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1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT THE TJX COMPANIES, INC. and DEREK CARLSON, CASE NO. 4D /4DI LT CASE NO (05) RECEIVED, 1/14/2015 1:58 PM, Clerk, Fourth District Court of Appeal v. Appellants, LATOY A EDWARDS, Appellee. / ON APPEAL FROM A FINAL ORDER OF THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROW ARD COUNTY, FLORIDA Kara Berard Rockenbach, Esq. Kristi Bergemann Rothell, Esq. METHE & ROCKENBACH, P.A. Appellate Counsel for T JX/Carlson 1555 Palm Beach Lakes Blvd. Suite 1200 West Palm Beach, FL (561) (561) (facsimile) kbrock@flacivillaw.com krothell@flacivillaw.com TJX AND CARLSON'S INITIAL BRIEF Kera E. Hagan, Esq. ANDERSON, MAYFIELD, HAGAN & THRON, P.A. Trial Counsel for T JX/Carlson 560 Village Boulevard Suite 150 West Palm Beach, FL (561) serve@andersonmayfield.com

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that judges of this Court may evaluate possible disqualification or recusal. The TJX Companies, Inc., Appellant Derek Carlson, Appellant Latoya Edwards, Appellee Kera E. Hagan, Esq., Trial Counsel for Appellants Gregory T. Anderson, Esq., Trial Counsel for Appellants Kristi Bergemann Rothell, Esq., Appellate Counsel for Appellants Kara Berard Rockenbach, Esq., Appellate Counsel for Appellants Wayne S. Koppel, Esq., Trial Counsel for Appellee Rosemary Wilder, Esq., Appellate Counsel for Appellee William Harder, Co-DefendantlCo-Appellant Robert H. Schwartz, Esq., Trial/Appellate Counsel for Co-Defendant/Co-Appellant The Honorable Thomas M. Lynch, IV, Circuit Court Judge 11

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES....ii TABLE OF CONTENTS....iii TABLE OF AUTHORITIES... v PREFACE... vii STATEMENT OF THE CASE AND FACTS... 1 I. Nature of the Case... 1 II. Statement of the Facts... 1 III. Statement of the Case....3 SlJ1\11v1AR~ OF AReJ~NT AReJUMENT I. TJX AND CARLSON WERE ENTITLED TO A DIRECTED VERDICT, OR JUDGMENT IN ACCORDANCE WITH THEIR MOTIONS FOR DIRECTED VERDICT, BECAUSE AN INDIVIDUAL OR ENTITY CANNOT BE HELD LIABLE UNDER FLORIDA LAW FOR FALSE ARREST FOR MERELY ASSISTING WITH A LAW ENFORCEMENT INVESTIGATION A. Standard of Review B. Florida Law is Clear that an Individual or Entity Cannot be Held Liable for False Arrest for Merely Assisting With a Law Enforcement Investigation II. THE JURY INSTRUCTIONS WERE ERRONEOUS BECAUSE THEY PERMITTED THE JURY TO FIND TJX AND CARLSON INDIRECTLY PROCURED EDWARDS' FALSE ARREST CONTRARY TO FLORIDA LAW

4 A. Standard of Review B. The Jury Instructions Were Erroneous Because They Did Not Comport with Florida Law Regarding Liability for Cooperation with a Law Enforcement Investigation III. THE VERDICT MUST BE REMITTED BECAUSE THE JURY AWARDED GREATER DAMAGES THAN REQUESTED BY EDWARDS AND THAN SUPPORTED BY THE EVIDENCE A. Standard of Review B. The Evidence at Trial Did Not Support an Award of $250,000 in Damages to Edwards CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE IV

5 TABLE OF AUTHORITIES Cases Bank of America Corp. v. Valladares, 141 So. 3d 714 (Fla. 3d DCA 2014)... 15, 18 Bartholf v. Baker, 71 So. 2d 480 (Fla. 1954) Bould v. Touchette, 349 So. 2d 1181 (Fla. 1977) Escambia County School Board v. Bragg, 680 So. 2d 571 (Fla. 1st DCA 1996) Harris v. Kearney, 786 So. 2d 1222 (Fla. 4th DCA 2001)... 7, 16, 17,20,22 Henry v. Hoelke, 82 So. 3d 962 (Fla. 4th DCA 2011) Johnson v. Weiner, 19 So. 2d 699 (Fla. 1944)... 15, 16, 17 Laguerre v. City of Coral Springs 673 So.2d 60 (Fla. 4th DCA 1996) Manis v. Miller, 327 So. 2d 117 (Fla. 2d DCA 1976)... 14, 15 Moore v. Department of Corrections, State of Florida, 833 So. 2d 822 (Fla. 4th DCA 2002) Normius v. Eckerd Corp., 813 So. 2d 985 (Fla. 2d DCA 2002)... 24, 26 Philip Morris USA Inc. v. Putney, 117 So. 3d 798 (Fla. 4th DCA 2013) v

