Whether you’re handling the entire trial or providing support, you know that motions in limine can shorten trial and simplify issues. Such motions can also relieve the pressure to object in the heat of trial, thanks to section 90.104, Florida Statutes, which deems objections preserved for appeal if the court already issued a definitive ruling. But a recent case clarifies that securing an early ruling is only the beginning of your work on that evidentiary issue.
In Boyles v. A & G Concrete Pools, Inc., 2014 WL 2957473 (Fla. 4th
DCA July 2, 2014), the plaintiff moved in limine regarding 45 categories of
evidence more than 18 months before trial, securing a ruling that granted the
motion on some topics, denied it on others, and denied without prejudice on
still more. The new judge presiding over trial noted that on many topics, the order
indicated only “denied without prejudice to making contemporaneous objections.”
Noting the difficulty of deciphering such an old order decided by a predecessor
judge, the trial judge concluded, “You are going to have to raise your
objections because I don’t know what has been done.” At trial, the defendant solicited
testimony violating the previous order, but the plaintiff did not object.
The Boyles majority essentially concluded that the trial court’s
admonition to “raise your objections” vacated the previous order, requiring
contemporaneous objections on all evidentiary issues. Id. at *4-5. The dissent argued the trial court’s statement had
been taken out of context and would have held the issue preserved. Id. at *12. Regardless, Boyles raises two questions you must
answer to ensure preservation.
Was
the motion clearly ruled on? Get a definitive ruling on the motion in
limine. If you don’t, and you don’t contemporaneously object at trial, then you
have waived the objection. Tolbert v.
State, 922 So. 2d 1013, 1017-18 (Fla. 5th DCA 2006). Also, Boyles shows that if the court later
rules in such a way that part or all of its previous ruling might be vacated,
then seek clarification immediately.
What
has changed since the ruling? This means more than “is the ruling dated?” If
the ruling was based on representations about how the evidence will unfold, then
the ruling is definitive only as to the facts as represented to the court. Powell v. State, 79 So. 3d 921, 923 (Fla. 5th
DCA 2012). If the evidence at trial paints a different picture than what you or
opposing counsel drew before, then be ready to act. Id. Orders on motions in limine are subject to change during trial
as the court better understands the evidence. Hawker v. State, 951 So. 2d 945, 950 (Fla. 4th DCA 2007).
Know the answers to both questions. Then,
if opposing counsel violates the order and evidence slips in without a
contemporaneous objection, you have increased the odds an appellate court will someday
affirm sanctions for violating the order, Adams
v. Barkman, 114 So. 3d 1021, 1024 (Fla. 5th DCA 2012), rather than
explain how you waived the issue.
