Ed Ricke & Sons, Inc. v. Green

• Decision Date: 22 October 1992
• Docket Number: No. 78860,78860
• Citation: 609 So.2d 504
• Parties: 17 Fla. L. Week. S649 ED RICKE & SONS, INC., etc., Petitioner, v. Demetrius Octavius GREEN, etc., Respondent.
• Court: Florida Supreme Court

Page 504

609 So.2d 504

17 Fla. L. Week. S649

ED RICKE & SONS, INC., etc., Petitioner, v. Demetrius Octavius GREEN, etc., Respondent.

No. 78860.

Supreme Court of Florida.

Oct. 22, 1992.

Rehearing Denied Jan. 5, 1993.

Richard A. Sherman and Rosemary B. Wilder of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, for petitioner.

Donald Feldman, Boca Raton, and Patrice A. Talisman of Paul, Landy, Beiley & Harper, P.A., Miami, for respondent.

OVERTON, Justice.

We have for review Green v. Ed Ricke & Sons, Inc., 584 So.2d 1101 (Fla. 3d DCA1991), in which the Third District Court of Appeal, relying on Palm Beach County v. Palm Beach Estates, 110 Fla. 77, 148 So. 544 (1933), held that Ed Ricke & Sons, Inc. (Ricke) is estopped from introducing newly discovered evidence because the evidence is inconsistent with the position Ricke had taken at previous trials of this case. The district court also held that the rule set forth in Slavin v. Kay, 108 So.2d 462 (Fla.1959), stating that a contractor is relieved from liability for injuries to third parties occurring after the owner has accepted the project if the owner could have discovered and remedied the dangerous condition, is inapplicable to the facts of this case. We find conflict and have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const. We find that Ricke was entitled to present the newly discovered evidence, and that, under the circumstances, Ricke falls within the scope of the Slavin doctrine. Accordingly, we quash the decision of the district court of appeal.

This case has a lengthy legal history, including three trials, a final summary judgment, and three appeals. In 1977, Demetrius Octavius Green, a minor, was seriously burned when he fell into a deep puddle of heated water which was discharged from a faulty water heater located in building No. 37 at the James E. Scott Public Housing Project. On May 2, 1980, Green filed a complaint alleging that, in January of 1966, Ricke had contracted with the Dade County Housing Authority to convert hot water heaters from solar power to gas at the Scott Housing Project. Green alleged that the water heater in building No. 37 was negligently installed and that this negligent installation caused Green's injuries.

Ricke answered and pleaded that it was without knowledge as to who installed the defective heater. Ricke then moved for summary judgment on the basis of the Slavin doctrine. The trial court denied that motion.

In 1982, the first trial of this matter ended in a mistrial due to juror illness. In the second trial, the former director of maintenance for Dade County Housing testified that Ricke had installed the water heater in building No. 37. Not having its own records since the heater had been installed fourteen years prior to the filing of the complaint, and knowing that it had installed some water heaters in this housing project, Ricke accepted this testimony and proposed to the court instructions dealing with the negligence theory in that trial. The jury returned a verdict in favor of Ricke. The district court reversed that verdict and remanded for a new trial because Ricke's attorney had violated an order in limine in his closing argument by making known to the jury that there had been a prior lawsuit between Green and Dade County. Green v. Ed Ricke & Sons, Inc., 438 So.2d 25 (Fla. 3d DCA1983), approved 468 So.2d 908 (Fla.1985).

On March 24, 1986, two weeks prior to the third trial, Green's attorney informed Ricke that the custodian of the records of Dade County would testify that no building permit had been issued to Ricke for the work performed by it on building No. 37. This testimony would suggest an additional basis of negligence by Ricke in the installation of the water heater. Ricke had previously searched its own records to locate the installation permits, only to find that the records that would have contained the permits had been destroyed during the fourteen years after the work was performed. On April 4, 1986, Ricke advised Green's attorney that it was still searching the public records for the missing permit. During the trial, Ricke discovered the applicable records, which had been misfiled in the Dade County Building and Zoning Department office. The records established that Ricke was not the contractor that had installed the water heater in building No. 37.

Green moved to strike the testimony concerning this newly discovered evidence. The trial judge expressed sympathy for Green's position, but denied his motion, explaining:

I will not let a judgment be entered against someone who was not responsible for it ... because this defendant, if he didn't construct it, certainly should not have it ... entered against him because of poor investigation

....

