IN THE SUPREME COURT OF FLORIDA CASE NO. SC04- LOWER TRIBUNAL CASE NO. 4D MANUEL CASTRO, Petitioner, ROGER BRAZEAU, DOE TOWING, INC., et al.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC04- LOWER TRIBUNAL CASE NO. 4D MANUEL CASTRO, Petitioner, v. ROGER BRAZEAU, DOE TOWING, INC., et al., Respondents. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT OF FLORIDA PETITIONER S JURISDICTIONAL BRIEF WASSON & ASSOCIATES CHARTERED 1320 S. Dixie Highway, Suite 450 Miami, FL Telephone: (305) LAW OFFICES OF JESUS O. CERVANTES 8550 West Flagler Street, Suite 120 Miami, Florida (305)

2 Co-Counsel for Petitioner TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE CASE AND OF THE FACTS SUMMARY OF THE ARGUMENT ARGUMENT:. 3 I. THE FOURTH DISTRICT S OPINION CONFLICTS WITH OTHER DISTRICTS ON WHETHER A CONTINUANCE SHOULD BE GRANT TO ALLOW THE PLAINTIFF TO PROCURE AN AFFIDAVIT FROM HIS EXPERT II. THE FOURTH DISTRICT S OPINION CONFLICTS WITH OTHER DISTRICTS ON WHETHER A LAY WITNESS MAY GIVE AN OPINION AS TO THE SPEED AN AUTOMOBILE WAS TRAVELING III. THE FOURTH DISTRICT S OPINION CONFLICTS WITH OTHER DISTRICTS ON WHETHER SUMMARY JUDGMENT IS IMPROPER WHEN THE POSSIBILITY OF A FACT ISSUE EXISTS i

3 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE ii

4 TABLE OF AUTHORITIES CASES Albers v. Dasho, 355 So. 2d 150 (Fla. 4 th DCA 1978) Breausche v. Prough, 592 So. 2d 1211 (Fla. 2d DCA 1992) Cox v. CSX Intermodal, Inc., 732 So. 2d 1092 (Fla. 1 st DCA 1999) Crowell v. Unicom Anesthesia Assoc. 845 So. 2d 325 (Fla. 2d DCA 2003) Fleming v. Fleming, 710 So. 2d 601 (Fla. 4 th DCA 1998) Garcia v. Crescent Plaza Condo Ass n, Inc., 813 So. 2d 975 (Fla. 2d DCA 2002) Marrero v. Corcino, 813 So. 2d 1049 (Fla. 4 th DCA 2002) Martinez v. State, 692 So. 2d 199 (Fla. 3d DCA Nomo Research, Inc. v. CCL Plastic Packaging, Inc., 862 So. 2d 785 (Fla. 3d DCA 2003) Reeves v. State, 647 So. 2d 994 (Fla. 2d DCA 1994) Snyder v. Cheezem Dev. Corp., 373 So. 2d 719 (Fla. 2d DCA 1979) iii

5 Tally v. Fain, 692 So. 2d 279 (Fla. 5 th DCA 1997) Van Deese v. McKinnonville Hunting Club, Inc., No. 1D , 2004 Fla. App. LEXIS 8911 (Fla. 1 st DCA June 18, 2004) Vandyk v. Southside Gun, Inc., 638 So. 2d 138 (Fla. 1 st DCA 1994) Zwinge v. Hettinger, 530 So. 2d 318 (Fla. 2d DCA 1988) STATEMENT OF THE CASE AND FACTS The following recitation of the facts is copied from the opinion issued as a result of the Plaintiff/Petitioner s appeal of the summary final judgment granted in favor of Defendant/Respondent Roger Brazeau: Castro was driving with two passengers on I-95 in Broward County when his vehicle hit a metal object in the road, causing a tire blowout. He pulled to the side of the highway and exited the vehicle with his passengers. Shortly thereafter, defendant Jackson hit the same object, causing her to lose control of her car, and sending it spinning into defendant Brazeau s vehicle. Brazeau immediately hit the brakes, his air bag deployed, and his car veered into the guardrail. While he maintains that he hit the guardrail and not Castro s vehicle, other witnesses testified that he hit Castro s vehicle and Castro himself, causing injuries. Castro filed suit for damages against Jackson, Brazeau and an unknown Doe towing company which he alleged was responsible for dropping the metal object hit by Jackson onto the highway. Brazeau moved for summary judgment contending that the material facts were not in dispute, and he was not negligent. He presented his deposition, Castro s deposition, and the deposition of Castro s 1

