        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                     SHANTEL KIMBERLY EMMITT,
                             Appellant,

                                      v.

              FIRST TRANSIT, INC., d/b/a TROLLEY 606,
                              Appellee.

                               No. 4D19-721

                              [July 22, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michele Towbin Singer, Judge; L.T. Case No. CACE17-
000534 (25).

   Douglas F. Eaton of Eaton & Wolk, PL, Miami, for appellant.

   Alexandra Valdes of Cole, Scott & Kissane, P.A., Miami, for appellee.

CONNER, J.

    Shantel Kimberly Emmitt (“the plaintiff”) appeals the order granting a
new trial to First Transit, Inc., d/b/a Trolley 606, (“the defendant”) after
the jury returned a verdict favorable to her in the underlying negligence
action. The issue we address is whether the trial court erred in granting
a new trial after concluding it improperly denied admission of a medical
record containing a statement attributed to the plaintiff indicating what
caused her to fall. The statement in the medical record differed from the
plaintiff’s trial testimony. Because the defendant did not establish the
admissibility of the medical record at trial after an objection was lodged,
we conclude the trial court did not err in its evidentiary ruling. Without
an error in excluding the evidence, the grounds for a new trial were not
established. Thus, we reverse the order for new trial and remand for the
trial court to reinstate the jury verdict.

                                Background

    The plaintiff sued the defendant for negligence. Prior to filing suit, the
plaintiff maintained she fell from the defendant’s trolley because the trolley
“jolted” as she was exiting it. During the presuit investigation, the
defendant’s attorney provided the plaintiff’s counsel with a surveillance
video from the trolley showing that the trolley had completely stopped
before she stepped off. In her initial complaint, the plaintiff alleged she
fell because the defendant failed to properly clean, maintain, and inspect
the steps. As a result of a motion for summary judgment filed by the
defendant, the plaintiff amended her complaint to allege that she needed
assistance getting off the trolley because she was pregnant and carrying
her one-year old son, diaper bag, and stroller at the time. She further
alleged that the defendant, as a common carrier, owed the highest degree
of care and vigilance to its passengers for their safety and that it breached
its duty in failing to render assistance to the plaintiff in descending the
steps and failing to warn her that the steps were steep.

   The matter proceeded to a jury trial, where the liability and damages
phases of the trial were bifurcated at the request of the defendant. The
parties agreed in a joint pretrial stipulation that the plaintiff “fell while
attempting to exit the rear doorway” of the trolley.

    At the start of trial, the plaintiff’s counsel moved in limine to prohibit
the defendant from using the plaintiff’s medical records to impeach the
plaintiff about what caused her to fall. The plaintiff argued that the
medical records were inadmissible in the liability phase because the trial
was bifurcated. The trial court rejected the plaintiff’s bifurcation argument
after the defendant’s counsel explained that the portion of the medical
record he wanted to use was the entry: “Patient states as she was stepping
off, the driver jerked the trolley causing her to fall.” The defendant
maintained the hearsay statement was admissible under section
90.803(4), Florida Statutes, as a statement for purposes of medical
diagnosis or treatment. The plaintiff’s counsel disagreed, and the trial
court observed that the medical record alone would not be enough to lay
the proper foundation without the doctor testifying that the statement was
made for the purpose of diagnosis. Then, the following exchange occurred:

      THE COURT: Look, I’m not saying that you can’t ask her. And
      you know, it’s allegedly an inconsistent statement and you
      can bring it out as an inconsistent statement, but in terms of
      admitting it into evidence –

      [DEFENSE COUNSEL]: Okay.

      THE COURT: — as an exception to hearsay, that’s different.
      I have already made my ruling unless you can give me some
      case law to change my mind.


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      [DEFENSE COUNSEL]: I will ask her, but I will not seek to
      admit this into evidence at this point.

   The plaintiff’s counsel called the trolley driver as a witness before the
plaintiff testified. During redirect examination, the driver testified that he
put the trolley in park before the plaintiff exited. The plaintiff’s counsel
then asked: “And any time you put the vehicle in brake, it will move right?”
The driver answered: “No. It doesn’t move.”

