IN THE DISTRICT COURT OF APPEAL

FOURTH DISTRICT, STATE OF FLORIDA

DCA CASE NO.: 4D13-2984
L.T CASE NO.:50-2010-CA-010809-XXXXMB
DENNIS J. BODWELL and JULIA A. BODWELL,
Appellants,
v.
PNC MORTGAGE, A DIVISION OF PNC BANK, L.P., et al.,
Appellee.
*************************************************************
AN APPEAL FROM A FINAL JUDGMENT OF MORTGAGE FORECLOSURE
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
*************************************************************
INITIAL BRIEF OF APPELLANT
BOGDAN ENICA, ESQUIRE
THE TICKTIN LAW GROUP, P.A.
600 West Hillsboro Boulevard
Suite 220
Deerfield Beach, Florida 33441-1610
Telephone: (954) 570-6757
Fax: (954) 570-6760

TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 1
STATEMENT OF THE FACTS AND OF THE CASE ........................................... 1
STANDARD OF REVIEW ....................................................................................... 3
SUMMARY OF ARGUMENT ................................................................................. 4
ARGUMENT.5
I. THE COURT ERRED IN EXCLUDING FROM EVIDENCE THE LETTER
FROM PLAINTIFF INDICATING THAT THE PARTIES ENTERED
INTO A LOAN MODIFICATION AGREEMENT.........................5
II.

THE COURT ERRED IN EXCLUDING DEFENDANT'S EXPERT

WITNESS FROM PROVIDING TESTIMONY...............................7

CONCLUSION ......................................................................................................... 9
CERTIFICATE OF SERVICE ................................................................................ 10
CERTIFICATE OF COMPLIANCE ...................................................................... 11

ii

TABLE OF CITATIONS
FLORIDA SUPREME COURT
Cases

Page

Bradford v. State,
278 So. 2d 624 (Fla. 1973) ........................................................................................ 5
Canakaris v. Canakaris,
382 So. 2d 1197, 1203 (Fla. 1980) ........................................................................... 3
Castillo v. E.I. Du Pont De Nemours & Co., Inc.,
854 So. 2d 1264 (Fla. 2003) ..................................................................................... 7
Dosdourian v. Carsten,
624 So. 2d 241 (Fla. 1993) . ...................................................................................... 6
Flanagan v. State,
625 So. 2d 827 (Fla. 1993) ....................................................................................... 5
Herbert v. Garner,
78 So. 2d 727 (Fla. 1955). ......................................................................................... 5
Town of Palm Beach v. Palm Beach County,
460 So. 2d 879 (Fla. 1984) ....................................................................................... 3
FLORIDA DISTRICT COURTS OF APPEAL
Cases

Page

Aetna Ins. Co. of Hartford, Conn. v. Loxahatchee Marina, Inc.,

236 So. 2d 12 (Fla. 4th DCA 1970)........................................................................... 7
Almond v. State,
1 So. 3d 1274 (Fla. 1st DCA 2009) .......................................................................... 1
Clarke v. Sanders,
363 So. 2d 843 (Fla. 4th DCA 1978)......................................................................... 5

iii

Geldreich v. State,
763 So. 2d 1114 (Fla. 4th DCA 1999) ...................................................................... 3
Keller Indus. v. Volk,
657 So. 2d 1200 (Fla. 4th DCA 1995) ...................................................................... 9
LoBue v. Travelers Ins. Co.,
388 So. 2d 1349 (Fla. 4th DCA 1980) ................................................................... 5,8
Seaboard A.L.R. Co. v. Lake Region Packing Asso.,
211 So. 2d 25 (Fla. 4th DCA 1968)........................................................................... 6
Sorrells v. Montesino,
2 So. 3d 297 (Fla. 4th DCA 2008)............................................................................. 9
Wax v. Tenet Health Sys. Hospitals, Inc.,
955 So. 2d 1 (Fla. 4th DCA 2006)............................................................................. 9
OTHER AUTHORITIES

