Hernandez v. CGI Windows and Doors, Inc.
| Decision Date | 02 March 2022 |
| Docket Number | 3D20-1318 |
| Parties | William HERNANDEZ, et al., Appellants, v. CGI WINDOWS AND DOORS, INC., Appellee. |
| Court | Florida District Court of Appeals |
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.
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.
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 installed, multiple leaks were discovered. Construction was halted and remedial efforts, including the installation of a replacement lock bar by CGI, proved unsuccessful.
Epic filed suit in the lower tribunal against NCJD for performing defective stucco work and damaging certain windows in the process. The complaint then proceeded through several different iterations until it reached the operative pleading, a third amended complaint.
In the amended complaint, NCJD remained a defendant, but appellants were added as plaintiffs and negligent installation claims were asserted against R&S. Appellants then moved to add a claim for treble damages against NCJD on the ground it was not properly licensed. That motion was never adjudicated.
Shortly thereafter, Epic voluntarily dismissed its claims against R&S and, along with appellants, filed a second amended complaint removing R&S, leaving NCJD, and adding CGI.2 CGI moved to dismiss, and the trial court granted the motion without prejudice.
Epic and appellants subsequently filed the operative pleading, a third amended complaint, against NCJD and CGI. CGI filed, but later voluntarily dismissed, a counterclaim against Epic, and the trial court dismissed the claim against NCJD pursuant to a stipulation for settlement. This left only appellants’ negligence claim against CGI ripe for adjudication.
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 Consistent with this ruling, the trial court granted the motion for judicial notice and denied appellants’ pretrial motions.
The court conducted a seven-day jury trial. During the trial, appellants presented evidence that the lock bar CGI initially used with the windows was too short to produce a tight seal, precipitating the later leaks, and that the replacement lock bar installed by CGI was insufficient and unsightly. In furtherance of their theory, appellants established that while CGI was attempting to remedy the window leaks, it issued a document entitled "Engineering Change Notice," which required the installation of a longer lock bar for the particular model of windows installed in appellants’ home. CGI did not, however, use the longer bar on appellants’ windows or disclose the document until litigation commenced. Further, CGI purportedly experienced a trend in leaking with similar windows at other properties, and a representative indicated that the problems with appellants’ windows were "the last straw," prompting the change notice and a different lock bar design.
To counter appellants’ claims, CGI asserted that only five of the most exposed windows leaked and its efforts to replace those windows were unreasonably rebuffed. Despite these defenses, two inextricably intertwined themes dominated CGI's case: (1) appellants were seeking the same relief from CGI they had previously sought to recover from R&S and NCJD; and (2) as demonstrated from the prior pleadings, appellants lacked any veracity.
These themes were developed at the outset of the trial. In opening statement, CGI framed the dispute in the following manner:
You know, I was thinking about this case last night, probably 2:00 in the morning, and I said how do I explain to these people what this case is about. And it's the triple dip. That's what this case is about. Okay. Triple dip. They're blaming three separate parties for the same damages. CGI now, here. Previously, it was R&S and NCJD. Okay. The triple dip.4
CGI next informed the jury the prior pleadings constituted admissions under oath, stating:
CGI then used the pleadings as a springboard to support the contention Mr. Hernandez was lying, arguing:
Mr. Hernandez lied about who caused the damage to the window frames and the glass. It was NCJD that actually caused that damage. No money should be award to CG—from CGI to the plaintiffs for any damage to the frames for the glass. None. We didn't do it.
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 multiple parties. In doing so, CGI again focused on the previous suits and characterized the prior pleadings as admissions, arguing:
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.
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) ).
"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...
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