               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


MICHAEL DASKALOPOULOS,                       )
                                             )
             Appellant,                      )
                                             )
v.                                           )         Case No. 2D17-371
                                             )
CITIZENS PROPERTY INSURANCE                  )
CORPORATION,                                 )
                                             )
             Appellee.                       )
                                             )

Opinion filed March 9, 2018.

Appeal from the Circuit Court for
Hillsborough County; Richard A. Nielsen,
Judge.

Michael V. Laurato of Austin & Laurato,
P.A., Tampa, for Appellant.

Angela C. Flowers of Kubicki Draper,
Ocala, for Appellee.


LUCAS, Judge.


             Michael Daskalopoulos appeals the final judgment entered in favor of his

homeowners insurance carrier, Citizens Property Insurance Corporation (Citizens),

following a jury trial on Mr. Daskalopoulos' breach of contract complaint against

Citizens. Because Citizens' counsel improperly interjected an irrelevant and unpled
issue into the trial, both in his opening statement and during its cross-examination of the

plaintiff, we must reverse the court's judgment. Mr. Daskalopoulos is entitled to a new

trial.

              Mr. Daskalopoulos filed the underlying action seeking damages against

Citizens under a property insurance policy. He claimed that his house in Tampa had

sustained sinkhole damage that was covered under the terms of his policy. In 2012,

Citizens had denied Mr. Daskalopoulos' claim, contending that the damage to this

property—which consisted primarily of cracking in the driveway, floor, and walls—was

not because of a sinkhole, but the result of some other excluded cause under the policy.

In its answer to the complaint, Citizens generally denied Mr. Daskalopoulos' allegations

of causation. It later raised six amended affirmative defenses, including that it did not

breach its policy as a matter of law; that Mr. Daskalopoulos' mortgage lender, which had

initiated a foreclosure action against the property, was an indispensable party; and that

any property damage was the result of various other factors.1 Citizens never asserted a

defense sounding in fraud, or misrepresentation, or unclean hands on the part of Mr.

Daskalopoulos. Thus, from the pleadings, the issues to be tried between these litigants

were quite discrete: was there sinkhole activity that affected this house, and, if so, were

the damages Mr. Daskalopoulos claimed in his lawsuit the result of that activity?

              During his opening statement, Citizens' counsel began, appropriately

enough, by summarizing the issues for the jury's consideration (and in a similarly




              1Citizensalso filed a counterclaim for declaratory relief that it later
voluntarily dismissed. By the time the case proceeded to trial, Citizens' affirmative
defenses pertaining to excluded causes had become the principal issue in dispute.


                                           -2-
succinct fashion as we have in the preceding sentence). But then the presentation took

an unexpected turn:

                     The evidence, interestingly, is also going to tell you
              that around the same time Mr. Daskalopoulos reported this
              claim to Citizens for the alleged sinkhole activity, alleged
              sinkhole damage, he stopped paying his mortgage on his
              house.

                      ....

                    These things coincide. Stopped paying the mortgage
              and hasn't paid the mortgage since that time back in 2012.
              Around the same time, he also owned another property.

Mr. Daskalopoulos promptly objected to this line of argument as irrelevant and not

within any of the defenses Citizens had pleaded. The trial court sustained Mr.

Daskalopoulos' objection, but when Citizens' counsel resumed his opening remarks, he

continued to press the same point, leaving it only when the trial court interrupted him:

                      Okay. Around the same time, Mr. Daskalopoulos
              stopped paying the mortgage on his house and hasn't paid
              the mortgage since then. That coincides with him making
              this claim to Citizens that there is sinkhole activity —

At the conclusion of Citizens' opening statement, Mr. Daskalopoulos moved for a

mistrial, which the trial court denied.

              But the matter of Mr. Daskalopoulos' mortgage default and the timing of

his insurance claim did not end there. Over objection, the theme emerged again during

Mr. Daskalopoulos' cross-examination:

              Q.    Isn't it true that before you got your attorneys involved
              and you came out and filed a claim with Citizens, you had
              already stopped paying your mortgage?

