GASPAR'S PASSAGE, L L C v. RACETRAC PETROLEUM, INC.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
GASPAR'S PASSAGE, LLC, an Ohio )
limited liability company, )
)
Appellant, )
)
v. ) Case No. 2D17-55
)
RACETRAC PETROLEUM, INC., a )
Georgia corporation, )
)
Appellee. )
)
Opinion filed April 4, 2018.
Appeal from the Circuit Court for Pasco
County; Linda Babb, Judge.
Nicole Deese Newlon and William P.
Cassidy, Jr., of Johnson & Cassidy, P.A.,
Tampa, for Appellant.
Mary Ellen R. Himes and David O'Quinn of
Fidelity National Law Group, Fort
Lauderdale, for Appellee.
MORRIS, Judge.
Gaspar's Passage, LLC, appeals a final judgment entered in favor of
RaceTrac Petroleum, Inc., on its amended counterclaim for an equitable lien. This
action is the result of a dispute over the sale of commercial property in Pasco County
that had been held in trust.1 RaceTrac purchased the property, but subsequent to the
sale, one of the trust beneficiaries challenged the trustee's authority to enter into and
complete the sale. As a result, Gaspar, the successor trustee, sued the title insurance
company and RaceTrac. RaceTrac, in turn, filed two counterclaims against Gaspar for
an equitable lien and unjust enrichment as well as a cross-claim against the original
trustee and a third-party complaint against the original trustee and one of the trust
beneficiaries. The counterclaims against Gaspar were based on RaceTrac's assertion
that it had paid off various liens, back taxes, and certain mortgages. Although the trial
court determined that RaceTrac had wrongfully obtained the property, it also determined
that RaceTrac was entitled to an equitable lien for the amount of money it expended in
acquiring the property. Thereafter, the trial was continued on the remaining issues to
permit RaceTrac to add indispensable parties. In this appeal, Gaspar argues that the
trial court erred by refusing to permit it to take a deposition of RaceTrac's expert witness
or to add additional witnesses or exhibits after granting the continuance of the trial. We
agree and therefore reverse on this issue. We affirm the other issues raised by Gaspar,
but we note that our reversal may necessitate reconsideration of those issues on
remand.2
1Theproperty was held by the Captain Wesley Trust which had been
created by an unrecorded trust agreement dated November 29, 2005.
2As its second issue, Gaspar argues that the trial court erred by excluding
testimony from Gaspar's witness, J. Robert Brown. At trial, RaceTrac made numerous
objections at various points during Brown's testimony. While RaceTrac objected solely
on the basis of hearsay at certain points, it also objected on the basis of both hearsay
and the best evidence rule at other points, and those objections were sustained without
explanation. Our reversal on the first issue requires the trial court to conduct further
proceedings. To the extent that the trial court determines on remand that Gaspar
should be permitted to add its requested additional exhibits, the admission of those
exhibits could require reconsideration of RaceTrac's objections to Brown's testimony.
Gaspar's third issue is a challenge to the trial court's award of
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BACKGROUND
During the pendency of the proceedings below, Gaspar filed an amended
motion for partial summary judgment seeking to void the quitclaim and general warranty
deeds that RaceTrac obtained during the sale of the property. The trial court granted
the motion and voided the deeds, finding that the trustee had lacked authority to sell the
property.
A bench trial commenced in March 2015, but upon RaceTrac's request,
the trial court continued the trial to allow RaceTrac to amend its cross-complaint to add
additional trust beneficiaries as indispensable parties to the action. During a discussion
regarding the continuation, the trial court indicated that it expected that additional
discovery would be necessary. Specifically, the trial court stated: "So I am going to
continue this. If there needs to be some discovery taken about this, sobeit [sic]. But I'm
going to continue this and allow that to happen."
The trial court also determined that RaceTrac was entitled to an equitable
lien in the amount of $1,841,387.83 subject to an upward adjustment if the trial court
later determined that an adjustment was necessary. That sum was comprised of the
amount that RaceTrac paid to the trust's lender plus one-half of the amount RaceTrac
paid to satisfy a second mortgage on the property. Accordingly, the trial court entered a
partial final judgment voiding the deeds and awarding RaceTrac the equitable lien.
