                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

BORDEN DAIRY COMPANY                   NOT FINAL UNTIL TIME EXPIRES TO
OF ALABAMA, LLC, AND                   FILE MOTION FOR REHEARING AND
MAJOR O. GREENROCK,                    DISPOSITION THEREOF IF FILED

      Appellants,                      CASE NO. 1D13-4896

v.

SUSANNE L. KUHAJDA,

      Appellee.

_____________________________/

Opinion filed December 5, 2014.

An appeal from the Circuit Court for Bay County.
Michael C. Overstreet, Judge.

Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola; Faith A.
Nixon of Carr Allison, Daphne, Alabama, for Appellants.

Clayton R. Syfrett of Syfrett & Dykes Law Offices, P.A., Panama City; Laura Beth
Faragasso of Henry, Buchanan, Hudson, Suber & Carter, P.A., Tallahassee, for
Appellee.



ROWE, J.

      Borden Dairy Company of Alabama, LLC, and Major O. Greenrock, the

appellants, challenge a judgment from a jury verdict finding them liable for injuries

sustained by Susanne L. Kuhajda, the appellee, in a vehicle accident.            The
appellants argue that the trial court abused its discretion by denying the defense’s

motion for a new trial, which asserted that the trial court erred in allowing the

plaintiff to play a portion of Mr. Greenrock’s videotaped deposition during closing

argument. We write to confirm our position that the law supports using a party’s

deposition for any purpose, and once the videotaped deposition of Mr. Greenrock

had been admitted into evidence, it was fully available to the jury to be considered.

We affirm all other issues without further discussion.

                                         FACTS

      This case arose out of a motor vehicle accident which occurred when a

delivery truck owned by Borden Dairy and being driven by Borden’s employee,

Major Greenrock, was involved in a collision with a vehicle being driven by

Susanne Kuhajda. Ms. Kuhajda filed a negligence action against Borden Dairy

and Mr. Greenrock for damages alleged to have been incurred due to injuries she

sustained as a result of the accident.

      Mr. Greenrock testified at trial that he was attempting to drive his 30-foot

delivery truck across five lanes, with traffic coming from his left. With the aid of

an aerial photograph exhibit at trial, he indicated the positions of his truck and

other traffic, including the position of Ms. Kuhajda’s vehicle on his left. He

testified that a vehicle pulled out from a parking lot to his right, passed in front of

him, and prevented him from continuing across the divided highway as he had

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anticipated, requiring him to stop his truck with the front bumper somewhere in the

median, and the rear of the truck blocking south-bound lanes of travel.

      Mr. Greenrock’s videotaped deposition was admitted into evidence at trial

without objection. During Mr. Greenrock’s live testimony at trial, the plaintiff

impeached him with portions of his transcribed videotaped deposition. Before

resting her case, plaintiff’s counsel stated that he wanted to use portions of Mr.

Greenrock’s videotaped deposition during closing argument. At that time, Borden

raised an objection to allowing use of the deposition; the trial court reserved ruling

on the objection, but when the trial court allowed the plaintiff to play a video clip

of Mr. Greenrock’s deposition during its closing argument, the defense did not

object.

      The jury returned a verdict finding the defendants 100% liable for the

collision and awarding Ms. Kuhajda damages. Borden filed a motion for new trial,

asserting error in permitting plaintiff’s counsel to play a portion of Mr.

Greenrock’s deposition in closing argument. The trial court denied the motion for

new trial.

                                       ANALYSIS

      Rulings on the admissibility of testimony are reviewed for an abuse of

discretion. See, e.g., Kormondy v. State, 845 So. 2d 41, 52 (Fla. 2003). A trial

court’s ruling on a motion for new trial is governed by the abuse of discretion

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standard of review. Allstate Ins. Co. v. Manasse, 707 So. 2d 1110 (Fla. 1998);

Morgan v. Milton, 105 So. 3d 545 (Fla. 1st DCA 2012).

