IN THE SUPREME COURT OF FLORIDA CASE NO. SC Lower T.C. No. 3D Florida Bar No

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC Lower T.C. No. 3D Florida Bar No MICHAEL L. WEATHERLY and CARLA WEATHERLY, vs. Petitioners, JOSEPH G. LOUIS and JEANNE DURELLAN, Respondents. / BRIEF AND APPENDIX OF PETITIONERS ON JURISDICTION (Conflict Certiorari) ARNOLD R. GINSBERG, ESQ. Ginsberg & Schwartz Two Datran Center, Suite So. Dadeland Boulevard Miami, Florida (305) and- MARC A. CHANDLER, ESQ. Pape & Chandler, P.A. One Financial Plaza, Suite 2210 Ft. Lauderdale, Florida (954) Attorneys for Petitioners TABLE OF CONTENTS

2 Page TABLE OF CITATIONS AND AUTHORITIES... -ii- INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT ARGUMENT/JURISDICTIONAL STATEMENT/APPLICABLE (APPELLATE) STANDARD OF REVIEW THE OPINION RENDERED HEREIN IS IN EXPRESS AND DIRECT CONFLICT WITH SMITH v. BROWN, 525 So.2d 868 (Fla. 1988), PENA v. VECTOUR OF FLORIDA, INC., 30 So.3d 691 (Fla. App. 1 st 2010), AND FORD v. ROBINSON, 403 So.2d 1379 (Fla. App. 4 th 1981). CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE APPENDIX... A.1-6 -ii-

3 TABLE OF CITATIONS AND AUTHORITIES Cases Page FORD v. ROBINSON, 403 So.2d 1379 (Fla. App. 4 th 1981)... 3 HAHN v. MEDEIROS, 858 So.2d 1242 (Fla. App. 5 th 2003)... 7 PENA v. VECTOUR OF FLORIDA, INC., 30 So.3d 691 (Fla. App. 1 st 2010)... 3, 8 SHUMACHER v. PASSOW, 68 So.2d 899 (Fla. 1954)... 6 SMITH v. BROWN, 525 So.2d 868 (Fla. 1988)... 3, 6 TAMPA WATERWORKS CO. v. MUGGE, 53 So. 943 (Fla. 1910)... 6 WEATHERLY v. LOUIS, 31 So.3d 803 (Fla. App. 3 rd 2009) iii-

4 I. INTRODUCTION The Petitioners, Michael L. Weatherly and Carla Weatherly, were the Plaintiffs in the trial court and were the Appellants in the District Court of Appeal, Third District. The Respondents, Joseph G. Louis and Jeanne Durellan, were the Defendants/Appellees. In this Brief of Petitioners [on Jurisdiction, Conflict Certiorari], the parties will be referred to as the Plaintiffs and the Defendants and, where necessary for clarification or emphasis, by name. The symbol A will refer to the rule-required Appendix which accompanies this Brief. All emphasis has been supplied by counsel unless indicated to the contrary. II. STATEMENT OF THE CASE AND FACTS From the opinion sought to be reviewed, now reported, See: WEATHERLY v. LOUIS, 31 So.3d 803 (Fla. App. 3 rd 2009) (A. 1-6) we learn the following: A. On November 19, 2003, a motorcycle driven by Michael Weatherly, and an SUV driven by Defendant Louis, collided on Krome Avenue, in Homestead, Florida. Weatherly sued Louis and the owner of the vehicle, Durellan. Following a trial, the jury returned a verdict finding that Louis was not -iv-

5 negligent (A. 2, 3). B. Plaintiffs filed a motion to set aside the verdict or, in the alternative, for a new trial, arguing that the verdict was against the manifest weight of the evidence. The trial court denied the motion and entered a final judgment in favor of Louis and Durellan. This appeal ensued. (A. 3). C. In affirming the trial court, the Third District stated: On appeal, Weatherly argues that the trial court abused its discretion in denying the motion for a new trial. Weatherly contends that the verdict was against the manifest weight of the evidence, and the trial court, therefore, failed to apply the correct legal standard in denying his motion for a new trial. Because a review of the record establishes that there was conflicting evidence presented at trial, we cannot conclude that the trial court abused its discretion... Notwithstanding the conflicting evidence present in this case, the dissent contends that the trial court abused its discretion because the trial court failed to articulate specifically, either orally or in its written order, that the jury s finding was not contrary to the manifest weight of the evidence. We respectfully disagree. First, there is nothing in the record that remotely suggests that the trial court misunderstood the test applied to a motion for new trial. Not only is the trial Judge an experienced jurist, but Weatherly s own motion below articulated the standard he asked the trial court to apply. Weatherly merely disagrees with the outcome of the trial court s ruling. -2-

