FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D22-2104

LT Case No. 2019-CA-055393

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LINDSAY SANGER,

Appellant,

v.

JUSTIN ASHER and PRENTICE 

SANGER a/k/a PRENT SANGER,

Appellees. 

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On appeal from the Circuit Court for Brevard County. 

Bruce W. Jacobus, Judge.

Allan P. Whitehead and Erika McBryde, of Frese, Whitehead, 

Anderson & Henderson, P.A., Melbourne, for Appellant.

David B. Russell, of Pappas & Russell, P.A., Daytona Beach, for 

Appellees. 

March 22, 2024

KILBANE, J.

Appellant Lindsay Sanger (“Lindsay”) appeals various orders 

and the final judgment entered by the trial court after a non-jury 

trial. For the reasons explained below, we affirm the final 

judgment as it pertains to the security agreement and settlement 
2

and reverse with respect to the four promissory notes with 

instructions to dismiss those claims with prejudice.

Facts

Justin Asher (“Asher”), plaintiff below, allegedly purchased, 

for ten dollars, a security agreement evidencing a debt of $75,000 

and four promissory notes totaling $300,000 from E.H. Daley (now 

deceased), the lender. Lindsay was the purported maker and 

signor on the security agreement and the notes were allegedly 

signed by both Lindsay and her then-husband, Prentice Sanger 

(“Prentice”).1 Asher’s purchase of these documents and Daley’s 

assignments to Asher allegedly occurred on October 4, 2019. Asher 

then filed a five-count complaint2 on November 19, 2019, to collect.

On August 10, 2021, Asher filed a notice of filing the originals 

of the security agreement and the four notes, allonges, and 

assignments with the clerk. On August 13, 2021, Asher filed a 

Pre-Trial Statement identifying his expert witness, a document 

examiner. On August 18, 2021, Lindsay filed her witness list, 

identifying her own document examiner. On the same date, 

Lindsay also filed her pre-trial statement, which included the 

issue, “Are the notes and security agreement submitted to the 

Court, indeed, original documents.”

The case proceeded to a one-day non-jury trial on September 

9, 2021. At trial, the introduction and authentication of the 

documents, particularly the notes, was the subject of contention 

and expert testimony. Asher presented his expert, who testified 

that he inspected the security agreement and the notes in June 

2021 and concluded from that inspection that the signatures were 

not stamped or electronic, but did not testify that the documents 

were originals. With respect to the security agreement, Lindsay 

testified that she was aware of, prepared, and signed that 

agreement, but claimed the document Asher sought to introduce 

was a copy. Asher then rested. Lindsay moved to dismiss on the 

1 Prentice has not appeared in this appeal.

2 The complaint sought judgment against Lindsay, solely, on 

the security agreement (count 1) and against both Lindsay and 

Prentice on the promissory notes (counts 2-5).
3

ground that Asher failed to present the originals of the security 

agreement and notes. The trial court denied the motion.

Lindsay then called her expert, who testified that she 

inspected the documents attached to Asher’s August 10, 2021,

filing and opined that those documents were photocopies, not 

originals. Lindsay then rested.

After the close of evidence, Lindsay again asserted that the 

security agreement and notes were not originals, and the case 

should be dismissed. In response, Asher’s counsel made an ore 

tenus motion to amend the pleadings to include a claim for lost 

notes. Asher never took the position at trial that the documents 

were anything but originals. The trial court denied the ore tenus

motion and took the case under advisement. The day after trial, 

Asher and Prentice filed a notice of a confidential settlement 

agreement evidencing a settlement they had reached on 

September 7, 2021, two days prior to trial.

On December 1, 2021, the trial court issued its Order on NonJury Trial, ruling that the four notes introduced were not originals 

and thus unenforceable against Lindsay and Prentice but ruled 

that they were jointly liable on the $75,000 debt evidenced by the 

security agreement. Additionally, the trial court reversed its 

earlier ruling and permitted Asher to make a lost notes claim.

