FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Case No. 5D22-2104
LT Case No. 2019-CA-055393
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LINDSAY SANGER,
Appellant,
v.
JUSTIN ASHER and PRENTICE
SANGER a/k/a PRENT SANGER,
Appellees.
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On appeal from the Circuit Court for Brevard County.
Bruce W. Jacobus, Judge.
Allan P. Whitehead and Erika McBryde, of Frese, Whitehead,
Anderson & Henderson, P.A., Melbourne, for Appellant.
David B. Russell, of Pappas & Russell, P.A., Daytona Beach, for
Appellees.
March 22, 2024
KILBANE, J.
Appellant Lindsay Sanger (“Lindsay”) appeals various orders
and the final judgment entered by the trial court after a non-jury
trial. For the reasons explained below, we affirm the final
judgment as it pertains to the security agreement and settlement
and reverse with respect to the four promissory notes with
instructions to dismiss those claims with prejudice.
Facts
Justin Asher (“Asher”), plaintiff below, allegedly purchased,
for ten dollars, a security agreement evidencing a debt of $75,000
and four promissory notes totaling $300,000 from E.H. Daley (now
deceased), the lender. Lindsay was the purported maker and
signor on the security agreement and the notes were allegedly
signed by both Lindsay and her then-husband, Prentice Sanger
(“Prentice”).1 Asher’s purchase of these documents and Daley’s
assignments to Asher allegedly occurred on October 4, 2019. Asher
then filed a five-count complaint2 on November 19, 2019, to collect.
On August 10, 2021, Asher filed a notice of filing the originals
of the security agreement and the four notes, allonges, and
assignments with the clerk. On August 13, 2021, Asher filed a
Pre-Trial Statement identifying his expert witness, a document
examiner. On August 18, 2021, Lindsay filed her witness list,
identifying her own document examiner. On the same date,
Lindsay also filed her pre-trial statement, which included the
issue, “Are the notes and security agreement submitted to the
Court, indeed, original documents.”
The case proceeded to a one-day non-jury trial on September
9, 2021. At trial, the introduction and authentication of the
documents, particularly the notes, was the subject of contention
and expert testimony. Asher presented his expert, who testified
that he inspected the security agreement and the notes in June
2021 and concluded from that inspection that the signatures were
not stamped or electronic, but did not testify that the documents
were originals. With respect to the security agreement, Lindsay
testified that she was aware of, prepared, and signed that
agreement, but claimed the document Asher sought to introduce
was a copy. Asher then rested. Lindsay moved to dismiss on the
1 Prentice has not appeared in this appeal.
2 The complaint sought judgment against Lindsay, solely, on
the security agreement (count 1) and against both Lindsay and
Prentice on the promissory notes (counts 2-5).
2
ground that Asher failed to present the originals of the security
agreement and notes. The trial court denied the motion.
Lindsay then called her expert, who testified that she
inspected the documents attached to Asher’s August 10, 2021,
filing and opined that those documents were photocopies, not
originals. Lindsay then rested.
After the close of evidence, Lindsay again asserted that the
security agreement and notes were not originals, and the case
should be dismissed. In response, Asher’s counsel made an ore
tenus motion to amend the pleadings to include a claim for lost
notes. Asher never took the position at trial that the documents
were anything but originals. The trial court denied the ore tenus
motion and took the case under advisement. The day after trial,
Asher and Prentice filed a notice of a confidential settlement
agreement evidencing a settlement they had reached on
September 7, 2021, two days prior to trial.
On December 1, 2021, the trial court issued its Order on Non-
Jury Trial, ruling that the four notes introduced were not originals
and thus unenforceable against Lindsay and Prentice but ruled
that they were jointly liable on the $75,000 debt evidenced by the
security agreement. Additionally, the trial court reversed its
earlier ruling and permitted Asher to make a lost notes claim.
