IN THE SUPREME COURT OF FLORIDA. Case No. SC L.T. No. 2D SOUTHSTAR EQUITY, L.L.C. and BROOKSIDE PROPERTIES, INC., Petitioners, vs.

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1 IN THE SUPREME COURT OF FLORIDA Case No. SC L.T. No. 2D SOUTHSTAR EQUITY, L.L.C. and BROOKSIDE PROPERTIES, INC., Petitioners, vs. LAI CHAU, Respondent. RESPONDENT S BRIEF ON JURISDICTION ON DISCRETIONARY REVIEW FROM A DECISION OF THE SECOND DISTRICT COURT OF APPEAL Barry A. Cohen Fla. Bar No Christopher P. Jayson Fla. Bar No Camille Godwin Fla. Bar No Cohen, Jayson & Foster, P.A. 201 East Kennedy Blvd., Suite 1000 Tampa, Florida Telephone: (813) Facsimile: (813) Attorneys for Respondent

2 TABLE OF AUTHORITIES Cases Page Alston v. Shiver, 105 So. 2d 785 (Fla. 1958) 4 Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) 1, 2, 5, 6 Donaldson v. State, 656 So. 2d 580 (Fla. 1 st DCA 1995) 5 Dos Santos v. Carlson, 806 So. 2d 539 (Fla. 3d DCA 2002) 3 Eichenbaum v. Rossland Real Estate, Ltd., 502 So. 2d 1333 (Fla. 4 th DCA 1987)..6, 7 First Interstate Dev. Corp. v. Ablanedo, 511 So. 2d 536 (Fla. 1987)..8 Florida Marine Enterprises v. Bailey, 632 So. 2d 649 (Fla. 4 th DCA 1994) 5 Florida Power & Light Co., v. Bell, 113 So. 2d 697 (Fla. 1959)..8 Gaither v. Anderson, 139 So. 587 (1932)..4, 5 Griefer v. DiPietro, 708 So. 2d 666 (Fla. 4 th DCA 1998), pet. rev. dismissed, 732 So. 2d 323 (Fla. 1999) 3 Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962)..1 ii

3 Lambert v. Doe, 453 So. 2d 844 (Fla. 1 st DCA 1984).6, 7, 8 Mancini v. State, 312 So. 2d 732 (Fla. 1975)...6 Ogburn v. Murray, 86 So. 2d 796, 798 (Fla. 1956).4, 5 O Hara v. Western Seven Trees Corp., 75 Cal. App. 3d 798 (Ca. App. 1978)..10 Orlando Executive Park, Inc. v. P.D.R., 402 So. 2d 442 (Fla. 5 th DCA 1981), approved, 433 So. 2d 491 (Fla. 1983)..6, 8 Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483 (Fla. 1999) 9 Ten Associates v. Brunson, 492 So. 2d 1149 (Fla. 3d DCA), rev. den., 501 So. 2d 1281 (Fla. 1986).6, 7 Yuzefovsky v. St. John s Wood Apartments, 540 S.E. 2d 134 (Va. 2001)..9 Other Authorities Article V, '3 (b)(3), Florida Constitution 1 iii

4 TABLE OF CONTENTS TABLE OF AUTHORITIES ii, iii STATEMENT OF THE CASE AND FACTS.1 SUMMARY OF THE ARGUMENT...1 ARGUMENT 2 I. The Second District s Affirmance Of The Trial Court s Exclusion Of An Undisclosed Employee Witness Does Not Expressly And Directly Conflict With Binger Or Its Progeny II. No Basis for Jurisdiction Exists as the Decision of the Lower Court Neither Expressly Nor Directly Conflicts with any Opinion of Other District Courts in the State of Florida CONCLUSION 10 CERTIFICATE OF SERVICE.11 CERTIFICATE OF COMPLIANCE 11 iv

