SUPREME COURT OF FLORIDA

SUPREME COURT OF FLORIDA MATINNAZ CONSTRUCTION, INC., vs. Petitioner/Appellee, DIAMOND REGAL DEVELOPMENT, INC., Case No.: SC09-4786 L.T. Case No.: 1D07-4786/ 1D07-5580 Respondent/Appellant. / ON REVIEW FROM THE FIRST DISTRICT COURT OF APPEAL S DECISION, CASE NO. 1D07-4786/1D07-5580 PETITIONER S AMENDED INITIAL BRIEF ON JURISDICTION SCRUGGS & CARMICHAEL, P.A. Jefferson M. Braswell, Esquire Florida Bar No. 800996 1 S.E. First Avenue P.O. Box 23109 Gainesville, FL 32602 Phone (352)376-5242 Fax (352) 375-0690 email: braswell@scruggs-carmichael.com ATTORNEYS FOR APPELLANT

Table of Contents TABLE OF AUTHORITIES...iii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF ARGUMENT...5 JURISDICTIONAL STATEMENT...7 ARGUMENT...7 I. THE FIRST DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN SHEFFIELD v. SUPERIOR INSURANCE COMPANY, 800 So.2d 197 (Fla. 2001) AND THE DECISION IN GLABVO v. DREDGING CONTRACTORS v. BROWN, 374 So. 2d 607 (Fla. 3d DCA 1979), BECAUSE IT IMPROPERLY APPLIES THE INVITED ERROR DOCTRINE...7 II. THE FIRST DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN SHEFFIELD v. SUPERIOR INSURANCE COMPANY, 800 So.2d 197 (Fla. 2001), BECAUSE DIAMOND REGAL FAILED TO AVOID THE INVITED ERROR DOCTRINE BY PROPERLY PRESERVING ITS OBJECTION TO THE TRIAL COURT S RULING BEFORE INVITING THE SPECIAL JURY INSTRUCTION AND CONFLICTS WITH NUMEROUS CASES DEFINING FUNDAMENTAL TRIAL PROCEDURES FOR THE PRESERVATION OF ERROR...8 CONCLUSION...10 CERTIFICATE OF SERVICE...12 CERTIFICATE OF COMPLIANCE...12 ii

TABLE OF AUTHORITIES CASES FB v. State, 852 So.2d 226 (Fla. 2003)...10 Franklin v. State, 965 So.2d 79 (Fla 2007)...10 Glabvo v. Dredging Contractors v. Brown, 374 So. 2d 607 (Fla. 3d DCA 1979)...7 Harlan Bakeries, Inc. v. Snow, 884 So.2d 336 (Fla. 2 nd DCA 2004)...7 Ocwen Financial Corporation v. Kidder, 950 So.2d 480 (Fla. 4 th DCA 2007)...10 Sheffield v. Superior Insurance Company, 800 So.2d 197 (Fla. 2001)...5-10 Terry v. State, 668 So.2d 954, 962 (Fla. 1996)...7 CONSTITUTION Art. V 3(b)(3), Fla. Const. (1980)...7 RULES OF APPELLATE PROCEDURE Fla.R.App. R. 9.030(a)(2)(A)(iv)...7 STATUTES Section 90.104(1)(b), Florida Statutes (2003)...9, 10 Section 90.705(2), Fla. Stat. (2006)...1 iii

STATEMENT OF THE CASE AND FACTS Diamond Regal Development, Inc. ( Diamond ) sued Matinnaz Construction, Inc. ( Matinnaz ) for breach of contract and fraudulent lien, and Matinnaz counter-sued for breach of contract and lien foreclosure. This appeal arises from the First District s reversal of a jury verdict based on the improper special jury instruction to the jury that James Walker, Diamond Regal s expert witness, was not testifying as an expert, but instead, was offering his testimony as a general contractor. After Matinnaz terminated construction of the project, Walker was asked by Diamond to prepare a bid in effort to become the replacement contractor. (T. 583). Walker s qualifications and resume were introduced into evidence without objection, and Matinnaz did not object to his qualifications as an expert. (T. 563). Prior to Walker offering his opinion on the cost to construct the project, counsel for Matinnaz conducted a voir dire in accordance with 90.705(2), Fla. Stat. (2006). (T. 566-571). The voir dire examination revealed that Walker had thrown away his entire file and had no bid information from his subcontractors. (T. 566-571). Based on the voir dire examination, counsel for Matinnaz objected to the testimony for Walker s opinion testimony. (T.571). To address counsel s objection, the trial court sent the jury out of the courtroom, 1

