211 So. 3d 360
Fla. Dist. Ct. App.2017Background
- Big Lake Partners contracted Robert Willson as manager for a Palm Creek development; the operating agreement limited Willson’s authority to incur indebtedness over $5,000 and to place mortgages.
- Willson and Carl Ferrero made loans/deposits to the company in excess of $5,000 and later executed mortgages on the property to secure those loans.
- Big Lake sued (2008) seeking rescission/cancellation of mortgages, damages for breach of contract and slander of title, and other relief; Willson/Ferrero/CR Investments counterclaimed for foreclosure, money lent, and unjust enrichment.
- At trial, Big Lake’s forensic accountant testified about misused funds and calculated lost profits by comparing sales to a nearby subdivision; defense objected to parts of that testimony as untimely and speculative and the court initially excluded the newly disclosed opinions.
- After entry of final judgment excluding the untimely opinions (awarding no damages on breach/slander counts), the trial court on rehearing reversed itself, considered the previously excluded proffered testimony, awarded $165,280 on breach of contract and $1 on slander of title, and changed findings on unjust enrichment; appellants sought rehearing and appealed.
- The appellate court affirmed most rulings but held the trial court abused its discretion by reversing its mid-trial exclusion of expert opinion without providing the defense an opportunity to rebut—ordering a new trial on damages for breach of contract and slander of title; unjust enrichment ruling was affirmed.
Issues
| Issue | Plaintiff's Argument (Big Lake) | Defendant's Argument (Willson/Ferrero/CR) | Held |
|---|---|---|---|
| Whether trial court’s post-trial reversal admitting previously excluded expert opinion violated due process | Excluding opinions at trial was error; proffered expert evidence established lost-profits damages and was not a prejudicial surprise | Mid-trial exclusion was proper under untimely disclosure rules; defendants were prejudiced and had no chance to rebut the expert | Court held reversal was an abuse of discretion; admission on rehearing prejudiced defendants—remanded for new trial on damages for breach and slander counts |
| Whether expert’s untimely sales-comparison lost-profit testimony should have been considered | Testimony compared comparable subdivision sales and supported $165,280 lost profits | Testimony was speculative and not disclosed in expert report; defendants lacked opportunity to rebut | Trial court initially excluded the opinion; appellate court found later consideration on rehearing impermissible without a new hearing to cure prejudice |
| Remedy for erroneous post-trial admission of excluded evidence | Admit and consider proffered evidence to award damages | Require new hearing/trial so defendants can respond | Court ordered new trial on damages rather than affirming award based on belatedly considered evidence |
| Whether appellants proved unjust enrichment on counterclaims | Appellants claimed benefit conferred by loans and sought restitution | Big Lake argued elements (knowledge, retention, inequity) were not proven | Appellate court affirmed trial court: appellants failed to prove elements 2–4; unjust enrichment ruling affirmed |
Key Cases Cited
- Blanco v. State, 452 So.2d 520 (Fla. 1984) (standard for admission/exclusion of evidence and abuse of discretion review)
- Trees v. K-Mart Corp., 467 So.2d 401 (Fla. 4th DCA 1985) (abuse of discretion standard for evidentiary rulings)
- Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981) (prohibits trial by ambush; courts must consider prejudice from surprise evidence)
- Garcia v. Emerson Electric Co., 677 So.2d 20 (Fla. 3d DCA 1996) (mid-trial reversal admitting late evidence is an abuse when opposing party cannot rebut)
- Gran v. Branham, 626 So.2d 1059 (Fla. 4th DCA 1993) (prejudice includes inability to counter newly admitted testimony)
- Della Ratta v. Della Ratta, 927 So.2d 1055 (Fla. 4th DCA 2006) (elements required for unjust enrichment claim)