IN THE SUPREME COURT OF FLORIDA. Petitioners, CASE NO.: SC RESPONDENTS JURISDICTIONAL BRIEF

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1 WENWEI SUN, XIOFEN XU, and YUETIAN SUN, IN THE SUPREME COURT OF FLORIDA v. Petitioners, CASE NO.: SC GILBERTO AVILES and MANUEL AIRRIZARY, Respondents. RESPONDENTS JURISDICTIONAL BRIEF ON REVIEW FROM THE DISTRICT COURT OF APPEAL FIFTH DISTRICT, STATE OF FLORIDA WM. JERE TOLTON, III, ESQ. Florida Bar No OGDEN, SULLIVAN & O CONNOR, P.A. 113 South Armenia Avenue Tampa, Florida Tel: (813) Fax: (813) Attorney for Respondents

2 TABLE OF CONTENTS Table of Citations... ii Statement of the Case and Facts... 1 Summary of the Argument... 5 Argument... 6 The decision of the Fifth District Court of Appeal applied longstanding principles of Florida law and does not conflict with the Fourth District in Arzuman v. Saud, 843 So. 2d 950 (Fla. 4th DCA 2003), or the Third District in Laurore v. Miami Automotive Retail, Inc., 16 So. 3d 862 (Fla. 3d DCA 2009); or Hair v. Morton, 36 So. 3d 766 (Fla. 3d DCA 2010). Conclusion...10 Certificate of Service...11 Certificate of Compliance...11 i

3 TABLE OF CITATIONS Cases Arzuman v. Saud, 843 So. 2d 950 (Fla. 4th DCA 2003)... 7 Cox v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998)... 8 Hair v. Morton, 36 So. 3d 766 (Fla. 3d DCA 2010)... 9 Laurore v. Miami Automotive Retail, Inc., 16 So. 3d 862 (Fla. 3d DCA 2009)... 8 Mystan Marine, Inc. v. Harrington, 339 So. 2d 200, 201 (Fla. 1976)... 6 Nielsen v. City of Sarasota, 117 So. 2d 731, 735 (Fla. 1960)...10 Wainwright v. Taylor, 476 So. 2d 669, 670 (Fla. 1985)... 6 Wenwei Sun v. Aviles, 53 So. 3d 1075, (Fla. 5th DCA 2010)... 7 Constitutional Provisions and Statutes Art. V, 3(b)(3), Fla. Const. (1980)... 6 ii

4 STATEMENT OF THE CASE AND FACTS In my deposition and interrogatory answers, I said that I did not work in China after returning to China, but this is not accurate. I understood that I was supposed to answer questions accurately, so I am not making any excuses; I am only giving my explanation to the Court (R. Vol. XIV, p. 2697). With this confession on April 30, 2009, Wenwei Sun, his wife Xiofen Xu, and their adult daughter Yuetian Sun ( Petitioners ), upended eight years of costly and protracted litigation, admitting to an intentional scheme of deception extending back to After having repeatedly denied all forms of employment and insisting he retained no functional capacity in the wake of a motor vehicle accident on September 29, 2000, then leading astray not only the defense experts but also their own experts, Petitioners confessed they intentionally lied about Sun s daily activities, helplessness, dependance, and enduring joblessness, but only after confronted with the comprehensive motion to dismiss for fraud on the court. (R. Vol. XI-XII, pp ). That Petitioners conspired to engage in a scheme of deception from early in the case is not contested. Sun repeatedly represented in sworn interrogatories, deposition testimony, responses to request for production, and to experts, including those hired by his attorney, that he had not worked in any capacity since the September 2000 accident. He and his family swore that Sun s days were spent 1

