Supreme Court of Florida

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1 Electronically Filed 08/20/ :25:08 PM ET RECEIVED, 8/20/ :28:33, Thomas D. Hall, Clerk, Supreme Court Supreme Court of Florida CASE NO. SC13- PEGGY T. STIMPSON, and RALPH M. STIMPSON, Petitioners, v. FORD MOTOR COMPANY, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, FIFTH DISTRICT OF FLORIDA PETITIONERS JURISDICTIONAL BRIEF ROY L. GLASS LAW OFFICES OF ROY L. GLASS, P.A Central Avenue St. Petersburg, FL (727) Telephone LEON M. BOYAJAN, II 2303 Highway 44 W Inverness, Florida Phone: (352) lboyaja1@tampabay.rr.com ROY D. WASSON WASSON & ASSOCIATES, CHARTERED Courthouse Plaza Suite West Flagler Street Miami, Florida (305) Telephone roy@wassonandassociates.com Counsel for Petitioners

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3 TABLE OF CONTENTS TABLE OF AUTHORITIES.... : ii STATEMENT OF THE CASE AND OF THE FACTS.... : 1 SUMMARY OF THE ARGUMENT.... : 3 ARGUMENT: I. THE FIFTH DCA S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF OTHER DISTRICTS REGARDING THE DISTINCTION BETWEEN INTRINSIC AND EXTRINSIC FRAUD... : 4 II. III. THE DECISION UNDER REVIEW EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM OTHER DISTRICTS REGARDING THE NEED TO SHOW THAT MISCONDUCT AFFECTED THE OUTCOME.... : 6 THE FIFTH DISTRICT S HOLDING THAT FORD S CROSS-EXAMINATION OF DR. BERG AND CLOSING ARGUMENTS WERE PROPER EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM OTHER DISTRICTS THAT ATTACKS ON THE PERSONAL INTEGRITY OF OPPOSING COUNSEL ARE FUNDAMENTAL ERROR.... : 8 CONCLUSION... : 10 CERTIFICATE OF SERVICE.... : 11 CERTIFICATE OF COMPLIANCE... : 11

4 TABLE OF AUTHORITIES CASES PAGE Bennett v. Saint Vincent s Med. Ctr., Inc., 71 So. 3d 828 (Fla. 2011)... : 2 Brown v. Brown, 432 So.2d 704 (Fla. 3d DCA 1983).... : 5 Clemons v. Flager Hosp., 385 So. 2d 1134(Fla. 5th DCA 1980)... : 2 Coleman (Parent) Holdings, Inc. v. Morgan Stanley and Company, 20 So.3d 252 (Fla. 4th DCA 2009)... : 4, 6 Dep t of Revenue, ex rel Brinson v. Brinson, 953 So. 2d 38 (Fla. 3d DCA 2007)... : 5 Emerson Elec. Co. v. Garcia, 623 So. 2d 523 (Fla. 3d DCA 1993).... : 9 Flemenbaum v. Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994).... : 6 Leo s Gulf Liquors v. Lakhani, 802 So. 2d 337 (Fla. 3d DCA 2001)... : 7 Owens-Corning Fiberglas Corp. v. Crane, 683 So. 2d 558 (Fla. 3d DCA 1996)... : 9 Owens-Corning Fiberglas Corp. v. Morris, 653 So. 2d 409 (Fla. 3d DCA 1995)... : 9 Parker v. Parker, 916 So. 2d 926 (Fla. 4th DCA 2005).... : 5 Parker v. Parker, 957 So. 2d 392 (Fla. 2007)... : 4 SDG Dadeland Associates, Inc. v. Anthony, 979 So. 2d 997 (Fla. 3d DCA 2000)... : 9 Sturdivant v. State, 84 So. 3d 1053 (Fla. 1st DCA 2010).... : 2 Sun Supermarket, Inc. v. Fields, 568 So. 2d 480 (Fla. 3d DCA 1990)... : 9

5 Tramel v. Bass, 672 So. 2d 78 (Fla. 1st DCA 1996)... : 7 OTHER AUTHORITIES PAGE Florida Rule of Civil Procedure 1.540(b).... : passim