5 STATEMENT OF THE CASE AND FACTS Respondent Lai Chau was a tenant in the Remington Apartment Complex owned and operated by Petitioners. One night as she was parking her car in the complex, she was carjacked, abducted, and shot three times in the head. (Op. 2) Chau sued Petitioners alleging negligence, negligent misrepresentation, and intentional misrepresentation. The jury found in favor of Chau, awarding $5.677 million in compensatory damages and $10 million in punitive damages. The Second District affirmed the verdict. SUMMARY OF THE ARGUMENT Petitioners basis for invoking this Court=s jurisdiction is alleged decisional conflict under Article V, Section 3(b)(3), Florida Constitution. The trial court and the Second District expressly considered and followed the rule of law established in Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), and its progeny. The Chau decision does not establish any new rule of law or misapply the Binger factors. Therefore, no basis for conflict jurisdiction exists based on Binger. The Second District s factually specific decision does not expressly or directly conflict with any other factually similar decisions of other Florida courts on any question of law. Petitioners reliance on out of state cases is insufficient to create conflict jurisdiction. Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962). 1

6 ARGUMENT I. THE SECOND DISTRICT S AFFIRMANCE OF THE TRIAL COURT S EXCLUSION OF AN UNDISCLOSED EMPLOYEE WITNESS DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH BINGER OR ITS PROGENY. Petitioners allege the decision affirming the trial court s exclusion of Rachel Miller, a surprise, last-minute employee witness first disclosed eight days into trial, near the close of Chau s case-in-chief, conflicts with this Court s decision in Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). Pursuant to Binger, a trial court s discretion to permit testimony of a latedisclosed witness "should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party." Id. at Additional factors include the objecting party s ability to cure the prejudice; the calling party s possible intentional, or bad faith, non-compliance with the pre-trial order; and the disruption of the orderly and efficient trial of the case. Id. A Binger analysis clearly requires a factual determination based on the circumstances of each particular case. The Second District expressly considered and followed the Binger factors and found that the trial court acted in conformity with Binger: The surrounding circumstances strongly militate against any suggestion that there was a sufficient justification for the failure to list the witness. It is manifest that, based on its own records, Brookside should have been able to identify the leasing agents who were working when the plaintiff visited the Remington to inquire about 2

7 renting an apartment. It is also manifest that Brookside should also have been able to locate a person who was in its employ during the six-month period prior to the commencement of the trial. 1 In sum, this is the situation presented to the trial court: On the eighth day of trial as the plaintiff's case was drawing to a close, the defense came forward with an unlisted witness-an employee of one of the defendants-proffering testimony that contradicted a key element of the plaintiff's case and offering no reason for the failure to list this employee-witness on its witness list as required by the pretrial order. (Op. 6). Under the specific facts of this case, the Second District found that the trial court did not abuse its discretion: Based on the circumstances with which it was confronted, the trial court did not abuse its discretion in excluding the testimony of the unlisted witness. Indeed, in light of the limited information that the defendants provided to the trial court, a decision permitting the witness to testify may well have been an abuse of discretion. (Op. 7) The district court cases cited by Petitioners are clearly factually distinguishable because of lack of prejudice, timely disclosure, or ample opportunity to mitigate the prejudice in those particular cases. In Griefer v. DiPietro, 708 So. 2d 666 (Fla. 4 th DCA 1998), the excluded witness had been timely disclosed and deposed two weeks prior to trial. In Dos Santos v. Carlson, 806 So. 2d 539 (Fla. 3d DCA 2002), the excluded expert witness had been disclosed over two years prior to trial, thus providing counsel with ample 1 Contrary to the unsupported allegation in Petitioners brief that prior to trial it could not properly identify its own leasing agent. (PB p. 5.) 3

8 opportunity to explore his opinions, nothwithstanding the failure of the opposing party to provide an expert report. Id. at 541. Petitioners rely on three pre-binger cases which are factually distinguishable. In Alston v. Shiver, 105 So. 2d 785 (Fla. 1958), the court found that the failure to discover the new evidence was not due to the lack of due diligence by the Defendant. Id., at 787. In Ogburn v. Murray, 86 So. 2d 796, 798 (Fla. 1956), it, could not have been anticipated that [plaintiff] would give false testimony. Finally, in Gaither v. Anderson, 139 So. 587, 589 (Fla. 1932), the, plaintiff and his counsel appear to have used due diligence in discovering the falsity of what defendant himself first suggested in his testimony at the trial. In this case, contrary to Alston, Petitioners offered no reason for the failure to list this employee-witness on its witness list. (Op. 6.) In this case, the defendants presented the trial court with nothing more than a statement that the witness had been discovered the previous evening and that the plaintiff had been given an opportunity to depose the witness. (Op. 5.) As noted by the Second District, it was manifest that the Petitioners should have been able to locate and identify its own employee prior to trial. Here, Petitioners, despite longstanding knowledge of the claims to be made by Chau at trial, waited until the close of Chau s case at trial to suddenly announce the discovery that one of their own employees, allegedly previously unknown to 4