6 passengers. No evidence suggested any negligence, other than the passengers testimony regarding Brazeau s speed. Neither Castro nor his passengers saw the Brazeau vehicle before the accident [between Brazeau s vehicle and Jackson s vehicle]. One of the passengers testified that Brazeau must have been traveling very fast because of the damage caused to Castro s vehicle s chassis in the crash. There was no expert evidence offered to show that the crash damage would indicate that Brazeau was speeding or that he was negligent. The trial judge asked Castro s attorney whether he had an affidavit from an accident reconstruction expert. The attorney responded that he had thought the witness testimony was sufficient. He said that he did have an expert but had not as yet taken the expert s deposition. The lawyer then asked for a continuance to obtain such evidence. The judge refused to continue the case. The trial court granted summary judgment. The decision under review holds that the passengers opinions as to the speed of Defendant s vehicle did not create a disputed issue of material fact to overcome summary judgment. The Fourth District in its decision implicitly receded from its prior decision in Marrero v. Corcino, 813 So. 2d 1049 (Fla. 4 th DCA 2002) which held that an affidavit submitted in opposition to a motion for summary judgment was sufficient to create a fact issue on the defendant s excessive speed, even though the affiant stated that he was unable to observe the defendant coming prior to the accident, and based the lay opinion concerning speed on the facts that the Defendant came out of nowhere and left long skid marks. Id. at While conflict between decisions of the Fourth District will not itself establish this Court s jurisdiction, the intra-district conflict is cited to demonstrate the necessity 2

7 SUMMARY OF THE ARGUMENT This Court has jurisdiction to review the decision below under the jurisdictional grant of Fla. Const. Art. V, 3(b)(3) because this decision expressly and directly conflicts with decisions of other district courts of appeal on the same points of law, to wit: 1) Whether a trial court should grant continuance of a summary judgment motion hearing when additional material evidence is available and the continuance would serve the interest of justice without prejudicing the defendant; speed; 2) Whether a lay person s observation is competent evidence of a vehicle s 3) Whether testimony which establishes the possibility of a genuine issue of material fact precludes summary judgment. ARGUMENT I. THE FOURTH DISTRICT S OPINION CONFLICTS WITH OTHER DISTRICTS ON WHETHER A CONTINUANCE SHOULD BE GRANTED TO ALLOW THE PLAINTIFF TO PROCURE AN AFFIDAVIT FROM HIS EXPERT for this Court to exercise its jurisdiction (created through conflict with other districts decisions) in order to clarify the law for the lower courts of Florida in this area. 3

8 This Court should accept jurisdiction to resolve conflict created by the Fourth District s decision to uphold the denial of the continuance of the hearing on the defense motion for summary judgment. The First District reversed the denial of a continuance of a hearing for summary judgment motion where, given additional time, counsel could garner additional evidentiary facts necessary for a resolution of the motion. Vandyk v. Southside Gun, Inc., 638 So. 2d 138, 140 (Fla. 1 st DCA 1994). As a basis for its decision, the court stated: Public policy requires that our courts be ever vigilant in making summary disposition of causes lest the application of the rule result in eroding or destroying the fundamental right of litigants under our system of jurisprudence to have the issues made by the pleadings tried by a jury of fellow citizens. The importance of preserving the jury system, and the concomitant right of a litigant to a jury trial on the merits of his case, should be zealously protected. In Tally v. Fain, 692 So. 2d 279 (Fla. 5 th DCA 1997), the Fifth District reversed the denial of a continuance, requested telephonically on the day and time of the hearing, where there was no emergency which required proceeding with the hearing and postponement would not prejudice the other party. The Second District has held that the denial of a continuance and the granting of summary judgment is an abuse of discretion when continuance would allow completion of discovery that was material to the merits. See Crowell v. Unicom 4

9 Anesthesia Assoc. 845 So. 2d 325 (Fla. 2d DCA 2003). Even the Fourth District has held that the denial of a continuance is an abuse of discretion when it creates an injustice for the movant and the opposing party would not be prejudiced or inconvenienced by the delay. See Fleming v. Fleming, 710 So. 2d 601 (Fla. 4 th DCA 1998). 2 Because public policy strongly favors adjudication on the merits and the decision herein under review denies the Plaintiff his day in court, this Court should exercise its discretionary jurisdiction. II. THE FOURTH DISTRICT S OPINION CONFLICTS WITH OTHER DISTRICTS ON WHETHER A LAY WITNESS MAY GIVE AN OPINION AS TO THE SPEED AN AUTOMOBILE WAS TRAVELING This Court should exercise its discretion to accept jurisdiction because the Fourth District s decision directly conflicts with the decisions of other district courts that lay persons need not be qualified as an expert in order to express an opinion as to the speed of a vehicle. In Zwinge v. Hettinger, 530 So. 2d 318 (Fla. 2d DCA 1988), the Second 2 Again, while intra-district conflict between the Fourth District s cases will not alone establish this Court s jurisdiction, the existence of those inconsistent adjudications within a single district bespeaks the need for this Court to exercise its discretionary power created by the conflict with decisions of other districts to clarify the law applicable to summary judgment motions in negligence cases statewide. 5

