Moore v. Gillett
| Decision Date | 18 July 2012 |
| Docket Number | Case No. 2D11-1235 |
| Parties | NORMAN A. MOORE, II, Appellant, v. DEANNE SCHAPELL GILLETT and JOHN GILLETT, as natural father, legal guardian, and next friend of BYRON JOHN GILLETT, Appellees. |
| Court | Florida District Court of Appeals |
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
Appeal from the Circuit Court for Pinellas
Tracy Raffles Gunn of Gunn Appellate
Practice, P.A., Tampa, for Appellant.
Amy S. Farrior and Raymond T. Elligett, Jr.,
of Buell & Elligett, P.A.; and Justin C.
Johnson of Justin C. Johnson & Associates,
P.A., St. Petersburg, for Appellees.
Deanne Schapell Gillett and John Gillett, her husband, sued Norman A. Moore, II, for damages because of personal injuries that Mrs. Gillett sustained in an automobile accident. A jury awarded Mrs. Gillett approximately $250,000 for her pastand future medical expenses. However, the jury found that Mrs. Gillett did not sustain a permanent injury and did not award the Gilletts anything for noneconomic damages.
The trial court set aside the jury's verdict and ordered a new trial based on alleged multiple instances of misconduct by Mr. Moore's lead attorney (defense counsel).1 Mr. Moore appeals the trial court's order setting aside the jury's verdict and granting the Gilletts a new trial (the new-trial order). Most of the instances of defense counsel's conduct referenced in the new-trial order were either not improper or were not the subject of a preserved objection. To the extent that defense counsel's conduct was both improper and not the subject of a preserved objection, we conclude that it did not rise to the level of fundamental error. For these reasons, we reverse the order and remand for the entry of a final judgment in accordance with the jury's verdict.
The automobile accident occurred on January 19, 2000. Mr. Moore, who was driving a full-size pickup truck, ran a stop sign and struck the car driven by Mrs. Gillett. The force of the impact caused Mrs. Gillett's car to spin 180 degrees and to collide with Mr. Moore's truck a second time. Although the Gilletts filed their complaint in 2002, the case did not go to trial until September 2010, more than ten years after the accident.
At the beginning of the trial, Mr. Moore admitted liability for the accident. Mrs. Gillett dropped her claim for lost earnings and some of her medical claims. Mr.Gillett dropped his claim for loss of consortium.2 Thus the primary issues at trial were the nature and the extent of Mrs. Gillett's injuries resulting from the accident. The trial, which lasted ten days, was largely a battle of medical and other expert witnesses.
Mrs. Gillett claimed that she had sustained permanent injuries to her left shoulder, left knee, neck, and lower back because of the accident. She also claimed that her injuries and resultant surgeries had caused her to develop a painful condition referred to at the trial as "reflex sympathetic dystrophy" (RSD). RSD is also known as "complex regional pain syndrome" (CRPS).3 In closing argument, the Gilletts' attorney requested an award of over nine million dollars.
Mr. Moore conceded that Mrs. Gillett had been injured in the accident, but he denied that she had suffered a permanent injury. The defense contended that either preexisting conditions or degenerative changes—or both—caused the problems that Mrs. Gillett experienced with her left shoulder, left knee, neck, and lower back. The defense denied that Mrs. Gillett had RSD. Instead, the defense contended that Mrs.Gillett had a preexisting somatization disorder.4 In closing argument, the defense suggested that it would be appropriate for the jury to award Mrs. Gillett some amount for her medical bills, but nothing more.
At the conclusion of the trial, the jury returned a verdict awarding Mrs. Gillett $26,434.40 for past medical expenses and $225,000 for future medical expenses. However, the jury found that Mrs. Gillett did not sustain a permanent injury because of the accident and awarded nothing to the Gilletts for noneconomic damages.
The Gilletts sought a new trial based solely on the alleged misconduct of defense counsel both before and during the trial. The Gilletts did not claim that the verdict was inadequate or against the weight of the evidence. They did not file a motion for additur.
After a daylong hearing, the trial court announced that it would set aside the verdict and grant the Gilletts a new trial. In a subsequent written order, the trial court described the trial as a "contentious" one, which resulted in "basically a defense verdict." However, the trial court did not find that the verdict was against the weight of the evidence. Instead, the sole basis of the order is the alleged misconduct of defensecounsel. The trial court did not base its decision to grant the Gilletts a new trial on any single act or incident. Instead, the trial court emphasized that it based its ruling on "the totality" of defense counsel's conduct:
The trial court also found that defense counsel's conduct violated "the Standards of Professional Courtesy and Professionalism adopted by the Sixth Judicial Circuit and the Florida Bar Rules of Professional Conduct."
The structure of the new-trial order bears some examination. The order begins with a series of six preliminary findings describing various acts of alleged misconduct by defense counsel. After these and other preliminary observations, the order lists separately eight "highlights of the major issues on which the Court relied in granting" a new trial. The trial court repeated two of its preliminary findings in the eight "highlights" that form the stated basis for the new-trial order. The trial court mentioned the six other alleged acts of misconduct for the first time as "highlights."
Taking into account the preliminary findings and the highlights in the new-trial order, the trial court attributed twelve separate types of misconduct to defense counsel. Several of the alleged acts of misconduct involve repetitive behaviors. We will not detail all of these alleged acts and behaviors here. Of the twelve asserted acts of misconduct, the Gilletts' argument in support of the new-trial order places substantialemphasis on four grounds as involving preserved error.5 The four grounds involving a claim of preserved error are as follows:
We will consider these four grounds separately in the discussion that follows.
After the trial court entered its new-trial order, Mr. Moore filed a motion to recuse the trial judge. The trial judge granted the motion, and the case was reassigned to Judge Amy Williams. Mr. Moore sought a reconsideration of the new-trial order, but Judge Williams declined to set the order aside.
We review a circuit court's order granting a motion for a new trial for abuse of discretion. Allstate Ins. Co. v. Manasse, 707 So. 2d 1110, 1111 (Fla. 1998). Moreover, "it takes a stronger showing of error in order to reverse an order granting a new trial than an order denying a new trial." Harris v. Grunow, 71 So. 3d 186, 188 (Fla. 3d DCA 2011) (quoting Greens to You, Inc. v. Gavelek, 967 So. 2d 318, 320 (Fla. 3d DCA 2007)). Thus we begin with the presumption that the trial court properly exercised its discretion, and we will not disturb the trial court's ruling absent a clear abuse of that discretion. Manasse, 707 So. 2d at 1111. However, "such orders must nevertheless be supported by the record or by findings of influence outside the record." Reynolds v. Towne Mgmt. of Fla., Inc., 426 So. 2d 1011, 1013 (Fla. 2d DCA 1983). Hence, a ruling that is unsupported by the record constitutes a clear abuse of discretion. See Dobbins v. Dobbins, 584 So. 2d 1113, 1116 (Fla. 1st DCA 1991); Earnest v. Se. Fid. Ins. Co., 422 So. 2d 1092, 1093 (Fla. 3d DCA 1982)...
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