6 Pokorny v. First Federal Savings & Loan Ass 'n of Largo, 382 So. 2d 678 (Fla. 1980)... 15, 16, 17,20 R.J Reynolds Co. v. Webb, 93 So. 3d 331 (Fla. 1st DCA 2012) Saunders v. Dickens, 103 So. 3d 871 (Fla. 4th DCA 2012)... 21,22 Valdes v. GAB Robins North America, Inc., 924 So. 2d 862 (Fla. 3d DCA 2006)... 19,20,22 Statutes and Other Authorities Restatement (Second) of Torts Section (5), Florida Statutes VI

7 PREFACE In this Initial Brief, Appellants, The TJX Companies, Inc. and Derek Carlson, will be referred to as "TJX" and "Carlson." Appellee, Latoya Edwards, will be referred to as "Edwards." The Record on Appeal will be cited as [R.~. vii

8 STATEMENT OF THE CASE AND FACTS I. Nature of the Case This is a false imprisonment case. This Court must determine three issues in this appeal: (1) whether TJX and Carlson were entitled to a directed verdict, or judgment in accordance with their motions for directed verdict, because Florida law does not permit individuals or entities to be liable for merely assisting with a law enforcement investigation; (2) whether the jury instructions erroneously instructed the jury that TJX and Carlson could be liable for indirectly procuring Edwards' arrest; and (3) whether the verdict must be remitted to be consistent with the damages requested by Edwards and supported by the evidence. II. Statement of the Facts Edwards' Wallet and Identity Stolen On October 2, 2008, while Edwards was working as a substitute teacher, her wallet was stolen. [R.39]. She reported the incident to the school resource officer, but he did not forward the report to the local police or make an official report until January [R. 39]. By this time, Edwards was receiving notifications from banks and grocery stores that her identification was being used. [R. 39]. On December 1, 2008, a check in the name of Edwards was used at a TJX store and subsequently returned as a forgery. [R.40]. 1

9 The Law Enforcement Investigation Certegy, TJX's check clearing vendor, informed Carlson that Detective William Harder of the Ft. Lauderdale Police Department was conducting a fraudulent check investigation. [R. 40]. Carlson and Harder first spoke on May 28, [R. 40, 610, 770]. At that time, the police were investigating a fraud ring involving counterfeit checks. [R. 40]. Harder provided Carlson with a list of checks he was investigating, Carlson compared them with checks in the TJX system, and Carlson identified and provided a list of similar checks to Harder. [R. 40]. One of the checks provided by Carlson to Harder was in the name of Edwards. [R. 41]. Harder requested that Carlson sign a Victim Affidavit, which he did. [R , 65]. The affidavit does not attest that Edwards presented a counterfeit check to TJX or used her driver's license to do so. [R. 65]. Carlson understood Harder would use the information provided to continue the fraud ring investigation, but not that Harder would arrest people based on the affidavit. [R. 41]. Edwards' Arrest Eventually, Harder completed an Affidavit of Arrest based on his fraud ring investigation, which included Edwards and erroneously represented Carlson had sworn that Edwards presented the check and used her identification to do so. [R. 41, 70]. Edwards was arrested (but not at any TJX store), released, and then 2

10 returned to the police station with the information regarding her stolen wallet. [R. 41]. No charges were pressed against Edwards. [R.41]. III. Statement of the Case Edwards Sues TJX and Carlson Edwards filed a two-count complaint against TJX and Carlson, an employee and investigator for T JX, for false imprisonment and assault and battery. [R. 1_4].1 Edwards alleged that on June 10, 2009, she was arrested and imprisoned by the Fort Lauderdale Police Department for uttering forged bills and petit theft. [R. 1]. She claimed the arrest was based on the sworn statement of Carlson, who allegedly represented to the police that Edwards presented a counterfeit check at a T.J. Maxx store. [R. 2]. Edwards asserted she was imprisoned for approximately nineteen (19) hours before she posted bail and the police dropped the charges. [R.2]. Edwards Adds Harder to the Lawsuit In an Amended Complaint, Edwards added Harder, individually and as a detective of the City of Fort Lauderdale Police Department, as a defendant in her lawsuit. [R ]. The only count against Harder was for false imprisonment. [R.97]. 1 Edwards dropped the battery count against TJX and Carlson at the start of trial. [R.368]. 3

