ANGEL MONTERO v. RAUL CORZO

Third District Court of Appeal State of Florida Opinion filed June 2, 2021.

Not final until disposition of timely filed motion for rehearing.

________________ No. 3D20-406 Lower Tribunal No. 17-104 ________________

Angel Montero, Appellant, vs. Raul Corzo, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Abby Cynamon, Judge.

Fischer Redavid PLLC, and Jordan S. Redavid (Hollywood), for appellant.

Walton Lantaff Schroeder & Carson LLP, and John P. Joy and Sara M.

Sandler Cromer (Fort Lauderdale); Cole Scott & Kissane, P.A., and Scott A.

Cole, for appellees.

Before EMAS, C.J., and SCALES and LOBREE, JJ.

EMAS, C.J.

INTRODUCTION Angel Montero, plaintiff below, appeals a final judgment following a jury trial, and the denial of his motion for new trial. Montero contends that the jury verdict award of $30,000 for injuries he sustained in an automobile accident was inadequate and resulted from several errors committed during the trial. Following our review, we conclude that the trial court abused its discretion 1 in allowing the introduction of surveillance video, and the testimony of the investigator who recorded the video, both of which were untimely disclosed to Montero less than three business days before trial. 2 RELEVANT FACTS AND BACKGROUND Montero and his wife were rear-ended by a vehicle driven by Raul Corzo, and they suffered injuries. 3 After Montero and his wife filed suit, Corzo admitted fault, and the case proceeded to a jury trial solely on the question of non-economic damages. 4 Ultimately, the jury found that Corzo’s negligence was a legal cause of permanent harm to Montero, awarding him $30,000 for past non-economic damages and zero for future non-economic damages. The trial court denied Montero’s motion for new trial, and this appeal follows.

The trial in this case was originally set for the trial period commencing November 20, 2017. The trial court’s uniform order setting the case for this trial period directed that parties were to file their witness lists “at least 90 days prior to the first day of the trial period” and their exhibit lists “at least 30 days prior to the first day of the trial period,” with the actual exhibits being made available for examination and inspection “no later than 5 days prior to the first day of the trial period.” However, the case was continued and eventually set for the trial period commencing August 19, 2019. The order resetting the trial provided that “All prior orders are in full force and effect.”

At calendar call on August 8, 2019, trial was set to begin on Monday, August 26 (i.e., the second week of the trial period), and the trial court thereafter entered a second trial order which required counsel to meet at least five days before trial (rather than five days prior to the first day of the trial period) to submit for inspection all exhibits to be introduced at trial. 5

On Wednesday, August 21, 2019 (three business days before the Monday, August 26th trial date), Corzo provided to Montero, for the first time, a video of surveillance recorded in March and April 2019, as well as a surveillance report prepared by an unnamed and undisclosed investigator.

Neither this 2019 surveillance video, nor the investigator, had been disclosed by Corzo in his witness and exhibit lists. Instead, Corzo’s witness list broadly and vaguely indicated “any and all surveillance personnel obtaining surveillance film or videotape of the Plaintiff;”6 his exhibit list similarly indicated “any and all surveillance film or videotape taken of the Plaintiff.”

The next day, Montero moved in limine to preclude the introduction of the video, arguing this untimely disclosed evidence was an attempt to ambush him on the eve of trial. The court heard argument on this motion on the first day of trial, but ultimately denied the motion without engaging in the analysis required under Binger v. King Pest Control, 401 So. 2d 1310, 1313 (Fla. 1981); 7 indeed, the trial court did not even make a finding whether Corzo’s disclosures were in fact untimely under the terms of its pretrial order.

ANALYSIS AND DISCUSSION The Florida Supreme Court has instructed: “A primary purpose in the adoption of the Florida Rules of Civil Procedure is to prevent the use of surprise, trickery, bluff and legal gymnastics.” Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 111 (Fla. 1970). Thus, the general rule in Florida is that there be “complete disclosure.”8 Importantly, “[r]equiring reasonable compliance with a pretrial order directing witnesses’ disclosure will help to eliminate surprise and avoid trial by ‘ambush.’” Binger, 401 So. 2d at 1314.

A general reference to a category of witnesses and evidence, as Corzo provided in the instant case (“any and all surveillance film or videotape taken of the Plaintiff;” “any and all surveillance personnel obtaining surveillance film or videotape of the Plaintiff”), fails to satisfy the requirement of complete disclosure.9 Binger, 401 So. 2d at 1313 (holding that “a pretrial order directing the parties to exchange the names of witnesses requires a listing or notification of all witnesses that the parties reasonably foresee will be called to testify, whether for substantive, corroborative, impeachment or rebuttal purposes. Obviously, a general reference to ‘any and all necessary’ impeachment or rebuttal witnesses, as was the case here, constitutes inadequate disclosure”).

The failure of a party to properly disclose evidence “will bar the information's use as evidence in the cause unless the trial court finds that the failure to disclose was not willful and either that no prejudice will result or that any existing prejudice may be overcome by allowing a continuance of discovery during a trial recess.” Dodson v. Persell, 390 So. 2d 704, 708 (Fla. 1980).

In Binger, 401 So. 2d at 1314, the Florida Supreme Court reaffirmed that in exercising its discretion in determining whether to permit an untimely disclosed witness to testify, the trial court should be guided largely by whether the testimony will prejudice the objecting party. 10 “Prejudice” under Binger “refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony.” Id. In making this determination, the Binger Court set forth several factors a trial court should consider: (i) the objecting party's ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party's possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). If after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.

As such, it is incumbent upon the trial court to analyze these Binger factors before exercising its discretion to admit or exclude late-disclosed exhibits or witness testimony. This court has previously held that a trial court’s failure to do so will result in reversal. See Deutsche Bank Nat. Tr.

Co. v. Perez, 180 So. 3d 1186 (Fla. 3d DCA 2015) (reversing where trial court failed to consider Binger factors); Lugo v. Fla. E. Coast Ry. Co., 487 So. 2d 321, 322, 323–24 (Fla. 3d DCA 1986) (holding exclusion of expert witness for party’s failure to strictly comply with pre-trial order was reversible error where trial court failed to consider the Binger factors which should have entered into its exercise of discretion). See also J.S.L. Constr. Co. v. Levy, 994 So. 2d 394 (Fla. 3d DCA 2008) (holding it was trial by ambush to allow a witness, who was only named two weeks prior to trial, to testify); Reive v. Deutsche Bank Nat. Tr. Co., 190 So. 3d 93 (Fla. 4th DCA 2015) (holding that admission of witnesses and documents not timely disclosed constituted “surprise in fact” and violated Binger.) 11

CONCLUSION Accordingly, because the trial court failed to consider and analyze the Binger factors, and failed to make any findings, including the failure to make a determination of Binger prejudice, 12 we reverse and remand for a new trial.

Reversed and remanded.

for this court to make such comparisons or to determine whether permitting the introduction of the untimely disclosed 2019 video, in light of the timely disclosed 2018 video, would (or would not) have resulted in prejudice under a Binger analysis. Such a determination falls upon the trial court to do so in the first instance.