              A.      I believe it was around the same time.

              Q.      Okay. You don't recall whether it was before or after?



                                           -3-
              A.     It was like, right around the same time. Exactly, I'm
              not really positive if it was a week before or a week after.

After Mr. Daskalopoulos was confronted with his prior deposition testimony, he allowed

(again, over objection) that he might have stopped paying his mortgage payments prior

to filing his insurance claim with Citizens but that he was not exactly sure of the

sequence of those events.

              When his testimony concluded, the jury posed its only question to Mr.

Daskalopoulos, asking whether Mr. Daskalopoulos' policy with Citizens was "an

upgrade" from the prior policy he had when the house was purchased in 2006. The

court declined to allow the question, but the question prompted Mr. Daskalopoulos'

counsel to again move for a mistrial, noting: "Now the juror's asking about whether he

got more insurance or whether he upgraded the coverage. . . . This is turning into a

case about why he filed for foreclosure. It has nothing to do with the sinkhole case.

Nothing." The trial court again denied his motion for mistrial.

              Ultimately, the jury returned a verdict in favor of Citizens, finding that there

was no damage of any kind to the house during the applicable policy period. The jury

never reached the only question presented on Citizens' affirmative defenses, which was

whether the house's damage was a result of sinkhole activity or some excluded peril

under the policy. Mr. Daskalopoulos filed a motion for new trial, again arguing that the

insertion of Mr. Daskalopoulos' mortgage foreclosure as an issue before the jury

deprived him of a fair trial. The trial court denied Mr. Daskalopoulos' motion and

entered the final judgment in favor of Citizens, which Mr. Daskalopoulos now appeals.




                                            -4-
              We generally review a trial court's denial of a motion for mistrial or motion

for new trial for abuse of discretion. See Campbell v. Griffith, 971 So. 2d 232, 235 (Fla.

2d DCA 2008); Manhardt v. Tamton, 832 So. 2d 129, 131 (Fla. 2d DCA 2002); Philip

Morris USA, Inc. v. Ledoux, 230 So. 3d 530, 537-38 (Fla. 3d DCA 2017). However, we

have observed that "[t]he showing necessary to overturn the denial of a motion for new

trial is not as great as that necessary to overturn an order granting such a motion."

Manhardt, 832 So. 2d at 131. Our review here is also guided by the general principle

that the issues determined in a civil trial should be limited to those set forth in the

parties' pleadings. See Bank of Am., Nat'l Ass'n v. Asbury, 165 So. 3d 808, 809 (Fla. 2d

DCA 2015) ("Litigants in civil controversies must state their legal positions within a

particular document, a pleading, so that the parties and the court are absolutely clear

what the issues to be adjudicated are."); Gordon v. Gordon, 543 So. 2d 428, 429 (Fla.

2d DCA 1989) ("An issue that has not been framed by the pleadings, noticed for

hearing, or litigated by the parties is not a proper issue for the court's determination.").

              In this case, Mr. Daskalopoulos' nonpayment of his mortgage and his

bank's foreclosure complaint had nothing to do with any relevant issue to be

adjudicated. This was an insurance coverage dispute that revolved around whether a

sinkhole had caused cracks in a house. The verdict form in this case—which comprised

two questions—reflected the narrow field of issues the parties had framed for

determination, and neither of those questions remotely pertained to Mr. Daskalopoulos'

nonpayment of a debt. So the fact that Mr. Daskalopoulos may have been in arrears on

his house's mortgage was no more relevant to this sinkhole dispute than the house's

paint color. Cf. Riedel v. J.R. Watts & Sons, 158 So. 890, 891 (Fla. 1935) ("The




                                             -5-
evidence submitted, if it tended to prove any defense, was one of accord and

satisfaction. That was not pleaded, and, therefore, such evidence was irrelevant and

immaterial and should have been excluded on timely objection being made."); Barrett v.