11 Carlson's Trial Testimony Carlson testified at trial that before he was put in touch with Harder by Certegy, he was not working on any sort of check investigation for TJX. [R.757, 760, 766]. Harder told Carlson he had account and routing numbers for forged checks used at TJX stores and asked if he could obtain videos and copies of checks. [R. 770]. Carlson told Harder he would locate the information as best he could. [R. 770]. Based on the request of Harder, Carlson performed an investigation that identified a check bearing Edwards' name and other forged checks. [R , ]. Carlson explained he provided Harder with a copy of the forged check, but did not tell him Edwards wrote the check because he did not know Edwards. [R. 761]. There were no videos, pictures, or witnesses establishing who used the forged check at the store. [R.767]. Carlson further maintained that it was not his intention at all to have anybody prosecuted, but simply to provide Harder with the requested information that would support his investigation. [R ]. He did not know people would be arrested based on the information he provided Harder. [R. 790]. By signing the affidavit, he was attesting that he was providing fraudulent checks and that TJX would support law enforcement in a prosecution of those responsible. [R. 803]. He wanted Harder to prosecute whoever he determined was responsible based on probable cause, not specifically Edwards. [R ]. Carlson 4

12 specifically informed Harder that he was not identifying any of the people on the spreadsheet, including Edwards. [R ]. Harder responded that the affidavit was only stating that the checks matched the spreadsheet. [R. 806]. Carlson never told Harder he verified the check was presented by Edwards or that she used her identification when presenting the check. [R ]. Harder's Trial Testimony Harder testified Carlson's affidavit was swearing that the spreadsheet was accurate. [R. 854]. Harder also admitted he interpreted the spreadsheet as representing Edwards had presented the check by using her identification. [R ]. He further admitted he never had a video or photograph of Edwards committing the crime but still applied for an arrest warrant. [R ]. Harder also admitted the only evidence he had was a witness that said the forged check was presented and cashed. [R. 898]. To this end, he also admitted Carlson never verbally stated he saw Edwards cash the check. [R. 913]. Harder knew Carlson was not a cashier and did not accept the check or see anyone pay with the check. [R. 914]. Carlson could not say who went in and cashed the check. [R. 914]. Harder even agreed that at no time did Carlson tell him that he knew it was Edwards that appeared at the T.J. Maxx store and presented the check and provided identification for the check. [T. 916]. Carlson never told him "the human being" Edwards actually went in and passed the check. [R. 918]. Harder also explained 5

13 he intended to use whatever information was provided by Carlson to do the law enforcement work of making sense of it and putting it together, because that's his job not Carlson's. [R. 921, ]. He agreed Carlson does not have the authority to determine probable cause to arrest. [R ]. Carlson could not have known which, if any, of the people on the spreadsheet would ultimately be arrested. [R.922]. Damages Evidence Edwards testified to be being embarrassed, crymg, humiliated, and hurt when arrested. [R. 655, 656, ]. She was also scared, frightened, and claustrophobic in the jail cell. [R. 666, 677]. Edwards was aware her arrest was still available on the Clerk of Court's website, and was concerned this would continue to raise red flags for her employment with the school system. [R , ]. However, she was continuously employed with the school system from the time of her arrest until trial. [R. 693]. Additionally, Detective Harder testified there is a procedure by which Edwards could expunge the arrest from her record. [R ]. Edwards admitted she had not looked into expunging her record, but would do so if there was a process. [R. 708]. Overall, as a result of her arrest, Edwards does not trust the justice system and is anxious. [R. 686]. Her brother testified she keeps to herself now, and her 6

14 mother testified she is different now, scarred, and does not like to talk about her experience in jail. [R. 735, 748]. Based on this testimony, Edwards requested damages of a $1,000 an hour for jail time (19-20 hours) and $1 a day for the remainder of her life expectancy of 45.7 years (approximately $17,000), for a total damages request of approximately $37,000. [R ,1028,1029]. T JX and Carlson's Motion for Directed Verdict TJX and Carlson moved for directed verdict based on Florida law that insulates private citizens who in good faith cooperate with law enforcement investigations from being liable for false imprisonment or arrest. [R ]. The trial court denied the motion. [R ]. Charge Conference During the charge conference, Edwards requested that language be added to the jury instructions: "to be liable for false imprisonment, a person must personally and actively participate directly or indirectly by procurement in the unlawful restraint of another person against their will." [R. 985]. TJX and Carlson objected to the added language, which Edwards cited from Harris v. Kearney, 786 So. 2d 1222 (Fla. 4th DCA 2001), because the opinion continues on to say "however, under Florida law, [a] private citizen may not be held liable." [R , 990]. As such, "this particular statement of directly or indirectly is not applicable in this 7