and the bench conference that forms the basis of the First DCA s reversal ensued from the objection. (T.571). During the bench conference outside the presence of the jury, the trial court stated several times that it did not believe that Walker was an expert witness. (T. 572, 577). The trial court stated that Walker was personally interested in the project, that he did not know if the plans and specifications were the same used by Matinnaz, and that he had thrown away all of his data and entire file. (T. 572-576). The trial court acknowledged that Walker was qualified as a licensed contractor. (T. 574). Specifically relevant to this dispute, the trial court stated: He s not an expert, he s not a retained expert. A retained expert is somebody you go out and you hire and say, okay, here s our plans, these are the same things, here s all the documentation, give me your opinion, and he walks in with all of his data. You know all these doctors that come in, they come in, there s the file, here s what I reviewed so that everybody can compare an say, This is apples to apples. (T. 573). The following is the conclusion of the bench conference where the reversible error allegedly occurred: Matinnaz: Well, are you going to instruct the jury that he is not being called as an expert witness? THE COURT: No, I'm going to let him clarify that. Has the word "expert" even come out yet? Diamond: Unfortunately, I think it did. Matinnaz: Yes. THE COURT: All right, well, it's done. 2

Matinnaz: He's here to testify as an expert witness so now -- Diamond: I don't remember saying that. THE COURT: Well, no, you have voir dired him. Matinnaz: On his opinions. THE COURT: I have not yet, I have not yet said he's an expert. Matinnaz: He's already had his C.V. -- THE COURT: Wait a minute. Wait a minute. Diamond: I don't want to create an error here. I think there's merit in what he's saying in that one does not have to tender a witness to the judge -- - THE COURT: No, I understand that. Diamond: I think what needs to happen is we come back in and you simply announce to the jury that Walker is here as a contractor who bid on the job -- THE COURT: And he's not -- DIAMOND: -- not to be considered an expert witness. THE COURT: He's not to be considered an expert, a retained expert. He's here just to testify as a contractor who bid on the job and give you his opinion. Diamond: Well, I still want to know if we can still talk about him in an expert capacity? THE COURT: No. He's not a retained expert. He's just a guy who didn't get the job. Diamond: How about as far as dealing in contracts and his relationship -- THE COURT: He's not an expert. He's no more expert than any guy you pull off the street that builds. I mean, you didn't go out and look for an expert, you just happened to grab the guy that bid on the job. He can say, you can ask him when you deal, you know, what do you do as a building contractor, do you deal with contracts, do you do this, but nobody is going to be able to give you an opinion on what that English contract says. I've already determined it's not ambiguous. I mean we're not going to go, What does it mean. The jury can read English just 3

as well I can. That contract is not ambiguous. If he has an opinion on the Farsi contract, you can ask him about that if he knows anything about Farsi, you can ask him about that. Diamond: Thank you. THE COURT: All right. Matinnaz: Are you going to do that, your Honor. THE COURT: About what? Matinnaz: About the instruction to the jury. THE COURT: Yes, bring the jury out first. I'm not going to embarrass him in front of, I'll bring the jury out and say he's offered as a contractor who bid on the job but not as a retained expert. Bring them out. (Jury entered courtroom.) THE COURT: All right, ladies and gentlemen, there was a little confusion about Walker and what he was being called as. He's being called as a witness who is a certified building contractor who bid on the job and to give whatever opinions he has. He is not what we normally call a retained expert, and the Court is not recognizing him as an expert witness, but he is, as he said, a certified building contractor who at one time bid on the job, so you take it in that vein (sic). All right. Matinnaz: Your Honor, I'm sorry, just for the record I would like to renew my objection. THE COURT: Overruled. (T. 576-579). (Emphasis supplied). The words object or objection were never uttered by Diamond throughout the bench. (T. 576-579). Diamond argued to the First District that the two questions from Diamond s counsel at the end of the conference are objections and adequately preserve the issue for appeal. However, the record is clear that 4

