SDG Dadeland Associates, Inc. v. Anthony

979 So. 2d 997, 2008 Fla. App. LEXIS 1876, 2008 WL 375763
CourtDistrict Court of Appeal of Florida
DecidedFebruary 13, 2008
Docket3D05-2666
StatusPublished
Cited by15 cases

This text of 979 So. 2d 997 (SDG Dadeland Associates, Inc. v. Anthony) 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
SDG Dadeland Associates, Inc. v. Anthony, 979 So. 2d 997, 2008 Fla. App. LEXIS 1876, 2008 WL 375763 (Fla. Ct. App. 2008).

Opinion

979 So.2d 997 (2008)

SDG DADELAND ASSOCIATES, INC., etc., et al., Appellants,
v.
Violet C. ANTHONY, Appellee.

No. 3D05-2666.

District Court of Appeal of Florida, Third District.

February 13, 2008.
Rehearing and Rehearing Denied April 22, 2008.

*998 Luks, Santaniello, Perez, Petrillo & Gold and Paul S. Jones and Jack D. Luks and James P. Waczewski, Orlando, for appellants.

Simon & D'Alemberte and Ronald Simon, Miami; Bambi G. Blum, Miami, for appellee.

Before WELLS, CORTIÑAS, and LAGOA, JJ.

Rehearing and Rehearing En Banc Denied April 22, 2008.

PER CURIAM.

Appellants SDG Dadeland Associates, Inc. d/b/a Dadeland Mall, Unicco Service Company and Management Associates, Inc. (collectively "Dadeland") appeal from a final judgment rendered in favor of Appellee Violet C. Anthony, and request a new trial. For the following reasons, we reverse and remand for a new trial.

I. FACTS

On September 11, 2002, Anthony, a nurse accompanying a patient, sustained injuries when she fell to the ground while exiting Dadeland Mall with her patient. *999 The cause of the fall was disputed at trial. Anthony admitted that she was not looking where she was walking, but was instead paying attention to her patient. Anthony asserted that she slipped on water, while Dadeland asserted that she tripped over a warning cone that had been placed to alert customers to the water.[1]

Unfortunately, a simple slip and fall case unraveled into an improper attack on Dadeland, its witnesses, and its defense counsel. This Court has repeatedly denounced such litigation tactics. Beginning in voir dire and ending with rebuttal closing, Anthony's counsel, Ronald Simon, Esq.,[2] engaged in a series of improper and unprofessional attacks on Dadeland and its counsel that included the following allegations:

(1) failure to produce an incident report;
(2) failure to produce all photographs depicting the scene of the accident;
(3) defense counsel's collusion with witnesses; and
(4) a general frivolous defense argument.

Prior to trial, the trial court excluded any reference to a privileged incident report that had been prepared by Dadeland. The trial court further ruled that only witnesses who could independently recall the accident scene, without reference to the report, could testify as to what occurred. Notwithstanding this ruling, during his opening statement delivered moments after the trial court's ruling, Mr. Simon began an assault on Dadeland's pre-trial discovery practices by telling the jury that an incident report existed, but that Dadeland failed to produce the report because it asserted that the report was privileged. Pursuant to a defense objection, the trial court ordered Mr. Simon to refrain from making further reference to the report. Despite this instruction, during the direct examination of a former Dadeland employee, Mr. Simon implied that Dadeland had violated its policies by not creating an incident report. Pursuant to an objection, the trial court found Mr. Simon's statements to be harmless, but again cautioned him not to mention the report.

Continuing with his "hiding the evidence" theme, Mr. Simon during his opening told the jury that Dadeland likely had taken additional photographs but had not disclosed their existence. These alleged photographs were central to Mr. Simon's attempt to persuade the jury that Dadeland had concealed evidence in this lawsuit. Further, Simon insinuated in his redirect examination of Dadeland employee John Aleman that defense counsel had instructed Aleman on how to describe the photographs to best suit the defense.[3] Dadeland moved for a mistrial, which motion was denied.[4]

The trial court further instructed both parties not to discuss any issue relating to discovery during closing argument. Mr. *1000 Simon, however, twice alluded to a possible violation by telling the jurors that "[w]e don't know" if there really were only two photographs.[5] And after pondering why witnesses would "try to come up with an excuse," Mr. Simon referred the jury back to his voir dire comments regarding "frivolous defenses." He told the jury, "[y]ou never read about frivolous defenses. Well you got to see one and hear one up close and personal."[6]

Further stressing the theme that Dadeland and its counsel had concealed evidence, Mr. Simon during closing argument provided the jury with his opinion that Dadeland had placed a warning cone next to Anthony after she fell and that Dadeland's defense belonged in the "garbage."[7] He theorized that Dadeland had done so prior to photographing the scene in order to make it appear as if Anthony had tripped over the cone. Mr. Simon asked, "[c]an you come into a courtroom seeking the truth and start with one deceit and finish with a bigger one?"[8] And in reference to testimony from Dadeland's general manager, Mr. Simon told the jury that Dadeland employees had perjured themselves:

Their defense is in the toilet, and they're trying to save the day by trying to change his testimony, changing everything he said under oath a few months ago. . . . And before that, . . . when we propounded the discovery, you've heard about that, the interrogatories — remember the written questions? We . . . asked them to please provide us with the incident reports or the names of the people who've fallen there before.

Mr. Simon continued his closing argument by telling the jury that defense counsel "knows they are liable," but "[h]e's got to protect the wallet of the corporate defendant."[9] In rebuttal closing, Mr. Simon concluded by telling a story about a disabled boy who chooses to take care of an injured puppy ("the Puppy Story")[10]:

How are you going to do that when you go back into the jury room? And I'm trying to think how do I convey this to you so you'll understand what it is to go through what this lady has gone through and what she will have to go through when we all leave, when we go back to our families and ways of life and all of the Christmases and holidays she's had to celebrate in casts and in therapy? How do I do that? How do you go back and make this right?
* * * *
A little boy got $8, and he wants a puppy, and he goes into a puppy store *1001 because it has a big sign that says puppies for sale. And the owner comes out, and the boys [sic] says, "I only have $8." And the owner says, "Let me show you the puppies." And he opens up the door, and five or six little white puffy puppies come running out except the one in the back. The one in the back comes limping out, and the owner goes, "Which one of these do you want?" The little boy says, "I want the one in the back that's limping." And the owner says, "Why would you want the one in the back that's limping? Take one of these healthy puppies. That one has a bad leg. He's been injected. He's had surgery. It is no good." The little boy says, "I want that one." And the owner says, "Why?" And the boy lifted up his pant leg with a brace on it. "Because," he says, "that puppy is going to need somebody that knows what it is like to feel that bad."

II. STANDARD OF REVIEW

We review the denial of a motion for new trial for abuse of discretion. See Southwin, Inc. v. Verde, 806 So.2d 586, 587-88 (Fla. 3d DCA 2002);

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Bluebook (online)
979 So. 2d 997, 2008 Fla. App. LEXIS 1876, 2008 WL 375763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sdg-dadeland-associates-inc-v-anthony-fladistctapp-2008.