RaceTrac subsequently filed its amended counterclaim, cross-claim, and
third-party complaint. The changes relevant to this appeal were the addition of two
prejudgment interest. While we reject the substance of Gaspar's arguments pertaining
to this award, we note that due to our reversal on the first issue, the case could result in
a different outcome on remand. Thus the amount of the prejudgment interest award
could change depending on the resolution of the issue of Gaspar's request for additional
discovery, witnesses, and exhibits.
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indispensable parties (the original trustee and a trust beneficiary) to the claims against
Gaspar for an equitable lien and unjust enrichment as well as RaceTrac's request for an
equitable lien and judgment that, for the first time, included amounts for "carrying costs
and expenses and the value of improvements incurred in the Subject Property since
July 21, 2011." RaceTrac's original demand for relief did not include a request for
carrying costs and expenses or the value of improvements. As a result of RaceTrac's
amended pleading, Gaspar amended its answer and affirmative defenses to include
defenses of setoff and the exclusion of rental value from the compensation due to
RaceTrac for any improvements it made to the property. After the filing of its amended
counterclaim, cross-claim, and third-party complaint, RaceTrac engaged in limited
discovery.3
A March 3, 2016, hearing was conducted to address a motion for a
supersedeas bond, a motion for stay in RaceTrac's separate appeal, a motion to
compel, and a motion to extend RaceTrac's lis pendens on the property. But at the
hearing, RaceTrac raised the issue of whether Gaspar could engage in further
discovery in preparation for the continued trial that was scheduled for November 2016.
This issue had not been previously raised and was raised without notice to Gaspar.
After other discussions not relevant to this appeal and after requesting a date for the
continued trial, RaceTrac's counsel brought up the issue of one of RaceTrac's experts.
The following discussion then ensued in relevant part:
3In its brief, RaceTrac at first asserts that it "did not conduct discovery,"
but then within the same sentence acknowledges it engaged in "limited discovery . . .
focused on the Trust and the parties [which] only requested updated information
regarding previously propounded discovery regarding Gaspar's development of the
Wesley Chapel Property, if any." To the extent that RaceTrac believes that a document
entitled "Second Request for Production" which requests updated information from the
opposing party concerning issues involved in the case should not be considered
"discovery," we disagree.
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[RaceTrac's counsel]: I don't know if you're going to open
this up--essentially, we have the same parties--if you're
going to open up the whole calendar to more discovery and
experts and all that or if you're going to say, "Look. You
guys already did this. We're not going to take a second bite
at the apple."
The Court: Yeah. We're starting from where we stopped.
[RaceTrac's counsel]: Okay.
The Court: We're not starting over.
[RaceTrac's counsel]: Okay. Okay. Okay. But I didn't know
if they were going to have another bite at the apple for an
expert, because we have an expert who essentially was
going to testify. We have a witness from RaceTrac who's
going to testify about all the--the engineer. . . . [A]nd then . .
. a real estate expert to testify about what value [the
modifications that RaceTrac made] bring to the property.
Those are essentially the two witnesses we have left. I don't
know if we'll have to add testimony.
The Court: Those are not new witnesses.
[RaceTrac's counsel]: No. Those are the witnesses we had.
The Court: Those are the witnesses you had. I'm not going
to allow them--
[RaceTrac's counsel]: Your Honor, you didn't--
The Court: Just because they got a new attorney.
[RaceTrac's counsel]: Oh, no. Those are our witnesses--
The Court: No. I know that.
[RaceTrac's counsel]: --that you stopped the trial.
The Court: Right. But if they hadn't listed people--
[RaceTrac's counsel]: Okay.
The Court: --experts in opposition--
[RaceTrac's counsel]: Okay.
-5-
The Court: --just because you get a new attorney doesn't
mean you--I mean, we started this trial for a particular--we
stopped it for a particular purpose.
....
[Gaspar's counsel]: I just wanted to ask, as a person who
wasn't there,4 was it stopped last time because it just didn't--
[RaceTrac's counsel]: It stopped--
[Gaspar's counsel]: --ran out of time? You all would have
gone on and tried the damages?