15 type of false arrest situation where you're dealing with an affidavit and an internal investigation." [R. 987]. Over TJX and Carlson's objection, the trial court permitted the language to be added to the jury instructions. [R.987]. Jury Instructions The jury instructions given by the trial court instructed the jury regarding TJX and Carlson's defenses as follows: On the defense of Defendants, Derek Carlson and TJX Companies, you are instructed that it is the law of Florida that private citizen or corporation may not be held liable in tort where he neither actually detained another nor instigated the other's arrest by law enforcement officers. If the private citizen makes an honest, good faith mistake in reporting an incident, the mere fact that his communication to an officer may have caused the victim's arrest does not make him liable when he did not in fact request any detention. Merely providing information to authorities that a violation of law occurred is not sufficient to support an action for false arrest. To be liable for false imprisonment, a person must personally and actively participate, directly or indirectly by procurement, in the unlawful restraint of another person against their will. Submission of affidavit to a police officer does not rise to the level of instigating or directly procuring Plaintiff s arrest. [R. 179, 185, 1002, 1007] (e.s.). 8

16 Verdict The jury returned a verdict finding TJX and Carlson acted "without legal authority to cause the false imprisonment" of Edwards. [R. 195, 1079].2 The jury was asked to award damages to Edwards for "injury to reputation, shame, humiliation, mental anguish, [and] hurt feelings." [R. 196, ]. The jury awarded Edwards $100,000 in past damages and $150,000 in future damages, for a total damages award of $250,000. [R. 196, 1080]. Post-Trial Motions TJX and Carlson filed a Renewed Motion for Directed Verdict and/or Motion for Judgment Notwithstanding the Verdict and/or Motion for New Trial and/or Motion for Remittitur. [R ]. TJX and Carlson raised the issues presented by this appeal regarding individuals not being liable for false imprisonment for assisting a police investigation, the jury instructions erroneously instructing that TJX and Carlson could be liable for indirect procurement of Edwards' arrest, and the excessive nature of the damages award. [R ]. These motions were denied. [R. 320]. 2 Harder was also found liable for false imprisonment. [R. 195]. 9

17 Final Judgment A final judgment was entered in favor of Edwards and against TJX, Carlson, and Harder jointly and severally in the amount of $250,000, plus costs. [R ]. This appeal ensued. [R ]. 10

18 SUMMARY OF THE ARGUMENT First, the trial court erred by denying TJX and Carlson's motions for directed verdict, renewed directed verdict, and judgment in accordance with the directed verdict motions. Under Florida law, TJX and Carlson cannot be liable for false arrest or imprisonment for merely providing information to assist a law enforcement investigation. TJX and Carlson neither detained nor requested the arrest or prosecution of Edwards. Holding TJX and Carlson liable under the circumstances would undermine vital public policy favoring the free flow of information between citizens and law enforcement without fear of recrimination. Second, the trial court also erred by giving Edwards' proposed jury instruction including language directing that TJX and Carlson could be liable for the indirect procurement of Edwards' arrest. This instruction is contrary to Florida law which establishes that merely providing information to law enforcement does not constitute procurement of arrest, whether direct or indirect. The erroneous instruction enabled the jury to find TJX and Carlson liable for Edwards' false arrest or imprisonment despite Florida law protecting them from such consequences for their laudable cooperation with law enforcement. Third, the trial court erred by denying TJX and Carlson's request for remittitur. The jury awarded damages of $250,000 to Edwards, nearly seven times the amount she requested from the jury. The jury awarded $100,000 for past 11

19 damages, even though Edwards spent only hours in jail before being cleared. The jury also awarded $150,000 in future damages, despite evidence that the arrest had no negative impact on Edwards' employment and could be expunged by Edwards. Undoubtedly, the jury was motivated by sympathy for Edwards, resulting in a grossly excessive award unsupported by the evidence and shocking to the conscience. The erroneous verdict and final judgment in favor of Edwards and against TJX and Carlson must be reversed and judgment entered for TJX and Carlson (or at least the damages award must be remitted to the $37,000 requested by Edwards). 12

20 ARGUMENT I. TJX AND CARLSON WERE ENTITLED TO A DIRECTED VERDICT, OR JUDGMENT IN ACCORDANCE WITH THEIR MOTIONS FOR DIRECTED VERDICT, BECAUSE AN INDIVIDUAL OR ENTITY CANNOT BE HELD LIABLE UNDER FLORIDA LAW FOR FALSE ARREST FOR MERELY ASSISTING WITH A LAW ENFORCEMENT INVESTIGATION A. Standard of Review. The standard of review of a trial court's ruling denying a motion for directed verdict is de novo. See Henry v. Hoelke, 82 So. 3d 962, 965 (Fla. 4th DCA 2011)( citations omitted). "Further,' [w ]hen an appellate court reviews the trial court's denial of a motion for directed verdict, it must "view the evidence and all inferences in a light most favorable to the non-movant, and should reverse if no proper view of the evidence could sustain a verdict in favor of the non-movant."'" Id. (citations omitted). No proper view of the evidence can sustain the jury's verdict in favor of Edwards where she failed to prove a prima facie case of false imprisonment against TJX and Carlson who cannot be liable for merely assisting with a law enforcement investigation. Therefore, the trial court should have entered directed verdict for TJX and Carlson. B. Florida Law is Clear that an Individual or Entity Cannot Be Held Liable for False Arrest for Merely Assisting With a Law Enforcement Investigation. Florida law is replete with cases establishing that an individual or entity cannot be liable for false arrest for merely assisting with a law enforcement 13