The trial judge granted Green a mistrial and gave him two years to conduct discovery to establish that Ricke had installed the defective heater.

Prior to the commencement of the fourth trial set for February, 1989, Ricke moved for a summary judgment on the grounds that: (1) the evidence was now undisputed that Ricke had not installed the water heater that caused Green's injuries, and (2) Ricke was not liable under the Slavin doctrine. The trial judge denied Ricke's alternative theory under Slavin, but granted summary judgment, finding that no genuine issue of material fact existed as to who installed the water heater.

The district court reversed the summary judgment, holding that "Ricke was estopped from introducing evidence inconsistent with the earlier position in the litigation." 584 So.2d at 1103. The court, relying on Palm Beach County, concluded: "Having elected not to dispute this issue at the first trial or on appeal, Ricke is precluded from offering evidence that it did not install the heater in question." Id. On the second issue, the district court affirmed the trial court, noting that gas water heaters are dangerous instrumentalities and, as such, are excepted from the protection afforded by Slavin. The district court stated: "The work in question was the installation of a gas water heater system. Florida courts have consistently held that instrumentalities connected with gas are inherently dangerous. This case falls within the exception to Slavin, and the trial court correctly denied the motion." Id. at 1104 (citations omitted). We disagree with both conclusions.

With regard to Ricke's presentation of newly discovered evidence of nonliability, we find that Ricke did nothing to prejudice Green prior to the expiration of the statute of limitations. Ricke pleaded in its answer that it was without knowledge as to who installed the water heater in building No. 37. Both parties were forced to rely on public officials and public records for information pertaining to the construction of the Scott housing project. Green conducted no discovery before the expiration of the applicable statute of limitations to determine if the correct party had been sued or if any additional party was responsible for the negligent installation. In the prior trial, Ricke accepted the former maintenance director's testimony presented by Green that Ricke had installed the defective heater. This testimony occurred after the statute of limitations on Green's action had run and, therefore, cannot be deemed conduct by Ricke that was prejudicial to Green. Furthermore, the search of the public records that led to the discovery that Ricke had not installed the water heater was actually precipitated by Green's new allegations prior to the fourth trial that Ricke had installed the water heater without a permit.

We reject the district court's view that Palm Beach controls and that Ricke is prohibited from presenting this newly discovered evidence in a new trial. We find that Palm Beach was an equity case, decided in a different era and under different rules. In Palm Beach, the court adhered to a philosophy that original pleadings could not be amended. It stated:

The relief now sought by appellant's new petition abandons what was formerly alleged, and assumes in the pleadings a different and inconsistent relationship on petitioner's part toward the same subject matter....

The former petition for intervention is a part of the record in this case and is now beyond the possibility of amendment.

110 Fla. at 87, 148 So. at 548 (emphasis added).

The present philosophy, as expressed in our Rules of Civil Procedure, is to allow both plaintiff and defendant to plead alternatively in presenting their claims and defenses, see Florida Rule of Civil Procedure, and that amendments are allowed "[a]t any time in the furtherance of justice, upon such terms as may be just." Fla.R.Civ.P 1.190(e). The purpose of this philosophy is to ensure that the truth of the matter can be determined and that all claims are properly resolved on their merits.

Speaking directly to the issue of new or additional claims in a new trial, we have stated: " 'An order directing a new trial has the effect of vacating the proceeding and leaving the case as though no trial had been had.' " Atlantic Coastline R.R. v. Boone, 85 So.2d 834, 839 (Fla.1956) (quoting 39 Am.Jur. New Trial Sec. 204 (1942)). We find that newly discovered evidence or alternative claims or defenses, whether presented by a plaintiff or a defendant, should be allowed to be presented in any subsequent trial of a cause. The admission of this evidence should be prevented only in those circumstances where a party is misled to his or her prejudice by that party's adversary. The record indicates that Green was not misled in this instance and, in fact, precipitated the discovery of the new evidence by his assertion, as a new basis of negligence, that Ricke had installed the water heater without a building permit. The trial court properly entered summary judgment on this issue.

While the Slavin issue is not controlling due to our resolution of the first issue, we find that it must be addressed to correct an improper application of the...