Florida/Georgia Personal Injury & Workers Compensation

...y note, not the mortgage. The Evidence Code provides the rationale for this conclusion. Section 90.952, Florida Statutes (2002), indicates that original documents are required to prove the contents of a writing, unless otherwise provided by statute. Section 90.953, Florida Statutes (2002), however, indicates that duplicates are admissible unless a genuine question is raised about the authenticity of the original, or it is unfair to admit the duplicate, or: The document or writing is a negotiable instrument as defined in s....

...reference in section 90.4025, Florida Statutes, Admissibility of paternity determination in certain criminal prosecutions); 99-2, section 28 (reenacting section 90.503, Florida Statutes, Psychotherapist-patient privilege); 99-2, section 29 (amending section 90.953, Florida Statutes, Admissibility of duplicates); 99-8, section 5 (amending section 90.503, Florida Statutes, Psychotherapist-patient privilege); 99-8, section 6 (amending section 90.6063(5)(b), Florida Statutes, Interpreter services fo...

...erred to by the prosecutor and the state's witnesses. Furthermore, we do not perceive this case as involving the defendant's right of confrontation, as did both the third district court in Alexander and the fifth district court in this case. [3] See § 90.953, Fla....

...See Brundage v. Bank of Am., 996 So.2d 877, 881 (Fla. 4th DCA 2008). The appellate court’s review of a ruling on a motion for involuntary dismissal is de novo. Id. The Requirement to Produce the Original Note at Trial This case turns on the application of section 90.953, Florida Statutes (2010). Popularly known as the best evidence rule, section 90.953 states the general rule that “[a] duplicate is admissible to the same extent as an original,” but lists three exceptions to the rule. The exception that is relevant here is contained in section 90.953(1), which states, inter alia, that a duplicate is not admissible to the same extent as the original when “[t]he document or writing is a negotiable instrument as defined in s. 673.1041.” § 90.953(1). A *61 promissory note is a negotiable instrument. See Mason v. Rubin, 727 So.2d 283, 284 (Fla. 4th DCA 1999). Therefore, a party who seeks to foreclose on a mortgage must produce the original note. Professor Ehrhardt explains the reason for this section 90.953(1) exception: The drafters of the [Evidence] Code excluded duplicates of these documents from the general rule of admissibility because the possessor of the documents is the owner of the obligation that they represent and is the party who may bring a cause of action based on the document. Therefore, the person who possesses the duplicate may not possess the cause of action. For example, suppose A makes a photocopy copy of a promissory note and subsequently negotiates the original to B. Under section 90.953(1), A — the transferor — is not able to sue on the photocopy copy of the promissory note....

...This court has recognized that possession of the original note is a significant fact in deciding whether the possessor is entitled to enforce its terms. See Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010). Another reason for the section 90.953(1) exception is “that it protects the defendant against the possible negotiation of the note to a bona fide purchaser for value.” Am. Fin. Corp. v. Webb, 1 Conn.Cir.Ct. 230 , 23 Conn.Supp. 346 , 183 A.2d 294, 295 (1962); see Lowery v. State, 402 So.2d 1287, 1289 (Fla. 5th DCA 1981). We disagree with the trial court’s conclusion that a mortgage falls under the section 90.953(1) exception so that the plaintiff was required to offer the original mortgage at trial. A mortgage is not a “negotiable instrument,” a “security,” “or any other writing that evidences a right to the payment of money.” § 90.953(1), Fla....

...roperly authenticated duplicate.” Id. at 727 . The fifth district concluded that because the original note was filed, the trial court properly considered the duplicate of the mortgage. Id. The reasoning in Perry , hewing closely to the language of section 90.953, is persuasive....

...Especially where there is not a dispute that the copy of a note is an exact duplicate of the original, surrender of the note to the court file is one such “satisfactory explanation” for failing to produce the original at trial. The policies underlying the requirement for the original note in section 90.953(1) have been satisfied....

