IN THE SUPREME COURT OF FLORIDA. Case No.: SC Lower Tribunal No.: 1D ADAMS GRADING AND TRUCKING, INC. and JOHN M.

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1 IN THE SUPREME COURT OF FLORIDA Case No.: SC Lower Tribunal No.: 1D ADAMS GRADING AND TRUCKING, INC. and JOHN M. BLOODSWORTH, Petitioners, vs. MICHAEL E. GRAY, Respondent. ON REVIEW FROM A DECISION OF THE FIRST DISTRICT COURT OF APPEAL RESPONDENT'S BRIEF ON JURISDICTION D. Marc Warner, Esq. Florida Bar No

2 TABLE OF CONTENTS TABLE OF AUTHORITIES iii PRELIMINARY STATEMENT STATEMENT OF THE CASE AND FACTS SUMMARY OF ARGUMENT ARGUMENT CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE ii

3 TABLE OF AUTHORITIES Cases: Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla. 1980) DeSpain v. Avante Group, Inc., 900 So.2d 637 (Fla. 5th DCA 2005) Gray v. Bloodsworth and Adams Grading and Trucking, Inc., 956 So.2d 505 (Fla. 1st DCA 2007) , 4, 6, 8 Jenkins v. State, 385 So.2d 1356 (Fla. 1980) , 9 Marinelli v. Grace, 608 So.2d 833, 834 (Fla. 4th DCA 1992) Martin Marietta v. Country Club Associates, Inc., 402 So.2d 1324 (Fla. 4th DCA 1981) Reaves v. State, 485 So.2d 829 (Fla. 1986) Roby v. Kingsley, 492 So.2d 789, 791 (Fla. 1st DCA 1986).... 3, 4, 6 Stephens v. State, 748 So.2d 1028 (Fla. 1999) The Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988) Jury Instructions: Fla. Std. Jury Instr.(Civ.)5.1(b) passium iii

4 PRELIMINARY STATEMENT The Respondent, Michael E. Gray, was the Appellant in the First District Court of Appeal, and is referred to in this brief as "Gray." Petitioners, Adams Grading and Trucking, Inc. and John M. Bloodsworth, were the Appellees in the First District Court of Appeal, and are referred to in this brief as "Petitioners." Petitioners' statement of the case and facts is inaccurate and fails to comply with the rules of appellate procedure and dictates of this Court. Specifically, more than one half of Petitioners' statement of the case and facts presents material outside the four corners of the decision below of the First District Court of Appeal. For the purposes of determining jurisdiction, this Court is limited to those facts contained within the four corners of the decisions which are allegedly in conflict. Reaves v. State, 485 So.2d 829, 830 (Fla. 1986). In addition, the record in the underlying case cannot be used to establish jurisdiction. Id. Petitioners' brief is littered with allegations and argument based heavily on material not found in the opinion below. Furthermore, review of Petitioners' statement of the case and facts is made difficult by the lack of any citation to the opinion below. As a result, Respondent Gray elects to include its own short statement of the case and facts in this Brief. 1

5 STATEMENT OF THE CASE AND FACTS The relevant facts for this jurisdictional brief, as set forth in the decision below of the First District Court of Appeal, are as follows: Respondent, Gray, appealed a final judgment entered for Petitioners following a jury trial. The issue decided on appeal was whether the trial court erred in failing to instruct the jury on concurring cause. The 1 st DCA held that the trial court abused its discretion and committed reversible error in failing to give respondent, Gray s requested Florida Standard Jury Instruction 5.1(b) on concurring cause. Gray v. Adams Grading and Trucking, Inc., 956 So.2d 505 (Fla. 1st DCA 2007). On July 16, 2003, Gray was working on a road construction project for Anderson Columbia, Inc. Petitioner, Adams Grading and Trucking, Inc., was a subcontractor and provided dump trucks on the project. Id. One of the dump trucks, driven by Petitioner John Bloodsworth, ran over Gray's foot as Gray knelt down to lay a string-line. Id. Co-workers pulled Gray from underneath the dump truck, but Gray's foot was permanently damaged. Id. In his complaint, Gray alleged that Petitioners negligently moved the truck during a period when work was stopped on the project to allow Gray to lay a string-line. Id. At trial, Petitioners argued that the negligence of Anderson Columbia, Gray s employer, caused Gray's injury. Id. 2

6 During the charge conference, Gray requested the court to instruct the jury on concurring cause by giving Florida Standard Jury Instruction 5.1(b). Id. The trial court declined to give the instruction, stating that no cause other than negligence had occurred(i.e., an act of God). The jury returned a verdict returned in favor of Appellees. Gray moved for a judgment notwithstanding the verdict and/or a new trial. Id. Arguing that the trial court erred when it refused to instruct the jury as requested, Gray stated that the evidence supported giving the instruction and that the jury might have been misled by the court's failure to give the instruction. Id. The trial court admitted that it erred in finding that the "other cause" referred to in instruction 5.1(b) had to be a cause other than negligence, i.e., an act of God, but nevertheless denied Gray s motion for a new trial. Id. On its review in this case, the First District Court of Appeal stated, "Decisions regarding jury instructions are reviewed under an abuse of discretion standard." Id. The court held, "When a plaintiff requests a concurring cause instruction, the court commits reversible error if '[f]irst, the facts as viewed most favorably to the plaintiff support the need for such an instruction, and second, the failure to give the instruction may mislead the jury.'" quoting Roby v. Kingsley, 492 So. 2d 789, 791 (Fla. 1st DCA 1986). The court applied the test in 3

