NESS CONSTRUCTION, INC., A FLORIDA CORPORATION

v.

ARTHUR COWDEN & THERESA COWDEN

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NOT FINAL UNTIL TIME EXPIRES

. TO FILE RE-HEARING MOTION, A

AND, IF FILED, DISPOSBD OF

. '

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT, IN

AND FOR MIAMI-DADE COUNTY,

FLORIDA 7

APPELLATE DIVISION

- CASENUMBER: 10-254 AP ' LOWER”CASENUMBBRi 09-6002 cc 26 NESS CONSTRUCTION, INC., _ _ Appellant, - 0H? 8-IWFZ BZ

V.

- - ARTHUR COWDEN, e_taI., gg, -Appellees, ' _ - Fgsf-? _ao 0 .-‘ea-e '1'-:2 ' -4. In-as - r~ '~ ..... 2» ' #8 :1 G31 -:2 ..- ,.. ‘CL F"

C.

~<.. ,.- , On appeal fiom an amended final Judgment ofthe County Coin-t in and for Miami-Dade County, Gloria Gonzalez-Meyer, Judge. _ ‘ ' _ . Eliot W. Ritkin fiom Eliot W. Rifldn, P-.A.,'for the Appellant.- Jerry Kahn, for the Appellees. - _ , _' _ . Befoire BARBARA ARECES, MIGNA SANCHEZ-LLORENS, and ROSA FIGAROLA, JJ.

PER CURIAM.

~ This is an appeal from an amended final judgment rendered in favor of the Appellees, -mom: Cowden so Theresa Cowden (“the Cowdens”),-in which the mar court ruled that no inonies were dueto the Appellant, Ness Construction, Inc. (“Ness”) for repairs performed at the Cowdens’s home. We have jurisdiction. Because we conclude that the trial court erred allowing the introduction ofArthut'Cowden’s telephonic testimony at trial over the objection of . ‘ ' - A - Page 1 0l’4 E l i ! l a: i i I [*2] I :;..'...:<__.t-_:.' ._.:._._'\_| ti :1 l .-FT___-.,_,.-._ l l |. l l 4:..,..,_ i '|

I.

. in .cAsB'NUMBnn= 10-254 AP Ness and that the error was not harmless, we reverse. ' I.Facts " j On July 28, 2009, Ness filed suit against the Cowdens, demanding a judgment for damages in the amount of $8,353.00 including sales tax, In-ejudgtnent interest, and costs, for labor, servlcosfland materials provided pursuant to the parties’ oral -contract. The matter was originally scheduled for trial on January 13, 2009, but was continued upon the Cowdens’ motion forcontinuance. Meanwhile, the Cowdens requested to appear by telephone at the final hearing which was rescheduled for February 12, 2010. On-January 21,2010, Ness filed an objection to I . ' the Cowdens’s request to appear tolephonically. The objection was considered by the trial court on February -.10, 2010, at which time the. court granted the Cowdens’ request. At the fnal hearing, Arthur Cowden testifiedeby telephone. I On February 1'7, 2010, a final judgment was entered in favor ofthe Cowdens, which was later amendedon May 18, 2010. ifhis appeal timely followed. j _ ' ' - _ -

II. Standard ofreview

' Issues related to telephonic testimony are reyiewable under an abuse of discretion standard as they have beentreated-as issues bearing upon the introduction or admissibility ofthe evidence. See Golden & (Iowan, PA. v. Estate ofKosofiky, 45 So. 3d 986 (Fla. 3d DCA 2010); M.S. v. Dep ’t ofChildren andFamilies, 6 So. 3d 102 (Fla. 4th'DCA 2009). Once it is determined that the trial court erred in allowing the introduction of telephonic testimony over the objection of a patty, the Court must determine whether the error was harmless. SA. v. Dep? ofChildren andFamily Services, 961 So. 2d 1066 (Fla. 3d DCA 2007). ‘See also Golden & Cowan, P.A.,.45 So, 3d at 986; MS., 6 Se. 3d at 102. In civil eases, the test for harmless error is “whether, but for ' Page2of4 t i |l .;i‘.__-._.I._.-.._S-i‘.-'-._t. .t I _L I [*3] t. 1:

1.