...Lord, 851 So.2d 790, 791 (Fla. 4th DCA 2003); Figueredo v. Bank Espirito Santo, 537 Sold 1113, 1113 (Fla. 3rd DCA 1989); Shelter Dev. Group, Inc. v. Mma of Georgia, Inc., 50 B.R. 588, 590 (Bkrtcy.S.D.Fla.1985) (applying Florida law). See also Fla. Stat. § 90.953 (with respect to negotiable instruments, a copy or duplicate is not admissible to the same extent as the original)....

...statute. Counsel for Madras argues on appeal that the ruling of the trial court should be upheld on the basis of the best evidence rule, sections 90.951 et seq., Florida Statutes (1989). The best evidence rule allows a duplicate to be admitted under section 90.953(3) unless "[i]t is unfair, under the circumstance, to admit the duplicate in lieu of the original." Section 90.954 provides for the admissibility of a duplicate when: (1) All originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith....

...Saporito testified that the original contract on the first agreement to sell was destroyed after he and the proposed buyer learned of the lis pendens. Saporito was not afforded an opportunity to explain what became of the second contract. In both instances Saporito was not permitted to make a proper showing under sections 90.953 and 90.954 that the originals were not available, and he was clearly prejudiced by his inability to present a case that the originals were unavailable and the duplicates thus admissible....

...he time of the assignment. See Slizyk v. Smilack, 825 So.2d 428, 430 (Fla. 4th DCA 2002). To maintain a mortgage foreclosure, the plaintiff must either present the original promissory note or give a satisfactory explanation for its failure to do so. § 90.953(1), Fla....

...A duplicate is admissible to the same extent as an original, unless: . . . . (2) A genuine question is raised about the authenticity of the original or any other document or writing. (3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original. § 90.953, Fla....

...writing, recording or photograph. While this is commonly known as the "best evidence rule," see State v. Eubanks, 609 So.2d 107, 109 (Fla. 4th DCA 1992), that term appears nowhere in the statute. Although duplicates are acceptable in most cases, see § 90.953, Fla....

...(2008), the admissibility of "other evidence" of the contents of a "writing, recording, or photograph" is governed by section 90.954, titled "Admissibility of other evidence of contents." It provides: The original of a writing, recording, or photograph is not required, except as provided in s. 90.953, and other evidence of its contents is admissible when: (1) All originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith....

...ace of the original check since the original had been lost by the police. His argument is two-fold. First, Lowery argues that a check is a negotiable instrument and, therefore, a duplicate of it is not admissible in place of the original pursuant to section 90.953, Florida Statutes (1979), which reads in pertinent part: A duplicate is admissible to the same extent as the original unless: (1) the document or writing is a negotiable instrument, as defined in section 673.104.......

...Wallace, Engels, Pertnoy, Martin & Solowsky and Marianne A. Vos, Miami, for appellee. Before NESBITT, FERGUSON and LEVY, JJ. PER CURIAM. The plaintiff failed to produce for admission into evidence the original copy of a negotiable promissory instrument as is expressly required by section 90.953(1), Florida Statutes (1987)....

..."Absent permission to do so, the trial court on remand is without authority to *2 alter or evade the mandate of this court." Stuart, 381 So.2d at 1163. In passing, we address a concern of the trial court and respondents. Under the rules of evidence, duplicates of documents are equally admissible as originals. § 90.953, Fla....

...Uniform Commercial Code (UCC) definition of holder applies. See Deutsche Bank Nat'l Trust Co. v. Clarke, 87 So. 3d 58, 61 (Fla. 4th DCA 2012) ("A mortgage is not a 'negotiable instrument,' a 'security,' 'or any other writing that evidences a right to the payment of money.' " (quoting § 90.953(1), Fla....

...ce with the condition precedent of notice of default and of the right to cure, as stated above, the 1 We do not address the issue of whether a copy of the modification agreement attached to a certified copy of the complaint met the requirements of Section 90.953, Florida Statutes (2017) (Admissibility of Duplicates)....

