RONALD N. FERN, APPELLANT,
v.
SAM KRANTZ, APPELLEE

Fla. 3d DCA | 1977-11-22
No. 76-1915
Before HAVERFIELD, NATHAN and KEHOE, JJ.
351 So. 2d 1144 Florida District Court of Appeal, Third District (1977) Negative Treatment
Cited by 10 cases

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Synopsis

Fern appeals a $25,000 judgment in favor of Krantz for breach of an oral employment contract. The trial court admitted rebuttal testimony regarding the property's purchase price and entered a directed verdict on Fern's counterclaim while submitting Krantz's claim to the jury. The appellate court affirmed, finding no abuse of discretion in admitting the rebuttal witness testimony.


Holding

The trial court did not abuse its discretion in admitting the rebuttal testimony. Even assuming the testimony was cumulative rather than proper rebuttal, its admission was within the trial judge's sound discretion and was not prejudicial to Fern.


Headnotes

[1] A trial court has discretion to admit rebuttal testimony, even if it could have been presented in the case-in-chief, and this discretion will not be disturbed on appeal a…

[2] Rebuttal testimony is properly directed to new matters brought out by the defendant's evidence.

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Key Quotes

“rebuttal testimony offered by a plaintiff is directed to new matters brought out by evidence of the defendant”

Establishes the legal standard for proper rebuttal testimony

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Facts & Procedural History

Krantz agreed to manage Fern's apartment building in exchange for a $25,000 bonus upon sale of the property. Fern testified the bonus was conditional …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Defendant, Ronald Fern, appeals a final judgment for $25,000 entered on behalf of the plaintiff in a breach of contract action.

Plaintiff, Sam Krantz, filed a complaint for breach of oral employment contract against defendant Fern alleging that he had breached the terms of the contract by failing to pay him a $25,000' bonus upon the sale of Fern’s apartment building which he managed. Fern answered and counterclaimed for damages alleging that he was forced to sell the building at a loss as a result of Krantz’s mismanagement and threats to quit. The cause proceeded to jury trial and Krantz’s case-in-chief consisted of his testimony to the effect that as an inducement to change employment to manage. Fern’s apartment building, Fern had agreed, as one of the terms of employment, to pay him a $25,000 bonus if the building was sold. Krantz called Fern to the stand as an adverse witness and Fern testified that he had paid $1,000,000 for the building and that under the agreement Krantz was entitled to a $25,000 bonus only if the building was sold at a substantial profit. During the presentation of his defense and counterclaim, Fern introduced evidence reflecting that he had sold the building for $975,000. Krantz then called the custodian of records at the county records office, Jack Pales, as a rebuttal witness. Fern objected to this witness, but the objection was overruled. A certified copy of the deed to Fern was then introduced into evidence without objection; and Pales testified that the state documentary stamps attached to the deed indicated that Fern had paid $875,000 for the property, but he could not say that, in fact, this amount was the actual purchase price. Fern’s counsel was permitted to cross-examine Pales and after the close of all testimony, the court entered a directed verdict for Krantz on Fern’s counterclaim and submitted Krantz’s claim to the jury. The jury returned a verdict for $25,000 and judgment was entered accordingly.

Fern contends that the trial court erred in permitting Krantz to produce Pales as a rebuttal witness because rebuttal testimony offered by a plaintiff is directed to new matters brought out by evidence of the defendant, and Pales’ testimony properly should have been submitted by Krantz in his case-in-chief. We cannot agree.

Assuming arguendo Pales’ testimony was cumulative rather than rebuttal, it was within the sound discretion of the trial judge to allow its admission, and the exercise of this discretion will not be disturbed on appeal unless it appears to so prejudice the result as to indicate an abuse of discretion. See Driscoll v. Morris, 114 So. 2d 314 (Fla. 3d DCA 1959). After a consideration of the record, we cannot say that the admission of Pales’ testimony so prejudiced the result as to constitute an abuse of discretion. First, Krantz claimed that under the agreement he was entitled to a $25,000 bonus upon the sale of the building regardless of whether Fern did or did not make a profit. Second, Pales testified that he did not know who actually came into the office and placed the documentary stamps on the deed. Third, the implication of Pales’ testimony was that although the stamps reflected a purchase price of $875,000, that figure may not have been the actual price. Last, we find that Pales’ testimony, at the very least, was presented in rebuttal to Fern’s counterclaim that he lost money on the sale because he was forced to sell the building as a result of Krantz’s mismanagement and threats to quit.

'Affirmed.


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Citator

Cited By

  • Flanagan v. State, 586 So. 2d 1085 (Fla. 1st DCA 1991)
    …4th DCA 1989), rev. den., 563 So. 2d 635 (Fla.1990); Cook v. State, 531 So. 2d 1369, 1371 (Fla. 1st DCA 1988), cert. denied, 489 U.S. 1084, 109 S.Ct. 1542, 103 L.Ed.2d 846 (1989); Westley v. State, 416 So. 2d 18 (Fla. 1st DCA 1982); Fern v. Krantz, 351 So. 2d 1144 (Fla. 3rd DCA 1977); Perkins v. State, 779 S.W. 2d 918 (Tex.App.1989); State v. Green, 603 S.W. 2d 50 (Mo.App.1980). In this case, T.F. testified in person and on videotape. John Harper and Deborah Thibos testified, without objection, that T.F. tol…
  • DEL Monte Banana Co. & Fed. Transp., Inc. v. Chacon, 466 So. 2d 1167 (Fla. 3d DCA 1985)
    …dmission, and the exercise of this discretion will not be disturbed on appeal unless it appears to so prejudice the result as to indicate an abuse of discretion. Jacksonville, T. & K. W. Ry. v. Wellman, 26 Fla. 344, 7 So. 845 (1890); Fern v. Krantz, 351 So. 2d 1144 (Fla. 3d DCA 1977); Driscoll v. Morris, 114 So. 2d 314 (Fla. 3d DCA 1959). We cannot say that the admission of the testimony was so prejudicial as to constitute an abuse of discretion. The theatrical nature of the dagger demonstration, however, pre…
  • Kopko v. State, 577 So. 2d 956 (Fla. 5th DCA 1991)
    …v. State, 546 So. 2d 1068, 1070 (Fla. 2d DCA), cert. denied, 554 So. 2d 1169 (Fla.1989). . Courts just do not find reversible error in the admission of cumulative evidence. E.g., Westley v. State, 416 So. 2d 18 (Fla. 1st DCA 1982); Fern v. Krantz, 351 So. 2d 1144 (Fla. 3d DCA 1977); Perkins v. State, 779 S.W. 2d 918, 923 (Tex.App. 1989); State v. Green, 603 S.W. 2d 50 (Mo.App. 1980). At most, the cumulative issue is mentioned as a makeweight argument where reversible error on some other basis has already bee…

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