Page

Florida Statute
90.702 .................................................................................................................. 6, 7
Florida Statute
90.408 ...................................................................................................................... 5

iv

INTRODUCTION
The Appellants, DENNIS J. BODWELL and JULIA A. BODWELL,
(hereinafter referred to as OWNERS") were the Defendants in the Lower Court.
The Appellee, PNC MORTGAGE, A DIVISION OF PNC BANK, L.P.
(hereinafter referred to as BANK) was the Plaintiff in the Lower Court. The
symbol "R" will identify the Record. The Symbol T will identify the Trial
hearing transcript.
STATEMENT OF THE CASE AND OF THE FACTS
This is a Mortgage Foreclosure action which was originally filed by the
BANK on April 19, 2010. (R. 01-05).
The OWNERS, DENNIS J. BODWELL and JULIA A. BODWELL,
originally filed an Answer and Affirmative Defenses on October 15, 2010,
alleging among others the equitable defense of unclean hands. (R. 57-64) The
BANKs Motion to Strike the Affirmative Defenses was denied on June 03, 2011.
On July 10, 2010 the BANK filed a Motion for Summary Judgment of
Foreclosure. (R. 29-30).
On July 27, 2011 the BANK filed another Motion for Summary Final
Judgment, (R. 87-92) and an Amended Motion for Summary Judgment on May
01, 2012 (R. 229-234). The Motion was denied on June 07, 2013. (R. 237)

On May 02, 2013 the case was set for non-jury trial, with a trial date on
June 07, 2013. (R. 336-341)
The trial was continued to July 11, 2013 (R. 391).
During the trial, the OWNERS tried to introduce evidence as to an
agreement with the BANK regarding the amounts owed. The document, signed
by both parties stated that the OWNERS have been approved for a modification.
(T. 101). The trial court decided to exclude this document from evidence as
settlement communication. (T. 104).
The OWNERS called to the stand Mr. Jason Harden, their expert witness.
(T. 112). Mr. Harden holds a Bachelor of Science degree in Business Management
(T. 114), and has more than 20 years experience in the mortgage industry. (T.
113). Over the OWNERS objection, the Court decided to strike the witness and
not allow him to testify (T. 112-148).
A Final Judgment of Foreclosure was entered by Presiding Judge Stasia
Warren, Volusia County Judge. (R. 401-404).
The OWNERS filed a Notice of Appeal on August 12, 2013.

STANDARD OF REVIEW
This appeal involves two decisions of the court below to exclude evidence,
and the OWNERS expert witnesses.

The standard of review for trial court

decisions regarding the courts admission of expert witness testimony is abuse of

discretion. Town of Palm Beach v. Palm Beach County, 460 So. 2d 879 (Fla.
1984).
The abuse of discretion standard is defined in Canakaris v. Canakaris, 382
So.2d 1197, 1203 (Fla. 1980), which states: [d]iscretion. . . is abused when the
judicial action is arbitrary, fanciful, or unreasonable, which is another way of
saying that discretion is abused only where no reasonable man would take the
view adopted by the trial court.

SUMMARY OF ARGUMENT
The court erred in two ways.

The first issue arises from the courts

erroneous exclusion of the OWNERS evidence. The OWNERS tried to introduce

evidence on the fact that the loan subject to this foreclosure action was settled and
a new agreement was entered into.

The document presented was not just

settlement correspondence, but proof of a new agreement that the BANK and the
OWNERS entered into as a result of which the original debt was considered
settled. The court erred when it decided not to accept this document stating that it
was a settlement communication.
The second issue concerns the courts erroneous exclusion of the
OWNERS qualified expert witness testimony. The expert was prepared to give
testimony that would have assisted the court in understanding the OWNERS
position regarding the inconsistencies within the loan product and the unclean
hands defense. His testimony was based on his specialized knowledge gained
from years of experience in the banking industry, in addition to his education.
The court erred when it decided that his testimony was impermissible. An
expert witness is allowed to give opinion testimony so long as it is based on the
experts experience and knowledge. Additionally the experts testimony was
necessary to prove the OWNERS defenses.