6 Second, there are no magic words a trial court must recite in denying or granting a motion for a new trial. Indeed, such a requirement would elevate form over substance... (A. 4). D. The majority opinion continues on and discusses, contention by contention, the dissent and its focus. The majority states:...respectfully, the dissent ignores the conflicting evidence from both Louis and Fitzsimmons. It is not for this Court to decide which sides evidence is more persuasive or whether the trial court reached the result this Court would have reached. Our role is limited to determining whether conflicting evidence was presented at trial - - if so, we cannot find an abuse of discretion... (A. 4). E. The affirmance, for the express reasons stated, puts this case squarely in conflict with cases such as SMITH v. BROWN, 525 So.2d 868 (Fla. 1988); PENA v. VECTOUR OF FLORIDA, INC., 30 So.3d 691 (Fla. App. 1 st 2010) and FORD v. ROBINSON, 403 So.2d 1379 (Fla. App. 4 th 1981). In SMITH v. BROWN, supra, this Court stated: Clearly, it is a jury function to evaluate the credibility of any given witness (citation omitted). Moreover, the trial Judge should refrain from acting as an additional juror (citation omitted). Nevertheless, the trial Judge can and should grant a new trial if the manifest weight of the evidence is contrary to the verdict (citation omitted). In -3-

7 making this decision, the trial Judge must necessarily consider the credibility of the witnesses along with the weight of all of the other evidence (citation omitted). The trial Judge should only intervene when the manifest weight of the evidence dictates such action. However, when a new trial is ordered, the abuse of discretion test becomes applicable on appellate review. The mere showing that there was evidence in the record to support the jury verdict does not demonstrate an abuse of discretion (citation omitted) So.2d at page 870. As will be argued in a more appropriate section of this Brief, [and contrary to what the majority in the subject opinion stated,] there exists in Florida jurisprudence a clear distinction between determining that the evidence is legally sufficient to support the verdict and a trial court s determination that the verdict is contrary to the manifest weight of the evidence. In this case, as is clear from the face of the opinion (as emphasized by the majority in its attempt to dissect the dissenting opinion) the trial court never exercised its discretion regarding its ability to grant a new trial on the basis of the manifest weight of the evidence and hence abused its discretion in failing to exercise its discretion! III. SUMMARY OF ARGUMENT As the majority opinion reflects, the Plaintiffs, at trial, contended that the verdict returned by the jury was against the manifest weight of the evidence even -4-

8 though there was conflicting evidence. The trial court determined that there was conflicting evidence and that ended its inquiry! The District Court of Appeal, Third District, determined that its role was limited to determining whether conflicting evidence was presented at trial. (A. 4). Both the trial court and the District Court applied incorrect standards in ruling on the matters presented. The Third District holds that where, as here, a trial court finds conflicting evidence an appellate court must affirm even though the trial court did not, as the dissent herein correctly notes, exercise its discretion (one way or the other) in determining if the verdict was against the manifest weight of the evidence. Finding the existence of conflicting evidence does not fulfill a trial court s obligation to determine whether a verdict is against the manifest weight of the evidence. Conflict exists here, not because the trial court did not grant the Plaintiffs motion for a new trial on the basis that the verdict was against the manifest weight of the evidence but, because the trial court did not rule on that aspect of the Plaintiffs motion. When the Plaintiffs brought that issue to the District Court it decided the case on the basis that there was conflicting evidence. Consequently, it should be found that there exists a misapplication of Florida precedent and that conflict, in the constitutional sense, is present herein. This Court should exercise its jurisdiction and review this case. -5-

