COMMERCIAL TRANSACTIONS: ACTION ON GUARANTY; PROFESSIONAL RESPONSIBILITY: REPRESENTATIONS OF COUNSEL; CIVIL PROCEDURE: NEW TRIAL: NEW TRIAL REQUIRED BECAUSE TRIAL COURT OVERRULED OBJECTION TO, AND RELIED UPON, UNSUBSTANTIATED REPRESENTATIONS OF COUNSEL DURING INTRODUCTORY STATEMENT AND DEPRIVED THE OPPOSING PARTY OF THE OPPORTUNITY TO PRESENT CONTRARY EVIDENCE

Taverna v. Bank of America, ___ So. 3d ___, 40 Fla. L. Weekly D579 (Fla. 3d DCA March 4, 2015)

The lender sued the corporate borrower and two guarantors for the balance due under a line of credit. One guarantor claimed that her signature was a forgery. The bank obtained judgment against the debtor and the guarantor whose signature was not in dispute. The guarantor against whom judgment had been entered subsequently proceeded to nonjury trial on its cross claim against the other guarantor. During an introductory statement, counsel for the cross defendant represented that the bank decided not to pursue its claim against her after receiving handwriting exemplars. Counsel for the cross plaintiff objected but was interrupted by the trial court while attempting to explain that the bank’s action against the cross defendant was pending. The appellate court reversed judgment for the cross defendant because the trial court overruled the cross plaintiff’s objections to the representations of counsel, accepted them as true despite the absence of corroborating evidence, and deprived cross plaintiff of the opportunity to present rebuttal evidence. The appellate court concluded that “[the cross plaintiff] was unduly prejudiced by the unsubstantiated representation regarding the ultimate fact in issue and, consequently, was not afforded a fair trial.”

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