JAMET FARAHQAZ

v.

TIM MARK VESCOVI

This cause having been brought to this Court by appeal, and after due consideration the court having issued its opinion; YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this COURT attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the STATE OF FLORIDA. Lower Tribunal Case Number(s): 11-002392-SP 21 WITNESS the Honorable Abby Cynainon, Administrative Judge ofthe Appellate Division ofthe Circuit Court ofthe Eleventh Judicial Circuit of Florida and the seal ofthe said Circuit Court at Miami, this 23"1 dayof February, 2015. A True Copy Attest Harvey Ruvin A Cleric of

LAP

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TO FILE REHEARING MOTION AND

IF FILED, DISPOSED OF

Jamette Farahquaz & Ronald Yaniz, Appellants.

V.

Tim Vescovi, Appellee. / OPINION FILED: ,

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN

AND FOR MIAMI-DADE COUNTY,

FLORIDA

APPELLATE DIVISION

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NW9

HZ O⁵ Clyne, Esq., for Appellant. Tim M. Vescovi, Esq., pro se, for Appellee. Before: CARDONNE ELY, RODRIGUEZ, DIAZ, JJ.

PER CURIAM.

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,..,,,..._ [*3] This matter arises out of a three~car accident which occurred on September 26, 2009 in Miami-Dade County, Florida. The Appellee/Plaintiff, Tim Vescovi’s (“Vescovi”), car, driven by David Gomez, was struck from behind by the Appellant/Defendant, Ronald Yaniz’s (“Yaniz”), car, as a result of it being first struck by a vehicle driven by Midael Concepcion. Vescovi, who was not at the scene of the accident, sued Yaniz and Concepcion in separate trials for damages to his vehicle. Vescovi’s lawsuit was eventually dismissed against Concepcion due to Vescovi’s nonappearances after certain trial dates were set. Vescovi, however, proceeded with his lawsuit against Yaniz. A trial was conducted and, despite the fact that he was not present at the scene of the accident (he was in Orlando at the time, where he resides), Vescovi was allowed to testify. Over Yaniz’s objection, Vescovi drew a diagram of the scene of the accident from knowledge he had acquired by reading the Traffic Accident Report. Further, in testifying, Vescovi stated that he was relying on the previous testimony of Concepcion in the former’s suit against the latter, even though the record indicates that the suit was eventually dismissed with prejudice due to Vescovi’s failure to appear. Yaniz objected to Vescovi’s testimony based on Concepcion’s alleged testimony but, again, the court overruled the objection and allowed the testimony. The trial court eventually ruled in favor of Vescovi and against Yaniz, awarding Vescovi $3,200 for damages sustained to his car, and 3,703.00 in total damages. Yaniz sought to cross~examine Vescovi on the amount of damages sustained by his vehicle but was denied by the court. Yaniz also sought to have this amount proportioned since he argued that there was more than one tortfeasor. However, his request was denied. [*4] Yaniz appeals the judgment, arguing that it should be reversed because Vescovi was incompetent to testify, and his testimony constituted inadmissible hearsay; that Yaniz was denied his constitutional right to cross-examination; and lastly, that the court unlawfully failed to apportion the damages between Yaniz and Concepcion in finding that Yaniz was negligent. We agree with all three of Yaniz’s points and vacate the judgment entered against him and in favor of Vescovi. Pursuant to Section 90.604 of the Florida Statutes, “a witness may not testify to a matter unless evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter.” Here, Vescovi admitted that he was not at the scene, as he was in Orlando, his hometown, at the time of the accident, and that all of his information about the accident came by way of secondary sources. Being in Orlando at the time of the accident, Vescovi, obviously, could not have possessed the capacity to observe or perceive those facts surrounding the accident and recollect What he observed. See § 90.604, Fla. Stat. (notes); State v. Eubanks, 609 So. 2d l07, 110 (Fla. 4m DCA 1992) (citing Ehrhardt, Florida Evidence § 604.1 (1992 ed.) (“[a] witness who has actually perceived and observed a fact is the most reliable source of information.”).) Thus, as a witness, Vescovi was overall incompetent to testify, and the trial court abused its discretion in allowing him to do so, irrespective of the fact that this was his case and he was proceeding pro se. Further, it is clear that Traffic Reports are inadmissible at trial. Section 3 l6.066(4) of the Florida Statutes states: W1Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law [*5] enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal. Here, even though the actual report was not introduced at trial, the trial court should not have allowed Vescovi to openly rely on it, as to allow such is error. See e.g. White v. Cansol. Freighlways Corp. of Delaware, 766 So. 2d 1228, l23l (Fla. 1“ DCA 2000) (mistrial granted for improper and impermissible reference to contents of an Accident Report); Alley v. State, 553 So. 2d 354 (Fla. 4m DCA l989) (holding that admission of incriminating statement made by motorist during accident report phase of officer’s investigation constituted reversible error). With respect to Vescovi’s direct testimony, all of it, in essence, constituted impermissible hearsay, and should have been excluded, (even assuming he was competent to testify in the first place, which he was not). His reliance on, and statements relating to, the Accident Report, as well as the allegedly previous testimony of Concepcion, were all out-of-court statements offered to prove the tmth of the matter asserted, and were not admissible. See §§ 9().80l(l)(c); 90.82, Fla. Stats. (2013). Moreover, Vescovi’s testimony would not fall into any legally-recognized exceptions to the hearsay rule. See generally §§ 90.804(2) (former testimony); 90.803(8) (public records exception to hearsay rule, though Comment noting “nothing in this subsection affects existing statutes that make privileged specific public records, e.g., police accident reports, or that provide for the admissibility of specific government reports”) The trial court did not allow Yaniz to cross-examine Vescovi as to the amount of damages his car sustained in the accident. Vescovi testified that his car sustained $3,200 [*6] in damages, but when Yaniz sought to question him about this, the court prevented him from doing so. This was fundamentally improper and violated basic due process. See generally Davis v. Alaska, 4l5 U.S. 308, 315 ( 1974) (general right to confront witnesses with cross-examination). Finally, Yaniz, pursuant to the seminal case of Fabre v. Marin, 623 So. 2d I182 (Fla. 1993), was entitled to have any negligence from a second identified tortfeasor offset, even if the second toitfeasor was not a party to the lawsuit. Here there was a three-car collision. Notwithstanding the fact that Vescovi’s lawsuit against Concepcion was dismissed, whatever damages Concepcion’s negligence may have proximately caused to Vescovi’s car, Yaniz, as a tortfeasor, was entitled to have this apportioned away under Fabre. However, the trial court did not conduct this required inquiry and found Yaniz responsible for the total amount of damages the car sustained, $3,200. This was reversible error as well. Accordingly, we remand this matter back to the trial court with instructions to vacate the judgment of damages entered in favor of Vescovi and against Yaniz, as the trial court abused its discretion in allowing Vescovi to testify initially, and then with inadmissible hearsay evidence. Further, the trial committed fundamental error in not allowing cross-examination as to the alleged damages sustained by Vescovi’s vehicle, and then not conducting a Fabre analysis.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Cardonne Ely, Rodriguez, Diaz, JJ, concur.