6 STATEMENT OF THE CASE AND FACTS This is a petition to review a decision of the Fifth District Court of Appeal reversing the trial court s order imposing sanctions against the Defendant/Respondent Ford Motor Co. App. 1. Following trial of a product liability sudden acceleration ( SA ) crash case involving a Ford Aerostar that left Peggy Stimpson a quadriplegic, the jury returned a defense verdict. App. 3. The Stimpsons contended that their van s cruise control system was defectively designed because (1) the system was susceptible to allowing electromagnetic interference (EMI) to suddenly seize control of the throttle and overpower the brakes, and (2) Ford was aware of, but did nothing to address, the defect. App. 2. Plaintiffs motion for relief from judgment was based primarily on the theory that Ford committed fraud on the court by presenting a pedal misapplication defense it knew was false and misleading. App. 3. Ford responded that there could be no finding of fraud on the court because all of the evidence regarding the Stimpsons concealment theory was presented to the jury and because there was credible evidence to support the verdict. App. 3. The trial court conducted extensive evidentiary post-judgment hearings on the Stimpsons motions. The court thereafter granted the Stimpsons[ ] rule 1.540(b)(3) relief based on its findings that Ford committed fraud on the court. The court struck Ford s answer and affirmative defenses, entered judgment on liability in favor of the Stimpsons, and ordered a trial on the issue of damages. The court also entered an alternative ruling conditionally granting the Stimpsons a 1

7 App. 4. new trial based upon findings both of fundamental error and that the jury s verdict was against the manifest weight of the evidence. There were three main bases for the Fifth DCA s reversal of the judgment on liability in favor of Plaintiffs: 1) the ruling that the trial court abused its discretion in granting such relief because Ford did not engage in misconduct sufficient to warrant sanctions (App. 6, 7, 8, and 9); 2) even if Ford was guilty of misconduct its actions could not be considered fraud on the court sufficient to warrant such relief because such fraud requires a finding of extrinsic fraud, and 1 Ford actions could only be construed as intrinsic fraud (App. 5, 7, 9, 10); and 3) the impugning comments of Ford s counsel were proper since they were made in direct response to what occurred in the trial, in front of the jury. 1 Petitioners note that the fact that there were alternative bases for the Fifth District s decision does not render the second basis the court s opinion that relief from a judgment cannot be granted based upon intrinsic fraud dictum. Where there are two alternative bases for a holding, the second is of equal dignity to the first for purposes of determining the reviewability of the alternative holding. See Bennett v. Saint Vincent s Med. Ctr., Inc., 71 So. 3d 828 (Fla. 2011) (exercising jurisdiction on the basis of direct conflict... [over the dissenter s objection that] [a]lthough the discussion of this point... might plausibly be viewed as an alternative holding of the case, it is more reasonable to understand the cursory discussion on this point as dicta ); see also, Clemons v. Flager Hosp., 385 So. 2d 1134, 1136 (Fla. 5th DCA 1980) ( [W]here a decision rests on two or more grounds, none can be relegated to the category of obiter dictum. ); Sturdivant v. State, 84 So. 3d 1053 (Fla. 1st DCA 2010) (Thomas, J., dissenting) (discussing difference between alternative holdings and dicta). 2

8 SUMMARY OF THE ARGUMENT This Court should accept jurisdiction to review the Fifth District s decision because that decision expressly and directly conflicts with decisions of other district courts of appeal in three ways. First, the Fifth District s holding that Rule does not permit relief from judgment unless extrinsic fraud is established is contrary to many cases holding that the only difference between the two types of fraud is in the time limitation for seeking relief based upon intrinsic fraud. Where the motion was filed within one yeart, there is no distinction between intrinsic and extrinsic fraud. The second basis upon which this Court should accept review is that the Fifth District s decision applies a definition of fraud upon the court requiring the movant to show that misconduct of the other party affected the outcome of the case. Other districts recognize that fraud upon the court can be demonstrated without establishing that the misconduct affected the outcome of the case. The third basis supporting the review by this Court is the Fifth District s determination in conflict with decisions of the Third District that attacks upon the personal integrity of counsel for the Stimpsons was proper. Numerous cases hold that such attacks never are proper, and constitute fundamental error. 3

9 ARGUMENT I. THE FIFTH DCA S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF OTHER DISTRICTS REGARDING THE DISTINCTION BETWEEN INTRINSIC AND EXTRINSIC FRAUD This Court should accept jurisdiction because the Fifth District s decision expressly and directly conflicts with decisions of other districts on the distinction between intrinsic and extrinsic fraud. The Fifth District held that the trial court abused its discretion in finding that Ford committed fraud on the court by using NHTSA s 1989 SA report during trial because any improper use would have been intrinsic, not extrinsic fraud. App. 7. Thus, the court held that intrinsic fraud is insufficient to support a motion for relief from judgment, even though that motion for relief from judgment was filed within the one-year period for a motion under Fla. R. Civ. P (b). That holding, distinguishing intrinsic fraud from extrinsic fraud as insufficient to support relief on a timely Rule motion, expressly and directly conflicts with decisions of other districts. Citing Coleman (Parent) Holdings, Inc. v. Morgan Stanley and Co., 20 So. 3d 252, (Fla. 4th DCA 2009) and Parker v. Parker, 957 So. 2d 392 (Fla. 2007), the Fifth DCA assumed that only extrinsic fraud can be considered fraud on the court and applied the following syllogism: 1) The Stimpsons alleged fraud upon the court. 2) Only extrinsic fraud, by definition, can constitute fraud on 4