The Court: No. It--well, we would have tried. There were
essential people who were left out of the trial. We were--[the
original trustee] wasn't there. [The original trustee] wasn't
listed as a person. [The original trustee] did everything in
the case and--
[RaceTrac's counsel]: He was a party to the counterclaim.
[Gaspar's counsel]: Yeah. I knew that.
....
[Gaspar's counsel]: [Y]ou were ready to try--
[RaceTrac's counsel]: We were ready to try it. We had
everybody.
The Court: Yeah, we were ready to--yeah, we were not just
ready, we were going and--
[RaceTrac's counsel]: Right.
[Gaspar's counsel]: Okay. And I only asked, of course,
because I am not setting it and I do want to be careful to
make sure Gaspar Passage's would have every opportunity
to be able to try the damages case with its witnesses and
experts that--
[RaceTrac's counsel]: It had no experts. It didn't name any.
4The attorney who attended the March 3, 2016, hearing was not Gaspar's
trial attorney but was the attorney who represented Gaspar in RaceTrac's appeal of the
partial final judgment that voided the deeds.
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[Gaspar's counsel]: And so that's what I was asking. You-all
were getting ready to try?
The Court: Yeah. And that's the thing.
[RaceTrac's counsel]: Okay.
The Court: I mean, these aren't new experts. These are
people that were listed before.
[RaceTrac's counsel]: Okay.
The Court: Gaspar's Passage has been in this case from
the get-go, so Gaspar's Passage can't start adding experts
that they didn't list originally . . . .
There was no further discussion on this issue.
In June 2016, three months prior to the continued trial date, Gaspar filed a
notice of case management conference, wherein it noticed its intent to have the trial
court consider Gaspar's request to designate one expert witness on the issue of
damages, to take the deposition of RaceTrac's expert witness, and to obtain a copy of
any indemnity agreement in RaceTrac's possession. In response, RaceTrac filed a
motion to strike, relying on the trial court's March 3, 2016, ruling related to additional
discovery as the reason for striking Gaspar's requests.
The court conducted a hearing on RaceTrac's motion to strike in July
2016. RaceTrac's counsel recited the case history to the trial court, asserting that when
the trial court initially agreed to continue the trial, the trial judge had been "emphatic . . .
that we were done [with discovery]" and that just because Gaspar had retained a new
attorney did not mean it was entitled to a repeat of the pretrial proceedings. Gaspar's
counsel, who was not the appellate counsel that argued on behalf of Gaspar at the
March 3, 2016, hearing, argued in relevant part that Gaspar wanted to include two new
experts whose testimony would "go directly to the issue of damages." According to
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Gaspar, one of the witnesses would testify on the issue of whether RaceTrac should
have proceeded with the purchase of the property which, if answered in the negative,
would "negat[e] their claim for damages." The other witness was relevant to Gaspar's
newly added affirmative defenses of setoff or lost rental value, which were based on
Gaspar's claim that it was entitled to the rental value of the property for the time period
that RaceTrac was wrongfully in possession of the property.5 Gaspar's counsel
asserted that both witnesses were necessary to refute RaceTrac's contention that it was
entitled to additional damages above and beyond the $1,841,387.83 equitable lien
already imposed by the trial court.6 Gaspar's counsel asserted that the witnesses were
5Counsel at first referred to the affirmative defense of setoff but then she
subsequently explained that the expert would opine on the issue of lost rental value for
the period of time that Gaspar was deprived of the use of the property. We note that the
lost rental value issue, as articulated by Gaspar's counsel at the hearing, is different
from the written affirmative defense wherein Gaspar argued that rental value should be
excluded from any damages that RaceTrac was owed due to improvements it made to
the property. However, this discrepancy does not change the result because regardless
of whether the expert would opine on whether Gaspar was entitled to lost rental value
for the time period that RaceTrac was in possession of the property or whether rental
value should be excluded from any damages awarded to RaceTrac, both of those topics
relate to the issue of a setoff of Gaspar's damages against RaceTrac's damages.
