Midtown Enterprises, Inc. v. Local Contractors, Inc.
| Decision Date | 11 April 2001 |
| Docket Number | No. 3D00-2151.,3D00-2151. |
| Citation | 785 So.2d 578 |
| Parties | MIDTOWN ENTERPRISES, INC., Appellant, v. LOCAL CONTRACTORS, INC., et al., Appellees. |
| Court | Florida District Court of Appeals |
Elder, Kurzman & Vaccarella, and David Elder, Miami, for appellant.
Hollander & Bartelstone, and Howard Hollander, Miami, for appellees.
Before LEVY, SHEVIN, and RAMIREZ, JJ.
Midtown Enterprises, Inc., plaintiff below, appeals an order of the trial court overturning a jury verdict and granting a new trial. Because the trial court was initially correct in its evidentiary rulings, we reverse the order with instructions that the jury verdict be reinstated.
As a certified minority business enterprise, Midtown obtained an electrical subcontract with Local Contractors, Inc., a general contractor. Midtown subsequently sued Local Contractors alleging breach of contract.
Prior to trial, the court granted Midtown's motion in limine excluding any evidence of Midtown's status as a minorityowned business. Local Contractors had sought to introduce such evidence in order to establish a "pattern of cheating" by Midtown.
At trial, the parties presented conflicting evidence concerning the value of the work done by Midtown, whether Midtown installed "dummy" wiring to make it look like more work had actually been completed at the project, and whether Midtown's work received city approval. Local Contractors also offered evidence regarding the cost to correct and finish the work after Midtown withdrew.
As rebuttal, Midtown submitted the testimony of its foreman, Jimmy Gonzalez, who had done the wiring. Although Gonzalez was not listed on the pretrial witness list, and Local Contractors had not taken his deposition, the trial court allowed him to testify. Gonzalez stated that there had been no "dummy" wiring. After the jury awarded Midtown $30,000, Local Contractors filed a motion for a new trial, citing three evidentiary errors by the trial court and arguing that the verdict was against the manifest weight of the evidence. The trial court granted the motion for a new trial on the basis of both the manifest weight of the evidence and its evidentiary rulings.
A trial court's error in the acceptance or rejection of evidence does not necessarily constitute harmful error. Only "when a substantial right of the party is adversely affected" may a court grant a new trial. See § 90.104(1), Fla. Stat. (1999); Parsons v. Motor Homes of America, Inc., 465 So.2d 1285, 1290 (Fla. 1st DCA 1985). When a trial court is asked to grant a new trial on the basis of evidentiary errors, the judge in essence sits as an appellate judge and can only reverse itself if the error was substantially prejudicial. As Judge Grimes wrote, if the trial court "concludes that reversible error has been committed, the judge is obliged to grant a new trial on the same basis that an appellate court would do so." Ford v. Robinson, 403 So.2d 1379, 1382 (Fla. 4th DCA 1981). In those situations, the appellate court is on an "equal footing" with the trial court in reviewing such errors. Id.
The first evidentiary ruling cited by the trial court as cause for granting a new trial was the exclusion of evidence of Midtown's qualification as a minorityowned business enterprise. Local Contractors argues that Midtown used a figurehead to obtain its qualification, then fired that employee, which led to Midtown's decertification as a minority business enterprise, and that this conduct demonstrates a "pattern of cheating." The issues as framed by the pleadings all relate to breach of contract and the claim of lien. How Midtown obtained the contract had nothing to do with how it performed under the contract. Local Contractors, however, argues that if Midtown would cheat in the manner in which it obtained the contract, it was more likely to cheat in its performance.
Section 90.404(1), Florida Statutes (1999), states that "[e]vidence of a person's character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion." Propensity for cheating would clearly be inadmissible. Character evidence is only admissible if the party places its character in evidence, and even then, it is only admissible by way of reputation evidence. See § 90.609, Fla. Stat. (1999). Likewise, it is inadmissible under section 90.404(2)(a), Florida Statutes (1999), which states:
Local Contractors has not suggested any permissible purpose for the admission of such evidence. See Smith v. Hooligan's Pub & Oyster Bar, Ltd., 753 So.2d 596, 600 (Fla. 3d DCA 2000) (). Clearly, the probative value of this evidence was outweighed by its prejudicial effect. See § 90.403, Fla. Stat. (1999). The trial court was thus correct when it initially granted the motion in limine.
The second evidentiary ruling cited by the trial court as error allowed Gonzalez to testify even though he was not listed as a witness in pretrial discovery. The trial court correctly permitted the testimony because it was the defense that unfairly surprised Midtown with allegations of "dummy" wiring, accusations which were never mentioned in the pleadings or during discovery. In fact, Local Contractors was specifically asked by interrogatory to identify with specificity Midtown's deficiencies in performance, and its reply made no mention of "dummy" wiring. Gonzalez was properly allowed to testify in rebuttal with respect to solely this issue.
The third evidentiary ruling cited by the trial court as error permitted Midtown to present to the jury the substance of a City of Miami document that was not admitted into evidence. Local Contractors' expert, a professional engineer, had testified that Midtown never received city approval for any rough-in electrical work and that Midtown "front-loaded" the job by trying to collect more money than the work in place justified. Midtown sought to introduce a City of Miami document that allegedly reflected an approval of Midtown's rough-in electrical installation. In attempting to lay a predicate for the admission of the document, counsel for Midtown asked:
At this point, there was no objection. The only objection raised by Local Contractors was to the...
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