Rhoads v. Virginia-Florida Corporation

Citation476 F.2d 82
Decision Date29 May 1973
Docket NumberNo. 72-1130.,72-1130.
PartiesRobert B. RHOADS, Jr., and Jane Drake Rhoads, his wife, et al., Plaintiffs-Appellants, v. VIRGINIA-FLORIDA CORPORATION et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Richard F. Ralph, Miami, Fla., for plaintiffs-appellants.

Daniel Neal Heller, Miami, Fla., Mark Silverstein, Miami Beach, Fla., Knight, Underwood, Peters, Hoeveler & Pickle, William M. Hoeveler, Miami, Fla., for defendants-appellees.

Before GODBOLD, DYER and CLARK, Circuit Judges.

GODBOLD, Circuit Judge:

This case concerns erosion damage to the Florida residential beach-front property of plaintiffs, caused or substantially contributed to by the construction of a seawall for a beach-front high rise apartment complex. The property faces the Atlantic Ocean in the Golden Beach area of South Florida, at or near the intersection of the beach with the Dade-Broward county line. Defendants are the corporate lessee, builder, mortgage assignee and indenture trustees of the apartment complex. Plaintiffs are the owners of residential lots lying successively to the south of the apartment complex, the lot of the most northerly plaintiff being adjacent to the south boundary of the apartment property.

Plaintiffs brought this diversity suit for an injunction, damages and an order requiring removal of the seawall. Following a nonjury trial the District Judge found that defendants were entitled to judgment although the seawall substantially contributed to the erosion of plaintiffs' properties. His premise was that the defendants were not liable if they had built the wall on property owned by them, that is, landward (west) of the mean high water mark (MHWM), which is the boundary between the privately owned apartment property and the state sovereignty soil seaward thereof. He found that the wall was built landward (west) of the MHWM, and, accordingly, denied relief to plaintiffs.

The central issue at the trial was the location of the seawall vis-a-vis the MHWM. The case must be reversed because the finding that it was located landward of the MHWM was based in part upon the content of three drawings which could not be utilized by the court for that factual determination because they had not been verified. The three documents are defendants' exhibits 38, 40 and 49 (D.38, D.40 and D.49). D.38 and 40 purport to be surveys of the apartment complex property by Maurice E. Berry, a registered surveyor, the former drawing purporting to show along the beach side of the property the actual location of the MHWM, the latter purporting to show along the beach side a proposed location for a seawall. D.49 is labeled as a tentative layout drawing (dated 1953) of a proposed city bulkhead line, made by a named firm of engineers and surveyors and containing a line labeled as mean high water mark.

1. Use of the drawings as evidence

D.38, 40 and 49 were offered into evidence without any stated limitation on the purposes for which offered. Plaintiffs had acknowledged their authenticity but pointed out that authentication only identified the documents as having been prepared by the purported authors. Plaintiffs repeatedly objected to admission on the ground that there had been no testimony by the authors or by persons participating in the preparation of the surveys concerning what the drawings purported to show. Plaintiffs urged that without such testimony the documents were meaningless, and that they were entitled to cross-examine the authors.

The court admitted the drawings without any stated limitation on their use and without any testimony from their authors, and, as we have said, utilized their content in its dispositive finding that the seawall was located landward of the MHWM.

The error was critical because plaintiffs introduced without objection P.31,1 the McGill survey, made by a state-employed surveyor for an agency of the State of Florida, which located the MHWM considerably landward of the locations which the court believed were shown by D.38, 40 and 49.

Since Rule 43(a) Fed.R.Civ.P. requires evidence to be admitted in a diversity case if admissible under federal statutes, federal equity practice, or state statutes, rules or common law,2 we necessarily have engaged in a search of the authorities much broader in scope than the nominal assistance afforded us by the parties.