6Specifically, Gaspar's counsel noted that RaceTrac "has already been
awarded the 1.84 million in the equitable lien [but] it claims it is entitled to additional
damages beyond the money that it paid for the property." Gaspar's counsel explained
that the first witness "will refute the fact that RaceTrac should have proceeded with the
purchase, thereby negating their claim for damages. So it directly goes to RaceTrac's
claim for damages, which is at issue in this second part of the trial." In relation to the
second witness, Gaspar's counsel argued that if RaceTrac was "entitled to the 1.84
million it paid, my client should be or at least this Court should consider whether my
client is entitled to rental value damages for that time period that he was deprived use of
the property."
In its brief, RaceTrac argues that Gaspar's belated discovery requests
addressed issues already decided or otherwise moot. But the record refutes that
argument as it is clear that the trial court retained jurisdiction to adjust the equitable lien
upward and that RaceTrac sought additional damages above and beyond the equitable
lien amount. In addition to the original equitable lien amount, RaceTrac sought
"property taxes incurred since July 21, 2011, plus other carrying costs and expenses
and the value of improvements incurred in the Subject Property since July 21, 2011,
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"willing to produce reports and be deposed on an expedited basis" so that the trial could
proceed as scheduled. Gaspar's counsel also indicated that Gaspar wanted RaceTrac
to produce an indemnity agreement which Gaspar contended was required to be
produced pursuant to Florida Rule of Civil Procedure 1.280(b)(2).
Gaspar's counsel argued that if Gaspar was not permitted to conduct
additional discovery, it would be denied procedural due process since the discovery
issue had not been previously noticed prior to the March 3, 2016, hearing. Gaspar's
counsel also argued that once RaceTrac amended its counterclaim and Gaspar
amended its answer and affirmative defenses, new pleadings and parties were added.
Thus, Gaspar's counsel argued that an immediate discovery cutoff prevented Gaspar
from its right to be heard. Gaspar also maintained that it would be error to prevent the
addition of the new witnesses where over sixty days remained before trial and where
Gaspar was willing to agree to an expedited discovery schedule.
RaceTrac, in rebuttal, argued that in amending the counterclaim, it did not
change the allegations of its counterclaim relating to Gaspar and that, instead, it merely
added two indispensable parties (the original trustee and a trust beneficiary). RaceTrac
maintained that Gaspar had had sufficient time to conduct discovery but declined to do
so and that, therefore, there was no due process violation. RaceTrac conceded it had
no objection to providing a copy of the indemnification agreement. But RaceTrac
maintained its objection to "all these additional witnesses and experts."
The trial court reiterated that this case involved a continued trial. The trial
court explained that when it initially said it expected further discovery, "I meant about
plus interest, costs, attorneys' fees and any other relief this Court deems just and
proper."
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[the original trustee] and . . . the other trust, which was pertinent" during the first part of
the trial. The trial court continued:
Apparently, that is no longer pertinent, and so I expected
that there would be no need for further discovery.
Now, I do want [Gaspar's counsel] to have everything
she needs to go forward because what we're looking at is
damages. So anything, any paperwork that she may need . .
. just get it to her, but I . . . really did not expect that we
would be adding witnesses two years into the start of a trial.
Gaspar's Passage, I understand that you're new in
the case, but they're sort of stuck with what happened with
the attorney that they hired back at the beginning.
The hearing then concluded with RaceTrac agreeing to provide the indemnification
agreement. The trial court later entered an order granting RaceTrac's motion to strike,
denying Gaspar's request to depose RaceTrac's witness and denying Gaspar's request
to identify two additional witnesses on the issue of damages.
Subsequently, Gaspar moved to amend its exhibit list, seeking to add
documents that it claimed were relevant to its "ability to prosecute its affirmative
defenses and remaining claims . . . as well as its ability to defend against the claims
asserted by" RaceTrac. These exhibits were comprised of notices of proposed property
taxes for the years 2015 and 2016, emails, land surveys, a spreadsheet with listings of
various sites and corresponding numbers, a document entitled "Broker's Opinion of
Value," and an environmental site investigation report. One document was not
described, and it was not attached to the motion; instead, a placeholder was attached
indicating it was a confidential document.
