STATE FARM MUTUAL

v.

GABLES INSURANCE RECOVERY, DENIS TORRES PANTOJA

Before: TRAWICK, WALSH and SANTOVENIA, JJ. Filing # 117298919 E-Filed 11/25/2020 04:48:24 Thereafter, All X-Ray assigned its claim for payment to Gables Insurance Recovery, Inc. (“Gables”). State Farm did not pay the full amount of the bill and Gables tendered its pre-suit notice letter and filed suit. State Farm answered the complaint, denying that the services were medically necessary or related to the accident and that the charges were reasonable. Both parties’ summary judgment motions were denied and trial was set for January 22, 2019. Several motions in limine were filed by both parties. At the January 22, 2019 hearing on Gables’ motion in limine number VIII (“Motion in Limine”), Gables sought to exclude, inter alia, any “evidence, information and material supporting the allegation that the principals of Plaintiff have any personal financial stake in the litigation.” The owners of Gables are Robert N. Pelier, Esquire [*3] Page 3 of 14 (“Pelier”), who served as trial counsel for Gables below, and Carlos Plana (“Plana”), who testified at trial as Gables’ principal. The trial court denied the Motion in Limine as to Plana and granted the Motion in Limine as to Pelier. At trial, State Farm asked a question which Gables contends and the trial court found violated the pre-trial ruling on the Motion in Limine. Gables moved to strike and for a curative instruction and admonishment of counsel before the jury, or in the alternative for mistrial. The motion for mistrial was granted initially, but the parties agreed to proceed with the trial and address the motion for mistrial after the verdict. The trial court accepted the parties’ agreement, instructed the jury to disregard the question, and admonished State Farm’s counsel for violating the court’s previous ruling. On January 30, 2019, the jury returned its verdict finding that the charges were related, but not medically necessary. Gables renewed its motion for mistrial and State Farm moved to poll the jury as to its deliberations and the impact of prejudice, if any, from the objectionable question. The trial court denied State Farm’s motion and granted Gables’ motion to set aside verdict based on its initial mistrial ruling. On August 15, 2019, the trial court entered its order granting the motion for mistrial. On August 22, 2019, State Farm moved for rehearing and reconsideration of the trial court’s mistrial order. State Farm’s motion was denied. On September 9, 2019, State Farm filed its timely notice of appeal from the August 15, 2019 Order [*4] Page 4 of 14 on Plaintiff’s Motion for Mistrial which granted a new trial. Analysis This court reviews the trial court’s ruling on the motion for mistrial under an abuse of discretion standard. Salazar v. State, 991 So. 2d 364 (Fla. 2008); Perez v. State, 919 So. 2d 347, 363 (Fla. 2005) (“trial court's ruling on a motion for mistrial is subject to an abuse of discretion standard of review”) quoting Goodwin v. State, 751 So. 2d 537, 546 (Fla. 1999); Floyd v. State, 913 So. 2d 564, 576 (Fla. 2005); Ricks v. Loyola, 822 So. 2d 502, 506 (Fla. 2002); Ford v. State, 802 So. 2d 1121, 1129 (Fla. 2001) (“A trial court's ruling on a motion for a mistrial is within the sound discretion of the court and will be sustained on review absent an abuse of discretion”). Trial courts have broad discretion in ruling on motions for a new trial and motions for mistrial. Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999). “When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion.” Allstate Prop. & Cas. Ins. v. Flores, 46 So. 3d 94 (Fla. 3d DCA 2010) (citing Brown v. Estate of Stuckey, 749 So. 2d at 497-98). Discretion is abused only when no reasonable person would take the view adopted by the trial court. Trease v. State, 768 So. 2d 1050, 1053 (Fla. 2000); Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) [*5] Page 5 of 14 (“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 appellant faces a “heavy burden,” and must establish that the trial court's abuse of discretion is “clear from the record.” Flores, 46 So. 3d at 95; see Castlewood Int'l Corp. v. La Fleur, 322 So. 2d 520, 522 (Fla. 1975) (holding that there must be a strong showing to upset an order granting a new trial, a heavy burden rests on those seeking to overturn such an order, and any abuse of discretion must be patent from the record); Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959) (“ a stronger showing is required to upset an order granting a trial than is required for an order denying a new trial”). Gables’ Motion in Limine sought to preclude any mention of the financial structure of Gables, the corporate plaintiff below. Specifically, the Motion in Limine requested that “eliciting specific information regarding a corporate principal's interest in the company should be precluded.” At the hearing on the Motion in Limine, State Farm argued that it was allowed to inquire about a witness’s financial interest in the litigation, particularly if Gables called Plana, its owner, as an expert witness on the reasonableness of its charges. Gables acknowledged that a party has the right to inquire of a testifying witness as to its financial interest, but that inquiry could not extend to the corporate structure or financial holdings of the principals of [*6] Page 6 of 14 the corporate plaintiff. Gables argued at the hearing on the Motion in Limine: There is certainly ample authority that when a witness is testifying certainly financial motive and bias is at issue, but what we raised in the motion is, is that is Gables Insurance Recovery, that is the Plaintiff. Certainly it is fair game as it pertains to the corporation, but to seek information or inquire as to personal stakes, and getting into the corporate structure, that is improper as it pertains to a corporate entity. The parties’ arguments, which focused on the appropriateness of questions addressing the financial interests of a testifying witness, presented the context in which the trial court ruled on the Motion in Limine. After the trial judge denied the Motion in Limine, counsel for Gables asked the court to clarify whether the ruling would be limited to Plana (who was a testifying witness) or whether the ruling also applied to Pelier (who was trial counsel and was not a testifying witness). The court responded: “I don't see why Mr. Pelier. He is not