MILDRED GAITER, APPELLANT,
v.
WINN DIXIE STORES, INC., APPELLEE
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Mildred Gaiter appeals the trial court's vacation of a $75,000 judgment and grant of a new trial based on her perjured testimony regarding who was driving her car. The court affirms, holding that when a prevailing party knowingly gives false testimony, the trial court has discretion to grant a new trial without requiring proof that the false testimony would likely produce a different result.
The trial court did not abuse its discretion. Under Florida law, when a prevailing party knowingly gives false testimony, the trial court may grant a new trial in its discretion without requiring proof that the false testimony would probably produce a different result on retrial.
[1] A trial court may grant a new trial when the prevailing party knowingly gives or uses false testimony.
[2] A new trial may be granted based on perjured testimony without a showing that the newly discovered evidence would probably produce a different result.
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Join FLexlaw to unlock all legal intelligence“where it is shown that the prevailing party (Mr. Gaiter in the instant case) knowingly gave or used false testimony, the trial court in its discretion may grant a new trial without the requisite showing that this newly discovered evidence would probably produce a different result on the new trial”
Establishes the controlling legal principle that the trial court has discretion to grant a new trial based on a prevailing party's perjury without requiring proof the false testimony would change the outcome
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Join FLexlaw to unlock all legal intelligenceMrs. Gaiter was injured when a shelf collapsed at a Winn Dixie store, causing injuries to her knee and back. She sued for damages, and at trial testif…
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[*913] PER CURIAM.
Plaintiff, Mildred Gaiter, appeals an order vacating a $75,000 judgment in her favor and granting a new trial on the ground that she gave perjured testimony at trial.
We affirm.
Mrs.
Gaiter sustained injuries when a shelf collapsed and fell on her ankle while she was shopping at one of the markets of Winn Dixie Stores, Inc. For approximately three years thereafter, Mrs.
Gaiter underwent a series of medical treatments and operations which she contends were a proximate cause of the accident.
She filed a suit for damages against Winn Dixie and the cause was tried before a jury which returned a verdict of $75,000 in her favor. During the trial, Mrs.
Gaiter’s son testified that he and his mother had motored to Mississippi and back; he did all the driving while his mother reclined on the back seat.
Mrs.
Gaiter testified that as a result of the constant and debilitating pain in her knee and back she was unable to drive.
During cross-examination, counsel for Winn Dixie introduced a traffic ticket issued in Tampa to Mrs.
Gaiter. She insisted that her son was driving the car, but since she was responsible for him, the police officer issued her the citation.1 At the conclusion of the trial, the jury awarded Mrs.
Gaiter $75,000.
In the meantime, the trial judge had requested the state attorney’s office to conduct an investigation as to who was driving the car when the citation was issued.
After the verdict had been returned, the results of the investigation revealing that Mrs.
Gaiter was actually driving were reported to the trial judge who issued a rule to show cause why a new trial should not be granted for the reason that Mrs.
Gaiter had perjured herself.
At the conclusion of the hearing on this matter, the trial judge entered an order (1) vacating the directed verdict as to liability and the $75,000 jury verdict, and (2) granting a new trial.
Mrs.
Gaiter appeals therefrom.
The controlling principle of law is that where it is shown that the prevailing party (Mr. Gaiter in the instant case) knowingly gave or used false testimony, the trial court in its discretion may grant a new trial without the requisite showing that this newly discovered evidence would probably produce a different result on the new trial.
Alston v. Shiver, 105 So. 2d 785 (Fla.1958).
On the record presented, Mrs.
Gaiter has failed to demonstrate that the trial judge abused his discretion in granting a new trial.
Furthermore, we conclude that the following two cases relied upon by Mrs.
Gaiter are distinguishable and, therefore, inapplicable to the case at bar. In Drew v. Chambers, 133 So. 2d 589 (Fla. 1st DCA 1961) the court found that there was no proof that the defendant’s testimony was knowingly false.
Also, a perusal of Dade National Bank of Miami v. Kay, 131 So. 2d 24 (Fla. 3d DCA 1961) demonstrates that a party who did not prevail recanted his testimony and this changed testimony was only cumulative to the testimony of the party moving for a new trial.
We also considered Mrs.
Gaiter’s remaining points on appeal and find no merit therein.
Affirmed. . “A. Michael was — since I had signed an affidavit for my son to drive me, I was responsible. “Q.
Urn hmm? “A. He was either going to take Michael to jail or give me the ticket. “So, I took the responsibility and took the ticket. “Q.
All right.
Let me go through that again. “The police officer that gave you the ticket told you that since you signed for your boy to drive— “A. Yes. “Q. —you were responsible for the boy. “A. Yes. “Q.
And it was either take him to jail or you accept the ticket in your name.
Is that correct? “A. I accepted the responsibility. “Q.
All right.
So, he gave you the ticket and you signed for it. “A. Definitely.”
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Hanono v. Murphy, 723 So. 2d 892 (Fla. 3d DCA 1998)…ee Savino v. Florida Drive In Theatre Management, Inc., 697 So. 2d 1011 (4th DCA 1997)), the Court will take the position more consistent with preserving the important right to trial by jury, and grant a new trial. Gaiter v. Winn Dixie Stores, Inc., 376 So. 2d 912 (Fla.App.3d DCA 1979). . The following excerpts of Murphy's “explanations” at trial give the flavor of his responses: Q. So, you didn't tell the truth about how you get in and out of the car, did you sir? A. I told the truth, sir, like I'm explai…
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ACandS, Inc. v. Redd, 703 So. 2d 492 (Fla. 3d DCA 1997)…d 316 (Fla. 3d DCA 1991); McFarlin v. Jack Eckerd Corp., 581 So. 2d 181 (Fla. 3d DCA 1991); Kline v. Belco, Ltd., 480 So. 2d 126 (Fla. 3d DCA 1985); Roberto v. Allstate Ins. Co., 457 So. 2d 1148 (Fla. 3d DCA 1984); Gaiter v. Winn Dixie Stores, Inc., 376 So. 2d 912 (Fla. 3d DCA 1979). If during the proceedings below, trial counsel knew that Dr. Redd’s testimony was untruthful, counsel had an independent obligation to set the record straight. NESBITT, J., concurs.…
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Storm v. Allied Universal Corp., 842 So. 2d 245 (Fla. 3d DCA 2003)…94); Cox v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998). Where it is shown that the prevailing party knowingly gave or used false testimony, the trial court in its discretion may, at the very least, grant a new trial. Gaiter v. Winn Dixie Stores, Inc., 376 So. 2d 912 (Fla. 3d DCA 1979). In the as-yet unpublished opinion in Kenet, M.D. v. Bailey Hunt Jones & Busto, 785 So. 2d 515, 25 Fla. L. Weekly, D1605 (Fla. 3d DCA 2000), the Court held that the offending party’s testimony need not be perjurious to warrant the…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dade Nat'l Bank OF Miami v. KAY, 131 So. 2d 24 (Fla. 3d DCA 1961)
- Alston v. Trillie Shiver, 105 So. 2d 785 (Fla. 1958)
- Drew v. Chambers, 133 So. 2d 589 (Fla. 1st DCA 1961)