Morris v. Crawford

718 So. 2d 354, 1998 WL 660200
CourtDistrict Court of Appeal of Florida
DecidedSeptember 28, 1998
Docket96-2217
StatusPublished
Cited by4 cases

This text of 718 So. 2d 354 (Morris v. Crawford) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. Crawford, 718 So. 2d 354, 1998 WL 660200 (Fla. Ct. App. 1998).

Opinion

718 So.2d 354 (1998)

Dionne A. MORRIS, Appellant,
v.
Michael CRAWFORD, Appellee.

No. 96-2217.

District Court of Appeal of Florida, Fourth District.

September 28, 1998.

David B. Stearns of Stearns & Zagarolo, P.A., Boca Raton, for appellant.

Anthony B. Borras of Law Offices of Anthony B. Borras, P.A., Plantation, for appellee.

SHAHOOD, Judge.

Appellant, Dionne Morris, appeals from an order dismissing her paternity petition against appellee, Michael Crawford, with prejudice. We hold that the trial court erred in entering an order of dismissal with prejudice, and accordingly reverse and remand with directions to the trial court to reinstate Morris' paternity petition.

After filing a complaint to establish paternity and child support against Crawford, Morris moved to compel Crawford's DNA blood testing. Following a hearing on the motion, the trial court entered an order requiring Crawford to "submit to D.N.A. testing through North Broward Medical Center and GeneScreen, Inc. within 30 days."

Thereafter, Crawford filed a "Notice of Filing" test results from the paternity testing of the parties. The results from GeneScreen indicated that "[t]he alleged father, MICHAEL *355 CRAWFORD, is excluded as the biological father of the child, COURTNEY CRAWFORD, because he lacks the genetic markers that must be contributed to the child by the biological father."

Following the GeneScreen test results, Morris filed a verified motion for additional testing, requesting the court to enter an order for additional HLA or DNA testing to be conducted by an independent laboratory at her expense, pursuant to section 742.12(2), Florida Statutes. As grounds for entry of such order, Morris alleged that she had not engaged in sexual intercourse with anyone other than Crawford and would provide sworn testimony to that effect. In addition, pursuant to section 742.12(2), Morris timely filed her notice of objections to the initial test results.

Morris filed a notice of taking Crawford's deposition. Crawford moved for protective order, which the trial court granted, on the grounds that Crawford should not be required to submit to a deposition since the DNA test determined that he was not the father of Morris' minor child. Crawford also moved for summary judgment based on the DNA test results finding that he was not the biological father. Morris moved for rehearing on the protective order, alleging that Crawford's deposition was necessary in order to prepare for a hearing on her verified motion for additional testing, which motion was denied.

In response to the motion for summary judgment, Morris filed an affidavit in opposition, maintaining that she did not engage in sexual intercourse with anyone other than Crawford prior to the time she became pregnant.

At the hearing on the motion for summary judgment, Morris objected to the entry of summary judgment prior to her request for additional testing being heard. Notwithstanding her objection, the trial court sua sponte converted the summary judgment motion to a motion to dismiss under section 742.12 and dismissed the action with prejudice. While the trial court stated that it considered Morris' affidavits, it specifically explained its reasoning for dismissing the action as follows: "I'm ruling that there is no material issue of fact with regard to the scientific testing that was asked for, done and came in within a degree much greater than any affidavit."

The main thrust of Morris' argument is two-fold: (1) that Crawford failed to establish a proper predicate in order for the DNA test results to be admissible and (2) upon Morris' timely objection to said test results, and upon her request for additional testing, the trial court should not have dismissed the case with prejudice.

Section 742.12, Florida Statutes (1995), relied upon by the court in dismissing the cause, states in pertinent part:

(2) The test results, together with the opinions and conclusions of the test laboratory, shall be filed with the court. Any objection to the test results must be made in writing and must be filed with the court at least 10 days prior to the hearing. If no objection is filed, the test results shall be admitted into evidence without the need for predicate to be laid or third-party foundation testimony to be presented ...
(3) Test results are admissible in evidence and should be weighed along with other evidence of the paternity of the alleged father unless the statistical probability of paternity equals or exceeds 95 percent. A statistical probability of paternity of 95 percent or more creates a rebuttable presumption, as defined by s. 90.304, that the alleged father is the biological father of the child. If a party fails to rebut the presumption of paternity which arose from the statistical probability of paternity of 95 percent or more, the court may enter a summary judgment of paternity. If the test results show the alleged father cannot be the biological father, the case shall be dismissed with prejudice.
(4) Subject to the limitations in subsection (2), if the test results ... [are] disputed, the court, upon reasonable request of a party shall order that an additional test be made by the same laboratory or an independent laboratory at the expense of the party requesting the additional testing.
(5) Verified documentation of the chain of custody of the blood or other specimens is *356 competent evidence to establish the chain of custody.

Proper predicate for admissibility

Morris argues that the trial court erred in dismissing the cause by overlooking specific evidentiary requirements regarding the admission of the paternity test results. As discussed below, before the trial court could rely upon the language from section 742.12(3) which states, "[i]f the test results show the alleged father cannot be the biological father, the case shall be dismissed with prejudice," a proper predicate needed to be laid in order to admit the results of the paternity test. See §§ 742.12(2) and (5), Fla. Stat. (1995).

Subsections (2)[1] and (5) of 742.12 make it clear that upon timely objection to paternity test results, the paternity test results shall be admitted upon a proper predicate being laid or upon third-party foundation testimony being presented.

Crawford incorrectly argues that in accordance with subsection 742.12(3), if the test results show that the putative father cannot be the biological father, then the case shall be dismissed with prejudice, and the court need not look towards any evidence outside the four corners of the complaint. Alternatively, he claims that the affidavit of the director of GeneScreen was sufficient to lay a proper predicate. We disagree.

In Dutilly v. Department of Health & Rehabilitative Services, 450 So.2d 1195 (Fla. 5th DCA 1984), the defendant/putative father appealed from summary judgment entered in favor of the plaintiff/mother in a contested paternity action. In reversing, the Fifth District held that the plaintiff could have properly presented the blood test results by either (1) submitting the affidavit of the technician who actually performed the tests or (2) by submitting the affidavit of the custodian of the blood test report, thereby establishing the foundation by which the report itself could be admissible under section 90.803(6), Florida Statutes, the business records exception to the hearsay rule. See id. at 1196.

In Dutilly,

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Cite This Page — Counsel Stack

Bluebook (online)
718 So. 2d 354, 1998 WL 660200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-crawford-fladistctapp-1998.