State, 605 So. 2d 560, 561 (Fla. 4th DCA 1992) ("[R]elevancy is founded on materiality,

the nexus between a fact being proved and a disputed issue, and probativeness, the

effect this evidence would have on the existence of that fact." (emphasis added)).

              Both at trial and in this appeal, Citizens attempts to bridge the divide

between the geological activity underneath Mr. Daskalopoulos' house and the house's

foreclosure by arguing that Mr. Daskalopoulos' financial straits reflected a "motive" or

"personal interest" on his part to file an insurance claim. As Citizens puts it, "[t]he fact

that Plaintiff stopped paying his mortgage . . . logically calls his integrity into question

within the circumstances of this case." But Mr. Daskalopoulos' financial interest in the

outcome of his civil lawsuit against Citizens was a point that needed no proving, and

certainly not through the insertion of an unpled, irrelevant, and inadmissible issue. See

generally Valdez v. State ex rel. Farrior, 194 So. 388, 394 (Fla. 1940) ("While the

allegations of the answer alleging improper motives behind the institution . . . are

voluminous and in strong and impressing language, they are not sufficient to constitute

a defense to the suit here . . . . It is generally established that the courts will not inquire

into motives which actuate plaintiff in bringing suit."); Midtown Enters. v. Local

Contractors, Inc., 785 So. 2d 578, 580-81 (Fla. 3d DCA 2001) (holding that evidence of

"pattern of cheating" by contractor in qualifying as a minority-owned business enterprise

constituted irrelevant, inadmissible character evidence that was highly prejudicial where

"[t]he issues as framed by the pleadings all relate to breach of contract and the claim of




                                             -6-
lien"); Jacobs v. Westgate, 766 So. 2d 1175, 1181 (Fla. 3d DCA 2000) (finding error in

action for negligent disposition of personal property to admit evidence that the plaintiff

had been a bad roommate who bounced checks); SEB S.A. v. Sunbeam Corp., 148 F.

App'x 774, 790 (11th Cir. 2005) ("A party's motive is irrelevant to a breach of contract

claim under Florida law."); Kobashigawa v. Silva, 300 P.3d 579, 599-600 (Haw. 2013)

(holding that the circuit court erred in ruling evidence of a plaintiff's bias, interest, or

motive could be used by the jury in considering the plaintiffs' motives in filing their

lawsuit because "it is a long-standing principle of law that a plaintiff's motive in filing a

lawsuit is otherwise immaterial to resolving the merits of the dispute"); DeMarco v. Univ.

of Health Scis./Chicago Med. Sch., 352 N.E.2d 356, 362 (Ill. App. Ct. 1976) ("A party

pursuing his legal rights in a legal manner cannot be challenged with respect to the

motives which prompt him into action."). And to the extent an equivalency can be drawn

between paying one's debts and one's personal integrity, it was plainly an issue of Mr.

Daskalopoulos' character that Citizens tried to frame before the jury, an issue that is

ordinarily inadmissible in civil cases. See Pino v. Koelber, 389 So. 2d 1191, 1193 (Fla.

2d DCA 1980) ("In most civil cases, the majority of courts follow the general rule of

refusing to permit character evidence when character is not an issue in the case." (citing

J. Wigmore, 1 Evidence § 64 (3d ed. 1940))); Charles W. Ehrhardt, Florida Evidence §

404.3, at 240 (2015 ed.) ("In civil actions, character evidence is inadmissible to prove

that a person acted in conformity with his or her character, i.e., to prove the person's

conduct."). If Citizens believed that its insured was pursuing a fraudulent insurance

claim—and it all but told this jury it did—then it should have raised that as an affirmative

defense before going to trial. See Fla. R. Civ. P. 1.140(h)(1) ("A party waives all




                                              -7-
defenses and objections that the party does not present either by motion under

subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a

responsive pleading except as provided in subdivision (h)(2)."); Heartwood 2, LLC v.

