CHRISTOPHER'S, INC. AND OHIO CASUALTY INSURANCE COMPANY, APPELLANTS,
v.
LOIS PODOLNICK, ET AL., APPELLEES
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The court held that the trial court abused its discretion by denying the defendants' motion to read depositions of unavailable witnesses.
Defendants sought to read depositions of two witnesses, Bobbie Todd and Cindy Fitzgerald, arguing they were unavailable for trial. The trial court den…
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RIVKIND, LEONARD, Associate Judge.
Defendants appeal an adverse judgment in a slip and fall case. The defendants sought to read the depositions of Bobbie Todd and Cindy Fitzgerald contending that they were unavailable for trial. The trial court denied the motion finding that there was an insufficient showing of unavailability. We disagree. Therefore, we reverse and remand for a new trial.
Defense counsel represented that Bobbie Todd had moved to Texas a few years prior to trial and a letter to an address in Texas provided by her went unanswered. Additional efforts to locate the witness in Texas were fruitless. There is nothing in the record to indicate the witness returned to this area. Defendants established a predicate through the representations of their counsel. No objection was made by plaintiff as to the method employed. The sole objection was to the sufficiency of the representations to establish unavailability. See Fishman v. Liberty Associates, Inc., 196 So. 2d 493 (Fla. 3d DCA 1967). We are of the opinion a sufficient showing was made to allow the use of the deposition and the trial court abused its discretion in excluding the same. We have read the deposition in the light of the issues presented to the jury to determine if the exclusion falls into the category of the “harmless error” rule. It does not. Bobbie Todd testified at her deposition that plaintiff, in her presence, told different versions as to how the accident happened which was highly probative on the issue of liability.
Since we find that exclusion of the Bobbie Todd deposition requires a reversal, we need not determine whether the refusal to allow the deposition of Cindy Fitzgerald was also an abuse of discretion, and if so, whether it was harmless or harmful error. Likewise, we need not address the remaining points on appeal.
Reversed and remanded for a new trial.
LETTS and HERSEY, JJ., concur.
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Hutchings v. Liles, 86 So. 3d 1279 (Fla. 1st DCA 2012)…d showing. Crowe v. Lowe, 942 So. 2d 903 (Fla. 4th DCA 2006). The fact that counsel has been unable to locate a witness and did not know her whereabouts has been found sufficient to support admission of a deposition. Christopher’s Inc. v. Podolnick, 458 So. 2d 777 (Fla. 4th DCA 1984) (trial court abused discretion by excluding deposition despite representations of counsel that witness could not be located). In addition, the trial court committed no error in finding that the party’s acceptance of a job assign…
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Sergio Roque Bail Bonds, Inc. v. Nammur, 578 So. 2d 512 (Fla. 3d DCA 1991)…ur merely sought to establish that he paid certain funds to deponent and that deponent gave the funds to Sergio Roque. Second, Nammur adequately demonstrated that the witness was unavailable to testify at trial. See Christopher’s, Inc. v. Podolnick, 458 So. 2d 777 (Fla. 4th DCA 1984), review denied, 467 So. 2d 1000 (Fla.1985); Fishman v. Liberty Assoc. Inc., 196 So. 2d 493 (Fla. 3d DCA 1967), cert. discharged, 205 So. 2d 657 (Fla.1968). Accordingly, we affirm the judgment. Affirmed.…
Authorities Cited
- Fishman v. Liberty Assocs., Inc., 196 So. 2d 493 (Fla. 3d DCA 1967)