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[ No Comments ] Posted on 11.04.08 under June, 2008, Legal Precedent
769 So.2d 508 (Fla.App. 5 Dist. 2000)
AMERICAN GENERAL HOME EQUITY, INC., Appellant,v.COUNTRYWIDE HOME LOANS, INC., etc., et al., Appellees.
DISTRICT COURT OF APPEAL OF FLORIDA,FIFTH DISTRICT
October 20, 2000
Section 689.01 requires that an interest in land be conveyed “by instrument in writing, signed in the presence of two subscribing witnesses by the party…conveying…such…interest…” The statute specifically provides that a conveyance may not be accomplished “in any other manner.” Thus a deed which lacks two subscribing witnesses is insufficient to convey title. Walker v. City of Jacksonville, 360 So.2d 52 (Fla. 1st DCA 1978); Santos v. Bogh, 334 So.2d 833 (Fla. 3d DCA), cert. denied, 341 So.2d 293 (Fla.1976).
A “subscribing witness” is defined as:
He who witnesses or attests the signature of a party to an instrument, and in testimony thereof subscribes his own name to the document. One who sees a writing executed, or hears it acknowledged, and at the request of the party thereupon signs his name as a witness. (emphasis added)
Black’s Law Dictionary.
American agues that there is a question of fact in this case as to whether the deed to Pack had the required two subscribing witnesses. The quit claim deed from Ferguson to Pack has three signatures: the grantor (Ferguson), a witness, and a notary. In opposition to the summary judgment proceeding, American filed and recorded an affidavit executed by the notary to the Pack deed which states he saw Ferguson sign the deed, but he does not say he also signed it in his capacity as a witness.
While a notary may also serve as a witness, the mere existence of an acknowledgment on an instrument raises no presumption that the notary was a witness. Nor is the mere existence of the acknowledgment proof that the notary was a witness. Walker. See also Santos (rejecting argument that acknowledgment which included statement that the grantor was known to be the person subscribed in and who executed the deed meant that the notary’s signature to the acknowledgment could be regarded as that of a second subscribing witness). We find nothing in the notary’s affidavit which establishes or raises a question of fact that he was the second subscribing witness. We find Medina v. Orange County, 147 So.2d 556 (Fla. 2d DCA 1962) has no application to this case, because in that case the notary actually signed the deed as a witness after originally notarizing it.
Since there was only one subscribing witness to the Pack deed, it failed to convey title to Pack. Thus Countrywide’s interest is clearly superior to any interest American may have, and at this point, American appears to have no valid mortgage interest in the subject property.
[ No Comments ] Posted on 11.04.08 under June, 2008, Legal Precedent
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant,v.GRACE BRUSCARINO, a/k/a GAZIA BRUSCARINO and VINCENT BRUSCARINO, her husband, Appellees.
Case No. 4D07-2014.
District Court of Appeal of Florida, Fourth District.
Opinion filed June 4, 2008.
WARNER, J.
Nationwide Mutual Fire Insurance Company appeals a final judgment for damages recovered by appellee Grace Bruscarino from her underinsured motorist coverage. We affirm on both claims raised. We write to address whether the court abused its discretion in precluding Nationwide from impeaching Bruscarino with her prior testimony regarding her wage loss, when she dropped her wage loss claim on the day of trial. We hold that there was no abuse of discretion under these facts.
Bruscarino suffered injuries as a result of an automobile accident. Suing Nationwide for underinsured motorist benefits, she sought damages for her injuries, including loss of earnings and loss of ability to earn a living. Bruscarino claimed she injured her back which required continuing treatment. Her doctors treated her with pain medication, traction, and physical therapy. At trial Nationwide’s doctors disputed both the seriousness and the extent of her treatment.
Although Bruscarino originally sought damages for lost earnings, on the first day of trial, Bruscarino informed the court that she was no longer pursuing damages for lost wages or loss of future earning capacity. Nationwide explained that Bruscarino testified during her deposition that she earned $900 a week as a waitress. This conflicted with her tax returns for the same period wherein she claimed to earn $200 a week. Nationwide argued that even without the lost damages claim, it should be allowed to impeach Bruscarino’s credibility with this evidence.
