Jeffrey P. Gale, P.A. // Response to Defendant’s Motion to Exclude Evidence

We have a case in which the defendant knowingly did the same thing after we sued him that he denied doing knowingly in our case. The thing he has denied doing forms the crux of our case.

The case is on the trial docket. In the lead-up to calendar call, defendant filed a Motion in Limine seeking to prevent us from using the subsequent activity as evidence to overcome his denial. The motion has not yet been ruled upon by the trial judge.

Our client sustained catastrophic injuries while working on a construction project, an addition to the defendant’s personal residence. The defendant homeowner hired an unlicensed contractor to manage the project. Typically, Florida law prohibits property owners from using unlicensed contractors to run projects. However, the law provides an exception to the rule for work done on a residence where the homeowner undertakes the project as the owner-builder. See Florida Statute 489.103(7). Under the exception, the homeowner assumes the legal duties and liabilities that would otherwise belong to a licensed contractor, foremost among them protecting the safety of workers and being liable for injuries caused by a breach of the duty. It is our position that the unlicensed contractor was negligent, that this negligence caused our client’s accident, and since this was an owner-builder project, the defendant owner-builder is vicariously liable for the unlicensed contractor’s negligence.

Defendant executed paperwork to obtain the building permit. He is listed in the paperwork as the owner-builder. Defendant claims he did not know until after being sued that he undertook the project as the owner-builder and that the person he hired to manage the project was unlicensed. While these claims should not be enough to overcome the defendant’s liability, we want to stop them in their tracks to limit any chance of them gaining traction with an uncertain jury.

Nearly seven months after being served with our lawsuit, the defendant started another construction project on his property. He hired the same unlicensed contractor to run the project and completed the same owner-builder paperwork as in our case.

Understandably, Defendant does not want our jury to see this evidence. He argues that the evidence is irrelevant and unfairly prejudicial.

We responded to the defendant’s Motion in Limine as follows:

Relevance & Prejudice

Florida Statute 90.401 defines relevant evidence as “evidence tending to prove or disprove a material fact.” Florida Statute 90.403 excludes relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice….”

Williams v. State of Florida, 110 So.2d 654 (Fla. 1959) is the seminal case on the admissibility of similar fact evidence. It is also authoritative on the issue of prejudice in the context of similar fact evidence. The case is a fascinating read.

Williams was convicted of rape and sentenced to death. His primary hope for reversal was to challenge the admission of testimony regarding his involvement in a similar factual situation. According to Florida’s Supreme Court, “The sum of the position of the appellant on this point is that the evidence was totally irrelevant and that it tended to establish a collateral crime to the undue prejudice of the appellant in the minds of the jury.”

In so many words, this is the identical argument being made by our defendant in asking the Court to suppress the evidence associated with the subsequent building permit.

Williams’s conviction and death sentence were upheld by the Florida Supreme Court.

After a thorough analysis of the jurisprudence on the subject going all the way back to early English law, the Court wrapped up its opinion with these words:

In view of our analysis of the precedents and for the future guidance of the bench and bar, the rule which we have applied in affirming this conviction simply is that evidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion [emphasis added]. This rule we hold applies to relevant similar fact evidence illustrated by that in the case at bar even though it points to the commission of another crime. The matter of relevancy should be carefully and cautiously considered by the trial judge. However, when found relevant within the limits of the stated rule, such evidence should be permitted to go to the jury.

By attempting to avoid liability by claiming he did not know that the contractor was unlicensed prior to executing our permit application and the associated Owner-Builder Disclosure Statement, the defendant has invited consideration of probative evidence regarding his interest in the contractor’s license status, his knowledge of that license status, his efforts to establish same, and his veracity regarding these matters prior to executing the permit paperwork. His execution of those permit papers, the circumstances surrounding same, and his delegation of all non-delegable duties to the unlicensed contractor are exceedingly material to this inquiry and our jury should have the opportunity to consider same.