      Third District Court of Appeal
                              State of Florida

                       Opinion filed December 31, 2014.
        Not final until disposition of timely filed motion for rehearing.

                              ________________

                              No. 3D14-1841
                        Lower Tribunal No. 10-30306
                            ________________


                        Victor Lerner, etc., et al.,
                                  Appellants,

                                       vs.

                         Ino Halegua, etc., et al.,
                                   Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, Norma S.
Lindsey, Judge.

     Anna Lenchus (Boca Raton), for appellants.

      Jones & Adams and Matthew L. Jones and Giovanna A. Abreu, for
appellees.


Before SALTER, EMAS and SCALES, JJ.

     SALTER, J.
      Victor Lerner appeals an order imposing sanctions for litigation misconduct

and a partial final judgment on liability. We reverse and remand based on Mr.

Lerner’s well-taken objections to the admission of certain photographs during the

evidentiary hearing on the appellees’ claims of litigation misconduct.

      Facts and Procedural History

      The claims and counterclaims in an otherwise unremarkable civil lawsuit

were in mid-trial before a jury. On a Saturday morning, after four days of trial, a

strange sequence of events unfolded. Mr. Lesley Winston, a professional advisor

to appellee Ino Halegua, received a call at his condominium from the Aventura

Police asking if they could visit him there. When Mr. Winston’s wife opened the

door to admit the police, several notes fell to the floor. The Winstons and the

police found crudely-printed anonymous messages on the notes threatening Mr.

Winston and others with bodily harm, as well as five live-round bullets and a photo

of Mr. Winston marked “X” on each leg.

      The police had been called by Mr. Winston’s housekeeper from his office.

While cleaning the office earlier that Saturday morning, the housekeeper found

other notes and bullets that had been inserted through the office mail slot. When

she was unable to reach Mr. Winston by telephone, she contacted the police and

asked them to visit his condominium.




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      When the police interviewed Mr. Winston, he identified only one person he

thought might have left the messages and bullets—a former business relation of

Mr. Winston’s who had no connection whatsoever to the pending lawsuit and trial.

The police asked the condominium security officer to review the video

surveillance camera tapes for the main entrance gate and the building lobby. The

police report stated that “[n]o evidence was found from both camera systems.”

      Later that weekend, and before the resumption of the scheduled trial

Monday morning, Mr. Winston himself reviewed the condominium surveillance

tapes at the lobby desk and said that he recognized Mr. Lerner as an individual

coming through the third floor parking garage door early that Saturday morning,

shortly before the notes and bullets were found. Mr. Winston took several still

photographs of frames from the surveillance tape, purporting to show Mr. Lerner

and the date and time shown by the video camera. Mr. Winston shared this

information with the police, identified Mr. Lerner from a photo lineup, and pressed

criminal charges against Mr. Lerner.

      When the civil trial resumed Monday morning, defense counsel proffered

Mr. Winston’s testimony regarding the threats, moved for a mistrial, and moved to

strike Mr. Lerner’s pleadings based on litigation misconduct.      The trial court

declared a mistrial and scheduled an evidentiary hearing on the litigation

misconduct issues. Mr. Lerner’s counsel withdrew, and his replacement counsel



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sought a continuance of the evidentiary hearing to allow additional preparation and

for the completion of the criminal case. That motion was granted in part, but the

evidentiary hearing in the civil case was conducted before the originally-scheduled

trial date in the criminal case. At the evidentiary hearing, and after consultation

with his attorney, Mr. Lerner invoked his Fifth Amendment rights to decline to

answer questions regarding the placement of the bullets and notes at Mr. Winston’s

office and condominium.

      At the hearing, Mr. Halegua’s counsel moved into evidence the four still

photographs purportedly taken by Mr. Winston from the condominium

surveillance camera videotape recorded the morning of the incident. Over timely

objection, the photos were admitted. The trial court granted Mr. Halegua’s motion

for sanctions for litigation misconduct, struck Mr. Lerner’s (and his companies’)

pleadings, and entered judgment in favor of Mr. Halegua and his companies. This

appeal followed.