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-i-i___.._ -,- - O ‘I “ CASE NUMBER: 10-254 AP such error, a different result may have been reached.” Wirham vi Sheehari Pipeline Conslr. C0., 4-5 So. 3d 105, I09 (Fla. -1st DCA 20iQ) (citations omi_tted);='see also Hogan v. Gable, 30 So. 3d 573(Fla.lstDCA’20l0). . ~ = pi . ~ ' _ _ ~

III. Discussion

Rule 2.s30ga);1') - A - . . The trial court allowed Arthur Cowden to testify telephonically at the final hearing over the objection of Ness. This was clearly erroneous in light of Florida Rule of Judicial Administration 2.530(d)('l), which allows for trial testimony ‘to be taken bytelephone only ifall theparties consent. See Fla. R. Jud. Admin. 2.530(d)(l); ,5’./1., 961 So. 2d at 1067. - - The error was not i_g;a._\_~i_n;l,ess . A non-jury trial was held below. ‘Therefore, the trial judge was the ultimatefinder of fact . . , _ and had the function “to evaluate and ‘weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause.” Shaw-v. Shaw, 334 So. 2d 13, 16 (Fla. 1976) (emphasis added); Auto-Owners Ins. C0. v. Cincinnati Ins. C'o., 576 So. 2d 395 (Fla. lst DCA 1991) (trialjudge was to be the ultimate finder offactinanon-jury a-1&1). ' ' At the final hearing, two factual witnesses testified in support of each side’s'position: John Ness on behalf of Ness, and Arthur Cowden on behalf of the Cowdens. The testimonies were crucial for the court’s determination on the matter as the initial action bore upon an oral contract. Here, it is questionable-how the trial court was able to evaluate and weigh the testimonies introduced at trial when one ofthe-witnesses was not present in court. Particularly, in ' Page 3 of4 .. _._.-_..-__i_-.-. l f I l l | I i [*4] k. l- ii I1 I it t __.-._. l. l i l I l i l F l I l l i ii _. .. imq,-_--. . .... . ' CASB NUMBER: 10-254 AP light of~a record -showing that the court relied solely on Arthur Cowden’s testimony in making the" finding that the Cowdens paid Ness the amount of-$60,000.00; a finding that is intertwined with the trial court’s conclusion that nothing further was due to Ness based on the work donc and the payments already made. We have no doubt that the trial court would have been in a better position to evaluate and weigh the testimonies based upon its observation ofthe bearing, demeanor and credibility ofthe witnesses had both witnesses were present at the final hearing. In addition, the court’s reliance onthe telephonic testimony in making the crucial finding of payments made to Ness without other independent evidence on-the record to support that finding,_ieads us to the conclusion that the error was not harmless. Cf Golden & Cowan, 45 Sol 3d at 986 (“improper introduction ofthe telephonic’ testimony constituted harmless error due to the existence of other independent - - . . . ~t . evidence which would have lead the trial court to reach the same conclusion”). In our view,,but for such error, a differentresult may have been reached. - _ - i . ' - -IV. Conclusion " Based on the foregoing, we reverse and remand this cause for a new trial consistent with s opinion _ REVERSED and REMANDED for further proceedings. . t -- - - / ~ l!lli'~* F. _ =Q '?ARBARA ARECBS It wt Z-LLONS‘

ROSA FIGAR LA

Circuit Court Judge - . , .. ge . , Circuit Court Judge: Q’ Barbara Areoes .~ Greuncourt Judge ~ e Copies furnished to: Eliot w. Riikin, n5q.; Jerry Kuhn, Esq. t " " ' Page40f4 l l ! I I i l