WILLIAM HERNANDEZ, ET AL.,

v.

CGI WINDOWS AND DOORS, INC.,

Third District Court of Appeal State of Florida

Opinion filed March 2, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1318 Lower Tribunal No. 17-9387 ________________

William Hernandez, et al., Appellants,

vs.

CGI Windows and Doors, Inc., Appellee.

An appeal from the Circuit Court for Miami-Dade County, Alan Fine, Judge.

Carlton Fields, P.A., and Matthew J. Conigliaro, (Tampa); Taylor Espino Vega & Touron, PLLC, and Vanessa A. Van Cleaf, and Daniel R. Vega, for appellants.

Shumaker, Loop & Kendrick, LLP, and Duane A. Daiker, and Daniel J. DeLeo, and Andrew J. Oppenheim (Sarasota), for appellee.

Before SCALES, HENDON, and MILLER, JJ.

MILLER, J.

2

This is an appeal from a final judgment rendered in favor of appellee, CGI Windows and Doors, Inc., following a jury verdict in a negligence action brought by appellants, William and Rita Hernandez. On appeal, appellants contend the trial court erred in allowing the admission of an unsworn pleading and a myriad of other evidence relating to dismissed and settled defendants.¹ For the reasons articulated below, we reverse.

BACKGROUND

Appellants purchased a multi-million dollar vacant, waterfront lot in Coral Gables, Florida, upon which they planned to build their dream home. Acting as their own general contractor through their company, Epic Construction, Inc., appellants constructed the residence and purchased $220,653.68 in custom windows and doors from a dealer-installer, the Companies of R&S, Inc. Forty-two of the windows were manufactured by

CGI.

R&S positioned the windows, while NCJD, a stucco contractor, performed stucco work in the adjacent areas. After the windows were

2 Appellants did not file a first amended complaint, but rather proceeded directly to a second amended complaint.

Before trial, CGI requested the trial court judicially notice “the pleadings filed by each of the current and former parties to the instant action.” Appellants opposed the request and filed two pretrial motions. The first sought to exclude any reference to previous claims, while the second requested to amend the case style to reflect only appellants and CGI as parties. In furtherance of the latter motion, appellants contended that “CGI [was] attempting to keep non-parties on the case style to improperly influence the jury.” The trial court convened a hearing. At the hearing, CGI argued that the prior pleadings constituted admissions by appellants and were relevant to demonstrate that the former defendants were responsible for the claimed damages. The trial judge ruled the previous claims could not be used to demonstrate litigiousness, but CGI would be “permitted to introduce evidence that Epic and [appellants] sued the now dropped defendant[s].”³

3 The court, however, excluded evidence of a separate suit filed by appellants against JLU, a subcontractor.

CGI next informed the jury the prior pleadings constituted admissions under oath, stating: In fact, you’re not going to have to believe one of the witnesses in our case[-]in[-]chief to get there. You only have to accept that from the plaintiffs, what they said, under oath in a court filing, what they said in their pleadings. Admitting that it was NCJD. . . . You can believe them when they say in a court filing that NCJD caused those damages to the windows . . . . . . . [T]hey stated, admitted, that R&S negligently installed the windows and damaged them by doing so. Again, you’re not going to have to believe a single witness from our side. This is what the plaintiffs themselves tell you . . . occurred.

4 After opening statement, appellants renewed their objection to the disputed evidence. The trial court again authorized CGI to reference the prior unsworn pleadings but ruled only the third amended complaint would be formally admitted as evidence.

During the course of the trial, CGI introduced an unredacted copy of the third amended complaint, reflecting claims against the then-settled entity, NCJD, into evidence. It then cross-examined R&S’s corporate representative about the negligent installation claims against R&S in the amended complaint. Similarly, CGI cross-examined Ms. Hernandez regarding the unadjudicated treble damages motion, which asserted NCJD was unlicensed, along with the previous suit against R&S. When Ms. Hernandez responded by indicating her attorney sued R&S in error, CGI suggested that the costs associated with hiring a process server and filing suit belied any such contention.

In closing argument, drawing upon the testimony and exhibits, CGI argued appellants were “liars” committed to concealing the details of the prior litigation and “triple dippers” seeking to recover duplicative damages from

After closing arguments, the jurors were presented with the verdict form. The caption reflected both Epic and appellants as plaintiffs and CGI and NCJD as defendants. Following a short deliberation, the jury returned a verdict in favor of CGI. Subsequent motions for new trial and to set aside the verdict proved futile, and the instant appeal ensued.

STANDARD OF REVIEW

9

We review a trial court’s ruling on the admissibility of evidence under an abuse of discretion standard. Bank of Am., N.A. v. Delgado, 166 So. 3d 857, 860 (Fla. 3d DCA 2015). Such discretion, however, is not unbridled. Instead, it is “limited by the evidence code and applicable case law,” and an erroneous interpretation of such authorities is subject to de novo review. Id. (quoting Olesky ex rel. Est. of Olesky v. Stapleton, 123 So. 3d 592, 594 (Fla. 2d DCA 2013)).