...le the original note at least twenty days before the summary judgment hearing was fatal to his application for summary judgment. We affirm the summary judgment. *1143 This case involves the interplay between Florida Rule of Civil Procedure 1.510 and section 90.953, Florida Statutes, commonly known as the best evidence rule....

...it, but the affidavit must “set forth such facts as would be admissible in evidence.” The best evidence rule provides that a duplicate of a document is admissible to the same extent as an original, unless the document is a negotiable instrument. § 90.953(1), Fla....

..."writings" and "recordings." § 90.951(4)(a), Fla. Stat. (1989). Although the Florida Evidence Code allows duplicates to be admitted in evidence, a genuine question about the authenticity of the original will prevent the admission of the duplicate. § 90.953(2), Fla....

...3d at 59. We noted that “[a] duplicate is . . . admissible to the same extent as an original,” unless “[t]he document or writing is a negotiable instrument as defined in s. 673.1041.” Id. at 60 (first and third alterations in original) (quoting § 90.953(1), Fla. Stat....

...5th DCA 2004)). No explanation as to why the original was unavailable is required. Therefore, the trial court correctly admitted copies of the modifications and accompanying testimony. Appellant did not timely challenge their authenticity or the fairness of using copies, § 90.953(2)-(3), Fla....

...Appellant failed to preserve her best evidence rule objection, and she misconstrues the holding of Rattigan. A copy of a modification is admissible to the same degree as an original, as it is not a negotiable instrument as defined in section 673.1041. § 90.953, Fla....

...ey are claimed to be. The witness need not have actually prepared the records; familiarity with them and the way they are kept is sufficient to authenticate or identify.”). The copy of the document was admissible *1363 instead of the original. See § 90.953, Fla....

...The authentication requirement was likewise met with regard to the canceled check from the insurer to the physician. In this instance also, the trial court properly admitted a photocopy, rather than the original. The insurer’s objection based on subsection 90.953(1), Florida Statutes, is misplaced....

...The purpose of that subsection is to require production of the original where there is an action on a negotiable instrument. In such instances, the original instrument must be brought forward both to demonstrate the right to payment and to preclude the possibility that the instrument has already been negotiated. See § 90.953, West’s Fla.Stat.Annot....

...State, 402 So.2d 1287, 1288-89 (Fla. 5th DCA 1981). In the present case, by contrast, the canceled check had already been negotiated. The purpose of introducing the instrument was to show that the insurer had, in fact, already paid one installment on the physician’s claim. See § 90.953, West’s Fla.Stat.Annot....

...The Bank sought to introduce into evidence a duplicate of the loan modification agreement executed by the parties. Garcia objected, asserting that, under the “Best Evidence Rule” (section 90.952, Florida Statutes (2016)), the original was required. Garcia asserted that section 90.953, Florida Statutes (2016), which provides for admission of duplicates in lieu of originals, was inapplicable because the loan modification agreement is a “negotiable instrument,” and thus excluded under the express language of section 90.953....

...3d DCA 2017). Section 90.952 provides: Requirement of originals. Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph. Section 90.953 provides: 4  Admissibility of duplicates A duplicate is admissible to the same extent as an original, unless: (1) The document or writing is a negotiable instrument as defined in s. 673.10411, a security as defined in s....

...air under the circumstances to admit the duplicate in lieu of the original. Garcia contends here, as he did below, that the duplicate of the loan modification agreement was inadmissible because it is a negotiable instrument and that, under section 90.953, the Bank was required to introduce the original rather than a duplicate. We reject Garcia’s premise and hold that the loan modification 6 agreement is not a negotiable instrument; therefore, the Bank was entitled under section 90.953 to introduce a duplicate of the original loan modification agreement and was not required to introduce the original....

...and without need for an explanation as to why the original was unavailable. The trial court thus erred in determining that the loan modification agreement was a negotiable instrument and that a duplicate was inadmissible under sections 90.952 and 90.953. Dismissal of the Action Based Upon the Statute of Limitations We further hold that the trial court erred in concluding that the action was barred by the statute of limitations....

