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Filing # 182544495 E-Filed 09/25/2023 04:28:53 PM
ALAIN GUERRA AND BETZAIDA IN THE CIRCUIT COURT OF THE 11TH
GUERRA, JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
Plaintiffs,
CASE NO.: 2022-011058-CA-01
v.
UNIVERSAL PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
___________________________________/
PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE EVIDENCE NOT PROVIDED
DURING PRETRIAL DISCOVERY
COMES NOW, Plaintiffs, ALAIN GUERRA AND BETZAIDA GUERRA (“Plaintiffs”),
by and through undersigned counsel and requests, pursuant to Fla. R. Civ. Pro. 1.380 and Fla. Stat.
90.104, that this Honorable Court enter an order excluding all evidence not disclosed or produced
during pretrial discovery. In support thereof, Plaintiffs show this Court the following:
INTRODUCTION
This is an action for denied benefits under a homeowner’s insurance contract issued by
Defendant with respect to a loss. In an effort to investigate Defendant’s failure to pay the full
amount of the loss, Plaintiffs have served Defendant with interrogatories, a request for the
production of documents, and a request for admissions.
Plaintiffs anticipate that Defendant will have witnesses testify, attempt to introduce, or
refer to evidence that it failed to or refused to produce. Plaintiffs seek to bar the introduction or
any reference to evidence that Defendant did not produce or identify during pre-trial discovery
pursuant to Fla. R. Civ. P. 1.380(b)(2)(B).
Consequently, because of Defendant’s actions, or inaction, Plaintiffs have been forced to
litigate this case, and now try this case without the benefit of evidence and witnesses withheld by
1
Defendant.
ARGUMENT
“The purpose of a motion in limine is generally to prevent the introduction of improper
evidence, “any motion whether made before or during trial to exclude anticipated prejudicial
evidence before the evidence is actually ordered.”
Any attempt by Defendant to utilize documents and witnesses it failed to produce during
pretrial discovery at trial, is contrary to the Florida Rules of Civil Procedure. There can be no
justification for Defendant’s failure to disclose and produce material evidence and witnesses in
support of its defense, and it should not be permitted to use them at trial. See Fla. R. Civ. P.
1.380(b)(2)(B). Under Rule 1.380(b)(2)(B), discovery sanctions are also appropriate for failing to
respond to discovery, including the exclusion of evidence. Because the evidence was not provided
to Plaintiffs during discovery, and witnesses were not identified and/or produced, any of this
evidence and all related testimony should be excluded at trial.
Florida law is resolute in its prevention to trial by ambush, through “surprise, trickery, bluff
and legal gymnastics.” Northup v. Acken, 865 So.2d 1267, 1271 (Fla. 2004); Grinnell Corp. v.
Palms 2100 Ocean Blvd., LTD., 924 So. 2d 887, 893 (Fla. 4th DCA 2006). "[T]he primary purpose
of pretrial discovery is twofold: (1) to ‘discover’ evidence relevant and pertinent to the triable
issues pending before the court, and (2) if in written form to serve, of itself, as evidence at trial if
otherwise admissible.... [S]uch discovery rules are to be liberally construed to accomplish their
purpose." Jones v. Seaboard Coast Line R.R. Co., 297 So.2d 861, 863 (Fla. 2d DCA 1974). In that
case, the Fourth District observed that “litigation should no longer proceed as a game of “blind
man’s bluff.” Id.
The Fourth District explained the significance of a Pretrial Order in Grau v.
Branham:
2
The lawyers who make the opening statement must have a reasonably firm idea of
what the evidence will show. Liberal rules of discovery assure this. Once the trial
starts the lawyers are engaged in the unfolding of the evidence they have already
collected. That is why there are discovery cutoffs. All the discovery rules and the
extensive efforts of parties to discover the other party's case would be for naught if
one side were able to wait until after the trial started to establish key pieces of
evidence such as what occurred in this case.
Grau v. Branham, 626 So.2d 1059 (Fla. 4th DCA 1993)
In Grau, the Court, reiterated that the purpose requiring discovery be completed by the
time of the pretrial conference was to avoid surprise to either side. In that case, the Court issued a
pretrial order requiring the parties to present all trial evidence at the pretrial conference. During
trial, the Plaintiffs entered into evidence x-rays that had not been previously presented. Although
the evidence was not previously presented, the trial court allowed the previously undisclosed
evidence in. The trial court reasoned that the prejudice could be cured by allowing the Defendant
an opportunity to depose the Plaintiffs’ expert.
The Fourth District reversed and remanded the case for a new trial reasoning that “it is not
enough that the defendant simply know what a witness may say before he testifies. . . prejudice
also exists by the fact that appellant is unable to counter the offered testimony.” Garu at 1061
Plaintiffs move this Court to follow the same reasoning the Fourth District held in Garu (
“. . . we strongly feel that once trial starts parties’ attorneys should be allowed to concentrate on
the presentation of the evidence at hand. Neither side should be required to engage in frantic
discovery to avoid being prejudiced by the intentional tactics of the other party.” Garu at1061.