Dori, 208 So. 3d 817, 821 (Fla. 3d DCA 2017) ("It is well-settled law in Florida that

affirmative defenses not raised are waived."); Airport Plaza Ltd. v. United Nat'l Bank of

Miami, 611 So. 2d 1256, 1257 (Fla. 3d DCA 1992) ("[I]t was improper to introduce at

trial issues not previously raised in the pleadings.").2

              In sum, thrusting Mr. Daskalopoulos' foreclosure proceedings into the

opening statement of this civil lawsuit about a sinkhole claim was improper. Cf. Music v.

Hebb, 744 So. 2d 1169, 1172 (Fla. 2d DCA 1999) (observing that the "limited purpose"




              2Citizens    also argues that any error was invited by Mr. Daskalopoulos
because his counsel broached the issue of Mr. Daskalopoulos' foreclosure during his
direct examination. We are not persuaded by that argument, as our review of the
record shows that Mr. Daskalopoulos' decision to raise this line of questioning on direct
was prompted entirely by the trial court's prior ruling to allow Citizens to pursue this line
of inquiry. See Sheffield v. Superior Ins. Co., 800 So. 2d 197, 203 (Fla. 2001)
(recognizing that, "once the party is faced with the knowledge that the jury will hear the
evidence, it is legitimate trial strategy to introduce the evidence in an attempt to mitigate
the harm and diffuse the prejudicial impact of the evidence" and holding "that once a
court makes an unequivocal ruling admitting evidence over a movant's motion in limine,
the movant's subsequent introduction of that evidence does not constitute a waiver of
the error for appellate review"); see also Saleeby v. Rocky Elson Const., Inc., 3 So. 3d
1078, 1085-86 (Fla. 2009) (applying Sheffield and holding that litigant's decision "to
minimize the impact of . . . evidence by admitting it himself . . . did not waive his
objection [to the evidence], and his presentation of the contested evidence did not
constitute invited error"). We are similarly unpersuaded by Citizens' reliance upon
Concepcion v. State, 188 So. 3d 5 (Fla. 3d DCA 2016), Graves v. State, 937 So. 2d
1286 (Fla. 4th DCA 2006), and Barows v. State, 805 So. 2d 120 (Fla. 4th DCA 2002),
which, in different contexts, addressed the admissibility of nonparty witnesses' financial
motivation to provide testimony against criminal defendants. None of those cases dealt
with a civil plaintiff's purported "motivation" for filing a lawsuit, which, again, is usually
irrelevant and inadmissible. And as the Graves court explained, "A defendant in a
criminal case has considerable latitude in cross-examination to elicit testimony showing
the bias of a witness." 937 So. 2d at 1290.

                                             -8-
of opening statements is "to set out the relevant, and only the relevant, facts of the

case"); Collins Fruit Co. v. Giglio, 184 So. 2d 447, 449 (Fla. 2d DCA 1966) ("Although it

is axiomatic that the arguments of counsel are not evidence, it would be naive to

suppose that they do not have a profound effect upon the jury."). Expounding upon that

unpled issue at length in Mr. Daskalopoulos' cross-examination under the pretense that

it was some form or impeachment or evidence of bias was equally improper. Cf.

Nationwide Mut. Fire Ins. Co. v. Bruscarino, 982 So. 2d 753, 754 (Fla. 4th DCA 2008)

(holding that "[i]mpeachment on collateral issues is clearly impermissible" and

explaining that "when evidence 'neither (1) is relevant to prove an independent fact or

issue nor (2) would discredit a witness by establishing bias, corruption, or lack of

competency on the part of the witness,' it constitutes collateral, impermissible evidence"

(quoting Strasser v. Yalamanchi, 783 So. 2d 1087, 1095 (Fla. 4th DCA 2001))). Taken

together, we conclude that Mr. Daskalopoulos was deprived of a fair trial in this case.

Accordingly, we must reverse the final judgment and remand this case for a new trial.

              Reversed and remanded.




NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                            -9-