5 inactively at home surfing the internet or watching television. In truth, by about December 2002, Sun had returned to work for his employer, SINOPEC Shanghai Engineering Co., Ltd. ( SINOPEC ), in Shanghai, China. 1 In August 2004, after Sun had been working at SINOPEC for nearly two years, Petitioners retained Dr. Paul Deutsch, a lifecare planner, who traveled to China to evaluate him and determine the extent to which his current situation affected his ability to work and engage in activities of daily living. (R. Vol. XIV, pp ). Dr. Deutsch reported after interviewing the family that Xu, the wife, was the family s sole source of financial support, and that Sun was socially isolated and fully dependant on others for help. In deposition, Dr. Deutsch elaborated on Sun s need for attendant care due to his social isolation. I mean, most of the time he spends staring at four walls. He lives for getting on the internet and basically getting into chat rooms, playing games on the internet, getting into porno sites. That s really what he does. He watches a little bit of TV. And there s not much else to his life. (R. Vol. XII, p. 2236). Dr. Deutsch thus concluded that Sun would stay dependant and in need of close monitoring for the remainder of his life. 1 According to the company s web site, SINOPEC, founded in 1953, is one of the earliest comprehensive design institutes engaged in Pharmaceutical, Petrochemical, and Chemical engineering design in China. Of its 1300 employees, more than 80% are professionals engaged in engineering design and services. See: (R. Vol. XII, p. 2291). 2

6 Dr. Deutsch s final report served as the foundation for a very substantial economic damages report prepared by Petitioners economist, Dr. Frederick A. Raffa. Dr. Raffa was hired to determine Sun s future lost earnings capacity, past earnings loss, and the cost of future lifecare needs. (R. Vol. XII, pp ). Relying heavily on Dr. Deutsch s lifecare plan, Dr. Raffa estimated that the present value of Sun s total economic loss ranged from $3,920,651 to $5,622,288. (R. Vol. XII, pp ). The foundation for this multimillion dollar lifecare plan was Dr. Deutsch s interview with the Sun family and his findings based on their then-unknown deceptive scheme. Sun was surveilled in Shanghai, China over the course of several days in December The surveillance shows Sun engaging in the same pattern of conduct on each weekday he was observed. He would leave from his home alone each morning, use a bicycle and public transportation to travel to SINOPEC headquarters, enter the office building between 8:00 a.m. and 9:00 a.m., depart between 3:00 p.m. and 5:00 p.m., then return to his home unassisted. (R. Vol. XII, p ). At the end of each day of surveillance, the Petitioners were deposed by videoconference. As he had been earlier in the lawsuit, Sun was questioned about his ability to work and employment activity. Possibly secure in the fact that he was quite literally half the world away, Sun answered each question about his documented activities falsely. 3

7 Xu s deposition was also taken on December 16, She, too, was asked specific questions about her husband s ability to work and daily activities. Xu stood by all of her previous fabrications about her husband s complete helplessness. Mr. Sun s 21-year old daughter Yuetian was also deposed on December 16, Yuetian was asked very specific questions about her father s ability to function independently and daily activities and lied about them in concert with her parents. In the motion to dismiss the case for fraud on the court, Respondents painstakingly outlined the misstatements and deceptions involving Sun s return to work and daily activities. At considerable expense, Respondents were able to obtain Sun s on-line profile and job application, have them translated, and surveil his activities in China over the course of several days. (R. Vol. X11, pp ). Sun repeatedly concealed his employment at SINOPEC until presented with his serial misrepresentations in the motion to dismiss filed in April In affidavits that largely parrot on another, each Petitioner responded: [We] did not tell the Defendants in this case nor [our] lawyer about [Sun s] work in China after his accident because [we were] worried that it would cause interference and disruption at his place of employment. Although [we] do not fully understand the U.S. system, [we were] concerned that the Defendants might be able to cause difficulties with 4

8 his employer and his co-workers, and perhaps also exposing his supervisors to troubles for hiring him as an unqualified person. * * * I understand that I was supposed to answer questions accurately, so I am not making any excuses; I am only giving my explanation to the court. (R. Vol. XIV, p. 2690, 2697, 2704). The effect of the scheme to defraud cannot be understated. It was indisputably designed to exaggerate all damages claims by millions and impede Respondents discovery and trial preparation. The litigation costs alone in having to depose witnesses in China, including for the first time SINOPEC personnel, and then re-deposing experts in the case based on revised assessments and opinions, would be outrageous. SUMMARY OF THE ARGUMENT There is no conflict among the district courts giving rise to the Supreme Court s discretionary conflict jurisdiction. The Florida Constitution limits the class of cases that are subject to further appellate review. Merely because district courts reach different outcomes based on different predicate facts does not mean there is direct and express conflict among them on the same principles of law. 5