Similar discovery tactics, as utilized by the Defendant in this case, have been admonished by the
Florida Supreme Court. For example, in Bainter v. League of Women Voters of Fla., 150 So.3d 32
(Fla 2014), the Court stated that: “We simply do not countenance and will not tolerate actions
during litigation that are not forthright and that are designed to delay and obfuscate the discovery
3
process. As this Court has long stated, full and fair discovery is essential to the truth-finding
function of our justice system, and parties and non-parties alike must comply not only with the
“technical provisions of the discovery rules,” but also with “the purpose and spirit of those rules
in both the criminal and civil context.”” (citations omitted) (emphasis added). See also My Clear
View Windshield Repair, Inc. a/a/o Gina Holden v. Government Employees Insurance Company,
23 Fla. L. Weekly Supp. 648b (Brow. Cty.) (Lee, J. 2014). In that case, Defendant shielded itself
from discovery of information, then one day prior to the Court’s imposed discovery deadline,
attempted to interject that information to defeat Plaintiffs’ case at trial. The court, granted
Plaintiffs’ Motion in Limine preventing Defendant from using the information at trial, reasoning
that “[w]hen the Defendant refused to provide the discovery responses. . . it did so at its own peril
and cannot now rightfully complain that it is barred from using its trade-secret shield as a sword.”
Id
Similarly, Defendant in this case, failed and/or refused to provide Plaintiffs with sufficient
discovery responses and/or witnesses that would support or deny Plaintiffs’ claim. Florida law is
resolute in its prevention to trial by ambush, through “surprise, trickery, bluff and legal
gymnastics.” Northup v. Acken, 865 So.2d 1267, 1271 (Fla. 2004); Grinnell Corp. v. Palms 2100
Ocean Blvd., LTD., 924 So. 2d 887, 893 (Fla. 4th DCA 2006). "
WHEREFORE Plaintiffs, ALAIN GUERRA AND BETZAIDA GUERRA, moves this
Court to enter an order excluding all evidence, references to evidence, testimony, or arguments
relating to evidence not previously provided or information not previously disclosed, and for such
other and further relief as this Court deems just, necessary, and proper.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the
Clerk of Court using the E-Filing Portal on Monday, September 25, 2023.
MOISES | GROSS
Attorneys for Plaintiff(s)
999 Ponce de Leon Blvd., Suite 945
Coral Gables, FL 33134
T: (305) 306-3055
F: (305) 907-5319
Primary: Service@moisesgross.com
Secondary:scollado@moisesgross.com
Tertiary: alulchak@moisesgross.com
By: /s/ Alena Lulchak
ALENA LULCHAK, ESQ.
Florida Bar No: 1011375
5
Preview
Filing # 182544495 E-Filed 09/25/2023 04:28:53 PM ALAIN GUERRA AND BETZAIDA IN THE CIRCUIT COURT OF THE 11TH GUERRA, JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA Plaintiffs, CASE NO.: 2022-011058-CA-01 v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. ___________________________________/ PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE EVIDENCE NOT PROVIDED DURING PRETRIAL DISCOVERY COMES NOW, Plaintiffs, ALAIN GUERRA AND BETZAIDA GUERRA (“Plaintiffs”), by and through undersigned counsel and requests, pursuant to Fla. R. Civ. Pro. 1.380 and Fla. Stat. 90.104, that this Honorable Court enter an order excluding all evidence not disclosed or produced during pretrial discovery. In support thereof, Plaintiffs show this Court the following: INTRODUCTION This is an action for denied benefits under a homeowner’s insurance contract issued by Defendant with respect to a loss. In an effort to investigate Defendant’s failure to pay the full amount of the loss, Plaintiffs have served Defendant with interrogatories, a request for the production of documents, and a request for admissions. Plaintiffs anticipate that Defendant will have witnesses testify, attempt to introduce, or refer to evidence that it failed to or refused to produce. Plaintiffs seek to bar the introduction or any reference to evidence that Defendant did not produce or identify during pre-trial discovery pursuant to Fla. R. Civ. P. 1.380(b)(2)(B). Consequently, because of Defendant’s actions, or inaction, Plaintiffs have been forced to litigate this case, and now try this case without the benefit of evidence and witnesses withheld by 1 Defendant. ARGUMENT “The purpose of a motion in limine is generally to prevent the introduction of improper evidence, “any motion whether made before or during trial to exclude anticipated prejudicial evidence before the evidence is actually ordered.” Any attempt by Defendant to utilize documents and witnesses it failed to produce during pretrial discovery at trial, is contrary to the Florida Rules of Civil Procedure. There can be no justification for Defendant’s failure to disclose and produce material evidence and witnesses in support of its defense, and it should not be permitted to use them at trial. See Fla. R. Civ. P. 1.380(b)(2)(B). Under Rule 1.380(b)(2)(B), discovery sanctions are also appropriate for failing to respond to discovery, including the exclusion of evidence. Because the evidence was not provided to Plaintiffs during discovery, and witnesses were not identified and/or produced, any of this evidence and all related testimony should be excluded at trial. Florida law is resolute in its prevention to trial by ambush, through “surprise, trickery, bluff and legal gymnastics.” Northup v. Acken, 865 So.2d 1267, 1271 (Fla. 2004); Grinnell Corp. v. Palms 2100 Ocean Blvd., LTD., 924 So. 2d 887, 893 (Fla. 4th DCA 2006). "[T]he primary purpose of pretrial discovery is twofold: (1) to ‘discover’ evidence relevant and pertinent to the triable issues pending before the court, and (2) if in written form to serve, of itself, as evidence at trial if otherwise admissible.... [S]uch discovery rules are to be liberally construed to accomplish their purpose." Jones v. Seaboard Coast Line R.R. Co., 297 So.2d 861, 863 (Fla. 2d DCA 1974). In that case, the Fourth District observed that “litigation should no longer proceed as a game of “blind man’s bluff.” Id. The Fourth District explained the significance of a Pretrial Order in Grau v. Branham: 2 The lawyers who make the opening statement must have a reasonably firm idea of what the evidence will show. Liberal rules of discovery assure this. Once the trial starts the lawyers are engaged in the unfolding of the evidence they have already collected. That is why there are discovery cutoffs. All the discovery rules and the extensive efforts of parties to discover the other party's case would be for naught if one side were able to wait until after the trial started to establish key pieces of evidence such as what occurred in this case. Grau v. Branham, 626 So.2d 1059 (Fla. 4th DCA 1993) In Grau, the Court, reiterated that the purpose requiring discovery be completed by the time of the pretrial conference was to avoid surprise to either side. In that case, the Court issued a pretrial order requiring the parties to present all trial evidence at the pretrial conference. During trial, the Plaintiffs entered into evidence x-rays that had not been previously presented. Although the evidence was not previously presented, the trial court allowed the previously undisclosed evidence in. The trial court reasoned that the prejudice could be cured by allowing the Defendant an opportunity to depose the Plaintiffs’ expert. The Fourth District reversed and remanded the case for a new trial reasoning that “it is not enough that the defendant simply know what a witness may say before he testifies. . . prejudice also exists by the fact that appellant is unable to counter the offered testimony.” Garu at 1061 Plaintiffs move this Court to follow the same reasoning the Fourth District held in Garu ( “. . . we strongly feel that once trial starts parties’ attorneys should be allowed to concentrate on the presentation of the evidence at hand. Neither side should be required to engage in frantic discovery to avoid being prejudiced by the intentional tactics of the other party.” Garu at1061. Similar discovery tactics, as utilized by the Defendant in this case, have been admonished by the Florida Supreme Court. For example, in Bainter v. League of Women Voters of Fla., 150 So.3d 32 (Fla 2014), the Court stated that: “We simply do not countenance and will not tolerate actions during litigation that are not forthright and that are designed to delay and obfuscate the discovery 3 process. As this Court has long stated, full and fair discovery is essential to the truth-finding function of our justice system, and parties and non-parties alike must comply not only with the “technical provisions of the discovery rules,” but also with “the purpose and spirit of those rules in both the criminal and civil context.”” (citations omitted) (emphasis added). See also My Clear View Windshield Repair, Inc. a/a/o Gina Holden v. Government Employees Insurance Company, 23 Fla. L. Weekly Supp. 648b (Brow. Cty.) (Lee, J. 2014). In that case, Defendant shielded itself from discovery of information, then one day prior to the Court’s imposed discovery deadline, attempted to interject that information to defeat Plaintiffs’ case at trial. The court, granted Plaintiffs’ Motion in Limine preventing Defendant from using the information at trial, reasoning that “[w]hen the Defendant refused to provide the discovery responses. . . it did so at its own peril and cannot now rightfully complain that it is barred from using its trade-secret shield as a sword.” Id Similarly, Defendant in this case, failed and/or refused to provide Plaintiffs with sufficient discovery responses and/or witnesses that would support or deny Plaintiffs’ claim. Florida law is resolute in its prevention to trial by ambush, through “surprise, trickery, bluff and legal gymnastics.” Northup v. Acken, 865 So.2d 1267, 1271 (Fla. 2004); Grinnell Corp. v. Palms 2100 Ocean Blvd., LTD., 924 So. 2d 887, 893 (Fla. 4th DCA 2006). " WHEREFORE Plaintiffs, ALAIN GUERRA AND BETZAIDA GUERRA, moves this Court to enter an order excluding all evidence, references to evidence, testimony, or arguments relating to evidence not previously provided or information not previously disclosed, and for such other and further relief as this Court deems just, necessary, and proper. 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the Clerk of Court using the E-Filing Portal on Monday, September 25, 2023. MOISES | GROSS Attorneys for Plaintiff(s) 999 Ponce de Leon Blvd., Suite 945 Coral Gables, FL 33134 T: (305) 306-3055 F: (305) 907-5319 Primary: Service@moisesgross.com Secondary:scollado@moisesgross.com Tertiary: alulchak@moisesgross.com By: /s/ Alena Lulchak ALENA LULCHAK, ESQ. Florida Bar No: 1011375 5