When Bruscarino testified, defense counsel proffered this evidence by impeaching her testimony outside the jury’s presence. The court concluded that the evidence related to a collateral issue and was improper impeachment. The court based its holding on New England Oyster House of North Miami, Inc. v. Yuhas 294 So. 2d 99 (Fla. 3d DCA 1974) (holding that impeachment regarding a conflict between the plaintiff’s deposition testimony and income tax returns regarding past wages was improper when plaintiff dropped claim for lost wages prior to the trial).
After the close of the evidence, the jury returned a verdict in favor of Bruscarino. Nationwide seeks reversal of the final judgment because the court refused to permit impeachment with the conflict between her deposition testimony and her tax returns.
“A trial court’s decision to admit or exclude evidence is reviewed by utilizing the abuse of discretion standard of review.” Stewart & Stevenson Servs., Inc. v. Westchester Fire Ins. Co., 804 So. 2d 584, 587 (Fla. 5th DCA 2002). However, this discretion is limited by the rules of evidence. Hayes v. Wal-Mart Stores, Inc., 933 So. 2d 124, 126 (Fla. 4th DCA 2006).
This court has held, “Impeachment on collateral issues is clearly impermissible.” Strasser v. Yalamanchi, 783 So. 2d 1087, 1095 (Fla. 4th DCA 2001). When evidence “neither (1) is relevant to prove an independent fact or issue nor (2) would discredit a witness by establishing bias, corruption, or lack of competency on the part of the witness,” it constitutes collateral, impermissible evidence. Id,
The trial court relied on New England Oyster House, 294 So. 2d 99. In that case, the plaintiff, a waitress, sought damages for personal injuries resulting from a trip and fall accident. The plaintiff originally claimed entitlement to damages for lost wages but dropped the claim before the start of trial. While the lost wages claim was pending, the plaintiff testified at a deposition that she failed to declare the total amount of tips she earned as a waitress on her income tax returns. Both the trial and appellate court concluded that the defendant could not impeach the plaintiff with this testimony at trial, because the lost wages claim had been dropped.
To counter New England Oyster House, Nationwide cites American Automobile Association, Inc. v. Tehrani, 508 So. 2d 365 (Fla. 1st DCA 1987), in support of its position that the tax information was allowable impeachment. Tehrani also involved a plaintiff injured in a vehicular accident. One of the issues on appeal was the exclusion of tax returns as impeachment of the plaintiff who had abandoned his lost wage claim. In its entirety, the court said:
“The court erred in excluding the plaintiffs’ tax returns from evidence when offered by the defendants. The tax returns were not material to prove the earnings of the plaintiffs because they abandoned their claim for loss of earnings. However, the plaintiffs had testified to loss of earnings prior to abandoning the claim for lost wages and the tax returns were admissible to impeach their credibility as witnesses.”
Id, at 369-70. It does not appear, however, that Nationwide cited Tehrani to the trial court. Thus, the trial court relied on New England Oyster House, a case with identical facts as the present case. Where the court relies on the holding of an identical case of evidence exclusion, and there is no contrary authority from our district, the court does not abuse its discretion in excluding evidence.
In addition, our precedent is in line with New England Oyster House. We examined the use of impeachment on a collateral issue in Doremus v. Florida Energy System of South Florida Inc., 634 So. 2d 1106 (Fla. 4th DCA 1994). That case also involved a personal injury lawsuit arising out of a car accident. Defendant sought to impeach the plaintiff with evidence that plaintiff misrepresented the status of his discharge from the military on an employment application. Defendant contended that it went to the plaintiff’s “truth and veracity.” The trial court admitted the evidence, but we reversed, concluding that it was “impeachment on a collateral issue, which is impermissible.” Id, at 1108. In doing so, we noted that section 90.608, Florida Statutes, permits the credibility of a witness to be impeached by material facts. We also cited to C. Ehrhardt, Florida Evidence 294-5 (2d ed. 1984), for the proposition that the test for determining whether impeachment evidence is collateral is whether the impeaching evidence would have been admissible for a purpose other than the inconsistency. See also Faucher v. R.C.F. Developers, 569 So. 2d 794, 804 (Fla. 1st DCA 1990) (”it is improper to litigate purely collateral matters solely for the purpose of impeaching a party or witness”), overruled on other grounds by Ullman v. City of Tampa Parks Dep’t, 625 So. 2d 868 (Fla. 1st DCA 1993).