...rred to by the prosecutor and the state’s witnesses. Furthermore, we do not perceive this case as involving the defendant’s right of confrontation, as did both the third district court in Alexander and the fifth district court in this case. .See § 90.953, Fla.Stat....

...(1983); however, a duplicate is admissible to the same extent as the original unless the writing is a negotiable instrument, a genuine question is raised about the authenticity of the original or any other writing, or it is unfair to admit the duplicate in lieu of the original. § 90.953, Fla.Stat....

...e the signature of Elsa appears not as a copy, but as an original signature. Because the copy is not an accurate reproduction, they say, it is not a “duplicate” within the meaning of section 90.951(4)(a), and, therefore, cannot be admitted under section 90.953, which provides for the admission of duplicates. Assuming the Lopezes are correct in their contention that the copy is not a duplicate, 1 it is still admissible under section 90.954, Florida Statutes (1983). Section 90.954 is broader than section 90.953 —a copy which is not admissible under section 90.953 as a duplicate may still be admissible under section 90.954....

...Eubanks, 609 So.2d 107, 109 (Fla. 4th DCA 1992) ("The best evidence rule requires that if original evidence is available, then no other evidence should be received which is merely substitutionary in nature."). In the absence of an original, however, section 90.953(2) allows for the admission of a "duplicate" "to the same extent as an original, unless: ... [a] genuine question is raised about the authenticity of the original or any other *513 document or writing." Thus, if a duplicate is properly admitted under section 90.953, it also precludes consideration of secondary evidence....

...And this could have been the result of manipulation, yes." We find that the totality of this evidence was legally sufficient to create a genuine question regarding the authenticity of the duplicate. Thus, the trial court properly concluded that the document introduced by Rainess was not admissible under section 90.953 "to the same extent as an original," meaning that its admission into evidence did not preclude consideration of secondary evidence in determining the contents of the original. We note, however, that while Rainess' document was not admissible under section 90.953, it was clearly admissible, and ultimately admitted, under section 90.954 as secondary evidence. See Garcia v. Lopez, 483 So.2d 470, 471 (Fla. 3d DCA 1986) ("Section 90.954 is broader than section 90.953-a copy which is not admissible under section 90.953 as a duplicate may still be admissible under section 90.954.")....

...H.A., a juvenile, appeals a petit theft conviction and sentence of six months probation based on the admission of photographs downloaded from a surveillance video from the night of the theft. Because we conclude that the photographs were properly admitted as duplicates pursuant to sections 90.953 and 90.954, Florida Statutes (2008), we affirm....

...committed the petit theft. This appeal followed. H.A. contends that sections 90.952 to 90.954 required the State to produce the original videotape or demonstrate that the original was unavailable before the photographs could be properly admitted. We disagree. Section 90.953 provides that duplicates are admissible “to the same extent as an original” unless a genuine question is raised about the authenticity of the original or it would be unfair under the circumstances to admit the duplicates....

...H.A., a juvenile, appeals a petit theft conviction and sentence of six months probation based on the admission of photographs downloaded from a surveillance video from the night of the theft. Because we conclude that the photographs were properly admitted as duplicates pursuant to sections 90.953 and 90.954, Florida Statutes (2008), we affirm....

...committed the petit theft. This appeal followed. H.A. contends that sections 90.952 to 90.954 required the State to produce the original videotape or demonstrate that the original was unavailable before the photographs could be properly admitted. We disagree. Section 90.953 provides that duplicates are admissible "to the same extent as an original" unless a genuine question is raised about the authenticity of the original or it would be unfair under the circumstances to admit the duplicates....

...Roberts was not required to produce the actual note nor to provide extrinsic evidence authenticating the documents. § 90.902(2), Fla.Stat. (1989). However, we acknowledge that she may not be able to foreclose her own mortgage without producing the original note in that case. § 90.953(1), Fla.Stat....