counsel for Diamond said Thank you and not objection to the trial court s answers. (T. 579). Walker was able to proceed with his testimony in full without limitation and offered his opinion testimony on costs. (T. 579-610). Diamond did not make a motion for mistrial at the time of the instruction, at the close of its case, or at the close of the trial. Diamond did not raise this issue in its Motion for New Trial. This issue was raised for the first time on appeal in Diamond s Initial Brief to the First District Court of Appeals. The First District Court found that even though the instruction was invited error, the trial court s instruction was not harmless, and therefore, the special instruction suggested by Diamond warranted reversal. The opinion affirmed the trial court on all other matters. Matinnaz s motions for rehearing and rehearing en banc were denied. SUMMARY OF ARGUMENT The First District s reversal of the jury s verdict expressly and directly conflicts with this Court s decision in Sheffield v. Superior Insurance Company, 800 So.2d 197 (Fla. 2001) and numerous other opinions of this court because the opinion misapplies the invited error doctrine. The First District s opinion finds the subject special jury instruction is invited error, and then analyzes the special instruction to determine that it was harmful error, and thereby, uses Diamond s 5

invited instruction to support the reversal of the trial court in direct contravention of the invited error doctrine. The First District s written opinion is internally inconsistent in finding on page 3 that the instruction is invited error and then finding on page 6 that the instruction was reversible error. Glabvo Dredging Contracotrs, 374 So. 2d 607, 608 (Fla. 3d DCA 1979). Second, the First District s opinion conflicts with the exception to the invited error rule created by Sheffield. Diamond argues that it suggested the special instruction in response to the trial court s adverse ruling and was trying to salvage the use of its expert witness. However, unlike Sheffield, Diamond does not qualify for an exception to the invited error doctrine because the trial court never made an unequivocal ruling requiring a special instruction to the jury, Diamond never objected to the trial court s ruling, never objected to the instruction, never moved for a mistrial, and did not raise the issue in its motion for new trial. Beyond the failure of Diamond to qualify for the exception to the invited error doctrine, Diamond failed to follow fundamental trial procedures to properly preserve the issue for appeal such as a timely objection and motion for mistrial. Because of the foregoing, the opinion of the First District is inconsistent with the invited error doctrine, the Sheffield holding, and fundamental procedures for the preservation of error. 6

JURISDICTIONAL STATEMENT The Florida Supreme court has discretionary jurisdiction to review a decision of a District Court of Appeal that expressly and directly conflicts with a decision of the Supreme Court or another District Court of Appeal on the same point of law. Art. V 3(b)(3), Fla. Const. (1980); Fla.R.App. R. 9.030(a)(2)(A)(iv). ARGUMENT I. THE FIRST DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN SHEFFIELD v. SUPERIOR INSURANCE COMPANY, 800 So.2d 197 (Fla. 2001) AND THE DECISION IN GLABVO v. DREDGING CONTRACTORS v. BROWN, 374 So. 2d 607 (Fla. 3d DCA 1979), BECAUSE IT IMPROPERLY APPLIES THE INVITED ERROR DOCTRINE. The First District s opinion finds on page 3 that the special instruction to the jury was invited error, and then on page 6, the court cites to the trial court s instruction that Walker was not testifying as an expert witness as an abuse of discretion. Glabvo Dredging Contractors 374 So. 2d 607 (Fla. 3d DCA 1979). The opinion of the First District is inconsistent and irreconcilable with the invited error doctrine. See also Terry v. State, 668 So.2d 954, 962 (Fla. 1996); and Harlan Bakeries v. Snow, 884 So.2d 336, 340 (Fla. 2 nd DCA 2004). In this case, the trial court states several times, outside the presence of the jury, that Walker is not an expert witness and explains to Diamond his concerns in the ongoing bench conference. All of the comments from the trial court are outside 7