10 District held that the trial court properly allowed three eyewitnesses to testify regarding their observations and opinions concerning the speed of vehicles involved in an accident. None of the witnesses were qualified experts. As in this case, the accident in the Zwinge case involved two separate collisions. Two of the three eyewitnesses did not see the other vehicle before it collided with the third vehicle involved in the accident, just as the witnesses in this case did not see Brazeau s vehicle before it was impacted by Jackson s car. Because the Second DCA reversed the summary judgment for the defendant based upon that non-expert testimony regarding speed, the case is factually indistinguishable from this case and the conflict vests this Court with jurisdiction. In Martinez v. State, 692 So. 2d 199 (Fla. 3d DCA 1997), the Third District held that opinion testimony of lay witnesses about the speed of a defendant s vehicle at the time of the accident was admissible. In its decision below, the Fourth District upheld the trial court s ruling disallowing witness testimony that the Defendant s vehicle was coming very fast before it impacted the Plaintiff s vehicle, instead of allowing the jury to determine the credibility of the testimony. This holding also conflicts with the Second District s decision in Reeves v. State, 647 So. 2d 994 (Fla. 2d DCA 1994), which decision followed the Fourth District s previous holding in Albers v. Dasho, 355 So. 2d 150 6

11 (Fla. 4 th DCA 1978), that even though the witness had only a brief opportunity to observe the speed of the vehicle in question, his opinion as to its speed was held admissible, and the fact that he had only a brief time to observe the vehicle was regarded as affecting only the weight of his testimony and not its competency. 7

12 III. THE FOURTH DISTRICT S OPINION CONFLICTS WITH OTHER DISTRICTS ON WHETHER SUMMARY JUDGMENT IS IMPROPER WHEN THE POSSIBILITY OF A FACT ISSUE EXISTS Even assuming the evidentiary insufficiency of the testimony by the lay witnesses concerning the speed of the Defendant s vehicle, that testimony establishes the possibility of a genuine issue of material fact that can be proven with other evidence. Therefore, because that testimony creates some doubt as to whether there is no genuine issue of material fact, the decision under review conflicts with decisions of other districts. The party opposing a motion for summary judgment need not create a genuine issue of material fact in order to defeat summary judgment, according to the law established in other districts of Florida. All the opponent must do is demonstrate the possibility of a genuine fact issue in order to render summary judgment improper. If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper. Snyder v. Cheezem Dev. Corp., 373 So. 2d 719, 720 (Fla. 2d DCA 1979)(emphasis added). Accord, e.g., Garcia v. Crescent Plaza Condo Ass n, Inc., 813 So. 2d 975 (Fla. 2d DCA 2002). 8

13 While admissible evidence may be necessary to create an actual issue of material fact, the cases demonstrate that a summary judgment should not be granted even absent such an actual issue. A possible issue of material fact will defeat summary judgment even if no actual issue has been established through admissible evidence. If the record reflects even the possibility of a material issue of fact, or if different inferences can be drawn from the facts, that doubt must be resolved against the moving party and summary judgment must be denied. Cox v. CSX Intermodal, Inc., 732 So. 2d 1092, 1095 (Fla. 1 st DCA 1999)(emphasis added). Accord, e.g., Van Deese v. McKinnonville Hunting Club, Inc., No. 1D , 2004 Fla. App. LEXIS 8911 (Fla. 1 st DCA June 18, 2004); Nomo Research, Inc. v. CCL Plastic Packaging, Inc., 862 So. 2d 785, 787 (Fla. 3d DCA 2003)( If the slightest doubt exists, summary judgment must be reversed ). The Fourth District s decision expressly and directly conflicts with decisions from other districts which reverse summary judgment even where the proof offered in opposition to the summary judgment is not, in and of itself, admissible. In Breausche v. Prough, 592 So. 2d 1211 (Fla. 2d DCA 1992), the court reversed a summary judgment based upon an affidavit which the court indicated was itself not admissible evidence to create an issue of fact, but sufficient to demonstrate the possibility that the opposing party could adduce some admissible evidence on that point. The court held: 9

14 We believe this affidavit is sufficient to defeat summary judgment for the Appellees because it indicates that the Appellant may be able to produce admissible evidence in support of her claim for relief. Id. at Thus, even if the lay opinion testimony of the witnesses in this case was legally insufficient to create an issue of fact, (because it takes expert credentials to base a speed estimate upon crush damage to a vehicle), that non-expert testimony certainly reflects the likelihood that the Plaintiff could present admissible expert testimony on the matter at trial, thereby creating the possibility of a genuine issue of fact and rendering summary judgment improper. This Court should accept jurisdiction due to that conflict in the standard applied by the district courts of appeal. CONCLUSION WHEREFORE, the Fourth District s decision directly conflicts with decisions of other district courts of appeal on at least three separate issues, this Court should accept jurisdiction and consider the matter on the merits. Respectfully submitted, WASSON & ASSOCIATES CHARTERED Suite 450 Gables One Tower 1320 South Dixie Highway Miami, Florida (305) LAW OFFICES OF JESUS O. CERVANTES Suite West Flagler Street Miami, Florida (305)

15 Attorneys for Petitioner By: ANNABEL C. MAJEWSKI Florida Bar No CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy hereof was served by U.S. Mail, upon Kerry C. McGuinn, Jr. and Burke G. Lopez, Rywant, Alvarez, Jones, Russo & Guyton, counsel for Respondent, 109 N. Brush Street, Suite 500, Tampa, Florida 33601, on this 28 th day of June, By: ANNABEL C. MAJEWSKI Florida Bar No CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing brief has been computer generated in 14 point Times New Roman and complies with the requirements of Rule By: ANNABEL C. MAJEWSKI Florida Bar No