21 investigation. Here, where TJX and Carlson did not restrain Edwards or request her arrest or prosecution, but simply provided information and an affidavit in response to a law enforcement request for assistance, they did not directly or indirectly procure Edwards' false arrest or imprisonment. [R. 761, , , 761, , ]. As a result, based on the evidence adduced at trial, TJX and Carlson were entitled to a directed verdict or a judgment in accordance with their motions for directed verdict where Florida law and the manifest weight of the evidence demonstrated they could not be liable to Edwards for false arrest or imprisonment. In general, Florida law imposes no liability for false arrest or imprisonment "upon a witness making an honest, good faith mistake in identifying a criminal suspect where the identification contributes to arrest and prosecution of the suspect." Manis v. Miller, 327 So. 2d 117, 118 (Fla. 2d DCA 1976). The rational public policy supporting this rule is sound: Prompt and effective law enforcement is directly dependent upon the willingness and cooperation of private persons to assist law enforcement officers in bringing those who violate our criminal laws to justice. Unfortunately, too often in the past witnesses and victims of criminal offenses have failed to report crimes to the proper law enforcement agencies. Private citizens should be encouraged to become interested and involved in bringing the perpetrators of crime to justice and not discouraged under apprehension or fear of recrimination. 14

22 Id. at 117. Furthermore, "[o]n one hand, an individual should be protected from abusive accusations. On the other hand, people must feel free, and indeed must be encouraged, to contact the police to report suspected criminal activity." Bank of America Corp. v. Valladares, 141 So. 3d 714, 716 (Fla. 3d DCA 2014). To that end, "the public policy of Florida is to give wide latitude to an individual reporting a suspected crime to ensure a free flow of information between the people and the police." Id. at 717. Consistent with this wise public policy, the Florida Supreme Court decided the seminal case of Pokorny v. First Federal Savings & Loan Ass 'n of Largo, 382 So. 2d 678 (Fla. 1980). In Pokorny, a bank contacted the FBI regarding a believed attempted robbery by an individual who acted suspiciously. Id. at 680. The man was arrested, briefly detained, and released without charges being filed. Id. Against this factual backdrop, the Florida Supreme Court considered the law of Florida, as stated in Johnson v. Weiner, 19 So. 2d 699, 701 (Fla. 1944): To be liable in an action for false imprisonment, one must have personally and actively participated therein, directly or by indirect procurement. All those who, by direct act or indirect procurement, personally participate in or proximately cause the false imprisonment and unlawful detention are liable therefor. Id. at 681. The Florida Supreme Court distinguished requesting an arrest and detaining a suspect from merely supplying information to law enforcement or 15

23 accusmg someone of a crime as the determining factors in whether a private individual can be liable for false arrest or imprisonment. Id. The Court held: under Florida law a private citizen may not be held liable in tort where he neither actually detained another nor instigated the other's arrest by law enforcement officers. If the private citizen makes an honest, good faith mistake in reporting an incident, the mere fact that his communication to an officer may have caused the victim's arrest does not make him liable when he did not in fact request any detention. Id. at 682. Because the bank in Pokorny neither detained nor requested the arrest of the man, it was not liable for false arrest or imprisonment. Id. Likewise, neither should TJX and Carlson be liable for merely supplying information to law enforcement and neither detaining nor seeking the arrest of Edwards. Additional controlling case law from this Court is consistent with Pokorny and supports judgment for TJX and Carlson. First, in Harris v. Kearney, 786 So. 2d 1222 (Fla. 4th DCA 2001), a DCF official signed an affidavit accusing an individual of food stamp and public assistance fraud. Id. at This Court found that merely providing information to law enforcement is insufficient to support an action for false arrest or imprisonment, and that the affidavit did not instigate or directly procure the arrest. Id. at This Court cited the following as the law controlling its decision: To be liable for false imprisonment, a person must personally and actively participate, directly or indirectly by procurement, in the unlawful restraint of another 16