The lower courts decision to

preclude it was erroneous.

ARGUMENT
I.

The trial court erred by striking the evidence indicating that the
parties entered into a loan modification agreement.

It was an abuse of the trial courts discretion to preclude the OWNERS

loan modification document from being admitted into evidence.
The right to present evidence and call witnesses is one of the most
important due process rights of a party in a litigation. Herbert v. Garner, 78 So.
2d 727 (Fla. 1955). This Court stated that without the right to present evidences, a
trial would be nothing more than a sham and further mentioned that Excluding
the testimony of a witness is a drastic remedy which should be invoked only under
the most compelling circumstances. Clarke v. Sanders, 363 So.2d 843 (Fla.4th
DCA 1978)(citing LoBue v. Travelers Ins. Co., 388 So. 2d 1349, 1351 (Fla. 4th
DCA 1980)).
During trial the lower court erroneously excluded the loan modification
document from evidence as a settlement communication inadmissible under Fla.
Stat 90.408. (T. 104). However this statute is not applicable in this case. The
statute deals with settlement offers and negotiations which are distinct from
settlement agreements.
The Florida Supreme Court drew a distinction between settlement
5

communications and settlement agreements and concluded that a settlement

agreement is admissible into evidence. Dosdourian v. Carsten, 624 So. 2d 241,
246 (Fla. 1993). In our case the document excluded was a loan modification
approval signed by both parties. (T. 101). It was a document which brought a
resolution to the claims of the parties, and which was agreed to by both parties.
Therefore this document qualifies as a settlement agreement and should have been
allowed into evidence.
It was an abuse of the trial courts discretion to preclude the introduction of
evidence regarding a loan modification agreement the parties entered into.
II.

The Trial Court Erred by Striking the OWNERS Expert

Witness.

It was an abuse of the trial courts discretion to preclude the OWNERS

expert witness testimony. Fla. Stat. 90.702 provides the rule for admission of
expert witness testimony: if specialized knowledge will assist the trier of fact
in understanding the evidence or in determining a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education may testify
about it in the form of an opinion. An expert witness is qualified if the witness
has such skill, knowledge or experience with respect to the subject matter about
which he is called to testify that it appears to the trial court that his opinion will
probably aidin the resolution of an ultimate issue of fact Seaboard A.L.R. Co.
6

v. Lake Region Packing Asso., 211 So. 2d 25, 30-31 (Fla. 4th DCA 1968).
The OWNERS expert witness, Jason P. Harden, was prepared to offer his
specialized knowledge as to the inconsistencies in the loan based on his years of
experience as a loan processor and portfolio underwriter. The expert witness
testimony would have assisted the court in understanding the OWNERS
defenses. Mr. Harden was going to provide specialized knowledge under Fla.
Stat. 90.702, as expert witnesses are permitted to do.
Judge Warren mentioned that the word forensic is better fitted in an NCIS
show (T. 120) when decided if such expert testimony should be allowed.
However, the Florida Supreme Court explained that even if the methods used to
interpret the data from the underlying valid science may not be generally
accepted, any questions about how the expert reached his conclusion go to the
weight a trier of fact should give to the expert witness opinion and not to whether
the opinion is admissible. Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854
So. 2d 1264, 1275-76 (Fla. 2003). The purpose of an expert witness is to aid the
trier of the fact in the quest for truth in those areas which are not of common
knowledge. Aetna Ins. Co. of Hartford, Conn. v. Loxahatchee Marina, Inc., 236
So. 2d 12, 14 (Fla. 4th DCA 1970).
In our case the witness was prepared to give testimony on mortgage