At a hearing to address the motion, RaceTrac's counsel argued against
the amendment by asserting that she had not seen the documents and "[w]e're in the
middle of trial." Gaspar's counsel reminded the trial court that it had instructed
RaceTrac to provide Gaspar's counsel with all the documents she needed. Gaspar's
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counsel also argued that several of the documents she wanted to add were public
record and that one of the documents, purportedly relating to a settlement discussion,
was relevant to RaceTrac's claim for prejudgment interest. The trial court rejected
Gaspar's arguments and denied Gaspar's motion to amend the exhibit list, explaining
that "you can't include stuff as documents you're going to use at trial that you've never
provided."
In September 2016, the trial resumed with the trial court reiterating that
RaceTrac was entitled to an equitable lien. The trial court thereafter entered its final
judgment on that claim adjusting the amount of the lien upward to include property taxes
paid by RaceTrac as well as an award of interest on both the original equitable lien
amount and property taxes that had been made a part of the equitable lien.7 RaceTrac
was ultimately awarded $2,401,524.83.
ANALYSIS
We review "[a] trial court's determination with regard to a discovery
request" for an abuse of discretion. Overton v. State, 976 So. 2d 536, 548 (Fla. 2007).
We also review the trial court's decision to exclude late-disclosed witnesses or exhibits
for an abuse of discretion. See Tomlinson-McKenzie v. Prince, 718 So. 2d 394, 396
(Fla. 4th DCA 1998); In re Estate of Lochhead, 443 So. 2d 283, 284 (Fla. 4th DCA
1983).
The trial court's refusal to allow additional discovery and to permit Gaspar
to call additional expert witnesses was erroneous. The discovery issue was not noticed
for hearing in contravention of Florida Rule of Civil Procedure 1.090(d), which requires
that before ruling on a matter, a trial court must ensure that the issue was properly
7The trial court also granted Gaspar's motion to dismiss RaceTrac's other
claim for unjust enrichment, but that claim is not the subject of this appeal.
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noticed to all parties and called up for a hearing before the court. "[W]hen a court
considers issues not noticed for hearing, the court denies the litigant due process, and
any ensuing order or judgment must be reversed." In re Estate of Assimakopoulos, 228
So. 3d 709, 715 (Fla. 2d DCA 2017) (holding that trial court erred by considering party's
ore tenus motion for expert witness fees where no motion on that issue had previously
been made nor served on the opposing party and where the issue was not noticed for
hearing); see also Ingaglio v. Ennis, 443 So. 2d 459, 461 (Fla. 4th DCA 1984) (holding
that trial court erred by considering ore tenus motion to strike defendant's answer and
affirmative defenses as a sanction where no notice was provided to the defendant and
he had reason to believe the motion to compel answers to interrogatories had become
moot due to his serving answers to the motion).
Here, no written motion to prohibit further discovery was filed with the
court or served on Gaspar. Instead, RaceTrac essentially made an ore tenus motion at
the March 3, 2016, hearing. But Gaspar had no reason to believe that such a motion
would be made where: (1) RaceTrac had amended its complaint to add indispensable
parties and to add a request for relief that sought damages for carrying costs and
expenses and for improvements RaceTrac made to the property, (2) Gaspar amended
its affirmative defenses, and (3) RaceTrac had itself engaged in limited discovery after
the amendments. Further, because Gaspar was not provided with notice that the issue
would be considered at the hearing, its trial counsel was not even present. Instead,
Gaspar was represented by its appellate counsel who was representing Gaspar in
RaceTrac's appeal of the partial final judgment that had been previously entered.
Gaspar's appellate counsel had only minimal knowledge of the first phase of the trial
proceedings, but still attempted to preserve Gaspar's right to present witnesses on the
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issue of damages. However, Gaspar was woefully unprepared to argue the issue, and
the trial court erred by ruling on it where no notice was provided to Gaspar. See In re
Estate of Assimakopoulos, 228 So. 3d at 715-16; Ingaglio, 443 So. 2d at 461.