...ficiently authenticated and admissible to corroborate the testimony of the purchaser regarding the purchase. See Gosciminski v. State, 132 So.3d 678, 700 (Fla. 2013). Photocopies of cancelled checks are admissible as a duplicate of the original. See § 90.953, Fla....

...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....

...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....

...We agree with the homeowner. “A promissory note is a negotiable instrument.” Deutsche Bank Nat’l Trust Co. v. Clarke, 87 So. 3d 58, 60-61 (Fla. 4th DCA 2012). Where a document is a negotiable instrument, the best evidence rule, as codified, requires the production of the original. § 90.953(1), Fla....

...Tillman moved to strike Smith’s petition to take an elective share, contending that Smith had waived her right to an elective share by the terms of an antenuptial agreement. The court denied the motion and granted Smith’s petition for elective share. Whether a duplicate copy is admissible is controlled by section 90.953, Florida Statutes (1983): Admissibility of Duplicates.— *1354 A duplicate is admissible to the same extent as an original, unless: (1) The document or writing is a negotiable instrument as defined in s.673.-104, a security as defined...

...(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original. Smith argued, and the trial court agreed, that the antenuptial agreement was a document involving payment of money and therefore a copy of it was inadmissible under section 90.953(1). While an antenup-tial agreement may evidence a right to the payment of money, we conclude that section 90.953(1) requires more....

...may bring a cause of action based on the document. Therefore, the person who possesses the duplicate may not possess the cause of action. For example, if A makes a xerox copy of a promissory note and subsequently negotiates the original to B, under section 90.953(1), A, the transferor, is not able to sue on the xerox copy of the promissory note. Ehrhardt, Florida Evidence § 953.1 (2d ed. 1984). See also Lowery v. State, 402 So.2d 1287 (Fla. 5th DCA 1981). To fall under section 90.953(1), the agreement would have not only to evidence a right to the payment of money, but be “of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment ” (emphasis added)....

...We think the types of documents contemplated by this section are those instruments which require the delivery of the original document properly endorsed which in itself evidences the right to payment of money. It does not include every document that includes a right to receive money among its other provisions. The purpose of section 90.953 was not to restrict the rules of admissibility of duplicates, but to liberalize them....

...“The effect of this section, which is applicable only if the duplicate is produced by a method which insures accuracy and genuineness, see § 90.951(4), is to save time and expense previously wasted on producing the original when an equally reliable counterpart is at hand.” Law Revision Council Note, 6C. F.S.A. 425, § 90.953 (1976). We conclude that the trial court improperly determined that the duplicate was inadmissible under section 90.953(1). In so holding, we have not made a determination that the antenuptial agreement is otherwise admissible under either subsection (2) or (3) of section 90.953, Florida Statutes....

...debt.”); Deutsche Bank Nat’l Trust Co. v. Clarke, 87 So.3d 58, 61 (Fla. 4th DCA 2012) (“A mortgage is not, a ‘negotiable instrument,’ a ‘security,’ ‘or any other writing that evidences a right to the payment of money.’ ” (quoting § 90.953(1), Fla....

...than the original, of the promissory note into evidence over appellants’ objection based on the best evidence rule. At trial, when the bank sought to admit a copy of the promissory note into evidence, appellants objected, based on the best evidence rule, section 90.953, Florida Statutes....

...Bank of America, N.A., 209 So. 3d 641 (Fla. 2d DCA 2017), a case in which the Second District reversed a final judgment of foreclosure against the borrower where the trial court improperly admitted a copy of the note over the borrower’s objection under section 90.953, Florida Statutes....

...4th DCA 2017). The Florida Evidence Code requires the production of an original of a writing to prove the contents of the writing, unless otherwise provided by statute. § 90.952, Fla. Stat. (2016). A duplicate may be admitted “to the same extent as an original” unless certain exceptions apply. § 90.953, Fla. Stat. (2016). The relevant exception provides that when the document is a negotiable instrument, the original is necessary at trial. § 90.953(1), Fla. Stat....