24 person against their will. Pokorny v. First Fed. Sav. & Loan Ass'n of Largo, 382 So.2d 678, 681 (Fla.1980)(citing Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699, 701 (1944)). See also Laguerre, 673 So.2d at 61 (reversed dismissal where complaint alleged that private citizen "instigated" or "directly procured" an arrest by acting in concert with the police). However, under Florida law a private citizen may not be held liable in tort where he neither actually detained another nor instigated the other's arrest by law enforcement officers. If the private citizen makes an honest, good faith mistake in reporting an incident, the mere fact that his communication to an officer may have caused the victim's arrest does not make him liable when he did not in fact request any detention. Pokorny, 382 So.2d at 682. Id. at Likewise, in Moore v. Department of Corrections, State of Florida, 833 So. 2d 822 (Fla. 4th DCA 2002), a Department of Corrections officer filed an affidavit asserting a probationer had not paid her fees, resulting in the issuance of a warrant for a probation violation. Id. at 823. This Court expressly followed its determination in Harris that an affidavit that merely provides information to law enforcement does not give rise to a false arrest claim. Id. at 824. Authority from other Florida district courts further supports the general rule regarding cooperation with law enforcement not giving rise to liability for false arrest or imprisonment, particularly under the circumstances of this case. In 17

25 Escambia County School Board v. Bragg, 680 So. 2d 571 (Fla. 1 st DCA 1996), the First District reversed a jury verdict for false imprisonment or arrest, explaining that the School Board "employees identified for police officers, albeit erroneously, certain equipment in Bragg's possession as property missing from, and belonging to, Pensacola High School. Both the pursuit and determination of probable cause leading to Bragg's arrest for grand theft were accomplished by Officer Cramer and Officer Fryer, not by employees of the School Board." Id. at 572. Likewise, in this case, the testimony was clear that TJX and Carlson made no determination of probable cause, as they had no authority to do so and that was Harder's job. [R ]. Also significantly, in Bank of America Corp. v. Valladares, 141 So. 3d 714 (Fla. 3d DCA 2014), the Third District explained that "[c]alling the police to report a crime rises to the level of a tort only if the reporter acts maliciously, meaning the reporter either knows the report is false or recklessly disregards whether the report is false." Id. at 718. There is no evidence of malicious conduct on the part of TJX and Carlson where there is no dispute that the reported checks were flagged by Certegy as fraudulent, and TJX and Carlson represented no more to Harder, including that Edwards actually passed the check bearing her name or used her identification to do so. [R. 761, , , 770, , ,913,916]. 18

26 Despite this clear and uniform Florida case law demonstrating that an individual or entity cannot be liable for false arrest or imprisonment for merely providing information or an affidavit to law enforcement, an issue arose at trial regarding "indirect procurement." [R ]. As an initial matter, Edwards' Complaint does not plead indirect procurement as a basis for the false imprisonment count against TJX and Carlson. [R. 1-4, 93-98]. Nonetheless, the actions of TJX and Carlson in merely cooperating with Harder's investigation and providing an affidavit that did not request Edwards' arrest or prosecution do not constitute indirect procurement under Florida law. In Valdes v. GAB Robins North America, Inc., 924 So. 2d 862 (Fla. 3d DCA 2006), insurance adjusters reported a man for workers' compensation fraud after seeing him on videotape engaged in a number of physical activities. Id. at 864. In concluding that there was no liability for false imprisonment or false arrest, the Third District explained: The false imprisonment count also was properly dismissed because it failed to allege any ultimate facts to support the conclusory allegation that appellees either directly or indirectly procured Valdes' arrest or detention. Valdes solely alleged that appellees falsely reported to the Division of Insurance Fraud that they had proof that he had committed insurance fraud. This is insufficient: [I]t is not enough... that the actor has given information to the police about the commission of a crime, or has accused the other of committing it, so long as he leaves to the police the decision as to 19

27 what shall be done about any arrest, without persuading or influencing them. Pokorny v. First Fed. Sav. & Loan Ass In of Largo, 382 So.2d 678, 682 (Fla. 1980)(quoting Restatement (Second) of Torts, 45A cmt. c (1965)). Id. at 867. As such, providing information to law enforcement and leaving the decision regarding whether to arrest to the authorities, as in this case, expressly does not constitute indirect procurement of arrest under the plain language of Valdes. Consistent with Valdes, and as TJX and Carlson argued at trial [R , 990], Harris also makes clear that false imprisonment or arrest can be based on direct or indirect procurement, "however" "under Florida law a private citizen may not be held liable in tort where he neither actually detained another nor instigated the other's arrest by law enforcement officers." 786 So. 2d at 1225 (e.s.). Merely providing information to law enforcement is not actionable as false arrest or imprisonment under Florida law, because it constitutes neither direct nor indirect procurement of arrest. In sum, based on clear Florida law and the facts of this case, TJX and Carlson cannot be liable for false arrest or imprisonment. Therefore, the trial court should have granted TJX and Carlson's Motion for Directed Verdict at trial, or in the alternative, granted TJX and Carlson's post-trial motions for renewed directed 20