As urged by plaintiffs at the trial, authentication of the documents merely established their authorship, the proof of some human's "personal connection with a corporal object." 7 Wigmore, On Evidence § 2129, at 564 (3d ed. 1940). See also McCormick, Evidence § 218, at 543 (2d ed. 1972). Before the documents could be admitted for "testimonial use,"3 that is, where the documents themselves would "testify" as direct4 evidence on a material disputed issue of fact, they were required to be verified. "Whenever such a document is offered as proving a thing to be as therein represented, then it is offered testimonially, and it must be associated with a testifier." 3 Wigmore, On Evidence § 790, at 218 (Chadbourn ed. 1970). Verification required at the minimum a showing by the testimony of some competent witness that the lines of the drawings were correct representations of the actual physical characteristics of the land and objects which they purported to show. Adams v. State, 28 Fla. 511, 10 So. 106 (1891); Florida Southern Ry. Co. v. Parsons, 33 Fla. 631, 15 So. 338 (1894); Patterson v. State, 128 Fla. 539, 175 So. 730, 731 (1937); Turner v. U. S., 66 F. 280 (5th Cir. 1895); 3 Wigmore, On Evidence § 793 (Chadbourn ed. 1970). See also Johnston v. Jones, 1 Black 209, 66 U.S. 209, 17 L.Ed. 117 (1862).

The significance of verification is demonstrated by what we do not know in this case. There was not even generalized testimony that the drawings accurately depict the property or the description and locations of monuments presumably used as starting points, and there is no evidence of the competency of the surveyor or of the manner in which the drawings were prepared. There is no evidence that lines, calls and monuments portrayed on the drawings were based on or tied in to, or derived from, an official survey or the oldest private survey.5 We do not know that on-the-ground measurements were made, and, if they were, when made and by whom and whether accurately done, and whether measured data was correctly transferred onto the drawings.6

Generally, when a survey is to be used as direct evidence the author appears, establishes his competency, and testifies to the accuracy and the manner of his work. Playa de Flor Land & Improvement Co. v. U. S., 70 F.Supp. 281 (D.C.Z.), decree modified and affirmed, 160 F.2d 131 (5th Cir. 1947). Neither Berry, the author of D.38 and 40, nor the unidentified author of D.49, appeared and testified. One who participated in the survey and can attest to its accuracy may be able to verify it if the author is acknowledged to have been competent. See, e. g. Id. at 304. No participant in the work underlying D.38, 40 or 49 so testified. We set out in a footnote some of the cases in which there have been efforts at verification, but the efforts have been held insufficient in degree to make maps or drawings admissible as documents which themselves "testify."7

It is possible, through exceptions to the hearsay rule, for a survey to receive requisite verification without in-court appearance by a person whose testimony would verify it.8 None of the exceptions have been shown in the trial court or in this court to be applicable to D.38, 40, and 49. Defendants' drawings were made by private persons acting in a private capacity and thus were not within the official written statements exception to the hearsay rule.9

Two of the three documents bore what purported to be a certificate of Berry, as a registered Florida land surveyor. We have found no basis for concluding—and defendants have referred us to none—that the certificates themselves gave to the documents an official character or otherwise verified their contents. The certification itself lacked the necessary verification to be admissible as a hearsay exception. Without statutory authorization it could not provide verification for the document on which it appeared.

Defendants have not claimed that the three drawings were admissible under federal or state business record statutes, 28 U.S.C. § 1732, Fla.Stat.Ann. § 92.36, and in our opinion they were not admissible under either.

Since D.38, 40 and 49 were not admissible for testimonial purposes, that is to "testify" themselves concerning the location of the seawall vis-a-vis the MHWM, the allowable range of discretion permitted the trial court under Rule 43(a), Fed.R.Civ.P., did not permit it to admit them and then employ them for a testimonial—and, in this instance, dispositive —purpose.

The defendants seek the sanctuary of authorities allowing the use of documents to explain and illustrate the testimony of witnesses who refer to them. Authenticated documents can be employed in such a limited and ancillary manner, e. g., Florida Southern Ry. Co. v. Parsons, supra; Turner v. U. S., supra; 13 Fla.Jur., Evidence § 340. However, as the Supreme Court of Alabama explained in Crocker v. Lee, 261 Ala. 439, 74 So.2d 429 (1954):

The use of a map, drawing or plat for purposes of illustration must be distinguished from its admission in evidence. In the latter case the instrument possesses within itself evidential characteristics tending to establish a particular fact. In the former case the testimony of the witness is the evidence and the map or diagram is merely an aid to its understanding (citations omitted).

74 So.2d at 435. In the case before us the three drawings were not offered, admitted or utilized for the limited and ancillary purpose of explaining oral testimony of witnesses who referred to them.

The defendants rely also upon a conclusion of law and finding of fact entered by...

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