JASON TABASKY, APPELLANT,
v.
KAREN DREYFUSS AND ALLSTATE INSURANCE COMPANY, APPELLEES
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Jason Tabasky appeals a $7,000 jury verdict in his favor for personal injuries from an automobile accident, challenging the trial court's admission of an investigator's memorandum documenting a witness's statement. The appellate court affirmed, holding that Tabasky forfeited his hearsay objection by failing to raise it at trial and could not raise new grounds for objection on appeal.
The trial court did not err because Tabasky's counsel objected solely on procedural grounds (that the memorandum was not introduced at the deposition) rather than on hearsay grounds, and an appellate court cannot consider objections to admissibility raised for the first time on appeal. Even assuming the memorandum was hearsay, any error was not prejudicial given the favorable verdict for the plaintiff.
[1] An appellate court will not consider grounds for objection to the admissibility of evidence that were not specifically raised in the trial court.
[2] A party is precluded from raising new or additional grounds for objection to evidence for the first time on appeal if those grounds were not raised at trial.
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Join FLexlaw to unlock all legal intelligence“An appellate court will consider the grounds or objections to the admissibility of evidence as were specifically made in the trial court and cannot consider those objections to admissibility of evidence which are raised for the first time on appeal.”
Establishes the procedural rule that objections to evidence must be raised at trial; new grounds cannot be raised on appeal.
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Join FLexlaw to unlock all legal intelligenceTabasky was injured when Karen Dreyfuss's car collided with his vehicle at an intersection. Virginia Webster, an eyewitness who had been driving behin…
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HAVERFIELD, Judge.
Plaintiff, Jason Tabasky, appeals a $7,000 final judgment entered in his favor pursuant to a jury verdict in an action to recover damages for personal injuries sustained in an automobile accident.
Tabasky was injured when a car driven by defendant, Karen Dreyfuss, collided with his ear at an intersection. Following the collision, Dreyfuss’ liability insurer, Allstate Insurance Company, sent an investigator to interview the only non-party eye witness to the accident, Virginia Webster, who had been driving behind the Tabasky car prior to the accident, and the investigator reduced to a memorandum Webster’s statement of what occurred. Tabasky filed suit against Dreyfuss and Allstate alleging Dreyfuss was negligent in that she ran the red light. Dreyfuss answered alleging that Tabasky ran the red light, not she. Pretrial discovery ensued and during Webster’s deposition, the investigator’s memorandum was identified, and Webster was questioned about its contents. At time of trial Webster’s deposition was admitted into evidence because she had moved to Georgia. When defense counsel began to read Webster’s cross-examination deposition testimony into the record, he also moved to offer the investigator’s memorandum into evidence. Ta-basky’s counsel objected as follows and the court overruled the objection:
“MR. COHEN: Your Honor, I think that’s a little out of order. It was never introduced in evidence and it was just marked at the time of the deposition and never introduced and made a part of this exhibit.
“THE COURT: On the grounds stated, it is overruled and marked as defendant’s exhibit ‘A’.”
At the conclusion of trial, the jury was instructed on comparative negligence. After deliberating, the jury returned with a $7,000 verdict for Tabasky. Tabasky’s counsel then filed a motion for new trial on the ground, inter alia, that the court erred in allowing defense counsel to introduce the investigator’s memorandum into evidence because it was hearsay. The motion was denied and judgment was entered in accordance with the jury’s verdict.
Plaintiff Tabasky contends that the trial court erred in admitting the investigator’s memorandum into evidence because it was hearsay and substantive evidence.
An appellate court will consider the grounds or objections to the admissibility of evidence as were specifically made in the trial court and cannot consider those objections to admissibility of evidence which are raised for the first time on appeal. See Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656 (1903); Lineberger v. Domino Canning Co., 68 So. 2d 357 (1953); Chaudoin v. State, 118 So. 2d 569 (Fla.2d DCA 1960); Jennings v. Stewart, 308 So. 2d 611 (Fla.3d DCA 1975). The record clearly reflects that plaintiff’s counsel objected to the admissibility of the memorandum solely on the ground it was not introduced into evidence at the time of the Webster deposition, and the objection was properly overruled by the trial judge. The plaintiff having failed to raise the proper grounds for the objection to the introduction of the memorandum at trial, he is now precluded from raising any new additional grounds or objections for the first time on appeal.
In addition, we glean from the briefs and oral argument that plaintiff, in essence, is seeking reversal on the basis of inadequacy of the amount of the verdict. However, in his motion for new trial, plaintiff failed to include a specific allegation that the verdict was inadequate as required and, therefore, again is precluded from raising this issue for the first time on appeal. See Paul v. Ranter, 155 So. 2d 402 (Fla.3d DCA 1963); O’Leary v. Watson, 263 So. 2d 643 (Fla.3d DCA 1972).
Finally, after reviewing the trial record and considering the favorable verdict for the plaintiff, we conclude that plaintiff’s argument that the introduction of the investigator’s memorandum constituted prejudicial error is, at best, speculative. Cf. Wallace v. Rashkow, 270 So. 2d 743 (Fla.3d DCA 1972).
Affirmed.
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Marks v. Delcastillo, 386 So. 2d 1259 (Fla. 3d DCA 1980)…llahassee, 377 So. 2d 1150 (Fla.1979). There is no question that such a failure to object to evidence at the trial precludes appellate review of the propriety of its admission. McSwain v. Howell, 29 Fla. 248, 10 So. 588 (1892); Tabasky v. Dreyfuss, 350 So. 2d 520 (Fla.3d DCA 1977). Moreover, the fundamental error exception to this rule does not apply, since an alleged evidentiary error of this kind plainly does not go to the heart or the foundation of the case. Clark v. State, 363 So. 2d 331 (Fla.1978); Russ…
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Tallahassee Furniture Co., Inc. v. Harrison, 583 So. 2d 744 (Fla. 1st DCA 1991)…. Further, an appellate court may consider only the objections to admissibility of evidence on the grounds specifically stated at trial, and will not consider those objections to admissibility urged for the first time on appeal. Tabasky v. Dreyfuss, 350 So. 2d 520, 521 (Fla. 3d DCA 1977). We have reviewed the record and find no objection on any grounds to the testimony of Professor White regarding his interview with Turner, nor as to his reliance on Turner’s wife’s affidavit. Furthermore, Turner’s drug use a…
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Jackson v. State, 456 So. 2d 916 (Fla. 1st DCA 1984)…n disposed of quite simply by putting one more question to the witness. An appellate court will not consider grounds of objection to the admissibility of evidence unless they have been stated with specificity in the trial court. Tabasky v. Dreyfuss, 350 So. 2d 520 (Fla.3d DCA 1977). Counsel’s failure to make a specific objection based on the lack of an HRS permit amounts to a waiver of that objection for appellate review. Finally, appellant contends that the trial court erred in refusing to give his requeste…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hoodless v. Jernigan, 46 Fla. 213 (Fla. 1903)
- Fay S. Paul v. Risa Bonnie Kanter & the Hertz Corp., 155 So. 2d 402 (Fla. 3d DCA 1963)
- Chaudoin v. State, 118 So. 2d 569 (Fla. 2d DCA 1960)
- Wallace v. Rashkow, 270 So. 2d 743 (Fla. 3d DCA 1972)
- Lineberger v. Domino Canning Co., Inc., 68 So. 2d 357 (Fla. 1953)
- O'Leary v. Watson, 263 So. 2d 643 (Fla. 3d DCA 1972)
- Jennings v. Stewart, 308 So. 2d 611 (Fla. 3d DCA 1975)