28 verdict and judgment in accordance with the directed verdict motions. This Court must reverse and remand for entry of judgment in favor of TJX and Carlson on Edwards' false imprisonment claim. To hold otherwise would undermine Florida public policy supporting the free flow of information between citizens and the police by creating liability for mere cooperation with a law enforcement investigation. II. THE JURY INSTRUCTIONS WERE ERRONEOUS BECAUSE THEY PERMITTED THE JURY TO FIND TJX AND CARLSON INDIRECTLY PROCURED EDWARDS' FALSE ARREST CONTRARY TO FLORIDA LAW A. Standard of Review. "In general, the standard of review for jury instructions is abuse of discretion. However, a party is entitled to have the jury instructed upon his theory of the case when there is evidence to support the theory. Because a trial court's discretion in this area is limited by case law, '[i]t would seem that a more accurate statement of the standard of review may well be that giving or refusing jury instructions is reviewed under a mixed standard of de novo and abuse of discretion.'" Saunders v. Dickens, 103 So. 3d 871, (Fla. 4th DCA 2012)(intemal citations omitted), quashed on other grounds, 39 Fla. L. Weekly S494 (Fla. July 10,2014)). In order for the trial court to properly give a jury instruction, the proponent "must show the following three elements: '( 1) the requested instruction accurately states the law applicable to the facts of the case; (2) the testimony and other 21

29 evidence presented support the giving of the instruction; and (3) the instruction was necessary to resolve the issues in the case properly. '" Id. at 879 (citation omitted). The trial court erred by giving Edwards' incorrect jury instruction, permitting the jury to find TJX and Carlson indirectly procured her arrest, over TJX and Carlson's objection. Edwards' requested instruction was legally inaccurate, failing to explain that acting in good faith to provide information to law enforcement was not indirect procurement. B. The Jury Instructions Were Erroneous Because They Did Not Comport with Florida Law Regarding Liability for Cooperation with a Law Enforcement Investigation. Edwards' requested jury instruction language should have been denied by the trial court because it was not at accurate statement of Florida law. The language including "indirect procurement" as a basis for finding TJX and Carlson liable for Edwards' false arrest or imprisonment was erroneous and misleading based on Harris and Valdes as discussed in Issue I. [R. 179, 185, , 990, 1002, 1007]. There can be no indirect procurement where an individual or entity merely provides information to law enforcement in good faith without detaining or requesting the arrest of the suspect. Therefore, the trial court erred by including this language in the jury instructions, thereby leading the jury toward an errant verdict against TJX and Carlson despite the fact they could not be liable under Florida law for merely providing information in cooperation with a 22

30 law enforcement investigation. This Court must reverse and remand for entry of judgment in favor of TJX and Carlson on Edwards' false imprisonment claim because legally and factually they are not liable under clear Florida law. III. THE VERDICT MUST BE REMITTED BECAUSE THE JURY AWARDED GREATER DAMAGES THAN REQUESTED BY EDWARDS AND THAN SUPPORTED BY THE EVIDENCE A. Standard of Review. The standard of review applicable to the trial court's denial of a motion for remittitur is abuse of discretion. See Philip Morris USA Inc. v. Putney, 117 So. 3d 798, 802 (Fla. 4th DCA 2013). Even under this lenient standard of review, the trial court erred by denying TJX and Carlson's Motion for Remittitur where the jury's damages award was not supported by either Edwards' request for damages or the evidence. B. The Evidence at Trial Did Not Support an Award of $250,000 in Damages to Edwards. Despite Edwards requesting damages of only approximately $37,000 [R. 1028, 1029], the jury awarded her $100,000 in past damages and $150,000 in future damages [R. 196, 1080]. There was no evidence supporting these inflated awards. Therefore, in the event the liability judgment against TJX and Carlson stands (which it should not for the reasons set forth in Issue I and Issue II), the damages award must be remitted to the amount requested by Edwards of $37,

31 Pursuant to section (5), Florida Statutes, remittitur is appropriate where "the amount awarded is indicative of prejudice, passion... on the part of the trier of fact," "it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable," or "the amount awarded bears [no] reasonable relation to the amount of damages proved and the injury suffered." Here, the total damages verdict of $250,000 must be remitted because it is so inordinately large that it exceeds the maximum limit of a reasonable range within which the jury may operate and shocks the conscience. See Normius v. Eckerd Corp., 813 So. 2d 985,988 (Fla. 2d DCA 2002)(quoting Bould v. Touchette, 349 So. 2d 1181, (Fla. 1977)); Bartholfv. Baker, 71 So. 2d 480,484 (Fla. 1954)("We have repeatedly held that we will not reverse a case for a new trial on the ground that the verdict is excessive, unless it appears upon a consideration of all the testimony that the verdict was so much greater than it should have been as to shock the judicial conscience."). The vast disparity between the $37,000 requested by Edwards and the $250,000 awarded by the jury is indicative of an award based on sympathy rather than evidence. Turning to the evidence at trial, regarding past damages, Edwards detailed her emotions during her arrest and the hours for which she was incarcerated before being cleared. [R. 655, 656, , 666, 677]. This was the extent of her 24

