Fla. Peninsula Ins. Co. v. Newlin

• Decision Date: 12 June 2019
• Docket Number: Case No. 2D17-2519
• Citation: 273 So.3d 1172 (Mem)
• Parties: FLORIDA PENINSULA INSURANCE COMPANY, Appellant, v. Catherine NEWLIN and Eric Newlin, Appellees.
• Court: Florida District Court of Appeals

273 So.3d 1172 (Mem)

FLORIDA PENINSULA INSURANCE COMPANY, Appellant,

v.Catherine NEWLIN and Eric Newlin, Appellees.

Case No. 2D17-2519

District Court of Appeal of Florida, Second District.

Opinion filed June 12, 2019

Scot E. Samis and Jonathan S. Tannen of Traub Lieberman Straus & Shrewsberry LLP, St. Petersburg; Fredric S. Zinober and Michelle S. Sabin of Zinober Diana, P.A., St. Petersburg, for Appellant.

Mark A. Nation and Paul W. Pritchard of The Nation Law Firm, Longwood; Matthew R. Danahy and Howard W. Weber of Danahy & Murray, P.A., Tampa, for Appellees.

PER CURIAM

Although Mr. Newlin's unexpected testimony at trial raises legitimate concern, in considering the record, the arguments made by the parties, and the applicable standard of review, we conclude that the trial court did not abuse its discretion in allowing Mr. Newlin's testimony or denying the Appellants' motion for a new trial. See Cantore v. W. Boca Med. Ctr., Inc., 254 So. 3d 256, 260 (Fla. 2018) ("A trial court's admission of evidence is reviewed for an abuse of discretion."); Campbell v. Griffith, 971 So. 2d 232, 235 (Fla. 2d DCA 2008) ("The appropriate standard of review applied to a trial court's denial of a motion for a new trial is whether the trial court abused its discretion."); Pena v. Vectour of Fla., Inc., 30 So. 3d 691, 692 (Fla. 1st DCA 2010) ("Trial court rulings on motions for new trial are given great deference on appeal. The possibility of reasonable disagreement does not constitute an abuse of discretion." (citations omitted)).

Affirmed.

SILBERMAN, J., Concurs.

LUCAS, J., Concurs with separate opinion.

ATKINSON, J., Concurs with separate opinion.

LUCAS, Judge, Concurring separately with opinion.

Florida Peninsula Insurance Company (Florida Peninsula) has appealed the denial of its motion for new trial following an adverse verdict and judgment in a sinkhole coverage dispute. I agree that the circuit court did not abuse its discretion in denying Florida Peninsula's motion. Because my colleagues and I are traveling slightly different paths to resolve this appeal, and because the arguments on appeal touch upon an important vein of the law in civil litigation, I write this opinion to explain how I view these issues and why I feel an affirmance is appropriate here.

I.

In 2010, Catherine and Eric Newlin submitted a sinkhole claim to their insurer, Florida Peninsula, when they discovered cracking in the walls around the back of their home. After receiving an engineer's report which concluded that the cracking was not due to covered sinkhole activity under the Newlins' policy, Florida Peninsula denied the Newlins' claim. In 2014, the Newlins filed a lawsuit against Florida Peninsula, alleging their insurer breached their insurance contract by denying their claim. The litigation proceeded in a fairly uneventful fashion. Discovery was exchanged. Depositions were taken. Each side retained experts. Reports were prepared.

One point during discovery that is germane to the appeal before us bears mentioning. Near the conclusion of Mr. Newlin's deposition, Florida Peninsula's counsel asked Mr. Newlin about the property he owned adjacent to the home. Mr. Newlin testified he had owned the adjacent lot for "around ten years," and then he answered the following questions, which were the only questions he was asked concerning this property:

Q. Do you have any plans to develop on the lot?

A. It's already developed. We did it last year. We cleared it. It's cleared and —

Q. Ready to be built?

A. We won't build a house on it.

Q. Was there already a house on the property?

A. No.

Q. So when you say cleared it, were you just clearing it of vegetation?

A. Cleared the vegetation and put a fence.

Q. Does the fence include — I mean, is it inclusive of the home you're living now, so you're basically extending your yard?

A. Yes.

....

Q. Have you had the lot next door tested for sinkhole activity?

A. Me personally, no. I don't know who did anything, but, no, me personally, no.

Not long after Mr. Newlin's deposition, discovery concluded and the case went to trial. Both sides agreed that the factual dispute for the jury to resolve was a narrow one. They have reiterated the same point in this appeal: the Newlins' claim revolved entirely around whether there was limestone "rock" underneath the Newlins' home. If there was, then the cracking in their house walls could be said to be the result of "sinkhole activity" as defined by section 627.706(2)(i), Florida Statutes (2010). If there were no such rocks, then there would be no coverage under the applicable policy provision.