In response, instead of proceeding with a lost notes claim, on
December 16, 2021, Asher filed an unsworn motion for rehearing
alleging on December 11, 2021, over three months after the
conclusion of the nonjury trial, that he had found the original
documents, that he had been in possession of them since October
4, 2019, and that he had mistakenly placed them in a “copies” file,
while placing the copies in his “originals” file. The trial court
granted the motion for rehearing.
Asher then filed an Amended Notice of Filing Original
Promissory Notes which included what he now claimed were the
original documents. The trial court held a non-evidentiary hearing
and admitted the late-discovered security agreement and four
promissory notes without authentication and over Lindsay’s
objection.
3
The trial court then issued its final judgment, in which it
denied Lindsay’s pending motions to reopen discovery and for
mistrial, declared the documents attached to Asher’s January 27,
2022, filing to be originals, and held Lindsay liable on both the
security agreement and notes, for a total of $375,000. The trial
court noted Asher and Prentice’s aforementioned settlement
agreement which extinguished Prentice’s liability on the debts for
$37,000, thereby reducing Lindsay’s liability to $338,000.3
Analysis
We review issues of legal error in a non-jury trial de novo.
PNC Bank, Nat’l Ass’n v. Smith, 225 So. 3d 294, 296 (Fla. 5th DCA
2017). Issues regarding reopening of evidence after close of proof
are reviewed for abuse of discretion. Loftis v. Loftis, 208 So. 3d
824, 826 (Fla. 5th DCA 2017).
A. The Security Agreement
Lindsay contends that the security agreement, like the notes,
had to be an original and therefore the trial court erred in
admitting it into evidence without authentication. However, the
original security agreement was not required. Section 90.953(1),
Florida Statutes (2021) states, in pertinent part, “[a] duplicate is
admissible to the same extent as an original, unless: (1) [t]he
document or writing is a negotiable instrument . . . or any other
writing that evidences a right to the payment of money, [and] is
not itself a security agreement.” (emphasis added). This is true so
long as a genuine question is not raised about the authenticity of
the original. § 90.953(2), Fla. Stat. (2021).
3 Lindsay asserted below that the settlement agreement
between Asher and Prentice constituted a “Mary Carter”
settlement, void against public policy, and sought a new trial as a
result. See Dosdourian v. Carsten, 624 So. 2d 241 (Fla. 1993).
While the terms of settlement agreement, its secrecy, and
particularly the conduct of Asher and Prentice at trial in
performance of that settlement agreement had all the trappings of
a Mary Carter settlement, we need not reach that issue here and
do not disturb the settlement.
4
Thus, while originals of the four promissory notes, as
negotiable instruments, were required, a duplicate security
agreement was admissible in a case such as this. Lindsay duly
authenticated the copy of the security agreement presented at
trial, acknowledging that she had both prepared and signed it.
Accordingly, the copy of the security agreement was sufficient to
evidence the debt. As such, the portion of the judgment against
Lindsay for the $75,000 debt, evidenced by the security agreement,
is affirmed.4
B. The Four Promissory Notes
Unlike the security agreement, section 90.953 requires
introduction of original promissory notes. Without question, Asher
failed to present the original notes during the nonjury trial in this
case. Therefore, the enforceability of those notes must be
determined by the propriety of the trial court’s decision to reopen
the evidence to allow Asher to present what he now claims to be
the original notes months after the conclusion of the trial.5
4 Although count 1 of the complaint sought recovery solely
against Lindsay on the $75,000 debt evidenced by the security
agreement, in its December 1, 2021, order the trial court found
both Lindsay and Prentice liable on that debt. Moreover, the
settlement agreement between Asher and Prentice expressly
states that Prentice entered into the security agreement and was
being released from liability on that debt, as well as the promissory
note debts. In the rendition contained in its final judgment, the
trial court referenced its December 1, 2021, order but then held
Lindsay solely liable on all of the debts, referencing Prentice’s
settlement with Asher. As noted, supra, we do not disturb the
settlement agreement between Prentice and Asher. Therefore, as
indicated in the final judgment, Lindsay is entitled to a credit for
the $37,000 settlement between Prentice and Asher, limiting her
total liability on the security agreement to $38,000.