10 the court. 3) Any fraud that Ford committed was intrinsic, and not extrinsic. 4) Thus, the trial court s finding that Ford committed fraud upon the court was improper, and the sanctions it imposed must be reversed. Although, prior to the adoption of Rule 1.540, relief from judgment could be sought only by an independent action in equity based on extrinsic fraud, Rule now makes clear that, other than for timing purposes, the distinction between intrinsic and extrinsic fraud is irrelevant: On motion and upon such terms as are just, the court may relieve a party or a party s legal representative from final judgment, decree, order or proceeding for the following reasons:... 3) fraud (whether heretofore dominated intrinsic or extrinsic), misrepresentation, or misconduct of an adverse party.... (Emphasis added). See Brown v. Brown, 432 So. 2d 704, 715 (Fla. 3d DCA 1983) (examining the history of Rule 1.540). The Fifth DCA s decision expressly and directly conflicts with other districts holdings that intrinsic fraud is sufficient to base relief from judgment pursuant to Rule 1.540(b). The Third District has held: Under Florida Rule of Civil Procedure 1.540(b), a party may seek relief from judgment on grounds of intrinsic fraud within one year of entry of the judgment. Dep t of Revenue, ex rel Brinson v. Brinson, 953 So. 2d 38, 39 (Fla. 3d DCA 2007). Similarly, the Fourth District in Parker v. Parker, 916 So. 2d 926, 929 (Fla. 4th DCA 2005) recognizes that Rule 1.540(b) permits relief from judgment on 5

11 grounds of fraud whether heretofore denominated intrinsic or extrinsic within one year of the judgment. Thus, the decision below conflicts with holdings that there is no need to demonstrate extrinsic fraud to warrant relief from a judgment based upon a motion filed (like the one in this case) within one year. This Court should accept jurisdiction. II. THE DECISION UNDER REVIEW EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM OTHER DISTRICTS REGARDING THE NEED TO SHOW THAT MISCONDUCT AFFECTED THE OUTCOME The Fifth District s decision also conflicts with decisions from other districts on the question whether serious sanctions can be imposed including striking of pleadings and entering a default in the absence of a showing that the misconduct affected the outcome of the proceedings. The Fifth District s decision to reverse was based upon the premises that serious sanctions cannot be imposed unless the moving party demonstrates that the party engaging in misconduct committed fraud on the court, and that such fraud on the court cannot be established in the absence of a showing that the misconduct affected the outcome of the proceedings. That basis for the holding is evident in the court s citation to Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., 20 So. 3d 952, (Fla. 4th DCA 2009), in which the court held that a fraud claim of any type brought under Rule 1.540(b) is subject to the Flemenbaum [v. Flemenbaum, 636 So. 2d 579 (Fla. 6

12 4th DCA 1994)] requirement to show the effect of the fraud on the final judgment. 20 So. 3d at 958. Other districts have held that there need be no effect upon the ultimate judgment to warrant the most severe sanctions, thereby applying a different definition of fraud upon the court to warrant relief based on litigation misconduct. In such cases, the most severe sanctions are warranted as much for their deterrent effect on others as for the chastisement of the wrongdoing litigant. Tramel v. Bass, 672 So. 2d 78, 84 (Fla. 1st DCA 1996). In Tramel, altered videotapes were produced in discovery and submitted by the defendant in support of his motion for summary judgment. Although the plaintiff discovered the wrongdoing early in the proceedings, the defendant s answer was nonetheless stricken. Thus, there need be no showing of prejudice to the plaintiff to warrant a trial court s imposition of severe sanctions, so the misconduct need not meet the definition of fraud upon the court utilized below. Another case recognizing that a litigant need not demonstrate such fraud upon the court as meets the Fifth District s definition is Leo s Gulf Liquors v. Lakhani, 802 So. 2d 337 (Fla. 3d DCA 2001). There the Third District affirmed the dismissal of a lawsuit based upon fraud on the court uncovered by the defendant before trial. The trial court s ruling in that case was based upon a pretrial evidentiary hearing that determined that agents of the corporate plaintiff 7

