       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

    VICTORIA TERESA JACOBS a/k/a VICTORIA TERESA RUBIN,
                         Appellant,

                                    v.

     ATLANTIC COAST REFINING, INC. d/b/a ACR INDUSTRIES,
                          Appellee.

                             No. 4D12-3058

                             [May 13, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Meenu T. Sasser, Judge; L.T. Case No. 502010CA028416.

  Amy D. Shield and Roger Levine of Amy D. Shield, P.A., Boca Raton, for
appellant.

    Jesmany Jomarron and Robin F. Hazel of Espinosa Jomarron, Miami,
for appellee.

FORST, J.

   Appellant Victoria Jacobs appeals an entry of judgment against her in
a civil theft action brought by Appellee Atlantic Coast Refining (“ACR”), a
corporation held solely by her former boyfriend, Anthony Arbanas. Among
other issues, Appellant argues the trial court erred by admitting evidence
of a prior, unrelated motion and settlement agreement. For the reasons
set forth below, we agree with Appellant and hereby reverse the entry of
judgment against her and remand for further proceedings.

                               Background

   Appellant and Arbanas began their romantic involvement in early 2005.
Soon thereafter, the couple began living together in Arbanas’s home, with
a system in place for distributing the financial burdens of the shared
household between them. However, this system was apparently imperfect,
as the couple now disagrees about who was responsible for paying
Appellant’s credit card bills. In addition to the romantic relationship
between Appellant and Arbanas, Appellant was hired as a part-time
bookkeeper for ACR. As part of her duties for the company, Appellant
managed payroll and was authorized to sign checks for the payment of
vendors.

   By 2008, other ACR bookkeepers noticed irregularities in the
company’s accounts.     An investigation revealed that approximately
$405,000 had been paid to Appellant or her credit card account via checks
that were coded into ACR’s financial records as shareholder distributions
to Arbanas. While ACR and Arbanas contend these payments to Appellant
constituted embezzlement of corporate funds, Appellant insists she was
authorized to make these payments and was instructed to change the
account books.

   After the couple broke up in 2010, ACR sued Appellant, alleging civil
theft, conversion, and other causes of action. Discovery in this case proved
contentious, and the parties required a good deal of judicial assistance
during the pretrial period. However, for the purposes of this appeal, we
will focus solely on the trial court’s denial of a motion in limine to prevent
reference to, or evidence of, a prior lawsuit between Appellant and her
previous husband, Dr. Rubin.

   Much like the situation between Appellant and Arbanas, Appellant was
both romantically and professionally involved with Dr. Rubin. During her
marriage to Dr. Rubin, and continuing after their divorce, Appellant
worked as the bookkeeper for his medical office. After their divorce, a post-
dissolution motion (“the Rubin motion”) was filed on behalf of Dr. Rubin
against Appellant, alleging she embezzled considerable sums of money
from his business by writing checks to herself, but entering the payments
into the account books as customer refunds. This claim was never
subjected to the rigors of trial, as Appellant and Dr. Rubin entered into a
settlement agreement. However, in the course of the trial in the instant
case, ACR sought to introduce the Rubin motion and checks written by
Appellant into evidence to show knowledge, preparation, plan, and
identity. Appellant filed a motion in limine to prohibit the introduction of
the Rubin motion as improper character evidence, arguing that the
prejudicial effects of this evidence would substantially outweigh its
probative value. During a recess in the trial, Dr. Rubin was deposed. He
repudiated the allegations in the motion, asserted that he was unaware of
the contents of the motion made in his name and filed by his son and
opined that, upon review, Appellant’s actions “seemed appropriate.”
Nonetheless, the trial court denied Appellant's motion in limine.

   Despite Dr. Rubin’s deposition retraction of the allegations put forth in
the Rubin motion, during the trial Appellant was questioned regarding the
facts of that motion. ACR’s counsel read parts of the motion to the jury,

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including the allegations of Appellant's alleged embezzlement. ACR went
as far as to state, before the jury, that the Rubin motion had been
established as “scandalous.” Because this previous motion was now being
presented to the jury as evidence in this case, Appellant was forced to
defend herself against the prior allegations, despite the fact none of the
records to prove or disprove the allegations set forth in the Rubin motion
still existed. Appellant called multiple witnesses to explain her actions in
Dr. Rubin’s office and in responding to the motion, including her attorney
in that case. This discussion of the Rubin motion led to a question by the
jury regarding the outcome of that case.

   Ultimately, in the instant case, the jury concluded that Appellant
impermissibly took funds from ACR and awarded the company damages
of approximately $304,000, seventy-five percent of the complaint value.
Appellant’s motion for new trial was denied and a final judgment trebling
the damage award was entered for $912,654.18, plus interest. Appellant
now appeals the judgment.

