Storm v. Allied Universal Corp.

• Decision Date: 09 April 2003
• Docket Number: No. 3D01-3563, No. 3D01-2152.
• Citation: 842 So.2d 245
• Parties: Glenn STORM, Appellant, Cross-appellee, v. ALLIED UNIVERSAL CORPORATION, a Florida corporation and RObert Namoff, Appellees/Cross-appellants.
• Court: Florida District Court of Appeals

842 So.2d 245

Glenn STORM, Appellant, Cross-appellee, v. ALLIED UNIVERSAL CORPORATION, a Florida corporation and RObert Namoff, Appellees/Cross-appellants.

Nos. 3D01-3563, 3D01-2152.

District Court of Appeal of Florida, Third District.

April 9, 2003.

Bernard Butts, Jr., Hialeah; Donna Ballman (Davie), Ft. Lauderdale; Kutner, Rubinoff, Bush & Lerner and Susan Lerner, Miami, for Storm.

Anania, Bandklayder, Blackwell, Baumgarten & Torricella and Douglas H. Stein, and Daniel K. Bandklayder, Miami, for Allied and Namoff.

Before SCHWARTZ, C.J., and SHEVIN and WELLS, JJ.

SCHWARTZ, Chief Judge.

In an order granting a new trial, on appeal in case no. 01-2152,¹ the trial judge concluded—on ample, indeed overwhelming, evidence adduced in extensive post-trial proceedings—that the plaintiff, Storm, who had won a large jury verdict in his favor, had "misled and deceived the Defendants, the jury and this Court about matters which strike at the heart of Storm's claims." We reject out of hand Storm's various attacks upon this ruling and its consequences, including, in the judgment on appeal in case no. 01-3563, the assessment of attorney's fees against him for the efforts required of the defendants to reveal his multiple acts of fraud, perjury, and deception. See Babe Elias Builders, Inc. v. Pernick, 765 So.2d 119 (Fla. 3d DCA 2000); Nordyne, Inc. v. Florida Mobile Home Supply, Inc., 625 So.2d 1283 (Fla. 1st DCA 1993), review dismissed, 630 So.2d 1100 (Fla.1993).

We can find no cognizable reason, however, for the trial court's exercise of "discretion,"² challenged on the cross-appeal, to grant a new trial, rather than a dismissal with prejudice because of the plaintiff's misconduct. On this record, the ends of justice preclude a miscreant like Storm from continuing, in a new trial or otherwise, his use of the very system he has corrupted. See Cabrerizo v. Fortune, Int'l Realty, 760 So.2d 228 (Fla. 3d DCA 2000); Hanono v. Murphy, 723 So.2d 892 (Fla. 3d DCA 1998); Mendez v. Blanco, 665 So.2d 1149 (Fla. 3d DCA 1996). Accordingly, we order that after remand, Storm's action be dismissed with prejudice.

Affirmed in part, reversed in part, remanded with directions.

APPENDIX A IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN AND FOR DADE COUNTY FLORIDA GENERAL JURISDICTION DIVISION CASE NO: 95-20273 CA 25 GLENN STORM Plaintiff vs. ALLIED UNIVERSAL CORP. a Florida corporation and ROBERT NAMOFF, Defendants.

ORDER SETTING ASIDE VERDICT, VACATING FINAL JUDGMENTS AND GRANTING A NEW TRIAL

THIS MATTER came before the Court, on May 22, 2001, upon the Motion to Set Aside Verdict and Final Judgment and to Dismiss or for New Trial Based on Plaintiff's Misleading and Perjured Testimony and Abuse of Discovery ("Motion to Set Aside") filed herein by the Defendants, ALLIED UNIVERSAL CORPORATION ("ALLIED") and ROBERT NAMOFF ("NAMOFF")(collectively "Defendants"). The Court having reviewed the Motion, the Defendants' Memorandum of Law (and attached Exhibits) filed May 21, 2001 ("Defendants' Memorandum"), the accompanying record evidence, the applicable authorities and the Plaintiff's Memorandum of Law in Opposition to Defendants' Post Trial Motions, having heard the argument of counsel, and being otherwise fully advised in the premises, hereby makes the following findings of fact and conclusions of law:

BACKGROUND

The Plaintiff, GLENN STORM ("STORM"), was employed by ALLIED.³ STORM alleges that ALLIED wrongfully discharged him on August 24, 1995 in retaliation for his prosecuting a worker's compensation claim. The Defendants deny these allegations.

The case came on for trial March 13, 2000. At the conclusion of the four day trial, the jury returned a verdict in favor of STORM and awarded the following damages: $138,800 for "lost income"; $23,782.33 for "401K entitlement"; $4,182.69 for "vacation pay"; and $750,000 for STORM's "mental anguish, emotional distress and humiliation."

The Defendants filed numerous post-trial motions, including the instant Motion to Set Aside. In their Motion, the Defendants assert that STORM: (a) testified falsely at his depositions and at trial; and (b) misled and/or deceived the jury. The Defendants, in turn, request that this Court set aside the verdict, vacate the final judgments, and dismiss this case with prejudice or, alternatively, order a new trial and impose sanctions against STORM.