The trial court also erred when it refused to permit Gaspar to add
additional witnesses which were crucial to its defense without conducting a required
prejudice analysis. In order "[t]o satisfy due process considerations, parties must be
given a meaningful opportunity to present evidence and be heard." AT & T Wireless
Servs., Inc. v. Castro, 896 So. 2d 828, 832 (Fla. 1st DCA 2005). "Indeed, '[t]he right to
call witnesses is one of the most important due process rights of a party[,] and
accordingly, the exclusion of the testimony of expert witnesses must be carefully
considered and sparingly done.' " Id. (first alteration in original) (quoting State v. Gerry,
855 So. 2d 157, 161 (Fla. 5th DCA 2003)); see also State Farm Mut. Auto. Ins. Co. v.
Bowling, 81 So. 3d 538, 541 (Fla. 2d DCA 2012) ("A trial court should only exclude
witnesses under the most compelling of circumstances . . . ." (quoting Keller Indus. v.
Volk, 657 So. 2d 1200, 1203 (Fla. 4th DCA 1995))). This is especially true "when the
witness sought to be excluded is a party's only witness or one of the party's most
important witnesses because if the witness is stricken, that party will be left unable to
present evidence to support [its] theory of the case." Bowling, 81 So. 3d at 541 (quoting
Pascual v. Dozier, 771 So. 2d 552, 554 (Fla. 3d DCA 2000)); see also Keller Indus., 657
So. 2d at 1202-03.
Trial courts should not automatically foreclose the addition of expert
witnesses as a matter of course without considering whether the opposing party will be
prejudiced. In Binger v. King Pest Control, 401 So. 2d 1310, 1313-14 (Fla. 1981), the
Florida Supreme Court explained that while "a trial court can properly exclude the
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testimony of a witness whose name has not been disclosed in accordance with a
pretrial order," it should not do so blindly but should instead "be guided largely by a
determination as to whether use of the undisclosed witness will prejudice the objecting
party." (emphasis added.)
Prejudice in this sense refers to the surprise in fact of the
objecting party, and it is not dependent on the adverse
nature of the testimony. Other factors which may enter into
the trial court's exercise of discretion are: (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.
Id. at 1314 (footnote omitted); see also Tomlinson-McKenzie, 718 So. 2d at 396.
This court has previously relied on Binger to conclude that a trial court
erred by limiting the testimony of an expert witness where, sixty-nine days before trial,
the appellant filed an amended witness list listing the expert witness for the first time.
State Farm Mut. Auto. Ins. Co. v. Thorne, 110 So. 3d 66, 71 (Fla. 2d DCA 2013). The
appellant had provided a summary of the expert's opinion testimony, supplemental
answers to expert witness interrogatories, and the expert's full report detailing his
findings. Id. The expert was also made available for deposition, and the appellee
availed herself of that opportunity. Id. In concluding that the trial court abused its
discretion, we explained that the appellant "met its burden to show that it fulfilled the
requirements that Binger outlined to effectively mitigate the late-filed disclosure of [the
expert] and thereby curing any prejudice [the appellee] might encounter." Id.- 14 -
Here, Gaspar filed its notice of case management conference on June 20,
2016, which was three months prior to trial. In that notice, Gaspar requested to
designate one additional expert witness on the issue of damages and to conduct two
depositions of RaceTrac's expert witness.8 RaceTrac moved to strike the notice. On
July 7, 2016, which was still two-and-a-half months before trial, the court heard
argument on RaceTrac's motion to strike. At that hearing, Gaspar's counsel explained
that the two expert witnesses it wanted to call were relevant to: (1) the issue of
RaceTrac's knowledge of Gaspar's interest in the property which could effectively
negate RaceTrac's claim for damages above and beyond the equitable lien amount, and
(2) Gaspar's affirmative defenses of setoff or the lost rental value. Thus, these
witnesses were especially important to Gaspar's defense of the case. Gaspar's counsel
asserted that the experts she wanted to add were "willing to produce reports and be
deposed on an expedited basis . . . so that we can move forward with trial in
September." In relation to the request to depose RaceTrac's expert, Gaspar's counsel
further argued that she was "not asking for lengthy discovery," but was instead seeking
to conduct expedited discovery "to depose the expert that's already been noticed."
