Parks v. Zitnik
| Citation | 453 So.2d 434 |
| Decision Date | 29 June 1984 |
| Docket Number | No. 83-1312,83-1312 |
| Parties | Simon E. PARKS, Appellant, v. Carol ZITNIK, Appellee. |
| Court | Florida District Court of Appeals |
Charles R. Scully, St. Petersburg, for appellant.
Paul Castagliola of Riden, Watson & Goldstein, P.A., St. Petersburg, for appellee.
The appellant, Simon E. Parks, has appealed from a final judgment in favor of the appellee, Carol Zitnik. We reverse.
This action arose out of a personal relationship between the parties. During the course of this relationship, a duplex and a house were acquired. Although legal title to the real estate was placed in appellee's name, it appears the appellant contributed both money and labor towards the acquisition and repair of the duplex. The appellant also contributed over $10,000 towards the purchase of the house.
After the relationship ended, the appellee filed a six-count complaint against the appellant and the appellant filed a five-count counterclaim.
A nonjury trial was held on the portion of appellee's complaint that alleged an action to quiet title, and causes of action for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and recovery of real property. The case was also tried on the portion of appellant's counterclaim that alleged an action to quiet title and impose a resulting trust, and causes of action for constructive trust, partition and constructive trust, partition and resulting trust, and recovery of real property.
During the course of the trial, appellee's attorney asked the appellant whether he had ever been convicted of a crime. When he responded affirmatively, he was then asked how many times. After appellant stated he thought "two or three, four; I don't know exactly," he was then asked whether he was currently on probation for extortion, the name of his victim, and what he had been accused of extorting. Later in the trial he was asked whether he had been charged with battery and the number of times he had been charged. He was also asked whether, in addition to the extortion, he had ever been charged with grand theft. The appellant's objections were overruled, and his motion for a mistrial was denied.
After a nonjury trial, a final judgment was entered in favor of the appellee awarding her $15,000 in compensatory damages, $15,000 in punitive damages, and sole legal and equitable title to both the house and the duplex. The trial court ruled that the appellant had not proven any counts of his counterclaim. This timely appeal followed.
We find that the trial court erred in allowing the appellant to be questioned concerning the number of times he had been convicted of a crime, the nature of those crimes, the victims of the crimes, and the punishment he received, as well as in allowing questions concerning misdemeanors, e.g., battery, with which the appellant had been charged.
Section 90.610(1), Florida Statutes (1981), provides in part:
(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment....
This statute applies to civil as well as criminal proceedings. McArthur v. Cook, 99 So.2d 565 (Fla.1957); Watson v. Campbell, 55 So.2d 540 (Fla.1951).
The appellee's initial question concerning convictions of "crimes" was improper. A person attempting to impeach the character of a witness, or a party, may no longer ask the witness whether he has ever been convicted of a crime. The question would have been proper prior to July 1, 1979; however, section 90.610(1) prohibits this question because it restricts the crimes that may be considered when attempting to impeach a witness. Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982). Under the current statute, a witness may be asked whether he has ever been convicted of either a felony, or of a crime involving dishonesty or a false statement regardless of the punishment. Cummings. By requiring the appellant to answer questions concerning crimes in general, the appellant was forced to reveal that he had been convicted of one or more misdemeanors, e.g., battery. This examination regarding irrelevant criminal incidents was clearly improper. King v. State, 431 So.2d 272 (Fla. 5th DCA 1983).
Assuming arguendo, appellee's initial question had been properly phrased, appellee should have asked no further questions once the appellant admitted he had been convicted of two, three, or four crimes, unless the answer was untruthful. Sneed v. State, 397 So.2d 931 (Fla. 5th DCA 1981). If untruthful, the appellant could have been impeached by the introduction of proper records...
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Petion v. State
...discloses that the trial judge has actually relied upon the erroneous evidence to support the verdict or result. See Parks v. Zitnik, 453 So.2d 434, 437 (Fla. 2d DCA 1984). To understand the application of this presumption, it is instructive to trace the evolution of the standard of review ......
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Schofield v. State
...details about the crime are generally inadmissible.”); Livingston v. State, 682 So.2d 591, 592 (Fla. 2d DCA 1996); Parks v. Zitnik, 453 So.2d 434, 437 (Fla. 2d DCA 1984). And as to the limited exception to the general rule for reverse Williams3 rule evidence, none of the facts proffered con......
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Alvarez v. State, 83-2590
...to admit the number of convictions of such crimes." Cummings v. State, 412 So.2d 436, 439 (Fla. 4th DCA 1982). See Parks v. Zitnik, 453 So.2d 434 (Fla. 2d DCA 1984); King v. State, 431 So.2d 272 (Fla. 5th DCA 1983); Blasco v. State, 419 So.2d 807 (Fla. 3d DCA 1982). The requirement that the......
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Lieberman v. Department of Professional Regulation, Bd. of Medicine, 89-1196
...case was not heard by a jury does not mean that the introduction of the inadmissible evidence was harmless error. In Parks v. Zitnik, 453 So.2d 434, 437 (Fla. 2d DCA 1984), the court The appellee contends that any error committed by the trial court was harmless because the case was tried by......
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Other rules governing both physical and testimonial proof
...to disregard and ignore any inadmissible or improper testimony or evidence that he or she may hear during the proffer. Parks v. Zitnik , 453 So.2d 434 (Fla. 2d DCA 1984), citing United States v. Masri , 547 F.2d 932 (5th Cir.), cert. Denied , 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977......