origination and mortgage underwriting, both being processes that are not common
knowledge and integrally related to the OWNERS Affirmative Defenses.
Applying the principle to a case in the area of commercial insurance, in
Aethna, this Court stated: Obscure connotations of an insurance policy can be
greatly illuminated by knowledge of custom and usage in the industry as well as
the expert's knowledge of terms which take on a different hue in the specialized
field than in the field of general knowledge. Id.
In the case at hand the situation is very similar. The expert witness had
specialized knowledge and a life-long experience in the area of mortgage
origination and underwriting. Various obscure connotations of the origination
and underwriting process could have been explained in order to substantiate the
OWNERS defense of unclean hands.
The witness was qualified to provide testimony based on his years of
experience in the mortgage industry, the formal business training and the informal
training that he had with various banks and mortgage brokers he worked with. Mr.
Harden holds a Bachelor of Science degree in Business Management (T. 114), and
has more than 20 years experience in the mortgage industry. (T. 113).
Exclusion of a witness's testimony is a drastic remedy which should be
invoked only under the most compelling circumstances. LoBue v. Travelers

Insurance Co., 388 So. 2d 1349, 1351 (Fla. 4th DCA 1980). If a disclosed expert
witness's trial testimony is even arguably within the scope of expected testimony
disclosed in the designation of the witness, the testimony by the expert witness
should not be excluded. Wax v. Tenet Health Sys. Hospitals, Inc., 955 So. 2d 1
(Fla. 4th DCA 2006).
The right to call witnesses is a fundamental due process right in a trial, and
this Court has ruled that it is one of the most important due process rights of a
party. Keller Indus. v. Volk, 657 So.2d 1200 (Fla.4th DCA 1995). This Court have
further ruled that if an argument can be made as to a disclosed expert witness's
trial testimony being within the designation, exclusion of the testimony by the
witness should not be employed. Sorrells v. Montesino, 2 So. 3d 297 (Fla. 4th
DCA 2008).
When the expert is qualified, testimony may be given in the form of an
opinion based on what the expert knows in his area of expertise, therefore, the
lower courts disqualification of the expert witness was an arbitrary and
unreasonable decision. Mr. Hardens expert opinion was going to focus
objectively on the particular details of the loan and how those details supported
the OWNERS Affirmative Defenses. Accordingly, the exclusion of the expert
witness was improper and an abuse of discretion.

CONCLUSION
For all of the foregoing reasons, the OWNERS ask this Honorable Court to
reverse the decision of the court below, vacate the judgment, and remand for the
Clerk to close this case.

10

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has
been emailed this 31st day of March 2014, to SUZANNE M. DRISCOLL,
ESQUIRE, sdriscoll@shutts.com; mstevens@shutts.com, Shutts & Bowen, LLP,
Attorney for the Appellee, 200 E. Broward Boulevard, Suite 2100, Fort
Lauderdale, Florida 33301 and LAUREN M. HEGGESTAD, ESQUIRE,
servealaw@albertellilaw.com, Albertelli Law, Co-Counsel for the Appellee, P.O.
Box 23028, Tampa, Florida 33623.
THE TICKTIN LAW GROUP, P.A.
600 West Hillsboro Boulevard
Suite 220
Deerfield Beach, Florida 33441-1610
Telephone: (954) 570-6757
/s/ __ BOGDAN ENICA ____
BOGDAN ENICA
Florida Bar No. 0101934
Our Matter No.: 13-0824

11

CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing Appellants Brief complies with
Rule 9.100(1) and Rule 9.210(a)(2), Florida Rules of Appellate Procedure, and
that this Brief has been submitted in Times New Roman 14-point font.
THE TICKTIN LAW GROUP, P.A.
600 West Hillsboro Boulevard
Suite 220
Deerfield Beach, Florida 33441-1610
Telephone: (954) 570-6757
Fax: (954) 570-6760
By: /s/ __ BOGDAN ENICA ____
BOGDAN ENICA, ESQ.

12