Mall Motel Corp. v. Wayside Restaurants, Inc., 78-1458

• Decision Date: 27 November 1979
• Docket Number: No. 78-1458,78-1458
• Citation: 377 So.2d 41
• Parties: MALL MOTEL CORP., d/b/a Sheraton Inn West Palm Beach, Appellant, v. WAYSIDE RESTAURANTS, INC., et al., Appellees.
• Court: Florida District Court of Appeals

Page 41

377 So.2d 41

MALL MOTEL CORP., d/b/a Sheraton Inn West Palm Beach, Appellant, v. WAYSIDE RESTAURANTS, INC., et al., Appellees.

No. 78-1458.

District Court of Appeal of Florida, Third District.

Nov. 27, 1979.

Myers, Kaplan, Levinson, Kenin & Richards, Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellant.

Horton, Perse & Ginsberg and Arnold R. Ginsberg, Ivan S. Benjamin, Miami, for appellees.

Before PEARSON, HUBBART and SCHWARTZ, JJ.

HUBBART, Judge.

This is an action for conversion and a counterclaim sounding in conversion and debt in which the jury in the trial court returned a verdict for the plaintiffs on the main claim and the defendant on the counterclaim. Judgment was entered for the plaintiffs and the defendant appeals.

We consider the dispositive issue on appeal to be whether the trial court improperly excluded from evidence certain bad character impeachment witnesses offered by the defendant at trial. For the reasons which follow, we conclude that it was reversible error for the trial court to exclude such defense witnesses from evidence. Accordingly, we reverse and remand for a new trial.

I

The facts of this case are as follows. The plaintiffs Wayside Restaurants, Inc., Mark Singer, and Gilbert Singer brought suit for conversion against the defendant Mall Motel Corp., d/b/a Sheraton Inn West Palm Beach in the Circuit Court for the Eleventh Judicial Circuit of Florida. ¹ The defendant filed an answer generally denying the complaint and counterclaimed against the plaintiffs for debt and conversion.

The main claim and counterclaim were tried together before a jury in the trial court. During the presentation of the plaintiffs' case, Mr. Gilbert Singer testified that he requested Mr. Jack Bernstein, the defendant's representative, to return the alleged converted property in this cause and was refused by Mr. Bernstein. During the defendant's case, Mr. Bernstein as a defense witness denied this conversation and stated that he had never been asked by Mr. Gilbert Singer to return the alleged converted property. There was no other testimony in the case as to whether the defendant refused, upon the plaintiffs' request, to return the alleged converted property.

During the presentation of the defendant's case, Mr. Sy Mandel and Mr. Hy Uchitel were called as defense witnesses who were prepared to testify as to Mr. Gilbert Singer's bad reputation in the community for truth and veracity. Both witnesses were, however, excluded from testifying by the trial court because neither witness had been listed on the defendant's pretrial catalog. The trial court had previously entered a pretrial order stating that the "(p)arties shall furnish opposing counsel with the written list containing the names and addresses of all witnesses intended to be called for trial, except those used for impeachment. . . ."

The jury returned a verdict in favor of the plaintiffs on the main claim including an award of punitive damages. The jury also returned a verdict in favor of the defendant on the counterclaim. The trial court entered a final judgment in favor of the plaintiffs and against the defendant in the amount of.$69,295. This appeal follows.

II

It is the established law of this state that a witness may be impeached by proof that the witness has a bad reputation in the community for truth and veracity. Pitts v. State, 315 So.2d 531 (Fla. 2d DCA 1975) and authorities collected. It is equally well-settled that a trial court has no authority to exclude a witness from testifying at trial for failure of the party calling him to list the name of such witness on a pretrial catalog when the listing of such witness was not specifically required by a pretrial discovery order of the court. Lanai Development Corp. v. Berry, 373 So.2d 441 (Fla. 3d DCA 1979); Clarke v. Sanders, 363 So.2d 843 (Fla. 4th DCA 1978).

In the instant case, it is clear that the testimony of the defense witnesses Mr. Mandel and Mr. Uchitel was admissible as bad character impeachment evidence directed against the veracity of Mr. Gilbert Singer as a witness for...