                                 Analysis

   Under the Florida Rules of Evidence,

          Similar fact evidence of other crimes, wrongs, or acts is
      admissible when relevant to prove a material fact in issue,
      including, but not limited to, proof of motive, opportunity,
      intent, preparation, plan, knowledge, identity, or absence of
      mistake or accident, but it is inadmissible when the evidence
      is relevant solely to prove bad character or propensity.

§ 90.404(2)(a), Florida Statutes (2013). “To be relevant, evidence must
tend to prove or disprove a material fact.” Thigpen v. United Parcel Servs.,
Inc., 990 So. 2d 639, 646 (Fla. 4th DCA 2008). In this case, because Dr.
Rubin, as well as Appellant, rejected the allegations set forth in the Rubin
motion, and there was no verdict rendered (as the case was settled),
evidence of the charges set forth in that motion was incapable of proving
or disproving any material fact. Additionally, even if the veracity of the
motion was still in question, such prior act evidence is admissible only for
particular purposes. Here, by reading directly from the Rubin motion and
telling the jury that these allegations were “scandalous,” the introduction
of the prior (unproven) allegations inherently encouraged the jury to
speculate on Appellant’s character and propensity to commit the
particular act with which she now stood accused.

   Assuming, arguendo, the Rubin motion was relevant to proving a

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material fact in this trial, “[r]elevant evidence is inadmissible if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of issues, misleading the jury, or needless
presentation of cumulative evidence.” § 90.403, Florida Statutes (2013).
Whatever probative value the Rubin motion and checks may have had was
substantially outweighed by the danger of unfair prejudice to the
Defendant. There was little probative value in the Rubin motion as “[the
motion] contained bare allegations against the [Appellant] in the form of
rank hearsay,” similar to a prior civil complaint the Fifth District held to
be unfairly prejudicial in Long Term Care Foundation, Inc. v. Martin, 778
So. 2d 1100, 1103 (Fla. 5th DCA 2001).

    Because the prior case was settled, none of the allegations therein were
proven. Additionally, as the motion was dealt with several years prior,
none of the parties retained the records Appellant needed to prove the
falsity of the Rubin motion. “It is inconsistent with the notions of fair trial
for the state to force a defendant to resurrect a prior defense against a
crime for which [the defendant] is not on trial.” State v. Perkins, 349 So.
2d 161, 163 (Fla. 1977). While Perkins held evidence of prior acquittals
was inadmissible in a subsequent criminal trial, the underlying rationale
holds true in this case. It is fundamentally unfair to force Appellant to
resurrect a defense to a case she had settled years earlier when the facts
of the earlier accusation are not at issue and, in fact, have been disputed
by the individual in whose name the motion was filed.

    “[E]ven if relevant, a trial court may not permit the collateral crime
evidence to become an impermissible feature of the trial.” Durousseau v.
State, 55 So. 3d 543, 551 (Fla. 2010). “Collateral crimes evidence becomes
a feature of the trial when inquiry into the collateral crimes transcends the
bounds of relevancy to the charge being tried and the prosecution devolves
from development of facts pertinent to the main issue of guilt or innocence
into an assault on the character of the defendant.” Seavey v. State, 8 So.
3d 1175, 1177 (Fla. 2d DCA 2009) (internal quotations and citation
omitted). Here, the Rubin allegations required questions of at least three
witnesses, even though the answers of two of these individuals were wholly
irrelevant to the actual issues in the instant case. Moreover, ACR
discussed the Rubin allegations in its closing argument. The Rubin
motion prompted a jury question and resulted in over one hundred pages
of trial transcript. Introduction and discussion of the Rubin motion may
not have been the featured event in the trial, but it played a prominent
role and thus its prejudicial impact cannot be deemed to be “harmless.”

   Appellant clearly (and rationally) felt the need to defend herself against
the Rubin motion once her motion in limine was denied. Thus, addressing

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the allegations set forth in that motion took on the nature of a trial within
a trial, substantially distracting the jury from the issues at hand. See
Slocum v. State, 757 So. 2d 1246, 1251 (Fla. 4th DCA 2000) (“To open the
door to evidence about an unrelated case was to create a trial within a
trial; there was a risk that the trial would be needlessly lengthened and
that the additional evidence would obscure the discovery of the truth.”).

                                  Conclusion

   The trial court erred by allowing the introduction of evidence regarding
the Rubin motion, particularly after Dr. Rubin himself disputed and/or
contradicted the motion’s charges. These collateral allegations were
nonetheless put forth to present improper character evidence against
Appellant and were considerably more prejudicial to Appellant’s defense
than they were probative of any material fact. Additionally, the discussion
surrounding the Rubin motion substantially distracted the jury from the
consideration of the allegations in this particular case. Therefore, we
reverse the entry of final judgment against Appellant and remand this
cause of action to the trial court for new trial.

   Reversed and remanded for new trial.

GERBER and LEVINE, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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