5 Though not ultimately pursued by Asher, the trial court’s
earlier, December 1, 2021, ruling permitting Asher to assert a lost
notes claim was itself error. See Turna v. Advanced Med-Servs.,
Inc., 842 So. 2d 1075, 1076 (Fla. 2d DCA 2003) (finding an abuse
5
In deciding whether to reopen a case, a trial court must
consider “(1) the timeliness of the request, (2) the character of the
evidence sought to be introduced, (3) the effect of allowing the
evidence to be admitted, and (4) the reasonableness of the excuse
justifying the request to reopen.” Loftis, 208 So. 3d at 826.
(quoting Grider-Garcia v. State Farm Mut. Auto., 73 So. 3d 847,
849 (Fla. 5th DCA 2011)). While the trial court’s discretion to
reopen a case is broad, it “is not unlimited, for it may allow
reopening only ‘where this can be done without injustice to the
other party.’” Allen v. Allen, 346 So. 3d 667, 669 (Fla. 1st DCA
2022) (quoting Silber v. Cn’R Indus. of Jacksonville, Inc., 526 So.
2d 974, 978 (Fla. 1st DCA 1988)) (finding no abuse of discretion in
refusing to reopen case which would have allowed husband to retry
a central issue in the case).
Here, Asher’s request to reopen the evidence was untimely,
having been made over three months after conclusion of the
September 9, 2021 trial and seemingly only in response to the trial
court’s final judgment. Further, the character of the evidence
sought to be introduced upon reopening, the purported discovery
of the originals of each of the instruments central to the case, and
the effect of reopening itself was prejudicial. It wrongly gave Asher
an unjustified second bite at the apple after failing to meet his
evidentiary burden at trial. See Turna, 842 So. 2d at 1076; St. Joe
Paper Co., 299 So. 2d at 93. Finally, Asher’s failure to present the
originals at trial, given his knowledge of them and the length of
time that had passed, was insufficient to warrant reopening the
evidence. The discovery and expert review which would be
required, although denied by the judge in this case, regarding not
only the originality and authenticity of the newly discovered notes,
but also the circumstances surrounding how Asher managed to
locate them in his own possession three months post-trial, would
of discretion to grant motion to amend after trial when no evidence
was presented at trial that would support such a claim); St. Joe
Paper Co. v. Connell, 299 So. 2d 92, 93 (Fla. 1st DCA 1974) (holding
“[a] second bite at the apple may not be granted simply because
the plaintiffs have failed to meet their burden of proof,” noting that
such a practice would open the door to endless, successive efforts
if the second bite also failed).
6
be tantamount to holding an entirely new trial.6 Thus, the trial
court abused its discretion in granting Asher’s motion for
rehearing and Asher’s failure to carry his burden at trial properly
results in a dismissal of those counts.
Conclusion
Accordingly, the trial court’s final judgment is affirmed with
respect to the $75,000 debt evidenced by the security agreement
and the setoff of Prentice’s settlement, but is reversed as to the
four promissory notes. The case is remanded with instructions to
enter a final judgment of dismissal of Asher’s complaint on those
promissory notes, with prejudice.
AFFIRMED in part, REVERSED in part, and REMANDED, with
instructions.
WALLIS and PRATT, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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6 The facts here are distinguishable from Hernandez v.
Cacciamani Development Co., 698 So. 2d 927 (Fla. 3d DCA 1997),
relied upon by Asher. In Hernandez, the originality of the notes in
that case was not in dispute, the failure to seek their admission
was an inadvertent oversight, and the plaintiff promptly moved to
reopen to admit the originals four days after the trial court
dismissed the case for lack of originals. Id. at 928. This is simply
a horse of a different color.
7