   After the trolley driver’s testimony, the jury was released for lunch. At
that time, the plaintiff’s counsel announced it had some additional law on
the issue of the medical record. During that discussion, the defendant
asserted that it interpreted the plaintiff’s questions of the trolley driver on
redirect as alluding to whether the trolley jolted. the defendant expressed
concern because it thought there was a stipulation that there was no
evidence that the plaintiff fell because the trolley jolted. The plaintiff’s
counsel immediately agreed to such a stipulation.              The defendant
requested that the stipulation be announced to the jury. When the jury
returned, the trial court announced “[t]here’s a stipulation that was agreed
to by both sides, so I am going to read it to you. There is no allegation or
evidence that a jolt caused the Plaintiff to fall.”

   The plaintiff testified about how she fell, consistent with the allegations
in her amended complaint. When the plaintiff was cross-examined, the
defendant did not discuss any prior statement that she fell as a result of
a jolt. Instead, the defendant brought up the version of the events
described in the initial complaint she filed, alleging she fell because the
defendant did not properly clean, maintain, and inspect the steps on the
trolley.

    After the jury rendered its verdict finding the defendant 80% negligent
and the plaintiff 20% negligent, the defendant moved for entry of judgment
in accordance with its motion for directed verdict, or in the alternative, a
motion for new trial. Among its arguments, the defendant asserted the
trial court erred by refusing to allow it to introduce the medical record
showing the plaintiff had previously stated she fell because the trolley
jolted. The defendant argued it should have been allowed to show that the
plaintiff gave multiple versions as to how she fell. The plaintiff filed a
response to the motion. After hearing the motion, the trial court ordered
supplemental memoranda of law. In its supplemental memorandum, the
defendant argued for the first time that the trial court erred by not
admitting the plaintiff’s statement in the medical record as an admission
by a party, citing section 90.803(18), Florida Statutes, and Ring Power
Corp. v. Condado-Perez, 219 So. 3d 1028 (Fla. 2d DCA 2017).

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    The trial court entered its order granting the defendant’s motion for new
trial. Citing Ring, the trial court reasoned that the defendant’s inability to
establish at trial that the plaintiff’s statement was admissible hearsay for
the purposes of medical diagnosis or treatment or under the business
record exception did not preclude the admissibility of the statement as an
admission of a party. As such, the trial court found that the defendant
was entitled to a new trial pursuant to section 90.104, Florida Statutes,
due to the “exclusion” of the plaintiff’s statement. The trial court
determined that the exclusion was “substantially prejudicial” to the
defendant where the plaintiff’s statement that the driver jerked the trolley
causing her to fall belied the allegations of her complaint and her trial
testimony, and directly impacted the issue of causation.

   The plaintiff gave notice of appeal.

                             Appellate Analysis

    An abuse of discretion standard is generally used to review an order
granting a motion for a new trial. Thigpen v. United Parcel Servs., Inc., 990
So. 2d 639, 644 (Fla. 4th DCA 2008). However, a de novo standard applies
to review “a trial court’s conclusions of law in an order granting a new
trial.” See Van v. Schmidt, 122 So. 3d 243, 246 (Fla. 2013) (holding that
“an appellate court properly applies a de novo standard of review to a trial
court’s conclusions of law in an order granting a new trial based on the
manifest weight of the evidence, giving no deference to the trial court’s
legal conclusions”). In Van, our supreme court approved the decisions in
Schmidt v. Van, 65 So. 3d 1105 (Fla. 1st DCA 2011), and Corbett v. Wilson,
48 So. 3d 131 (Fla. 5th DCA 2010), where the district courts applied a de
novo standard of review in reversing trial court orders granting a new trial
based on erroneous applications of law. Van, 122 So. 3d at 258; see also
City of Hollywood v. Jarkesy, 343 So. 2d 886, 887–88 (Fla. 4th DCA 1977)
(“Where it is apparent from the grounds stated in granting a new trial that
the trial judge is acting under an erroneous legal assumption, then it is
not a question of discretion but a question of the legal sufficiency of the
ground or reason given.”); Waxman v. Truman, 792 So. 2d 657, 659 (Fla.
4th DCA 2001).

   Pursuant to section 90.104(1)(b), Florida Statutes (2019):

      (1) A court may predicate error, set aside or reverse a
      judgment, or grant a new trial on the basis of admitted or
      excluded evidence when a substantial right of the party is
      adversely affected and:

                                      4
      ....

      (b) When the ruling is one excluding evidence, the substance
      of the evidence was made known to the court by offer of proof
      or was apparent from the context within which the questions
      were asked.

      If the court has made a definitive ruling on the record
      admitting or excluding evidence, either at or before trial, a
      party need not renew an objection or offer of proof to preserve
      a claim of error for appeal.

