WILLIAM HERNANDEZ v. CGI WINDOWS AND DOORS, INC.
347 So.3d 113
Fla. Dist. Ct. App.2022Background
- William and Rita Hernandez (with Epic Construction) purchased and built a home, buying custom windows (42 by CGI) via dealer R&S; post-installation leaks occurred and CGI’s remedial work failed to stop them.
- Litigation involved multiple parties and amended complaints: initial claims against stucco contractor NCJD and installer R&S; R&S was later dismissed and NCJD settled, leaving only the Hernandezes’ negligence claim against CGI at trial.
- Pretrial, CGI sought judicial notice of prior pleadings. The court allowed introduction of the third amended complaint and permitted references to the earlier suits; appellants objected that the prior pleadings were unsworn attorney-drafted documents and thus inadmissible as admissions.
- At trial CGI repeatedly argued the prior pleadings constituted admissions, branded the plaintiffs as "liars" and "triple dippers," used the pleadings in cross-examination and closing, and the verdict form reflected former parties; jury returned for CGI.
- The Third District reversed, holding admission of the unsworn pleadings and inference of settlement was error and not harmless, and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior unsworn pleadings/drafts as admissions | Pleadings were unsworn, attorney-drafted, mere tentative positions and not adoptive admissions | Prior pleadings show plaintiffs admitted others caused damage; relevant to fault | Reversed: unsworn pleadings not admissible as admissions absent particularized adoption/belief in their truth |
| Evidence pointing to dismissed/settled defendants (inference of settlement) | References and exhibits implied settlement and unfairly prejudiced jury | Any inference was harmless; prior suits show inconsistent positions | Reversed: law prohibits making dismissal/settlement known to jury; inference here was pervasive and not harmless |
| Preservation of objection to admissibility | Pretrial definitive ruling denied plaintiffs’ motions and objection preserved for appeal | CGI argued objections not preserved | Court held objections preserved due to definitive pretrial ruling; review appropriate |
Key Cases Cited
- Hines v. Trager Constr. Co., 188 So. 2d 826 (Fla. 1st DCA 1966) (unsworn pleadings ordinarily not proof; pleadings are tentative positions)
- Adams v. Merrill Lynch, Pierce, Fenner & Smith, 392 So. 2d 4 (Fla. 4th DCA 1980) (attorney-drafted complaint is a tentative outline, not an admission)
- State Farm Fire & Cas. Co. v. Higgins, 788 So. 2d 992 (Fla. 4th DCA 2001) (unsworn pleadings admissible only if party manifested adoption/belief; discusses § 90.803(18)(b))
- Holmes v. Area Glass, Inc., 117 So. 3d 492 (Fla. 1st DCA 2013) (evidence of settlement/dismissal may not be shown to jury; violation is reversible error)
- Bern v. Camejo, 168 So. 3d 232 (Fla. 3d DCA 2014) (repeated references to prior defendants permit jurors to infer settlement; reversible)
- Webb v. Priest, 413 So. 2d 43 (Fla. 3d DCA 1982) (may point to an "empty chair," but not that the empty chair was once a defendant)
- Saleeby v. Rocky Elson Constr., Inc., 3 So. 3d 1078 (Fla. 2009) (affirming rule that admission of settlement evidence warrants reversal)
- Special v. W. Boca Med. Ctr., 160 So. 3d 1251 (Fla. 2014) (burden on beneficiary of error to prove it did not contribute to verdict; harmless-error standard)