9 them, could now refute the claims made by Chau s witnesses in the preceding days of trial. There was no surprise testimony from Chau at trial as there was in Ogburn and in Gaither. As the Second District stated, the prejudicial effect on the plaintiff who had nearly completed the presentation of her case was palpable. (Op. 7). Petitioners cite several criminal cases for the proposition that the trial court has no discretion to exclude evidence or witnesses unless every other possible remedy has been considered. Reliance on such cases is misplaced and misleading. In a criminal proceeding, a trial court may not exclude a witness without conducting an inquiry to determine whether any other reasonable alternatives might be used to overcome or mitigate possible prejudice. Donaldson v. State, 656 So. 2d 580 (Fla. 1 st DCA 1995). In contrast, the focus of the analysis in a civil case is prejudice in fact to the objecting party, with the ability to cure the prejudice merely one of several other discretionary considerations. Binger, 401 So. 2d at In this context, a continuance is just another form of prejudice. Binger gives the trial court discretion to strike those witnesses to prevent the objecting party from being forced to choose between frantic last-minute discovery and an unjustified delayed of her trial. This is not a fair manner in which to "cure the prejudice" caused by the defendants failure to timely prepare their case, and we hold that Binger does not require such a result here. (emphasis supplied) Florida Marine Enterprises v. Bailey, 632 So. 2d 649, 652 (Fla. 4 th DCA 1994). 5

10 The factual determination by the trial court in this case, found not to be an abuse of discretion by Second District, does not espouse a rule of law different than that pronounced in Binger. To the contrary, both the trial court and the Second District followed Binger in excluding the undisclosed witness. Conflict jurisdiction cannot be invoked merely because this Court may disagree with the district court or because it may have made a different factual determination had it been the trier of fact. Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975). The trial court and the Second District expressly acknowledged and followed the Binger decision, therefore, there can be no express and direct conflict between the Chau decision and Binger or its progeny. II. No Basis for Jurisdiction Exists as the Decision of the Lower Court Neither Expressly Nor Directly Conflicts with any Opinion of Other District Courts in the State of Florida. Petitioners also allege the Chau decision conflicts with the decisions of other Florida districts in Eichenbaum v. Rossland Real Estate, Ltd., 502 So. 2d 1333 (Fla. 4 th DCA 1987); Ten Associates v. Brunson, 492 So. 2d 1149 (Fla. 3d DCA), rev. den., 501 So. 2d 1281 (Fla. 1986); Lambert v. Doe, 453 So. 2d 844 (Fla. 1 st DCA 1984); Orlando Executive Park, Inc. v. P.D.R., 402 So. 2d 442 (Fla. 5 th DCA 1981), approved, 433 So. 2d 491 (Fla. 1983). However, as the Second District expressly stated, each of these cases is easily distinguished from the instant facts. (Op. 14) 6

11 The Fourth District in Eichenbaum was faced with an appeal from dismissal of a punitive damage claim, not a jury verdict. The Eichenbaum decision merely holds that the single allegation of lack of concern on the part of the property owner was not sufficient to state a claim for punitive damages. Id. at Chau does not rule otherwise. In Ten Associates v. Brunson, the appellate court merely held that there was insufficient evident to meet the threshold for awarding punitive damages. The court found under the facts in that case, far different than the facts in Chau, that the defendant was merely negligent and punitive damages were not appropriate. Id. at In Lambert v. Doe, another factually dissimilar case, the First District reversed an award of punitive damages finding insufficient evidence to find the landlord vicariously liable for such damages based on acts of their employees. Id. at There is no potential for the Chau decision to expressly and directly conflict with Lambert because the Chau court limited its consideration of the punitive damages award to the intentional misrepresention count based on the corporate policy of misleading tenants and prospective tenants. 2 In Lambert, unlike in this case, there were no allegations of fraudulent misrepresentation by the 2 The Second District affirmed the award of punitive damages on the intentional misrepresentation theory without reaching the question of whether the evidence established gross negligence as a basis for imposing punitive damages. Op

