uptick in PCA’s instead.

I note that a motion for rehearing has been filed in this case, so the decision is not yet final. I’ll update here when it is finalized.

New Issues a No Go on Rehearing

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The Fourth DCA recently issued an opinion on rehearing in which it reiterated a pretty basic, but nonetheless important point: If you didn’t raise an issue in your initial brief, you can’t raise it for the first time on a motion for rehearing before the appellate court. See Philip Morris USA, Inc. v. Naugle, No. 4D10-1607 (Dec. 12, 2012) [.pdf]. The lesson, of course, is that if it is important enough to argue it all, an issue must go in your initial brief. Remember, Rule 9.330 requires that a party seeking rehearing point out “with particularity the points that…the court has overlooked or misapprehended in its decision.” The court cannot misapprehend or overlook that which a party never argued to begin with!