7 Roby, determined the instructions as given, without the requested concurring cause instruction, failed to fairly state applicable law and concluded the trial court committed reversible error. Id.; see also Marinelli v. Grace, 608 So.2d 833, 834 (Fla. 4th DCA 1992). 4

8 SUMMARY OF ARGUMENT Petitioners' seek to invoke the discretionary jurisdiction of this Court on the grounds that the decision of the First District Court of Appeal below is in express and direct conflict with decisions of this Court and other district courts on the same question of law. Petitioners' have failed to demonstrate any express or direct conflict whatsoever on the same question of law between the decision below of the First District Court of Appeal and any decision of this Court or another district court of appeal. Consequently, this Court does not have jurisdiction to review this opinion. 5

9 ARGUMENT THIS COURT LACKS JURISDICTION TO REVIEW THE FIRST DISTRICT COURT OF APPEAL'S DECISION IN GRAY v. BLOODSWORTH and ADAMS GRADING AND TRUCKING, INC. BECAUSE THERE IS NO EXPRESS AND DIRECT CONFLICT ON THE SAME QUESTION OF LAW WITH ANY OTHER DECISION OF THIS COURT OR ANOTHER DISTRICT COURT OF APPEAL. This Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980). Furthermore, review by this Court is not proper "where the opinion below establishes no point of law contrary to a decision of this Court or another district court." The Florida Star v. B.J.F., 530 So.2d 286, 289 (Fla. 1988). In Gray, the First District Court of Appeal decided one question of law: whether the trial court committed reversible error in failing to instruct the jury on concurring cause (Fla. Std. Jury Instr. 5.1(b)). Gray, 956 So.2d at 505. The court held that failure to give the instruction constituted reversible error. Id. citing Roby v. Kingsley, 492 So.2d 789, 791 (Fla. 1st DCA 1986). This decision does not expressly or directly conflict with any of the case holdings cited by Petitioners. Moreover, the cases cited by Petitioners do not contain "the same" or even 6

10 similar questions of law as that found in Gray. Consequently, each case is distinguishable from the opinion in Gray. In Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla. 1980), the trial court granted a new trial to defendants based on (1) an improper "Golden Rule" argument by the plaintiff, (2) the trial court's erroneous opinion that the verdict was against the manifest weight of the evidence, and that (3) the size of the verdict shocked the conscience of the court. Id. at 145. This Court quashed the decision of the district court that reversed the grant of new trial by the trial court. Id. at 146. The trial court's instructions to the jury were not at issue in Baptist Memorial. In Stephens v. State, 748 So.2d 1028 (Fla. 1999), the trial court granted a new trial to a criminal defendant based on ineffective counsel, the district court reversed the grant of a new trial. Id. This Court then quashed the decision of the district court stating that the trial court was in the better position to "weigh the testimony and evidence" and to judge the "credibility of witnesses." Id. at The trial court's instructions to the jury were not at issue in Stephens. In Martin Marietta v. Country Club Associates, Inc., 402 So.2d 1324, 1325 (Fla. 4th DCA 1981), the trial court granted a new trial because the verdict was against the manifest weight of the evidence. The Fourth District Court of Appeal upheld the 7

11 trial court's decision. Id. The trial court's instructions to the jury were not at issue in Martin Marietta. In, DeSpain v. Avante Group, Inc., 900 So.2d 637, 639 (Fla. 5th DCA 2005), the issue on appeal was whether the trial court erred in denying leave to amend a complaint to add a claim for punitive damages. The trial court weighed the sufficiency of the evidence and denied leave to amend the complaint. Id. The Fifth District Court of Appeal reviewed the record de novo in part because the trial court in this circumstance was not being called on to "evaluate and weigh testimony and evidence based upon its observation of the bearing, demeanor, and credibility of a witness." Id. at 644. The trial court's instructions to the jury were not at issue in DeSpain. Each case cited by Petitioners concerns what deference is due to the trial court where the trial court has decided matters based on evidentiary weight, credibility, and sufficiency. Evidentiary weight, credibility, and sufficiency were not at issue in the First District Court of Appeal's decision in Gray. In Gray, the court decided one issue; whether the trial court erred in failing to instruct the jury on concurring cause. Gray, 956 So.2d at 505. Furthermore, none of the cases cited by Petitioners consider whether a trial court erred in failing to properly instruct a jury. 8

12 This Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. Jenkins, 385 So.2d at The decision below by the First District Court of Appeal considered whether a trial court erred in failing to properly instruct a jury. Petitioners have cited four decisions that considered the deference owed to the trial court where the trial court was considering the weight, sufficiency, and credibility of evidence. Petitioners cite no case which expressly and directly conflicts with the decision below on the same point of law. Consequently, there is no conflict of law for this Court to review. 9

13 CONCLUSION Petitioners have cited no case which expressly and directly conflicts with the decision below of the First District Court of Appeal on the same point of law. As a consequence, discretionary jurisdiction is not proper. Respondent Gray respectfully requests this Court deny Petitioners' application for discretionary review. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail and facsimile this day of July, 2007 to: Albert J. Wollerman, Esquire, Guilday, Tucker, Schwartz & Simpson, P.A., Post Office Box 12500, Tallahassee, Florida and Mark J. Feather, Esquire, Burt & Feather, P.A., 114 N.E. 1 st Street, Trenton, Florida D. Marc Warner Fisher, Butts, Sechrest & Warner, P.A S. W. 91 st Terrace, Suite 101 Gainesville, Florida Florida Bar No.: Phone Fax CERTIFICATE OF COMPLIANCE Pursuant to Fl. R. App. P (a)(2), the undersigned attorney hereby certifies that the foregoing Respondent's Brief on Jurisdiction was prepared in Courier New, 12-point font. D. Marc Warner 10