12 owners and managers of the apartment complex alleged as a basis for punitive damages. In Orlando Executive Park, Inc. v. P.D.R., the jury s punitive damages verdict was based entirely on their finding that the motel failed to provide adequate security. Id. at 451. Unlike Chau, there were no allegations of misrepresentation by the defendants as to security or crime on the premises. Nor was there testimony, as there is in this case, that there was a corporate policy directing the employees to conceal and misrepresent dangerous conditions for the purpose of increasing profitability. None of the cases relied upon by the Petitioner are on all fours factually in all material respects., as required in order to create conflict jurisdiction. See, e.g., Florida Power & Light Co., v. Bell, 113 So. 2d 697, 698 (Fla. 1959). None of the Florida cases relied upon by the Petitioners involve intentional misrepresentation claims. The law in Florida is clear that a claim of fraud sufficient to establish compensatory damages is also sufficient to support a claim for punitive damages. First Interstate Development Corp. v. Ablanedo, 511 So. 2d 536, 539 (Fla. 1987)( The overwhelming weight of authority in this state makes it clear that proof of fraud sufficient to support compensatory damages necessarily is sufficient to create a jury question regarding punitive damages. ). In addition, punitive damage awards are appropriate where fraud is based upon an intentional 8

13 non-disclosure or concealment, rather than an affirmative misrepresentation. See, Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483 (Fla. 1999). Petitioners cite to the Virginia case of Yuzefovsky v. St. John s Wood Apartments, 540 S.E.2d 134 (Va. 2001), for the proposition that claims of intentional misrepresentation in the premises liability context can never support a claim for punitive damages. The position of the Virginia Court is completely irrelevant to this Court s analysis. Conflict jurisdiction can never be based on an out of state decision. Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962). Furthermore, Petitioners description of the Yusefovsky holding is grossly misleading. In Yuzefovsky, the Virginia Court simply found that under the circumstances presented, misrepresentations made to the tenant were too remote to be the cause of the alleged damages and explained that under Virginia law, a landlord has no duty to protect against criminal assault unless he knows that criminal assaults against persons are occurring, or are about to occur, on the premises which indicate an imminent probability of harm to an invitee. Id. at 141. (emphasis added) The Virginia Court itself describes this requirement as a heightened degree of probability. Id. Such a requirement is incompatible with well-settled Florida law. Petitioners also fail to note that other courts have permitted claims for intentional misrepresentation in the context of a negligent security case. See, O Hara v. Western Seven Trees Corp., 75 Cal. App. 3d 798 9

14 (Ca. App. 1978) ( Here, the individual Petitioners allegedly knew of the serious potential danger to appellant as a female tenant. Yet they intentionally misled her to order advance their pecuniary interest in renting an apartment. Thus conscious disregard of appellant s safety was sufficiently alleged. ) There is no lawful basis for this Court to exercise its discretionary jurisdiction based on alleged conflict with out-of-state decisions. Conclusion The lower court=s decision neither expressly nor directly conflicts with any Florida decision on the same question of law. No lawful basis exists for this Court to invoke its discretionary jurisdiction to review this case. The Petitioners request for discretionary review should be denied. Respectfully Submitted, /s/ Camille Godwin Barry A. Cohen Fla. Bar No Christopher P. Jayson Fla. Bar No Camille Godwin Fla. Bar No Cohen, Jayson & Foster, P.A. 201 East Kennedy Blvd., Suite 1000 Tampa, Florida Telephone: (813) Facsimile: (813) Attorneys for Respondent 10

15 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnished via U.S. Mail to: Laura Voght, W. Earl Gunn and Stephen Mooney, Weinberg, Wheeler, Hudgins, Gunn & Dial, L.L.C., 2601 S. Bayshore Dr., Suite 850, Miami, FL 33133; and Mark Hicks, Hicks & Kneale, P.A., 799 Brickell Plaza, 9 th Floor, Miami, Florida 33131, attorneys for BROOKSIDE PROPERTIES, INC., and SOUTHSTAR EQUITY, L.L.C., this 6 th day of June, /s/ Camille Godwin Camille Godwin CERTIFICATE OF FONT COMPLIANCE Respondent hereby certifies that this Brief on Jurisdiction complies with the font requirements contained in Rule 9.210(a)(2), Fla. R. App. P. /s/ Camille Godwin Camille Godwin 11