Dear Committee Members:
Abracadabra! With a flick of the hand the admission of business records was simplified, at least within the jurisdiction of the Second District Court of Appeal following Jackson v. Household Finance Corp III, 43 Fla. L Weekly D261 (Fla. 2nd DCA, January 31, 2018). This decision likely will ease concerns within the First and Second Districts when planning how to lay a foundation for admission of records when management or administrators change, such as management companies or loan servicers.
While the mere incantation of statutory “magical words” will now pave the way for consideration of records in the Second District, the Court avoided comment on the policy implications which eventually must be addressed by the Florida Supreme Court because Jackson creates a conflict between with the Fourth District Court of Appeal.
HFC sought to introduce lender transaction records in a mortgage foreclosure action. HFC’s witness’s testimony mimicked word for word the regularly conducted business activities exception to the hearsay rule, §90.803(6) Fla. Stat. (2014). HFC’s witness did not explain how the witness obtained personal knowledge of record keeping systems. The trial court admitted the records.
Affirming, the Appellate Court set out a two part test for admission. Reviewing precedent, first, a proponent’s burden of proof for the admissions of a business record may be laid with the “magical words” reciting the text of the statutory exception of the hearsay rule. Once that predicate is established, then, second, if there is an objection to admission of the record the burden of proof shifts to the opponent to undermine the witness’s credibility. An example of an opponent’s strategy may be by demonstrating that the witness was unqualified by inadequate personal knowledge or otherwise.
The Jackson Court relied in part on Nordyne, Inc. v. Fla. Mobile Home Supply, Inc., 625 So. 2d 1283, 1288 (Fla. 1st DCA 1993). Nordyne recounted the testimony of the records custodian which when compared to the statutory hearsay exception, appears to track the statute’s text; thus, the testimony satisfied the statutory requirements and that court reasoned, should have been admitted. Therefore, though the term “magical words” was not utilized in Nordyne, that is apparently sufficient in the jurisdiction of the First District Court of Appeal. It is noted that the Second District doubled down on Jackson recently in Knight v. GTE Federal Credit Union, case no. 2D16-3241 (Fla. 2nd DCA, February 14, 2018).
The Jackson Court sought to distinguish and certified conflict with Maslak v. Wells Fargo Bank, N.A., vg190 So. 3d 656 (Fla. 4th DCA 2016), which in turn relied upon Sanchez v. Suntrust Bank, 179 So.3d 538 (Fla. 4th DCA, 2015). Thus, the Jackson decision will likely not have state wide application, especially within the jurisdiction of the Fourth District. Trial courts within the First District will likely follow Nordyne.
As a practical matter, this statute reinforces the teaching that proponents offering to introduce business records should have the hearsay exception statute ready to recite the magical words (not abracadabra!). Also, the Court reminds litigants of what may be overlooked, that business records may be admitted by a “certification or declaration,” without a live witness, so long as notice of an opportunity for inspection in advance is provided pursuant to §90.803(6)(c) and §90.902(11).
In conclusion, it appears that the broad approach for admissibility of business records that began with Glarum v. LaSalle Nat’l. Ass’n. 83 So.3rd 780 (Fla. 4th DCA 2011), continues. As to whether this trend stays true to the policy of ensuring genuineness and authenticity is a question apparently for another time.
We await word from the Supremes!
Michael J. Gelfand
Real Property, Probate and Trust Law Section of The Florida Bar
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© 2018 Michael J. Gelfand
Michael J. Gelfand
Florida Bar Board Certified Real Estate Attorney
Florida Supreme Court Certified Mediator:
Civil Circuit Court & Civil County Court
Fellow, American College of Real Estate Attorneys