In light of Doremus and considering the limitations on impeachment as contained in section 90.608, Florida Statutes, we conclude that the trial court did not err in refusing to permit impeachment of Bruscarino with her tax returns, as the issue of her income had become a collateral matter.
We have carefully examined the record as to the other issue presented and conclude that no error has occurred.
Affirmed,
POLEN and TAYLOR, JJ., concur.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; David E. French, Judge; L.T. Case No. 03-727 AD.
Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellant.
Eric S. Block of Law Offices of Eric S. Block, P.A., Michael J. Korn and Mary C. Coxe of Korn & Zehmer, P.A., Jacksonville, for appellees.
Not final until disposition of timely filed motion for rehearing.
[ No Comments ] Posted on 11.04.08 under June, 2008, Legal Precedent
MARION COUNTY AND USIS, Appellants,v.ROBERT E. FUTCH, Appellee.
Case No. 1D07-3053
District Court of Appeal of Florida, First District.
Opinion filed June 5, 2008
An appeal from an order of the Judge of Compensation Claims, John P. Thurman. Betty D. Marion of The Marion Law Firm, Ocala, for Appellants. Kenneth M. Hesser of Daniel L. Hightower, P.A., Ocala, for Appellee.
PER CURIAM.
In this workers’ compensation case, the employer/carrier (E/C) appeal the JCC’s order determining that the claimant’s late filing of his injury report was excused by the E/C’s actual knowledge of the accident and by exceptional circumstances. We find that the claimant’s untimely notice was not excused and reverse accordingly.
On September 10, 2005, the claimant, Robert Futch, a lieutenant with the Marion County Fire Rescue, suffered an injury while responding to a house fire. While the claimant experienced some immediate discomfort and removed himself from the fire, he neither reported the accident or any injuries to either of the supervisors at the scene nor sought treatment for his injuries until well over a month after the accident. Subsequently, more than 30 days after the accident, the claimant filed a formal notice of the accident and filed two petitions for benefits (PFBs), which the E/C denied as untimely. The JCC conducted a hearing on the PFBs and excused the claimant’s untimely filing pursuant to sections 440.185(1)(a) & (d), Florida Statutes (2005).
Sections 440.185(1)(a) & (d) provide that an employee who fails to report any injury sustained during the course of employment to his employer within 30 days will be barred from filing a PFB unless the employer or the employer’s agent had actual knowledge of the injury, or exceptional circumstances outside the scope of those outlined in previous subsections justify such failure.
Although the JCC determined that the claimant’s untimely filing was excused by the E/C’s actual knowledge of the accident, we find that the JCC erroneously applied a constructive knowledge analysis in making its determination. Section 440.185(1)(a) does not define the term actual knowledge; however, Black’s Law Dictionary defines the term as “direct and clear knowledge or knowledge of such information as would lead a reasonable person to inquire further.” The record in this case does not contain any evidence that either supervisor present at the scene witnessed the claimant’s accident. Furthermore, the record clearly establishes that the claimant failed to immediately report his accident and injury to the supervisors present at the scene or to any other reporting officer within the 30-day reporting period. Thus, the JCC did not have competent, substantial evidence to find that the E/C had actual knowledge of the accident.
The JCC also found that the purpose of the statute is to disqualify questionably injured workers that, without good cause, delay reporting an injury and determined that, because there was no accusation that the claimant lied about the incident, exceptional circumstances existed. In workers’ compensation cases, exceptional circumstances require that some uncommon or extraordinary event prevented the claimant from timely filing an accident report. See LARSON SERIES: DUBREUIL’S FLORIDA WORKERS’ COMPENSATION HANDBOOK ยง9.01(4)(b) (2007). The plain language of sections 440.189(1)(a) and (d) provides that failure to report an injury within 30 days will bar the filing of a PFB. A finding that the claimant is truthful about the injury is not an exceptional circumstance under the statute. Absent additional findings specifying other exceptional circumstances, the JCC did not have competent, substantial evidence to find that there were exceptional circumstances. See Clay County Sch. Bd. v. Robison, 725 So. 2d 425, 426 (Fla. 1st DCA 1999) (finding that the JCC did not apply the correct legal standard and requiring that the JCC specify the exceptional circumstances excusing timely notice of the injury). Thus, the JCC erred in finding that the claimant’s accident report was timely filed.
REVERSED.
BARFIELD, POLSTON, and ROBERTS, JJ., CONCUR.
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