9 ARGUMENT THE DECISION BY THE FIFTH DISTRICT COURT OF APPEAL APPLIED LONG-STANDING PRINCIPLES OF FLORIDA LAW AND DOES NOT CONFLICT WITH THE FOURTH DISTRICT IN ARZUMAN V. SAUD, 843 So. 2d 950 (Fla. 4th DCA 2003), OR THE THIRD DISTRICT IN LAURORE V. MIAMI AUTOMOTIVE RETAIL, INC., 16 So. 3d 862 (Fla. 3d DCA 2009); OR HAIR V. MORTON, 36 So. 3d 766 (Fla. 3d DCA 2010). The Court has emphasized that the concern in cases based on [its] conflict jurisdiction is the precedential effect of those decisions which are incorrect and in conflict with decisions reflecting the correct rule of law. Wainwright v. Taylor, 476 So. 2d 669, 670 (Fla. 1985). A petition for discretionary review should be dismissed when the decision under review follows the established rule of law. The mere fact that the petitioner is displeased with the outcome is not a constitutional basis for further review. Article V uses the word direct conflict to manifest a concern with decisions as precedents as opposed to adjudications of the rights of particular litigants. Mystan Marine, Inc. v. Harrington, 339 So. 2d 200, 201 (Fla. 1976) (citing Anison v. Thurston, 101 So. 2d 808, 811 (Fla. 1958)). There is no basis for this Court to accept jurisdiction of this case. The decision under review conforms to the established rule of law. The court below properly recognized the heightened evidentiary standard ( clear and convincing ) the trial court must apply in reviewing motions to dismiss for fraud on the court, and reiterated the elements the moving party must satisfy before a case will be dismissed for fraud. Wenwei Sun v. Aviles, 53 So. 3d 1075, (Fla. 5th DCA 6

10 2010). The Sun decision does not constitute a departure from existing precedent; rather the decision sits well within its bounds: The case now before us is not one of poor recollection or dissemblance; it is one where the three claimants over a span of six years lied repeatedly about Mr. Sun s employment and his abilities to perform even the most basic functions of daily life. Moreover, the appellees did not simply make a bald and unsupported accusation to this effect. Rather, the appellants, who now admit that they knew at all times that they were supposed to give truthful and accurate answers, repeatedly chose not to do so out of some sort of purported desperation connected with Mr. Sun s now acknowledged employment in China. They lied on virtually every discovery occasion to their own attorneys and experts, as well as to the appellees, making it virtually impossible for the appellees to defend against the damage claims advanced by the appellants. Id. at None of the three decisions Petitioners argue in their brief present a bona fide conflict with the decision on review. In Arzuman v. Saud, 843 So. 2d 950 (Fla. 4th DCA 2003), the Fourth District found that the defendant s miscomprehension of corporate structure was not a deliberate attempt to conceal his ownership in the corporation. Here, the Petitioners admitted to engaging in a deliberate scheme to defraud. In contrast to sworn statements in which a party has purposefully concealed information under oath, the statements at issue in Arzuman did not reflect an attempt to perpetrate a fraud on the court, but rather demonstrate[d] Arzuman s lack of understanding of corporate structure. Id. at 953. A conflict between this case and Aruzman is impossible to conceive. 7

