FLORIDA SUPREME COURT TALLAHASSEE, FLORIDA CASE No.: SC03-2029 CITY OF HALLANDALE, a municipality, Lower Tribunal Case No.: 4D02-3366 (District Court of Appeal of Petitioner, Florida, Fourth District) vs. SAL AMATO AND CLARA AMATO Respondents. : RESPONDENTS BRIEF ON JURISDICTION ON DISCRETIONARY REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL PAUL J. KNESKI, ESQ. ATTORNEY FOR APPELLANT FLORIDA BAR NO.: 260770 BISCAYNE BUILDING 19 WEST FLAGLER STREET SUITE 807 MIAMI, FLORIDA 33130 TEL: (305) 358-0080
FAX: (305) 371-3436 TABLE OF CONTENTS PAGE TABLE OF CONTENTS... ii TABLE OF AUTHORITIES...iii STATEMENT OF THE CASE AND OF THE FACTS... 4 SUMMARY OF ARGUMENT... 7 ARGUMENT... 7 THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH DECISIONS OF THIS COURT NOR WITH DECISIONS OF THE FIRST, THIRD AND FIFTH DISTRICT COURTS OF APPEAL ON THE STANDARD OF REVIEW TO BE APPLIED BY AN APPELLATE COURT REVIEWING A TRIAL JUDGE S DECISION TO DISMISS A CASE FOR FRAUD ON THE COURT. CONCLUSION... 10 CERTIFICATE OF SERVICE... 10 CERTIFICATE OF TYPE, SIZE AND STYLE... 10 ii
TABLE OF AUTHORITIES CITED CASES Cox v. Burke, 706 So.2nd 43 (Fla.5DCA 1998)... 7, 8 Baker v. Myers Tractor Services, Inc., 765 So.2nd 149 (Fla.1DCA 2000)... 7 Distefano v. State Farm Mut. Auto Ins., 846 So.2nd 572 (Fla.1DCA 2003)... 7 iii
STATEMENT OF THE CASE AND OF THE FACTS This action arises out of the dismissal with prejudice of Respondent\Sal Amato s claim for personal injuries sustained in an automobile accident and Respondent\Clara Amato s claim for loss of the services of her husband. Respondents Sal Amato and Clara Amato, filed a Complaint against the Petitioner, The City of Hallandale, for personal injuries sustained by Mr. Amato in an automobile crash which occurred on or about August 6, 1999. Respondent, Sal Amato, gave a deposition on November 20, 2000. Thereafter, on March 26, 2001, the Petitioner, City of Hallandale, filed a Motion to Dismiss Respondents Complaint with prejudice for fraud. In its Motion to Dismiss the City of Hallandale alleged that the Respondent, Sal Amato, had intentionally lied about his physical condition during his deposition taken on November 20, 2000. On June 13, 2001 an evidentiary hearing was held before the trial Court on the City of Hallandale s Motion to Dismiss. During the course of the evidentiary hearing the Petitioner presented the transcript of Respondent\Sal Amato s deposition taken on November 20, 2000. In addition, the Petitioner introduced surveillance video tapes of the Respondent, Sal Amato, which were taken on March 14, 2000 and on November 22, 2000. In order to save time the trial Court played the surveillance videos in fast-forward mode. When the surveillance videos are played in fast-forward mode, it appears that Respondent, Sal Amato, is running around like a 4
bee. However, when the surveillance tapes are played at normal speed Mr. Amato s activities appear to be very guarded and slow. Respondent, Sal Amato, testified during the evidentiary hearing and explained why his actions as portrayed on the surveillance videos are not inconsistent with his deposition testimony. At the conclusion of the hearing the Court enumerated five (5) instances in which the actions of Mr. Amato portrayed in the surveillance videos were purportedly contradicted by Mr. Amato s deposition testimony as to what he could or could not do and struck Sal Amato s pleadings for having committed a fraud upon the Court. Respondent, Sal Amato, appealed the dismissal of his case to the Fourth District Court of Appeal. In his Brief Mr. Amato pointed out to the Fourth District Court of Appeal that the trial Court, in making its findings upon which it indicates it struck Respondent\Amato s pleadings, misconstrued what Mr. Amato said he could do or could not do during the course of his deposition. It also misconstrued what the surveillance video portrayed Mr. Amato doing. For example, as pointed out by the Fourth District Court of Appeal in its decision, Mr. Amato did not testify that he could not go up and down the stairs at all, as stated by the trial Court in its findings in support of the dismissal of the Amato s claims. In his deposition, Mr. Amato testified that he can not go up or down stairs or on an incline without pain. Numerous additional instances are cited in Appellant s brief to the Fourth District Court of Appeal where the trial Court repeatedly made findings upon which it predicated its dismissal of Mr. Amato s claims which mischaracterize the testimony Mr. Amato gave 5
during his deposition as to what he said he could do and could not do and which mischaracterize what the surveillance videos portray Mr. Amato doing. For example, the trial Court found that Mr. Amato is portrayed in the surveillance video walking on the inclines of his roof when the video does not show Mr. Amato walking on the inclines of his roof at all. As further pointed out the by Fourth District Court of Appeal in its decision, the trial Court s ruling was predicated upon its reviewing the video tape in fast-forward mode instead of at regular speed. As noted by the Fourth District Court of Appeal in its decision, when Respondent s activities are viewed on the videos at regular speed, they are done relatively slowly. Amato appears to go up and down the ladder with effort, and it is impossible to tell from the tape the weight of the motor which he hauled to the roof. As further pointed out by the Fourth District Court of Appeal, the car repair (portrayed) on the video required the Respondent to go under the left wheel well of the vehicle, but only the upper part of his chest and head are seen under the car. In each videotape he appears to walk with a slight limp. In the deposition he testified that he could not lift excessive weight, but he did not define what excessive weight was, although he denied that twenty pounds was excessive, depending upon how he lifted the weight. A fair reading of the Fourth District s decision does not contradict the precedent set by this Court and the other districts courts of appeal as urged by Petitioner. The gist of the Fourth District Court s decision is simply that the trial Court erred in dismissing Mr. Amato s claims on account of the lack of clear and convincing evidence required to support such a dismissal. In the case at bar there was 6
