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During trial in Florida, if seeking to admit documentary evidence that falls within the exceptions to the best evidence rule (such as a negotiable instrument) the original must be used. Unless opposing counsel stipulates to using a copy during trial while also stipulating to the court file containing the original, it is likely the admission of the document will be deemed reversible error.

Negotiable instruments and objections based on the best evidence rule

In the case of Luis H. Morales and Cecilia Morales v. Fifth Third Mortgage Company, Florida’s Fourth District Court of Appeals discussed the issue of negotiable instruments and objections based on the best evidence rule. 

The document at issue was a promissory note. The appellants timely objected (based on the best evidence rule, section 90.953) to the bank admitting a copy of the note into evidence. In response to the objection, the bank’s counsel represented the bank was using the copy during trial only because the clerk of court was unable to obtain the original from its’ off-site storage. The bank’s counsel further represented the original would be placed in the court file as soon as it was retrieved by the clerk. The trial court permitted the bank to proceed with the copy, but ordered that the original was to be filed with the court file prior to judgment being entered. Ultimately, the trial court entered judgment even though the original note had not been filed with the court. The Fourth District Court of Appeals reversed and remanded for a new trial because the trial court improperly admitted the copy of the note over objection and in violation of §90.953(1).

F.S. §90.953(1) provides that “a duplicate is admissible to the same extent as an original unless”… “the document or writing is a negotiable instrument… or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.”

Based on the language of the statute, there is no reasonable doubt that an original (negotiable instrument) is required.

The appellate court mentions the error, in part, involved the trial court reserving ruling on the best evidence rule objection while also stating judgment would not be entered until the original was filed with the court, yet entered judgment in favor of the bank without ever confirming the original had been filed.

Key takeaway

A court cannot make a factual finding based on counsel’s unsworn statements, as was done here pertaining to the whereabouts of the original and the legitimacy of the copy. However, Morales v. Fifth Third Mortgage serves as an important reminder regarding the best evidence rule and negotiable instruments - you must have the original document.
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