      To receive a new trial in a civil case based on closing argument, the

complaining party must first establish that the argument being challenged is

improper. See Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000). In

determining whether a challenged argument is improper, the trial court must

consider whether the attorney confined closing argument to the facts and evidence

presented to the jury and whether the argument improperly invoked emotional

responses from the jury which could have affected the verdict. Id. at 1018. Parties

are to be granted great latitude in argument before a civil jury, and a trial court’s

rulings regarding alleged improper argument are presumed to have been made

within the trial court’s discretion. See id. We conclude that the trial court did not

abuse its discretion in this case by allowing the plaintiff to use portions of Mr.

Greenrock’s videotaped deposition during closing argument.

      The court admitted Mr. Greenrock’s videotaped deposition pursuant to

Florida Rule of Civil Procedure 1.330(a)(2), which provides that “[t]he deposition

of a party . . . may be used by an adverse party for any purpose.” In ruling the

deposition admissible, the court expressly referred to that rule:

      [T]he rule says that the deposition of any party can be used for any
      purpose. And so, you know, whether it was the focal point of their
      case or wasn’t, they can use it now. It is evidence. And they don’t
      have to read or show the entire deposition.
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Admitting the deposition of Mr. Greenrock was not only a ruling within the trial

court’s discretion, but failure to permit the use of deposition testimony by a party

when such use is expressly authorized pursuant to the rules would have been

reversible as a matter of law. See, e.g., Castaneda v. Redlands Christian Migrant

Ass’n, 884 So.2d 1087, 1090 (Fla. 4th DCA 2004). Further, while not specifically

addressed in Florida, there appears to be no absolute prohibition from using

videotaped depositions during closing argument. See, e.g., K.C. & Calaway v.

Schucker, 2013 WL 5972192 (W.D. Tenn.) (recognizing there is no per se ban on

use of video excerpts of depositions in closing arguments); Morgan v. Scott, 291

S.W.3d 622, 636 (Ky. 2009) (same); Perry v. City and County of San Francisco,

2011 WL 2419868 (9th Cir. Apr. 27, 2011) (noting parties may play excerpts from

video-recorded depositions during course of closing arguments); see also 88 C.J.S.

Trial § 300 (2013) (“[T]here is no blanket prohibition against counsel playing

selected portions of a videotaped deposition for a jury during closing argument,

and trial courts have discretion to permit, or to refuse, the replaying of videotape

segments in closing argument.”).

      During closing argument, the plaintiff played portions of Mr. Greenrock’s

videotaped deposition without a contemporaneous objection from the defense.

Although it would have been error for counsel to have presented facts to the jury in

closing that were not presented in the taking of evidence, see Pacifico v. State, 642
                                         5
So. 2d 1178 (Fla. 1st DCA 1994), the record demonstrates that the evidence at

issue here had been presented to the jury. Mr. Greenrock’s videotaped deposition

had been admitted into evidence, he testified live at trial, and most of the testimony

included in the video clip played for the jury had been used during the trial to

impeach Mr. Greenrock during his live testimony.

      The appellants rely on Shoaf v. Geiling, 960 So. 2d 41 (Fla. 5th DCA 2007),

to support their argument for reversal. There, the Fifth District held that it was

reversible error to allow a party to play videotaped deposition testimony of

witnesses during closing argument where that testimony had not been previously

admitted into evidence in that form. This case is clearly distinguishable from

Shoaf. The deposition testimony at issue in Shoaf was that of witnesses who were

not subject to rule 1.330, while the deposition testimony in this case was of a party,

Mr. Greenrock; thus, his deposition testimony could be used for any purpose.

Further, unlike the witness depositions at issue in Shoaf, the deposition testimony

of Mr. Greenrock had been admitted into evidence. Thus, the reasoning in Shoaf is

not persuasive in this case.

      Because rule 1.330(a)(2) allows the deposition of a party to be used for any

purpose and the deposition of Mr. Greenrock was properly admitted into evidence,

the trial court’s decision to allow videotaped portions of the deposition to be

played during closing argument is AFFIRMED.

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ROBERTS, J., CONCURS; THOMAS, J., CONCURS IN RESULT ONLY.




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