Opinion
Nos. 85-2638, 4-86-0244, 4-86-0381, 85-2685, 4-86-0300.
July 22, 1987. Rehearing and Rehearing En Banc Denied September 15, 1987.
Consolidated appeals and cross appeal from the Circuit Court for Palm Beach County; Timothy P. Poulton, Judge.
Jack M. Coe, of Lee, Schulte, Murphy Coe, P.A., Coral Gables, for Tierra Builders, Inc.
Allen R. Tomlinson and Marjorie Gadarian Graham, of Jones Foster, P.A., West Palm Beach, for INA Underwriters Ins. Co.
Rod Tennyson, P.A., and Jane Kreusler-Walsh and John Beranek, of Klein Beranek, P.A., West Palm Beach, for Robert B. Schwimmer and Julie Schwimmer.
We sua sponte consolidate these appeals and affirm. We believe any error in admitting the counterclaim filed by Tierra Builders, Inc. in another action was harmless in view of the overwhelming evidence at trial establishing the same information contained in the counterclaim.
DOWNEY and DELL, JJ., concur.
ANSTEAD, J., dissents in part with opinion.
I would affirm the judgment as to INA Underwriters Insurance Co. and the compensatory damage award as to Tierra Builders, Inc. but reverse as to the punitive damage award against Tierra and remand for a new trial on that issue. Under Florida law unsworn pleadings from another lawsuit are not admissible unless it is demonstrated that the party against whom the pleadings are to be used supplied the information contained therein. Davidson v. Eddings, 262 So.2d 232 (Fla. 1st DCA), cert. denied, 262 So.2d 371 (Fla. 1972); see also Brickley v. Atlantic Coastline R. Co., 153 Fla. 1, 13 So.2d 300 (1943); Sea Cabin, Inc. v. Scott, Burk, Royce Harris, P.A., 496 So.2d 163 (Fla. 4th DCA 1986). I cannot find the error harmless in view of the trial court's statement in the order denying a new trial that the admission of the counterclaim, if error, was not harmless.