CHARLES E. BROWN AND WIFE, MAGGIE BROWN, APPELLANTS,
v.
QUINN A. MCMILLIAN, SHERIFF OF WALTON COUNTY, FLORIDA, APPELLEE
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The Florida District Court of Appeal reversed a trial court's order granting a new trial based on newly discovered evidence in a jail slip-and-fall case. The court held that the sheriff failed to exercise due diligence in the pretrial investigation, as he knew of a potential witness before trial but conducted no additional investigation into the witness's statement that the plaintiff intended to fake the fall.
The court reversed and remanded, holding that the sheriff failed to exercise due diligence as required under Rule 1.540(b). The movant must demonstrate vigilance and cannot merely show that evidence was unknown; rather, the movant must prove reasonable investigation efforts were made. Because the sheriff knew of Durm's statement in 1990 but conducted no investigation, and because further investigation would likely have disclosed a second witness, the trial court abused its discretion in finding due diligence.
[1] A motion to set aside a judgment based on newly discovered evidence requires the movant to establish the exercise of due diligence in discovering the evidence.
[2] It is insufficient to show that evidence was not known or discovered prior to trial; the movant must demonstrate their vigilance.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is the movant's burden under rule 1.540(b) to establish the exercise of due diligence. It is not sufficient to merely show that the evidence was not known or discovered by counsel prior to trial. Rather, the movant must make his or her vigilance apparent.”
Establishes the legal standard for newly discovered evidence motions, placing the burden on the movant to demonstrate actual due diligence, not merely lack of knowledge.
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Join FLexlaw to unlock all legal intelligenceCharles Brown, an inmate in Walton County jail, suffered a slip and fall on February 23, 1990. The case was tried in January 1997, resulting in a verd…
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ERVIN, J.
Appellants, Charles E. and Maggie Brown, seek to reverse an order granting a motion to set aside a judgment based on newly discovered evidence, which was filed by appellee Quinn A. McMillian, Sheriff of Walton County, pursuant to Florida Rule of Civil Procedure 1.540(b), and the granting of a new trial. We agree with appellants that the evidence in question could have been discovered before trial by the sheriffs exercise of due diligence in the pretrial investigation; accordingly, we reverse.
As a general rule, courts should look with disfavor upon applications for new trial based upon newly discovered evidence. As explained in Jerrico, Inc. v. Washington National Insurance Co., 400 So. 2d 1316 (Fla. 5th DCA 1981), to favor such applications would bring about a looseness in practice and encourage counsel to neglect to gather all available evidence for a first trial by speculating upon the verdict, and then, once defeated, allow counsel to become for the first time duly diligent in securing evidence to cure the defects and omissions in the showing during the first trial. Id. at 1319 (quoting Vining v. American Bakeries Co., 121 Fla. 116, 163 So. 396 (1935)).
It is the movant’s burden under rule 1.540(b) to establish the exercise of due diligence. It is not sufficient to merely show that the evidence was not known or discovered by counsel prior to trial. Rather, the movant must make his or her vigilance apparent. King v. Harrington, 411 So. 2d 912, 915 (Fla. 2d DCA 1982).
This case concerns a slip and fall by appellant Charles Brown while he was an inmate in the Walton County jail on February 23, 1990. The case was tried in January 1997, and a verdict for the Browns was affirmed on appeal. McMillian v. Brown, 710 So. 2d 554 (Fla. 1st DCA 1997). After the appeal was final, the sheriff filed the motion to set aside the judgment in the trial court based on newly discovered evidence. It was the sheriffs position that he had four new witnesses, one of whom was Dexter Durm, who would testify that Charles Brown told him that he intended to fake a fall while in the jail and sue for damages.
Sheriff McMillian admitted at the April 1998 motion hearing that he was aware in 1990 that Durm, another inmate in the jail, had made a statement that Brown said he was going to fake a fall from the top bunk in the jail. Based on this statement, the sheriff, in the exercise of due diligence, was required to inquire further; yet he admitted he conducted no additonal investigation. Moreover, Deputy Sheriff Chapman testified that even though he had suspicions about Brown having faked the fall, he did no investigation to determine whether his suspicions were well founded. If a thorough investigation had been con ducted prior to trial, a second witness would have likely been disclosed by Durm. In the absence of competent, substantial evidence of further investigation regarding Dunn’s statement of the faked fall, it was an abuse of discretion for the trial judge to find that the sheriff acted with due diligence.
REVERSED and REMANDED with directions to reinstate the judgment for the Browns.
BENTON and VAN NORTWICK, JJ., CONCUR.
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Cleveland v. Crown Fin., LLC, 212 So. 3d 1065 (Fla. 1st DCA 2017)…r rule 1.540(b) to establish the exercise of due diligence. It is not sufficient to merely show that the evidence was not known or discovered by counsel prior to trial. Rather, the movant must make his or her vigilance apparent.” Brown v. McMillian, 737 So. 2d 570, 571 (Fla. 1st DCA 1999); see also Junda v. Diez, 848 So. 2d 457, 458 (Fla. 4th DCA 2003) (explaining that relief from judgment based on newly discovered evidence should be granted seldom and only when the party seeking relief exercised due diligenc…
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Junda v. Diez, 848 So. 2d 457 (Fla. 4th DCA 2003)…la.2000). This finality is eroded by vacating judgments based on a claim of newly discovered evidence, and consequently, this remedy should be seldom granted and only when the party seeking relief has exercised due diligence. See Brown v. McMillian, 737 So. 2d 570, 571 (Fla. 1st DCA 1999). In the instant case, Diez failed to exercise due diligence in obtaining the necessary documentation and is not entitled to relief under Rule 1.540(b). Diez has never claimed that the trial court erred in denying her adequa…
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Neapolitan Enters. v. Fishman, 303 So. 3d 1258 (Fla. 2d DCA 2020)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Eugenia Vining v. Am. Bakeries Co., 121 Fla. 116 (Fla. 1935)
- Copeland v. State, 411 So. 2d 912 (Fla. 2d DCA 1982)
- Jerrico, Inc. v. Wash. Nat'l Ins. Co., 400 So. 2d 1316 (Fla. 5th DCA 1981)
- Robert E. King, M.D. v. Harrington, 411 So. 2d 912 (Fla. 2d DCA 1982)