In response, instead of proceeding with a lost notes claim, on 

December 16, 2021, Asher filed an unsworn motion for rehearing 

alleging on December 11, 2021, over three months after the 

conclusion of the nonjury trial, that he had found the original 

documents, that he had been in possession of them since October 

4, 2019, and that he had mistakenly placed them in a “copies” file, 

while placing the copies in his “originals” file. The trial court 

granted the motion for rehearing.

Asher then filed an Amended Notice of Filing Original 

Promissory Notes which included what he now claimed were the 

original documents. The trial court held a non-evidentiary hearing 

and admitted the late-discovered security agreement and four 

promissory notes without authentication and over Lindsay’s 

objection.
4

The trial court then issued its final judgment, in which it 

denied Lindsay’s pending motions to reopen discovery and for 

mistrial, declared the documents attached to Asher’s January 27, 

2022, filing to be originals, and held Lindsay liable on both the 

security agreement and notes, for a total of $375,000. The trial 

court noted Asher and Prentice’s aforementioned settlement 

agreement which extinguished Prentice’s liability on the debts for 

$37,000, thereby reducing Lindsay’s liability to $338,000.3

Analysis

We review issues of legal error in a non-jury trial de novo. 

PNC Bank, Nat’l Ass’n v. Smith, 225 So. 3d 294, 296 (Fla. 5th DCA 

2017). Issues regarding reopening of evidence after close of proof 

are reviewed for abuse of discretion. Loftis v. Loftis, 208 So. 3d 

824, 826 (Fla. 5th DCA 2017).

A. The Security Agreement

Lindsay contends that the security agreement, like the notes, 

had to be an original and therefore the trial court erred in 

admitting it into evidence without authentication. However, the 

original security agreement was not required. Section 90.953(1), 

Florida Statutes (2021) states, in pertinent part, “[a] duplicate is 

admissible to the same extent as an original, unless: (1) [t]he 

document or writing is a negotiable instrument . . . or any other 

writing that evidences a right to the payment of money, [and] is 

not itself a security agreement.” (emphasis added). This is true so 

long as a genuine question is not raised about the authenticity of 

the original. § 90.953(2), Fla. Stat. (2021).

3 Lindsay asserted below that the settlement agreement

between Asher and Prentice constituted a “Mary Carter” 

settlement, void against public policy, and sought a new trial as a 

result. See Dosdourian v. Carsten, 624 So. 2d 241 (Fla. 1993).

While the terms of settlement agreement, its secrecy, and 

particularly the conduct of Asher and Prentice at trial in 

performance of that settlement agreement had all the trappings of 

a Mary Carter settlement, we need not reach that issue here and 

do not disturb the settlement.
5

Thus, while originals of the four promissory notes, as 

negotiable instruments, were required, a duplicate security 

agreement was admissible in a case such as this. Lindsay duly 

authenticated the copy of the security agreement presented at 

trial, acknowledging that she had both prepared and signed it. 

Accordingly, the copy of the security agreement was sufficient to 

evidence the debt. As such, the portion of the judgment against 

Lindsay for the $75,000 debt, evidenced by the security agreement,

is affirmed.4

B. The Four Promissory Notes

Unlike the security agreement, section 90.953 requires 

introduction of original promissory notes. Without question, Asher 

failed to present the original notes during the nonjury trial in this 

case. Therefore, the enforceability of those notes must be 

determined by the propriety of the trial court’s decision to reopen 

the evidence to allow Asher to present what he now claims to be 

the original notes months after the conclusion of the trial.5

4 Although count 1 of the complaint sought recovery solely 

against Lindsay on the $75,000 debt evidenced by the security 

agreement, in its December 1, 2021, order the trial court found 

both Lindsay and Prentice liable on that debt. Moreover, the 

settlement agreement between Asher and Prentice expressly 

states that Prentice entered into the security agreement and was 

being released from liability on that debt, as well as the promissory 

note debts. In the rendition contained in its final judgment, the 

trial court referenced its December 1, 2021, order but then held 

Lindsay solely liable on all of the debts, referencing Prentice’s 

settlement with Asher. As noted, supra, we do not disturb the 

settlement agreement between Prentice and Asher. Therefore, as 

indicated in the final judgment, Lindsay is entitled to a credit for 

the $37,000 settlement between Prentice and Asher, limiting her 

total liability on the security agreement to $38,000.