For the reasons set forth below, the Court hereby grants the Defendants' Motion, sets aside the jury's verdict, vacates the March 17, 2000 final judgments against the Defendants, and orders a new trial.

FINDINGS OF FACT

At STORM's pre-trial depositions and at trial, STORM, a chemical engineer with a Master's degree, unequivocally testified that, for at least two years after ALLIED discharged him, he devoted his "full-time efforts" (without success) to obtaining full-time, gainful employment at a chemical company:

My full-time efforts for that two year period was to gain employment at a chemical company and to be employed (Trial, p. 788, lines 14-16).

Question (April, 10, 1996, Deposition, p. 71): What is your current employment status?

Answer: I'm looking for full-time work.

At trial, STORM testified that, during these two years, he "lost (his) total income and made absolutely nothing" (Trial, p. 755, lines 4-7). STORM further testified that the only reason that he was "not working during those two years" was that nobody would offer him a job (Trial, p. 327). STORM also testified that he "realized that (he) had been black balled" (Trial, p. 261) and that prospective employers refused to consider him, presumably because of adverse references from his former employer, ALLIED (Trial, p. 260-261, 326).⁴

Post-trial discovery indisputably has established that, contrary to STORM's trial testimony, he did not devote his "full time efforts" for at least two years following his August 24, 1995 discharge to an unsuccessful search for gainful employment. Instead, during this time frame, STORM was actively engaged in business through two chemical supply companies that he formed in 1995, Premier Industries International, Inc. ("Premier") and Coastal Manufacturing, Inc. ("Coastal").

At trial, STORM testified that Premier "never did become a functioning company." (Trial, p. 262). At STORM's August 2, 1999 deposition, p. 92, STORM testified:

Question: Is there anything that Premier has ever done?

Answer: No.

When STORM was questioned at trial as to whether he was even engaged in any "start up activity" with Premier during this two year time frame, he testified that "there was no focus or start up activity on my behalf. My full-time efforts for that two year period [were] to gain employment at a chemical company and to be employed" (Trial, p. 788).

The above testimony is false. In actuality, during this time frame, STORM, through Premier, was engaged in the business of selling chemical products. In fact, during post-trial discovery, Defendants uncovered numerous invoices, purchase orders, checks and deposit slips which confirm that, from September, 1995 through June, 1997, Premier received approximately $48,000 from the sale of chemical products to various customers, primarily Greenwich Air Services, Inc. and Commercial Chemical Products, Inc. (Defendants' Memorandum, Exhibits "C" and "D").⁵

With regard to Coastal, STORM testified at trial that during the subject two year time frame, he had "no involvement" with Coastal (Trial, p. 789) and that STORM's partner, Simon Fernandez ("Fernandez") ran Coastal from the very beginning ... he man-handled and managed Coastal from day one" (Trial, p. 789). This testimony is false. Fernandez testified at his post-trial deposition that, in actuality, STORM, rather than Fernandez, ran all of Coastal's day-to-day business operations during this time frame. Fernandez further testified that STORM "handled most of the routine day-to-day affairs and administrative matters of the company from the beginning of the company (January, 1996) onward (Fernandez Deposition, pp. 28 43). Specifically, STORM: (a) prepared the company's tax returns (Fernandez Deposition, p. 19); (b) handled 100% of Coastal's bookkeeping and accounting (Fernandez Deposition, pp. 22-24); (c) dealt with Coastal's vendors and suppliers (Fernandez Deposition, p. 25); (d) paid Coastal's bills, obtained permits for the handling of hazardous materials and certified the company as minority firm/minority contractor (Fernandez Deposition, p. 26); (e) handled Coastal's shipping and made its bank deposits (Fernandez Deposition, p. 31); (f) obtained, in January, 1996, Coastal's UPC membership and instituted a bar coding system for Coastal's products (Fernandez Deposition, p. 35); and (g) obtained Coastal's chemicals and supplies (Fernandez Deposition, pp. 42-45). In Short, STORM "handled everything, like I said before ... from the beginning" (Fernandez Deposition, p. 44).⁶

The foregoing record evidence convincingly demonstrates that STORM's trial testimony regarding his activities during the two years following his discharge, i.e. his purported full time, unsuccessful job search, inability to find work, total loss of income and resulting mental distress, was false and, at the very least, misled and deceived the jury.⁷ This testimony undermined the integrity of the entire trial.

STORM also misled and deceived the jury with evidence and argument that ALLIED refused to "give him back the money that he had contributed to his 401K pension" (Trial, p. 215). STORM testified at trial that ALLIED "still owed" him his 401K money (Trial, p. 259) and "not only did I not get my 401K, I could not get a quarterly or annual report" (Trial, p. 810). Moreover, STORM testified at trial that "if anybody was a thief here it was them" (Trial, p. 259). In her opening statement, STORM's counsel emphasized that ALLIED "did not even ... give him back the money that he had contributed to his 401K pension" (Trial, p. 215).

Contrary to STORM's...