Despite the fact that the discovery cutoff issue was never noticed for the
March 3, 2016, hearing, and despite the fact that Gaspar's counsel offered to mitigate
any prejudice to RaceTrac by conducting expedited discovery, depositions, and the
production of expert reports, the trial court ruled that no further discovery or addition of
expert witnesses would be allowed. But because the discovery issue was never
properly noticed and because the trial court failed to consider whether RaceTrac would
8Gaspar also sought the production of the indemnity agreement previously
referenced. However, as RaceTrac agreed to provide the agreement, that issue is not
relevant to this appeal.
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be prejudiced by the addition of the witnesses or by an expedited deposition of its own
expert witness, the trial court denied Gaspar due process and abused its discretion.
See Binger, 401 So. 2d at 1313-14; In re Estate of Assimakopoulos, 228 So. 3d at 716.
The error was compounded by the fact that at the March 3, 2016, hearing,
Gaspar's trial counsel was not present. Although RaceTrac attempts to fault Gaspar for
failing to have its trial counsel present, we reject the argument that Gaspar should have
been prepared to address the discovery issue where the hearing was set to consider
motions dealing with issues other than discovery and where no notice was provided to
Gaspar that the discovery issue would be addressed.
The trial court also abused its discretion by denying Gaspar's motion to
amend its exhibit list in August 2016, several weeks before trial. The intended exhibits
became relevant as a result of the amended pleadings, but again, the trial court failed to
conduct the required prejudice analysis before denying the motion. See Tomlinson-
McKenzie, 718 So. 2d at 396.
RaceTrac contends that it raised the issue of prejudice at the September
8, 2016, hearing when the trial court considered Gaspar's request to amend the exhibit
list. The transcript reflects that RaceTrac's counsel raised objections of hearsay,
privilege, and gamesmanship. RaceTrac's counsel also asserted that because trial was
set for September 20, 2016, the late production of the exhibits meant that she would not
have time to depose anyone or to check the authenticity of the documents. However,
the transcript also reflects that RaceTrac's counsel acknowledged that if Gaspar's
counsel had contacted her, she [RaceTrac's counsel] likely would not have objected but
would have instead agreed to allow some of the requested additional exhibits. Further,
RaceTrac's counsel conceded that "[t]here are a couple of things in there that they
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actually already have as an exhibit." RaceTrac's counsel concluded her argument by
asserting that Gaspar was engaging in gamesmanship and noting to the trial court that
"you have not tolerated that in this case in the past and I hope you won't tolerate it
anymore."
In response, Gaspar's counsel noted that there had never been a finding
of malfeasance by Gaspar. Gaspar's counsel also contended that at least one of the
documents could not have been previously produced because it was not yet in
existence when RaceTrac requested it. She also asserted that "the vast majority of the
documents . . . are public record."
Ultimately, the trial court agreed with RaceTrac's hearsay and
gamesmanship arguments, concluding that Gaspar was not entitled to add additional
exhibits "that you've never provided." But a finding that a party engaged in
gamesmanship is not the equivalent of a finding that RaceTrac would be prejudiced by
the addition of the exhibits. This is especially true where RaceTrac conceded that: (1) if
she [RaceTrac's counsel] had been contacted by Gaspar's counsel, she likely would not
have objected to at least some of the additional exhibits, and (2) some of the requested
additional exhibits were already part of Gaspar's exhibits. Further, if, as Gaspar's
counsel alleged, some of the exhibits were public record, RaceTrac would have difficulty
establishing prejudice. See Tomlinson-McKenzie, 718 So. 2d at 396 ("[A]n objecting
party may not, having closed its eyes to the existence of evidence prior to trial, claim
that the admission of that evidence would disrupt the orderly and efficient trial of the
case."). Indeed, the transcript reflects that RaceTrac was aware of at least the property
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appraiser records—which are public record—because its expert had relied on a report
that incorporated those records.9
Consequently, because Gaspar was denied procedural due process and
because the trial court denied Gaspar's requests to add additional expert witnesses and
amend its exhibit list without making any findings regarding whether RaceTrac would be
prejudiced by the changes, we must reverse and remand for further proceedings.
Reversed and remanded.
SILBERMAN and CRENSHAW, JJ., Concur.
9The fact that the expert utilized the report to prepare an appraisal that
was not going to be used at trial is not dispositive. The point is that RaceTrac had full
knowledge of at least some of the public record information that Gaspar wanted to
utilize as an exhibit.
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