...Clarke, 87 So. 3d 58, 60–61 (Fla. 4th DCA 2012). We are persuaded by our sister court’s analysis in Heller. There, the bank offered a copy of the note at trial, to which defense counsel objected 2 pursuant to section 90.953(1), Florida Statutes....

...The trial court had before it only the copy of the note and counsel's unsworn statement as to the filing of the purported original note. Because the trial court improperly admitted the copy of the note over objection in violation of section 90.953(1), we reverse and remand for a new trial....

...her and "dispute[d] that any document now or hereafter filed with this Court is the original Note and demands strict proof thereof." At trial, the Bank offered a copy of the note into evidence. Defense counsel objected pursuant to section 90.953, Florida Statutes (2014), commonly known as the best evidence rule, because the note was a copy rather than the original....

...the case based on the insufficiency of the evidence pursuant to Florida Rule of Civil Procedure 1.420(b). Among other things, counsel argued that the Bank failed to introduce sufficient evidence that it possessed the original note, in violation of section 90.953, and that the Bank failed to introduce sufficient evidence of when the endorsement was placed on the note....

...tion of the evidence code and case law construing the code. See id. The Florida Evidence Code provides that an original of a writing is required to prove the contents of the writing, unless otherwise provided by statute. § 90.952. Section 90.953 allows for the admission of a duplicate "to the same extent as an original" unless certain exceptions apply. The exception relevant here is when the document is a negotiable instrument. See § 90.953(1). A promissory note is a negotiable instrument, see Stone v. BankUnited, 115 So. 3d 411, 413 (Fla. 2d DCA 2013), and thus the evidence code requires that the original be produced at trial, see § 90.953(1); see also Fair v....

...The trial court had before it only the copy of the note and counsel's unsworn statement as to the filing of the purported original note. Because the trial court improperly admitted the -6- copy of the note over objection in violation of section 90.953(1), we reverse and remand for a new trial....

...WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the County Court for Leon County. Monique Richardson, Judge. January 10, 2024 PER CURIAM. AFFIRMED. See § 90.953, Fla....

questioned, or it is unfair to admit the duplicate. § 90.953, Fla.Stat. (1981). The word duplicate includes:

...In granting the motion, the trial judge erroneously relied on the factually distinguishable case of State v. Henderson, 253 So.2d 158 (Fla. 4th DCA 1971) (an unsigned and undated copy of an original search warrant left with a defendant necessitates the suppression of evidence). Section 90.953 of the Florida Evidence Code authorizes the admission of a duplicate to the same extent as the original....

...Her argument below and on appeal was that the state had to produce the originals to prove the officers’ authority to conduct the search. The trial judge should have considered the merits of the motion to suppress as if the originals had been admitted into evidence! § 90.953, Fla.Stat....

...the evidence code and applicable case law. A court’s erroneous interpretation of these authorities is subject to de novo review.’” Pantoja v. State, 59 So. 3d 1092, 1095 (Fla. 2011) (citations omitted). Under the Florida Evidence Code, section 90.953, Florida Statutes, a duplicate document is admissible to the same extent as an original, but not if the document “is a negotiable instrument as defined in s. 673.1041.” § 90.953(1), Fla....

...instrument to be reestablished. Its order acknowledged that another person possessing the original note could come forward against Appellants in the future. We reverse this result because admitting a copy of the lost promissory note over Appellants’ objection was contrary to § 90.953(1) and § 673.3091. 3  In reaching this conclusion, we understand the dissent’s view that Florida’s News Channel satisfied the lost instrument statute in the absence of alleging and proving a lost note....

...fund, of which he was not a beneficiary, and obtaining cash in return. We affirm appellant’s convictions, rejecting his contention that the trial court erred in admitting the duplicate forged check. We conclude that the check was admissible under section 90.953, Florida Statutes, and that none of the exceptions within the statute applied....

to admit the duplicate in lieu of the original. § 90.953, Fla. Stat. (1995).