a lack of clear and convincing evidence that Mr. Amato sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system s ability impartially to adjudicate his case by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party s claim or defense which will warrant a dismissal of Mr. Amato s case. The decision of the Fourth District Court of Appeal is not contradicted by or inconsistent with existing case law. The Fourth District Court cited in its decision and predicated its decision upon existing case law, utilizing the Fifth District Court of Appeal s analysis in Cox v. Burke, 706 So.2nd 43 (Fla.5DCA 1998). The Court also cited precedent from the First District Court of Appeal Baker v. Myers Tractor Services, Inc., 765 So.2nd 149 (Fla.1DCA 2000) and in Distefano v. State Farm Mut. Auto Ins., 846 So.2nd 572 (Fla.1DCA 2003) in reaching its decision. SUMMARY OF ARGUMENT The decision of the Fourth District Court of Appeal in this cause does not expressly and directly conflict with the decisions of this Court and with decisions of the First, Third and Fifth District Courts of Appeal on the standard of review to be applied by an appellate Court reviewing a trial Court s decision to dismiss a case for fraud on the Court. ARGUMENT This Court has discretionary jurisdiction to review a District Court s decision which expressly and directly conflicts with the decision of another district Court or this Court on the same issue of law. Article V, Sec. 3(b)(3) Fla. Const. and 7
Fla.R.App.P. 9.030(a)(2)(A)(iv). In the case at bar, there is not any express or direct conflict between the decision of the Fourth District Court of Appeal in this cause and decisions of this Court or the decisions of the First, Third and Fifth District Courts of Appeal. Petitioner cites Cox v. Burke, 706 So.2nd 43 (Fla.5DCA 1998) as a decision which the Fourth District s decision in this case purportedly conflicts with. However, the Fourth District Court of Appeal utilized the analysis of the Fifth District Court of Appeal in Cox v. Burke, supra, in reaching its decision. Nor does the decision of the Fourth District Court in this case conflict, as urged by Petitioner, with any other decision of this Court or the district courts which hold that when a party lies in discovery about matters pertaining to his claim, dismissal of the case is proper. Petitioner cites precedent from West Virginia and Louisiana in support of his argument, but even if the Fourth District Court s decision in this case did conflict with precedent from West Virginia and Louisiana, such conflict would not constitute a basis for this Court to exercise its jurisdiction on account of conflict pursuant to Article V, Sec. 3(b)(3) Fla. Const. and Fla.R.App.P. 9.030(a)(2)(A)(iv). T h e premise of Petitioner s argument set forth in his brief, that the Fourth District s decision stands for the proposition that an appellate Court may review de novo a trial Court s dismissal of a case for fraud on account of a purported discrepancy between a surveillance tape and a plaintiff s deposition, is erroneous. The Fourth District Court did not rule in this case that it can disregard a judge s findings upon which there is a dismissal of a case for fraud on account of a purported discrepancy between a plaintiff s deposition testimony and surveillance videos. The point of the Fourth 8
District Court s decision is simply that the trial Court erred in dismissing Respondent s claims because there was a lack of clear and convincing evidence required by existing case law to support such a dismissal. In the case at bar there was a lack of clear and convincing evidence that Mr. Amato intentionally committed a fraud upon the Court for the sake of interfering with the judicial system s ability to impartially adjudicate his case. Furthermore, it was plainly evident that the trial Court rushed to its conclusion that Respondents claims should be dismissed for fraud without properly analyzing the surveillance videos and deposition testimony because the trial Court judge based his decision on findings which misstated what Respondent said at his deposition and what the videos portrayed after viewing the surveillance videos only in fast-forward mode. In any event, this Court has discretionary jurisdiction to review a decision of a district court of appeal for conflict pursuant to Article V, Sec. 3(b)(3) Fla. Const. and Fla.R.App.P. 9.030(a)(2)(A)(iv) only when such decision expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. In the case at bar, there is not any express direct conflict between the Fourth District Court of Appeal s decision in this case and the decisions of this Court or the decisions of the First, Third and Fifth District Courts of Appeal. Only when the Fourth District Court s decision is given the erroneous interpretation ascribed to it by the Petitioner s attorney can an argument be made that the Fourth District Court s decision in this case conflicts with the decision of this Court and of the other district courts of appeal. Such does not constitute express and direct 9
conflict required to confer discretionary jurisdiction upon this Court. CONCLUSION The Court should decline to exercise jurisdiction in this case because contrary to the assertion of the Petitioner in its Brief, the decision of the Fourth District Court of Appeal in this cause does not expressly and directly conflict with a decision of the First, Third and Fifth District Courts of Appeal. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to: Mark Goldstein, Esq., Assistant City Attorney, at City of Hallandale, 550 Brickell Avenue, Penthouse Suite, Miami, Florida 33131, this 5th day of December, 2003. PAUL J. KNESKI, ESQ. CERTIFICATION OF TYPE, SIZE AND STYLE Respondents certify that this Reply Brief complies with Fla.R.App.P.9.210(a). This Rely Brief is in 14 point proportionally spaced Times Roman font. 10
PAUL J. KNESKI, ESQ. 11