IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY

 

CHARLES D. NEAR, SR., and PENNY NEAR,
Appellants,

 Case No. 00-1732CA     Division P

vs.                 

Lower Case No. 97-1853CC

STACY STINSON,
Appellee.

Opinion Filed May 10, 2001

Steven Herman, Esquire,
Steven Herman, P.A.,
for Appellant.

Charles D. Waller, Esquire,
Charles D. Waller, P.A.,
for Appellee.

The Honorable Robert P. Cole,
County Judge, presiding.

ORDER AFFIRMING DECISION OF LOWER COURT

            This petition for writ of certiorari must be denied.  The action below is for foreclosure of a mortgage.  The trial court initially granted a directed verdict for the appellant (defendant below) based on some evidentiary rulings prohibiting the introduction of evidence by the appellee (plaintiff below).  The trial court then granted a motion for a new trial filed by the appellee and in doing so reversed itself on the admissibility of some records.  In this petition, the appellant seeks reversal of that new trial order.  The standard for review of a trial judge’s ruling on the admissibility of evidence has been made clear by the Florida Supreme Court.  “A trial judge’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.”[1]  An exception to this standard exists for appellate review of a trial judge’s ruling on the admissibility of opinion and expert testimony, commonly referred to as a Frye ruling,[2] when the qualifications of the expert or the reliability of the methodology or principle used by the expert is in question..  Frye rulings are reviewed by appellate courts using a de novo or “as matter of law” standard.[3]  However, even though a certified public accountant was one of the proffered witnesses, the decision from which this petition is taken does not appear to have involved Frye issues.  Furthermore, “A motion for a new trial is addressed to the sound discretion of the trial judge and will not be disturbed absent a clear showing of abuse of discretion. Cloud v. Fallis, 110 So.2d 669 (Fla. 1959); Mead v. Bently, 61 So.2d 428 (Fla. 1952).  If reasonable men could differ as to the propriety of the action taken by the trial court, then there is no abuse of discretion. Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla. 1981).”[4]

            The decision of the trial court in the instant case to reverse itself and grant a new trial is well within the bounds of sound discretion.  Therefore, the order of the trial judge granting a new trial is hereby AFFIRMED.

 

____________________________
Wayne L. Cobb, Circuit Judge

Copies to:
Steven Herman, Esquire

Charles D. Waller, Esquire

The Honorable Robert P. Cole



[1] Blanco v. State, 452 So.2d 520, 523 (Fla. 1984);  Booker v. State, 397 So.2d 910 (Fla. 1981), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981).

[2] Frye v. United States, 293 Fed. 1013 (D.C.Cir. 1923).

[3] Brim v. State, 695 So.2d 268 (Fla. 1997).

[4] Qualls v. Stancato, 450 So.2d 1197, 1201 (Fla. 1st DCA 1984).