11 Petitioners also find conflict in two decisions by the Third District Court of Appeal. In Laurore v. Miami Automotive Retail, Inc., 16 So. 3d 862 (Fla. 3d DCA 2009), a split decision, the majority found that the record failed to demonstrate facts which met the stringent standard established in Cox v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998). Id. at 864. The Laurore majority nonetheless agreed that the clear and convincing evidence justified striking some of the plaintiff s claims. Id. at 863. The majority seemed to find, however, that the concealment was relatively narrow, and that it did not compromise the integrity of the judicial process so pervasively as to justify dismissing the entire case. The dissent, which would have upheld the dismissal, points out that the majority appeared to have ignored the time-honored principle that appellate courts cannot simply substitute our judgment for that of the trial court. Id. at 865 (Shepherd, J., dissenting). In any event, the Sun court for good reason concluded on the facts before it that Petitioners actions did rise to such an offending level, in that they repeatedly lied to virtually everyone connected to the case, their own experts and advocates included. The breadth and extent of their lies is what sets this case apart. They lied on virtually every discovery occasion to their own attorneys and experts, as well as the [Respondents], making it virtually impossible for the [Respondents] to defend against the damage claims advanced by [them]. Sun, 53 So. 2d at

12 Finally, Petitioners argue Hair v. Morton, 36 So. 3d 766 (Fla. 3d DCA 2010), in which the trial court dismissed the case without conducting an evidentiary hearing, relying instead solely upon portions of deposition testimony and interrogatory responses. Unlike in Hair, the Petitioners lies were uncontested, and the burden of proof clearly met. The Petitioners here admitted knowing that they were supposed to give truthful and accurate answers, [but] repeatedly chose not to do so out of some sort of purported desperation connected with Mr. Sun s now acknowledged employment in China. Sun, at Their scheme was not based on an isolated factual inconsistency; they undertook to subvert the entire legal proceeding, and very nearly got away with it. The Hair case most assuredly did not involve a confessed scheme to intentionally deceive. In contrast to the situation in that case, here the evidence clearly and convincingly established that Petitioners knowingly and blatantly set in motion a scheme calculated to interfere with an impartial adjudication by deceptively hampering the defense case. The courts in Hair, Laurore, and Arzuman recognized that dismissal of an action for fraud is a sanction reserved for the extreme cases, and the decision under review reflects that principle. Id. at 1078 n. 1. Nevertheless, the facts underlying the decision in this case clearly rise to that level. Unlike cases in which dismissals are reversed based on an inadequate record, the deceitful scheme here 9

13 was pervasive, touching on virtually every element of the damages claims. Id. at Accordingly, this Court should decline the Petitioners request to invoke its jurisdiction. There are no broad legal issues or policy questions implicated, and the critical facts underlying this case are far removed from the cases argued. No new rule of law was announced in this decision, nor is there a conflicting result involving substantially similar facts. Different outcomes based on different predicate facts is not a constitutional basis for further review. Only conflicts that are real, live, and vital merit discretionary jurisdiction. As this Court long ago stated in Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960), conflict jurisdiction is purposely limited in order to sanctify the decisions of the Courts of Appeal with an aspect of finality, so essential to prevent any imbalance in the several echelons of the appellate process. Id. at CONCLUSION Because no direct and express conflict arises between the district courts based on the underlying facts, and the correct rule of law as applied, the petition to invoke discretionary review should be dismissed as lacking constitutional merit. Respectfully submitted, WM. JERE TOLTON, III, ESQUIRE Florida Bar Number: jtolton@ogdensullivan.com 10

14 CERTIFICATE SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail to Peter M. Cardillo, Esquire, Cardillo Law Firm, 2707 W. Azeele St., Suite 100, Tampa, FL on this day of April, WM. JERE TOLTON, III, ESQUIRE Florida Bar Number: jtolton@ogdensullivan.com OGDEN, SULLIVAN & O'CONNOR, P.A. 113 South Armenia Avenue Tampa, FL (813) (813) Facsimile Attorneys for Respondents Gilberto Aviles and Manuel Irizarry CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellant Procedure. WM. JERE TOLTON, III, ESQUIRE Florida Bar Number: jtolton@ogdensullivan.com OGDEN, SULLIVAN & O'CONNOR, P.A. 113 South Armenia Avenue Tampa, FL (813) (813) Facsimile Attorneys for Respondents Gilberto Aviles and Manuel Irizarry 11