RUIMY v. Beal

997 So. 2d 1139, 2008 WL 4998504
CourtDistrict Court of Appeal of Florida
DecidedNovember 26, 2008
Docket3D07-533
StatusPublished
Cited by1 cases

This text of 997 So. 2d 1139 (RUIMY v. Beal) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
RUIMY v. Beal, 997 So. 2d 1139, 2008 WL 4998504 (Fla. Ct. App. 2008).

Opinion

997 So.2d 1139 (2008)

Laura RUIMY, Appellant/Cross-Appellee,
v.
Flor N. BEAL, et al., Appellees/Cross-Appellants.

No. 3D07-533.

District Court of Appeal of Florida, Third District.

November 26, 2008.
Rehearing and Rehearing En Banc Denied February 3, 2009.

*1140 Grover & Weinstein, Marvin Weinstein, Joel S. Perwin, and Richard B. Rosenthal, Miami, for appellant/cross-appellee.

Luks, Santaniello, Perez, Petrillo & Gold, James P. Waczewski, Tallahassee; Dearman & Gerson, and Mark Dearman, Plantation, for appellees/cross-appellants.

Before GERSTEN, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge.

PER CURIAM.

Affirmed. See Murphy v. Intl. Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000) (stating that new trial is warranted where argument of counsel is determined to be improper, harmful, incurable, and damaging to trial fairness); McCain v. Fla. Power Corp., 593 So.2d 500 (Fla.1992) (holding that whether and to what extent defendant's conduct foreseeably and substantially caused injury is an issue to be determined by the jury based on the specific facts of the case).

RAMIREZ, J., (concurring).

This is an appeal of an order granting a new trial to the defendants/appellees after a jury awarded damages to the plaintiff, Laura Ruimy, of approximately $778,000. The jury found that the driver and the owner were each 50% at fault. The trial court overturned the verdict and granted a new trial for the stated reason that the cumulative effect of improper comments by plaintiff's counsel during closing argument denied the defendants a fair trial. Although I believe that the comments fell far short of the high threshold required to overturn a jury's verdict, I concur with the majority in affirming because the standard of review is abuse of discretion and, in view of the decision of the majority of this court, I cannot state that the trial judge was unreasonable. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) ("If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.").

I.

Ruimy, an 18-year-old student, was injured when struck by an automobile as she lawfully crossed a Miami Beach crosswalk. The vehicle was driven by defendant Alex Beal, and was owned by Alex's sister, co-defendant Flor Beal. Until the morning of trial, the sibling defendants used the same attorney, Mr. Daniel Santaniello. Their joint defense evidently did not present an ethical problem until the morning of trial. Alex's liability for the accident was never contested. He had driven into the crosswalk against the light, then fled the accident scene before the police arrived, leaving Ruimy lying semi-conscious in the street with, among other injuries, a fractured pelvis and spinal vertebrae, and multiple leg and foot fractures—an incident for which Alex was later criminally convicted. But on the morning of trial, Mr. Santaniello announced that there was a conflict of interest between the siblings, so he was withdrawing as counsel for Alex, and remaining as counsel only for Flor. Alex's new counsel, Mr. Mark Dearman, announced his appearance and formally admitted Alex's liability. Mr. Santaniello then advised the court that Flor would contest her own liability and contend that Alex had taken the car without permission.

Ruimy's counsel claimed to be surprised. The joint answer filed in this case had denied each and every allegation contained in plaintiff's complaint, then listed eighteen (18) affirmative defenses, the first of which *1141 was that United Automobile Insurance Company had timely tendered its insurance policy limits. During the two and a half years that the case was pending, Mr. Santaniello represented both defendants and never intimated that brother Alex had stolen his sister's car. The new tactic raised a number of questions: (1) If the car was taken without Flor's permission, why was the car never reported stolen? (2) Why would Flor's insurance carrier tender the policy limits? (3) Why wait from December 28, 2003 (the date of the accident) until November 27, 2006, to assert for the first time that Alex had stolen the car and separate counsel was necessary?

Even on the eve of trial, defense counsel was less than candid, telling the court that he "felt uncomfortable trying the case where she would have an indemnity claim back against [her brother] some day." Counsel then went on to explain: "This isn't a liability case. Assuming we will admit liability, we'll ask Counsel not to get into too many details on liability ... We fell asleep at the wheel, apparently."

At trial, the testimony of both Alex and Flor matched. They both claimed that Alex took the car without Flor's permission. In fact, Mr. Santaniello predicted it before jury selection: "There is an issue on consent. They both say he didn't have consent to take the vehicle ..." Ruimy's counsel attempted to counter with the obvious response—that the entire defense had been contrived in an attempt to avoid paying whatever verdict the jury awarded. It is undisputed that brother Alex was uninsured, usually unemployed, and probably judgment-proof. Understandably, plaintiff's counsel sought to challenge the defendants' credibility and show the jury that their testimony was motivated by an attempt to avoid satisfying any potential judgment.

During trial, both Flor and Alex asserted that Alex took the car without Flor's consent while Flor was out of town on a business trip. Alex testified that he lived with his parents; that on previous occasions Flor had left the keys to her vehicle on a hook by the front doorway of their parents' home; and that he had previously driven her car. He admitted that when he had previously driven her car (just like this time), he had done so by taking the car keys off the hook. He acknowledged that the location of the keys was "readily available for anyone in your house to use to operate the car." He also admitted driving it without any family members in the car. Alex maintained that, until after this accident, he had never informed Flor that he had driven her car. He testified that Flor told him not to drive her car "anywhere up to 20 times" or "possibly 50 times." Alex volunteered that he was effectively judgment-proof:

Q: Did your sister ever tell you a[sic] she was that you might take her car?
A: That she was afraid I might take her car?
Q: Yeah.
A: No. I asked permission and she said no and she told me it was because if anything happened to her car I wasn't financially capable of reimbursing her in any way.

Moments later, he voluntarily brought up his own lack of insurance:

Q: Did [Flor] tell you you should be a more responsible driver?
A: I can't remember her saying those exact words but everyone in my family was pretty much, you know, giving me a hard time. I wouldn't say a hard time but yeah, words, working me over about how I should be more *1142 careful and more responsible in the future.
Q: Do you drive your father's car?
A: Now?
Q: Well, then.
A: Then, I don't believe so. Not until he put me on his insurance.

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Related

Bacon v. State
997 So. 2d 1139 (District Court of Appeal of Florida, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
997 So. 2d 1139, 2008 WL 4998504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruimy-v-beal-fladistctapp-2008.