5 Though not ultimately pursued by Asher, the trial court’s 

earlier, December 1, 2021, ruling permitting Asher to assert a lost 

notes claim was itself error. See Turna v. Advanced Med-Servs., 

Inc., 842 So. 2d 1075, 1076 (Fla. 2d DCA 2003) (finding an abuse 
6

In deciding whether to reopen a case, a trial court must 

consider “(1) the timeliness of the request, (2) the character of the 

evidence sought to be introduced, (3) the effect of allowing the 

evidence to be admitted, and (4) the reasonableness of the excuse 

justifying the request to reopen.” Loftis, 208 So. 3d at 826. 

(quoting Grider-Garcia v. State Farm Mut. Auto., 73 So. 3d 847, 

849 (Fla. 5th DCA 2011)). While the trial court’s discretion to 

reopen a case is broad, it “is not unlimited, for it may allow 

reopening only ‘where this can be done without injustice to the 

other party.’” Allen v. Allen, 346 So. 3d 667, 669 (Fla. 1st DCA 

2022) (quoting Silber v. Cn’R Indus. of Jacksonville, Inc., 526 So. 

2d 974, 978 (Fla. 1st DCA 1988)) (finding no abuse of discretion in 

refusing to reopen case which would have allowed husband to retry 

a central issue in the case).

Here, Asher’s request to reopen the evidence was untimely, 

having been made over three months after conclusion of the 

September 9, 2021 trial and seemingly only in response to the trial 

court’s final judgment. Further, the character of the evidence

sought to be introduced upon reopening, the purported discovery 

of the originals of each of the instruments central to the case, and 

the effect of reopening itself was prejudicial. It wrongly gave Asher 

an unjustified second bite at the apple after failing to meet his 

evidentiary burden at trial. See Turna, 842 So. 2d at 1076; St. Joe 

Paper Co., 299 So. 2d at 93. Finally, Asher’s failure to present the 

originals at trial, given his knowledge of them and the length of 

time that had passed, was insufficient to warrant reopening the 

evidence. The discovery and expert review which would be 

required, although denied by the judge in this case, regarding not 

only the originality and authenticity of the newly discovered notes, 

but also the circumstances surrounding how Asher managed to 

locate them in his own possession three months post-trial, would 

of discretion to grant motion to amend after trial when no evidence 

was presented at trial that would support such a claim); St. Joe 

Paper Co. v. Connell, 299 So. 2d 92, 93 (Fla. 1st DCA 1974) (holding 

“[a] second bite at the apple may not be granted simply because 

the plaintiffs have failed to meet their burden of proof,” noting that 

such a practice would open the door to endless, successive efforts 

if the second bite also failed).
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be tantamount to holding an entirely new trial.6 Thus, the trial 

court abused its discretion in granting Asher’s motion for 

rehearing and Asher’s failure to carry his burden at trial properly 

results in a dismissal of those counts.

Conclusion

Accordingly, the trial court’s final judgment is affirmed with 

respect to the $75,000 debt evidenced by the security agreement 

and the setoff of Prentice’s settlement, but is reversed as to the 

four promissory notes. The case is remanded with instructions to 

enter a final judgment of dismissal of Asher’s complaint on those 

promissory notes, with prejudice.

AFFIRMED in part, REVERSED in part, and REMANDED, with 

instructions.

WALLIS and PRATT, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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6 The facts here are distinguishable from Hernandez v. 

Cacciamani Development Co., 698 So. 2d 927 (Fla. 3d DCA 1997),

relied upon by Asher. In Hernandez, the originality of the notes in 

that case was not in dispute, the failure to seek their admission 

was an inadvertent oversight, and the plaintiff promptly moved to 

reopen to admit the originals four days after the trial court 

dismissed the case for lack of originals. Id. at 928. This is simply 

a horse of a different color.