ANALYSIS

“It has long been established in this state that inconsistent positions taken by a party through the pleadings he [or she] files in an action may not [ordinarily] be used by an opposing party as proof of an issue.” Hines v. Trager Const. Co., 188 So. 2d 826, 829 (Fla. 1st DCA 1966); see Straub v. Vill. of Wellington, 941 So. 2d 1269 (Fla. 4th DCA 2006); Brown v. Colonial Penn Ins. Co., 666 So. 2d 226 (Fla. 2d DCA 1995). The reasoning behind this principle is that a complaint or counterclaim drafted by an attorney “is but a tentative outline of a pleader’s position.” Adams v. Merrill Lynch, Pierce, Fenner & Smith, 392 So. 2d 4, 5 (Fla. 4th DCA 1980); see Chase Home Loans, LLC v. Sosa, 104 So. 3d 1240 (Fla. 3d DCA 2012); Fallon v. City Furniture, Inc., 959 So. 2d 306 (Fla. 3d DCA 2007). While the law recognizes a narrow exception where a pleading may constitute an

10 admission if “the party has manifested an adoption or belief in its truth,” absent such a particularized showing, unsworn pleadings and motions cannot be introduced during trial. State Farm Fire & Cas. Co. v. Higgins, 788 So. 2d 992, 1007 (Fla. 4th DCA 2001) (quoting § 90.803(18)(b), Fla. Stat. (2000));⁵ see Adams, 392 So. 2d 4; Coggan v. Coggan, 239 So. 2d 17 (Fla. 1970); Harrold v. Schluep, 264 So. 2d 431 (Fla. 4th DCA 1972).

Here, neither the third amended complaint nor the prior iterations of the pleadings were sworn. All were drafted by counsel, and the record is devoid of any particularized showing the pleadings or unadjudicated treble damages motion were anything more than “a tentative outline of the position which [appellants took] before the case [was] fully developed on the facts.” Hines, 188 So. 2d at 831. Consequently, formally admitting the third amended complaint into evidence and apprising the jury of the contents of the remaining documents constituted error. This error was further compounded because the admission of the challenged evidence yielded the inescapable inference the former defendants had settled. It is well-established that Florida law “prohibits the admission at trial of any evidence of settlement or dismissal of a defendant.” Holmes v. Area Glass, Inc., 117 So. 3d 492, 494 (Fla. 1st DCA 2013); see §

5 The 2021 version of the statute also contains the quoted language.

11 768.041(3), Fla. Stat. (2021) (“The fact . . . that any defendant has been dismissed by order of the court shall not be made known to the jury.”). This is so “regardless of whether it is presented to the jury through evidence or through some other means.” Holmes, 117 So. 3d at 494–95. The law “admits no exceptions, and violation of the prohibition is reversible error.” Id. at 494; see Saleeby v. Rocky Elson Const., Inc.,³ So. 3d 1078 (Fla. 2009). That is because knowledge of a settlement with another tortfeasor is “immediately and completely destructive to the possibility of a fair trial between the plaintiff and the defendant,” as “it is a practical impossibility to eradicate from the jury’s minds the consideration that where there has been a payment there must have been liability.” City of Coral Gables v. Jordan, 186 So. 2d 60, 62, 63 (Fla. 3d DCA 1966).

Observing these principles, nearly a decade ago, this court reiterated the adage that although “it may be permissible to point to an ‘empty chair,’ it is not permissible to point out that the ‘empty chair’ was once a defendant in the case.” Bern v. Camejo, 168 So. 3d 232, 235 (Fla. 3d DCA 2014) (quoting Webb v. Priest, 413 So. 2d 43, 46 (Fla. 3d DCA 1982)). In accord with this authority, we have repeatedly found that the mere inference of settlement is sufficient to warrant a new trial. See id. at 236 (“Defendants made repeated references, in testimony and argument, to the fact that Bern had sued Perez

12 and that Perez was a prior defendant in the case, leading the jury logically and reasonably to conclude Bern had settled her claim against Perez prior to trial.”); Webb, 413 So. 2d at 46 (“Though neither the fact of settlement, nor the terms of that agreement were put before the jury, the record shows numerous instances where appellees were permitted to bring to the jury’s attention the fact that Jackson Hospital and its employees had been prior defendants.”).

This does not, however, end our analysis. We must next examine whether the error was harmless. “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.” Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014). Here, the facts alleged in the pleadings were characterized as admissions. Those purported admissions, in turn, served as the basis for the “lying” and “triple-dipping” themes advanced by the defense in opening statement. Cross-examination was used as a conduit for the introduction of details concerning the prior litigation. The initial themes were again repeated

13 in closing argument. At the conclusion of the trial, the jury was presented with a verdict form reflecting a former plaintiff and settled defendant. The dissemination and discussion of this inadmissible evidence was pervasive, and the corresponding argument by CGI shifted the focus of the trial from the justiciable issue of negligence to whether appellants were “lying” and “triple-dipping,” as demonstrated by the prior lawsuits, pleadings, and motion. Under these circumstances, we cannot disregard the likelihood that the inadmissible evidence “influenced jurors, however subtly, in their determination,” that CGI bore no responsibility for the defective windows. White v. Consol. Freightways Corp. of Del., 766 So. 2d 1228, 1233 (Fla. 1st DCA 2000). Accordingly, the error cannot be deemed harmless, and we reverse and remand for a new trial. Reversed and remanded.