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10 IV. ARGUMENT/JURISDICTIONAL STATEMENT/APPLICABLE (APPELLATE) STANDARD OF REVIEW THE OPINION RENDERED HEREIN IS IN EXPRESS AND DIRECT CONFLICT WITH SMITH V. BROWN, PENA V. VECTOUR OF FLORIDA, INC., AND FORD V. ROBINSON, SUPRA. As stated, supra, because there exists a recognized distinction between (A) a determination that the evidence is legally sufficient to support the verdict and (B) a determination that the verdict is contrary to the manifest weight of the evidence, it is clear that the opinion of the District Court of Appeal, Third District, is in direct and express conflict with the opinions cited given its statement: Our role is limited to determining whether conflicting evidence was presented at trial - - if so, we cannot find an abuse of discretion... (A. 4). The threshold issue before the trial court was whether the verdict returned by the jury was against the manifest weight of the evidence. The standard for review applicable to the trial court s failure to apply the correct legal principles in determining whether or not to grant the Plaintiffs motion for new trial was de novo. See: SMITH v. BROWN, supra and SHUMACHER v. PASSOW, 68 So.2d 899 (Fla. 1954), citing TAMPA WATERWORKS CO. v. MUGGE, 53 So. 943 (Fla. 1910): -7-

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12 In failing to exercise his judicial discretion in this respect, he deprived the defendant of a most valuable right, and was in error... In accord: HAHN v. MEDEIROS, 858 So.2d 1242 (Fla. App. 5 th 2003). With all due respect to the District Court of Appeal, Third District, its role was not limited to determining whether conflicting evidence was presented at trial. Its role was to determine whether or not the trial court applied the correct legal standards. One does not need to turn to the dissent (although in so doing it becomes crystal clear where the trial court erred) to determine what the Plaintiffs argument in the trial court was. The Plaintiffs contended that the verdict returned by the jury, even though there was conflicting evidence, was against the manifest weight of the evidence. The trial court determined that there was conflicting evidence and that ended its inquiry! The District Court of Appeal, Third District, determined that its role was limited to determining whether conflicting evidence was presented at trial. (A. 4). Both the trial court and the District Court applied incorrect standards in ruling on the matters presented. The Third District holds that where, as here, a trial court finds conflicting evidence an appellate court must affirm even though the trial court did not, as the dissent correctly notes, exercise its discretion (one way or the other). Finding conflicting evidence does not fulfill a trial court s obligation to determine whether a verdict is against -9-

13 the manifest weight of the evidence. Conflict exists here, not because the trial court did not grant the Plaintiffs motion for a new trial on the basis that the verdict was against the manifest weight of the evidence but because the trial court did not rule on that aspect of the Plaintiffs motion. When the Plaintiffs brought that issue to the District Court it decided the case on the basis that there was conflicting evidence. Such a finding did not resolve the manifest weight issue. As the Court stated in PENA, supra:... it is the trial court that determines whether a jury s verdict is supported by the manifest weight of the evidence. (citation omitted). 30 So.3d at page 692. Where the opinion sought to be reviewed reflects that the dispositive issue, [to wit: whether the verdict returned by the jury was against the manifest weight of the evidence] was decided upon a mere finding that there was conflicting evidence it should be found that there exists a misapplication of Florida precedent and that conflict, in the constitutional sense, is present herein. This Court should exercise its jurisdiction and review this case. -10-

14 V. CONCLUSION Based upon the foregoing reasons and citations of authority, the Plaintiffs respectfully urge this Honorable Court to accept jurisdiction and to review the merits of this case. Respectfully submitted, ARNOLD R. GINSBERG, ESQ. Ginsberg & Schwartz Two Datran Center, Suite So. Dadeland Boulevard Miami, Florida (305) and- MARC A. CHANDLER, ESQ. Pape & Chandler, P.A. One Financial Plaza, Suite 2210 Ft. Lauderdale, Florida (954) Attorneys for Petitioners By: Arnold R. Ginsberg -11-

15 CERTIFICATE OF SERVICE I DO HEREBY CERTIFY that a true copy of this Brief and Appendix of Petitioners on Jurisdiction was served upon the following counsel of record this 25 th day of June, ELIZABETH RUSSO, ESQ. Russo Appellate Firm, P.A S.W. 76 th Street Miami, Florida (305) Attorneys for Respondent, Louis JAMES K. CLARK, ESQ. Clark, Robb, Mason, Coulombe, Buschman & Cecere Biscayne Building, Suite West Flagler Street Miami, Florida (305) Attorneys for Respondents Arnold R. Ginsberg CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that the foregoing Brief was prepared in accordance with the rule requiring 14 point Times New or 12 point Courier New. Arnold R. Ginsberg -12-

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17 INDEX TO APPENDIX Reported Opinion, WEATHERLY v. LOUIS, etal., 31 So.3d 803 (Fla. App. 3 rd 2009)... A