The Newlins and Florida Peninsula called expert geologists and engineers who, over the course of six days, endeavored to persuade the jury about what lies beneath the Newlins' home. We need not delve deep into the depths of the experts' dispute over whether the crumpled pieces of material their boring samples uncovered were truly limestone "rocks" or simply "sediment with limestone fragments." The appeal before us largely concerns what Mr. Newlin had to say on the matter.

Early in the trial, one of the Newlins' experts, Norton Nettles, had shown the jury a piece of Caloosahatchee marl, a kind of limestone rock, during his testimony as an example of what, in his opinion, the rock could look like beneath the foundation of the Newlins' house. Mr. Nettles admitted he had obtained the exemplar he was using from a mine pit approximately 3 to 4 miles away from the Newlins' home. However, when Mr. Newlin testified the next day, his attorney asked him if he had ever seen any rocks on his property like the one their expert had brought to trial. Mr. Newlin responded he had:

I actually have seen rocks like that on my property, yes .... I'm — I'm kind of a country boy. Country boy always wants to have his own fish ponds so he can fish at home. I dug a pond on my — we own the adjoining property, and I dug a pond there.

Florida Peninsula's counsel promptly objected. Specifically, Florida Peninsula challenged the relevancy of Mr. Newlin's anticipated testimony and the fact that it was coming as a surprise (inasmuch as the plaintiffs had not previously disclosed that Mr. Newlin claimed to have ever found examples of limestone rock on his adjacent property). The circuit court overruled the objection and Mr. Newlin went on to explain how he had once dug a deep hole about 30 to 40 feet from his house and found the same kind of rocks his expert had been "talking about." He still had the rocks he had dug up; Mr. Newlin said they were "in front of my home around one of the trees." Upon hearing this testimony, Florida Peninsula did not request a continuance of the trial, nor did it ask for a recess to depose Mr. Newlin on this aspect of his trial testimony. Instead, Florida Peninsula proceeded right into cross-examination of Mr. Newlin:

Q. [T]his business about you buying the lot next door and digging a hole, this is the first time you've ever said anything like that in any sort of court proceeding or to any expert or anything like that, correct?

A. Correct.

....

Q. You never said anything to him [the neutral evaluator who had previously inspected the Newlins' house] about, "Let me show you this rock on my driveway," did you, or anything like that?

A. I never thought the relevance of it.

Q. Okay. But you never told — you never told Mr. Nettles about that either, I assume, correct?

A. Again, I didn't even know about — understand anything until I was sitting in the proceedings yesterday, when he was explaining this layer of rock that supposedly doesn't exist.

Q. So, again, this is the first time you've ever mentioned that to anybody, right?

A. Correct.

Florida Peninsula continued cross-examining Mr. Newlin about other aspects of his claim and testimony. When the court recessed for a lunch break, Florida Peninsula made a motion for mistrial, which the circuit court reserved ruling upon and eventually denied. After the parties rested their respective cases, the attorneys presented their closing statements which, not surprisingly, revolved largely around the various experts' conflicting conclusions. Mr. Newlin's testimony about the rocks he claimed to have found was mentioned once by his attorney during an extensive closing statement; Florida Peninsula did not mention the point at all in its closing.

The jury returned a verdict in favor of the Newlins, and Florida Peninsula filed a motion for new trial. The circuit court denied Florida Peninsula's motion and entered a judgment based upon the jury's verdict. Florida Peninsula now appeals that judgment.

II.

Just as the factual dispute at the trial below was discrete, so too is the issue in this appeal. Did the circuit court abuse its discretion when it overruled Florida Peninsula's objection and allowed Mr. Newlin's unexpected testimony about the rocks he unearthed? Or, relatedly, did the circuit court abuse its discretion when it denied Florida Peninsula's motion for new trial?¹

This court summarized the review we are supposed to undertake when considering an appeal from the denial of a motion for new trial in Campbell v. Griffith, 971 So. 2d 232, 235 (Fla. 2d DCA 2008) :

The appropriate standard of review applied to a trial court's denial of a motion for a new trial is whether the trial court abused its discretion. SeeBrown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999). Brown articulates the test for determining whether the trial judge committed an abuse of discretion and provides that:

[A]n appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion.

In a similar vein, "[a] trial court's admission of evidence is reviewed for an abuse of discretion." Cantore v. W. Boca Med. Ctr., Inc., 254 So. 3d 256, 260...