32 past damages. Regarding future damages, Edwards and her family both testified the experience of her arrest changed her. [R. 686, 735, 748]. Additionally, Edwards was concerned her arrest was still available on the Clerk of Court's website. [R ]. However, TJX and Carlson adduced testimony that she could have the arrest expunged [R ], and Edwards indicated she was interested in doing so [R. 708]. Edwards was also concerned about possible employment hassles resulting from the arrest, but testified she remained employed with the school system since the arrest. [R , 693]. Therefore, by having her arrest expunged, Edwards will avoid any future damages resulting from its impact on her employment (if any) and the public's view of her. As such, the evidence demonstrates Edwards' future damages are minimal, and certainly not greater than the $1,000 an hour of damages she claimed to suffer as a result of humiliation and fear during her arrest and imprisonment. Clearly, the resulting verdict of $250,000, including $150,000 in future damages, was not only contrary to the evidence, but it was beyond the scope of what Edwards requested so that it could only be the improper result of prejudice and sympathy. See R.J. Reynolds Co. v. Webb, 93 So. 3d 331, 339 (Fla. 1st DCA 2012)("Although not determinative, the fact that the jury awarded double the amount of compensatory damages requested by Ms. Webb's counsel and assigned to Mr. Homer half of the percentage of fault her counsel acknowledged during 25

33 closing argument suggests the jury was influenced by prejudice or passion."). Therefore, the trial court erred by not granting TJX and Carlson's Motion for Remittitur of a damages award that was nearly seven times greater than the amount of damages requested by Edwards. See Normius, 813 So. 2d at 988 (finding that trial court did not err by ruling that award of $110,000 in damages in false imprisonment case was excessive, although verdict should not have been remitted to $100). This Court must reverse and remand for reduction of the judgment to the $37,000 requested by Edwards in the event it does not reverse the judgment as a whole based on Issue I and Issue II. 26

34 CONCLUSION This Court must reverse the jury verdict in favor of Edwards and against TJX and Carlson. Under Florida law and the facts of this case, TJX and Carlson cannot be found liable for false imprisonment or arrest where they merely provided information to assist a law enforcement investigation. Furthermore, even if TJX and Carlson could be liable for false arrest or imprisonment of Edwards, the damages award of $250,000, nearly seven times the amount requested by Edwards, was grossly excessive where Edwards spent only hours in jail before being cleared and her arrest can be expunged. On remand, final judgment must be entered in favor of TJX and Carlson, or at least the damages verdict must be remitted to the $37,000 requested by Edwards. 27

35 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished via this 14th day of January, 2015 to: Wayne S. Koppel, Esq., Koppel & Associates, P.A., (Counsel for Edwards), 817 South University Drive, Suite 100, Plantation, FL 33324, service@koppellaw.net; wayne@koppellaw.net and eric@koppellaw.net; Rosemary Wilder, Esq., Marlow, Adler, Abrams, Newman & Lewis, (Appellate counsel for Appellee), 4000 Ponce de Leon Blvd., Suite 570, Coral Gables, FL 33146, rwilder@marlowadler.com and tchowloon@marlowadler.com; Robert H. Schwartz, Esq., McIntosh Schwartz, P.L., (Counsel for AppellantlHarder), 888 Southeast Third Avenue, Suite 500, Fort Lauderdale, FL 33315, rhs@mcintoshschwartz.com; ncorey@mcintoshschwartz.com and dschneider@mcintoshschwartz.com. Kera E. Hagan, Esq., Anderson, Mayfield, Hagan & Thron, P.A. Trial Counsel for The TJX Companies/Carlson 560 Village Boulevard Suite 150 West Palm Beach, FL (561) Phone (561) Facsimile serve@andersonmayfield.com AND METHE & ROCKENBACH, P.A. Appellate Counsel for The TJX Companies/Carlson 28

36 1555 Palm Beach Lakes Blvd., Suite 1200 West Palm Beach, FL (561) telephone (561) facsimile PE: 2E: 2E: By: /s/ Kara Berard Rockenbach KARA BERARD ROCKENBACH, ESQ. Florida Bar Number: KRISTI BERGEMANN ROTHELL, ESQ. Florida Bar Number:

37 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the above brief has been prepared in Microsoft Word, Times New Roman 14-point font and complies with the requirements of Florida Rule of Appellate Procedure 9.210(a)(2). /s/ Kara Berard Rockenbach Kara Berard Rockenbach, Esq. Florida Bar No