Kline v. Belco, Ltd., 84-2157
Decision Date | 03 December 1985 |
Docket Number | No. 84-2157,84-2157 |
Parties | 10 Fla. L. Weekly 2664 Donald KLINE, Appellant, v. BELCO, LTD., d/b/a Banyan Bay Apts., Appellee. |
Court | Florida District Court of Appeals |
Richard A. Bolton, North Miami Beach, for appellant.
J. Robert Miertschin, Steven R. Berger and Diane K. Kuker, Miami, for appellee.
Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ.
REVISED OPINION
Kline, an unsuccessful plaintiff in a personal injury action arising from his alleged slip and fall on Belco's premises, appeals an order denying his motion for relief from judgment on the ground of newly-discovered evidence. The newly-discovered evidence, appended to Kline's motion, was a W-2 Wage and Tax Statement that indisputably showed that Kline had been employed, as he had testified at trial, by a certain jewelry manufacturer doing business as 14 Karat South. The significance of this evidence was that Kline's testimony that he was employed at 14 Karat South had been refuted at trial by the defendant's introduction of the obviously inaccurate testimony of the records custodian of 14 Karat South that the company's records showed no such employment for Kline. We reverse and remand for a new trial.
Ogburn v. Murray, 86 So.2d at 798.
Belco also argues that the testimony of the records custodian was not critical to the central issue in the case, that is, whether Kline slipped and fell on Belco's property, but served merely to impeach Kline's credibility. Of course, the importance which Belco attached to the testimony of the records custodian belies its present claim that the testimony was benign. Moreover, although there was one other witness to Kline's slip and fall, Kline's ability to convince the fact-finder of Belco's liability was largely dependent on his credibility, and, therefore, any testimony from a purportedly disinterested witness concerning purportedly unassailable business records which undermined that credibility was critical. In the present case, Kline's credibility was severely damaged by what mistakenly appeared to the jury to be irrefutable proof that Kline had lied about his employment. Since the jury which found against Kline at trial was permitted to indulge the maxim falsus in uno, falsus in omnibus to find that Kline, having "lied" about his employment, was entirely unworthy of belief, we must conclude that this little "lie" likely affected the outcome of the trial and that evidence which would undo the "lie" will likely produce a different result upon a retrial.
Reversed and remanded for a new trial.
I would affirm in all respects the order under review which denied the plaintiff Donald Kline's motion to vacate judgment filed pursuant to Fla.R.Civ.P. 1.540(b)(2). I do not think that the trial court abused its discretion in denying this motion and reach this result for two reasons.
First, it is undisputed that no showing was made, or even attempted, below--indeed, the plaintiff's motion to vacate contains no allegations thereon--that the newly discovered evidence herein could not have been discovered through the use of due diligence in time to move for a new trial. It should be noted that only a motion to vacate was filed in this case; a motion for new trial was never filed. Fla.F.Civ.P. 1.540(b)(2) provides that newly discovered evidence is a ground for vacating a final judgment when the evidence "by due diligence could not have been discovered in time to move for a new trial...." Here, there is a total failure of proof below as to this essential requirement for post-judgment relief, which failure...
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