§ 90.104(1)(b), Fla. Stat. (2019) (emphasis added).

    The plaintiff argues the trial court erred in granting a new trial because
as a matter of fact and law, the trial court incorrectly concluded that the
defendant’s substantial rights were adversely affected by the exclusion of
the plaintiff’s statement in the medical record. The plaintiff contends that
the trial court’s conclusion was factually incorrect because the defendant
was never precluded from presenting the plaintiff’s inconsistent statement,
using proper evidentiary procedure. The plaintiff also argues the trial
court’s conclusion was incorrect as a matter of law because the
inconsistent statement was not relevant to the issue of causation after the
parties stipulated that the plaintiff’s fall was not caused by a sudden jerk
of the trolley.

   We agree that as a matter of fact, the trial court did not preclude the
defendant from presenting the plaintiff’s inconsistent statement, using
proper evidentiary procedure. However, we disagree that the stipulation
made the inconsistent statement irrelevant because the credibility of
parties is always relevant. Nevertheless, we conclude that the trial court
properly excluded the statement at trial because the defendant never
sought to admit it as a party admission exception to the hearsay rule. We
also conclude that the defendant has taken a position on appeal
inconsistent with its position at trial. We explain our reasoning.

   First, it appears that the defendant has conflated substantive evidence
with impeachment evidence. 1        By insisting that a stipulation be
announced to the jury that the plaintiff’s fall was not the result of the

1 We recognize that in limited instances, evidence can be used substantively and
for impeachment.


                                       5
trolley lurching, the defendant cannot contend on appeal that the
plaintiff’s statement in the medical record should have been admissible as
substantive evidence. See Harper ex rel. Daley v. Toler, 884 So. 2d 1124,
1135 (Fla. 2d DCA 2004) (“[A] party may not ordinarily take one position
in proceedings at the trial level and then take an inconsistent position on
appeal.”).

    When the trial court ruled on the plaintiff’s motion in limine to exclude
the medical record at the start of the trial, the trial court made clear that
if a proper foundation was laid, the inconsistent statement could be used
for impeachment. The trial court never deviated from that ruling. During
the plaintiff’s testimony at trial, the defendant never attempted to impeach
her with her inconsistent statement to the doctor. Thus, the plaintiff
correctly argues that, factually, the defendant’s substantial rights to
attack the plaintiff’s credibility were not impaired by the trial court’s
evidentiary rulings.

   As a matter of law, it does not appear that the defendant’s substantive
rights were violated by the exclusion of the medical record. To the extent
the trial court sits in a similar fashion to an appellate court in ruling on a
motion for new trial, preservation of an issue is required to avoid second
bites at the apple. At trial, the defendant never argued that the statement
should be admitted as an admission. In argument during trial, the
defendant’s counsel cited section 90.804(4), but never cited section
90.803(18).

    Second, for whatever tactical reason, the defendant insisted that a
stipulation be announced by the trial court to the jury. As insisted, the
trial court announced: “There’s a stipulation that was agreed to by both
sides, so I am going to read it to you. There is no allegation or evidence
that a jolt caused the Plaintiff to fall.” (emphasis added). If there was no
allegation to support a theory of liability because the trolley jolted, evidence
of such causation was irrelevant. See § 90.401, Fla. Stat. (2019) (“Relevant
evidence is evidence tending to prove or disprove a material fact.”). More
importantly, having insisted at trial that the jury be advised there was no
evidence that the plaintiff fell because the trolley jolted, the defendant
cannot inconsistently argue on appeal that the trial court erred by refusing
to admit the plaintiff’s statement in the medical record as substantive
evidence. See Toler, 884 So. 2d at 1135. Using the plaintiff’s statement
as substantive evidence would be proof that the plaintiff did fall because
the trolley jolted. Ring Power Corp., 219 So. 3d at 1032 (“It is well settled
that an admission against interest may be introduced into evidence as
substantive evidence of the truth of the matter stated.” (emphasis added)


                                       6
(quoting Seaboard Coast Line R.R. Co. v. Nieuwendaal, 253 So. 2d 451,
452 (Fla. 2d DCA 1971))).

   Having concluded the trial court made no erroneous evidentiary rulings
during trial regarding the plaintiff’s statement in a medical record as to
what caused her to fall, the trial court erred in granting a new trial on that
basis.   Therefore, we reverse the order granting a new trial with
instructions for the trial court to reinstate the jury’s verdict.

   Reversed and remanded with instructions.

WARNER and MAY, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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