the presence of the jury and are, therefore, not prejudicial to Diamond. Any prejudice created by telling the jury that Walker was not an expert witness was created by the invited instruction suggested by Diamond. The well established invited error doctrine says that a party can not invite an instruction to the jury and then complain that the instruction created prejudice to its case. Glabvo at 609; and Harlan at 340. II. THE FIRST DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN SHEFFIELD v. SUPERIOR INSURANCE COMPANY, 800 So.2d 197 (Fla. 2001), BECAUSE DIAMOND FAILED TO AVOID THE INVITED ERROR DOCTRINE BY NOT PROPERLY PRESERVING ITS OBJECTION TO THE TRIAL COURT S RULING BEFORE REQUESTING THE SPECIAL JURY INSTRUCTION AND CONFLICTS WITH NUMEROUS CASES DEFINING FUNDAMENTAL TRIAL PROCEDURES FOR THE PRESERVATION OF ERROR. In the above quoted bench conference, Diamond failed to allow the trial court to make an unequivocal ruling excluding Walker, failed to object to the alleged ruling, failed to object to the instruction, failed to move for a mistrial, and failed to mention this issue in its motion for new trial. See Sheffield (Procedures followed to avoid the invited error doctrine). The issue of the trial court s alleged exclusion of Walker was raised for the first time on appeal. In Sheffield, this Court points to counsel s numerous efforts to preserve the objection to an adverse evidentiary ruling including making sure the trial court issues an unequivocal ruling, making a standing objection to the ruling, raising the issue in a motion for directed verdict, and 8

raising the issue again in its Motion for New Trial before finding that the case represented an exception to the invited error rule. In effect, counsel for Sheffield followed well accepted trial practice principles to make certain that the opposing party and the trial court were aware of the intention to preserve the error. Diamond s Counsel did not make any attempt whatsoever to preserve a right of appeal. Diamond expressed no discord at the trial, and it is not consistent with long standing trial practice to reverse the trial court without an objection. The same fundamental trial practice procedures adopted by this Court through years of case decisions and reinforced in Sheffield should apply to a review of Diamond s efforts to preserve its issue in a manner sufficient to avoid the invited error rule. The facts of this case warrant the expansion of Sheffield to adverse evidentiary rulings that occur during the course of a trial where the affected party wants to participate in formulating a special instruction without waiving its objection in an effort to minimize the prejudicial impact of the ruling. See Section 90.104(1)(b), Florida Statutes (2003). This Court should find that a party must carefully and precisely preserve its objections to an adverse ruling before participating in drafting a special jury instruction if it later wants to avoid the invited error rule. Even if this Court reads the above transcript cite as containing an unequivocal ruling excluding 9

Walker, the First District should have required Diamond to utter the word objection to preserve the issue. This Court s decisions addressing Section 90.104(1)(b), Florida Statutes (2003), do not support the fact that Diamond properly preserved the issue for appeal because even though an objection need not be renewed, an objection to the trial court s actions is still required to be made. See Franklin v. State, 965 So.2d 79, 89 (Fla 2007). Section 90.104(1)(b), Florida Statutes (2003), does not relieve a party from having to move for mistrial when improper comments are made to a jury. See Ocwen Financial Corporation v. Kidder, 950 So.2d 480, 482 (Fla. 4 th DCA 2007). Diamond s failure to move for a mistrial is fatal to its appeal. Ocwen at 483. Unlike in Sheffield, Diamond did not complain about nor mention Walker in its motion for new trial, and therefore, failed to properly preserve the issue for appeal. CONCLUSION For the above stated reasons, the opinion of the First District should be quashed. 10

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been furnished to Philip M. Burlington, Esquire, Burlington & Rockenbach, P.A., Courthouse Commons, 444 West Railroad Avenue, Suite 430, West Palm Beach, FL 33401, Fax (561) 721-0465, Attorneys for Plaintiff, by U.S. Mail by telefacsimile by Hand Delivery this 27th day of April, 2009. CERTIFICATE OF COMPLIANCE I certify that this Brief is prepared in Courier New 12- point font and complies with the font requirements of Fla.R.App.P. 9.210(a)(2). SCRUGGS & CARMICHAEL, P.A. By: Jefferson M. Braswell, Esquire Florida Bar No. 800996 ttorneys for Appellant One S.E. First Avenue P.O. Box 23109 Gainesville, FL 32602 Phone (352) 376-5242 Fax (352) 375-0690 email: braswell@scruggs-carmichael.com ATTORNEYS FOR APPELLANT 11