13 repeatedly lied under oath concerning issues material to the prosecution of plaintiff s claim and defendants affirmative defenses, in an effort to conceal the truth and have consequently forfeited plaintiff s right to proceed with this action. Id. at 343. There the fraud upon the court was uncovered prior to trial, so those lies did not affect the outcome of the case and the Third DCA s fraud upon the court definition expressly and directly conflicts with the definition used by the Fifth District in the present case. This Court should accept jurisdiction to review the express and direct conflict between the districts concerning their inconsistent definition of fraud upon the court. III. THE FIFTH DISTRICT S HOLDING THAT FORD S CROSS-EXAMINATION OF DR. BERG AND CLOSING ARGUMENTS WERE PROPER EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM OTHER DISTRICTS THAT ATTACKS ON THE PERSONAL INTEGRITY OF OPPOSING COUNSEL ARE FUNDAMENTAL ERROR The Fifth DCA s reversal of the conditional new trial order, notwithstanding the trial court s finding that Ford s cross-examination of Doctor Berg and its closing argument were tantamount to accusing Plaintiffs counsel of orchestrating a conspiracy between Plaintiff and their expert in an attempt to trick the jury, hide evidence, and perpetrate a fraud on the court... [which] devastated any chance Plaintiff might of had to secure a fair trial in front of a jury who had been told not 8

14 2 to trust Plaintiffs counsel (App. 12) expressly and directly conflicts with decisions of the Third District, which uniformly find such attacks upon counsel s integrity to be fundamental error as a matter of law justifying a new trial even in the absence of objection, and whether or not the attacks were made in response what occurred at trial. See, e.g., SDG Dadeland Associates, Inc. v. Anthony, 979 So. 2d 997 (Fla. 3d DCA 2000); Owens-Corning Fiberglas Corp. v. Crane, 683 So. 2d 558 (Fla. 3d DCA 1996) ( it is never acceptable for one attorney to effectively impugn the integrity or credibility of opposing counsel before the jury in the process. Even in the absence of contemporaneous objection, we have found such comments about opposing counsel made during closing argument to be fundamentally erroneous. ). Accord, e.g., Owens-Corning Fiberglas Corp. v. Morris, 653 So. 2d 409 (Fla. 3d DCA 1995); Emerson Elec. Co. v. Garcia, 623 So. 2d 523 (Fla. 3d DCA 1993); and Sun Supermarket, Inc. v. Fields, 568 So. 2d 480, 481 (Fla. 3d DCA 1990) ( Based upon the remarks of the plaintiffs counsel that counsel for the defendant lied to the jury and that he committed a fraud, we must reverse.... the conduct of the plaintiff s counsel in this case devastated any chance the defendant might of had to secure a fair trial in front of the jury who had 2 The Fifth District held that the trial court abused its discretion in so ruling because... the cross-examination and closing argument submitted by Ford s counsel... were proper since they were made in direct response to what occurred during trial, in front of the jury. App

15 been told not to trust the defendant s counsel. ). T h i s C o u r t s h o u l d a c c e p t jurisdiction to resolve the conflict between the districts concerning whether impugning the integrity of counsel at trial can ever be appropriate. CONCLUSION WHEREFORE, the decision of the Fifth District under review expressly and directly conflicting with decisions of other district courts of appeal on the same questions of law, this Court should accept jurisdiction and review the decision on the merits. Respectfully submitted, ROY L. GLASS LAW OFFICES OF ROY L. GLASS, P.A Central Avenue St. Petersburg, FL (727) Telephone lroyglas@tampabay.rr.com Leon M. Boyajan, II 2303 Highway 44 W Inverness, Florida Phone: (352) lboyaja1@tampabay.rr.com THOMAS J. MURRAY AND MOLLY S. O NEILL THOMAS J. MURRAY & ASSOCIATES 111 E. Shortline Drive Sandusky, OH (419) Telephone tom@thomasjmurraylaw.com mso@murrayandmurray.com ROY D. WASSON WASSON & ASSOCIATES, CHARTERED Courthouse Plaza Suite West Flagler Street Miami, Florida (305) Telephone (305) Facsimile roy@wassonandassociates.com Counsel for Petitioner 10

16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served by upon Peter Webster, Carlton Fields, Appellate Counsel for Ford, pwebster@carltonfields.com; Wendy F. Lumish, Alina Alonso Rodriguez and David Luck, Counsel for Ford, Carlton Fields, P.A., wlumish@carltonfields.com, arodriguez@carltonfields.com, dluck@carltonfields.com; Leon M. Boyajan II, Counsel for Stimpson, lboyaja1@tampabay.rr.com; androy L. Glass, Counsel for Stimpson, Law Offices of Roy L. Glass, P.A., Lroyglas@tampabay.rr.com; Thomas J. Murray and Molly S. O Neill, Thomas J. Murray & Associates, Counsel for Stimpson, tom@thomasjmurraylaw.com, mso@murrayandmurray.com; this the29th day of July, By: ROY D. WASSON Fla. Bar No CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief has been computer generated in 14 point Times New Roman font and complies with the requirements of Rule 9.210(a)(2). By: ROY D. WASSON Fla. Bar No