      Analysis

      Mr. Lerner raises several arguments here, but we address one we have

determined to be well taken and substantially prejudicial. The still photographs

allegedly depicting the condominium surveillance camera frames of Mr. Lerner at

Mr. Winston’s condominium the morning of the incident were admitted over a




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timely objection to authenticity and identification. Section 90.901, Florida Statutes

(2014), states:

      Authentication or identification of evidence is required as a condition
      precedent to its admissibility. The requirements of this section are
      satisfied by evidence sufficient to support a finding that the matter in
      question is what its proponent claims.

      Counsel for Mr. Halegua argues that Mr. Winston properly identified and

authenticated the photos as depictions of Mr. Lerner, who Mr. Winston had

observed in court during the trial. As proponent for the introduction of the photos,

however, Mr. Halegua asserted that the underlying surveillance video (and thus the

photos taken from the video) had recorded Mr. Lerner in the act of entering the

condominium building at a time and date linking Mr. Lerner to the delivery of the

threatening, anonymous notes and bullets.

      However, no authentication or identification testimony for the underlying

surveillance video was offered from the condominium security officer or vendor

responsible for the operation of the videocamera and knowledgeable regarding the

date, time, and storage procedures for the particular video footage and scenes

photographed by Mr. Winston.        On several of the photos, the date and time

information was obscured or inconsistent.

      In Cirillo v. Davis, 732 So. 2d 387 (Fla. 4th DCA 1999), the Fourth District

reviewed the requirements for authentication of videotape under the “silent

witness” theory (when there is no individual videographer available to testify


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regarding videotape taken by a remotely-controlled surveillance camera). Cirillo

and a First District case upon which it relies, Wagner v. State, 707 So. 2d 827 (Fla.

1st DCA), rev. denied, 717 So. 2d 542 (Fla. 1998), establish a practical and reliable

means for authenticating such “silent witness” videotapes. A witness responsible

for the videotape system, able to confirm the accuracy of the time and date on

which the tape was made, and able to confirm that the tape was not edited or

tampered with, should be presented if there is no stipulation on these points, to

“provide the indicia of reliability required to authenticate a videotape for purposes

of the ‘silent witness theory.’” Wagner, 707 So. 2d at 830.

      Mr. Halegua argues that the individual photos depicting frames of the

surveillance videotape are admissible under the analysis in H.A. v. State, 24 So. 3d

752 (Fla. 3d DCA 2009). In that case, however, the drugstore employee who

authenticated photos of videotape frames had actually observed the theft depicted

on the videotape and in the photos. The same employee also testified that the

photos had been downloaded directly from the surveillance video recorded the

night of the theft, and that he had seen the photos on a video monitor. That

employee then identified the defendant charged with the theft shown in the photos.

      In the present case, Mr. Winston did not personally observe the events

depicted on the surveillance videos or the photos. The record here reflects that Mr.

Winston had no responsibility for the operation, placement, or maintenance of the



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videocamera in question, and he had no direct knowledge regarding the procedure

for retrieving or copying those portions of a video record that might be pertinent to

the investigation at issue here.

      In the absence of the photos admitted over Mr. Lerner’s objection, the

evidence at the hearing in the civil case fell short of the “clear and convincing”

showing necessary to support the dismissal of Lerner’s claims and defenses for

fraudulent or unconscionable litigation misconduct. Sky Dev., Inc. v. Vistaview

Dev., Inc., 41 So. 3d 918 (Fla. 3d DCA 2010). Our reversal on this point obviates

the need to consider Lerner’s other points on appeal, as his counsel have now had

ample opportunity to complete their investigation, and Mr. Lerner’s concerns

regarding the pending criminal case have since been eliminated.

      The order of July 10, 2014, granting the defendants’ motion for sanctions is

reversed, as is the final judgment in their favor. The case is remanded for a new

evidentiary hearing in the event the defendants renew their motion for sanctions.

             Reversed and remanded.




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