going to be a witness. It will only be Mr. Plana.” State Farm did not ask the trial judge for any clarification, but instead stated: “I don't see how Mr. Pelier would come in.” The court responded: “No. Mr. Pelier would not...” In short, the court made clear that reference to or inquiry as to the financial interest of Pelier, the trial attorney representing Gables, was not a permissible area of questioning and State Farm’s counsel acknowledged same. If State Farm’s statement that “I don’t see how Mr. Pelier would come in” was only an acknowledgment that Pelier would not be a witness and nothing more, as State Farm now argues on appeal, there was still no basis for the objectionable [*7] Page 7 of 14 question. Pelier’s ownership in Gables was not relevant to any issue in the trial; i.e., whether the medical services were related or necessary or whether the charges were reasonable, nor does State Farm even attempt to so argue. Pelier did not testify; accordingly, his financial interest in Gables was not relevant to his bias, motive or credibility as a witness. Pelier’s ownership interest in Gables was relevant only to his personal financial stake in the litigation, which the trial judge properly determined to be an area of inquiry prejudicial to Gables. On appeal, State Farm argues that the trial court’s ruling on the Motion in Limine was unclear. The record does not support this contention. The subject of the Motion in Limine was the exclusion of any mention of the ownership interests in the corporate entity. The transcript confirms that the trial court denied the Motion in Limine as to Plana, since he was a testifying witness for Gables. When the trial court stated that “I don’t see why Mr. Pelier. He is not going to be a witness. It will only be Mr. Plana,” the trial court was clearly referring to the fact that Plana was going to be a testifying witness, as to whom questions regarding financial interest would have been relevant to address bias and credibility, while Pelier was not going to testify so that his financial interest in Gables would not have been relevant. State Farm’s response shows counsel’s understanding that testimony regarding Pelier’s interest in the corporation would not be coming in and was off limits. [*8] Page 8 of 14 Notwithstanding, State Farm proceeded on cross examination of Plana to inquire as to Pelier’s financial interest in Gables. The following exchange occurred when State Farm conducted its cross examination of Plana, who had testified on direct examination that he was the Executive Director and owner of Gables: Q Thank you. Sir, you are here today, you are an owner of Gables Insurance Recovery, correct? A Yes, as I previously testified to. Q Do you own it alone? A No. Q You and Mr. Pelier own Gables Insurance Recovery, correct? When Plana did not volunteer Pelier’s ownership interest in response to the second question as to whether Plana owned the company alone, State Farm then followed up with the leading question specifically mentioning Pelier: “You and Mr. Pelier own Gables Insurance Recovery, correct?” That question is wholly inconsistent with State Farm’s counsel’s acknowledgement to the court that “I don’t see how Mr. Pelier would come in”. State Farm now attempts on appeal to justify its question by arguing that Gables opened the door to this area of questioning by asking Plana on direct examination whether he was an owner of the company. The legal principle of [*9] Page 9 of 14 opening the door allows admission of otherwise inadmissible testimony to explain or limit evidence previously admitted. Siegel v. State, 68 So. 3d 281, 288 (Fla. 4th DCA 2011), citing Rodriguez v. State, 753 So. 2d 29, 42 (Fla. 2000). In Siegel, the door was opened when plaintiff claimed financial inability to pay for medical treatment, such that the trial court allowed the defense to question the plaintiff concerning the availability of her financial resources. Unlike the circumstances in Siegel, State Farm’s inquiry as to the ownership of Pelier was not relevant. Only the ownership of Plana was relevant since he was the witness giving testimony. As such, the testimony that Plana was an owner of Gables did not open the door to inquire as to any unrelated ownership interests, including Pelier’s. State Farm points out that there was no answer to the objectionable question so that presumably there was no prejudice to Gables. However, it cannot be overlooked that the question to Plana was a leading question containing the statement “you and Mr. Pelier own Gables”, which was heard by the jury. State Farm also contends that the trial court erred in both giving a curative instruction with an admonishment and granting the motion for mistrial after the verdict. The transcript confirms that Pelier made a contemporaneous objection to the question regarding Pelier’s ownership interest and moved for a curative instruction or in the alternative a mistrial, thereby preserving the issue for appeal. [*10] Page 10 of 14 Murphy v. Int’l. Robotics Systems, Inc., 710 So. 2d 587 (Fla. 4th DCA 1998). The trial court granted the motion for mistrial, acknowledging that State Farm’s inquiry as to Pelier’s ownership in Gables would unfairly prejudice Gables, and impact Pelier’s credibility and that of his client. The court further found that the adverse impact of State Farm’s question could not be remedied by a curative instruction. At that juncture, four days into the trial, it was State Farm who asked the trial court to continue the trial and rule on the motion for mistrial after the verdict, as follows: Your Honor, I would take whatever admonishment is done. I would rather have this trial go to jury verdict and get it over with. And these are all motions that can be handled post-verdict and you can keep the same ruling. But let's get a jury verdict because if they win it, it make it moot and we don't have to try it again. If they lose you can consider all of these things post-verdict. But, right now, if they prevail in this trial it makes all of this moot, and we have been here for four days putting on witnesses and doing everything else. The parties then agreed to proceed with the trial because if Gables prevailed, the issue would be rendered moot. The court would address the mistrial issue postverdict. In order to proceed, Gables requested that the question be stricken, that the jury be instructed to disregard the question, that State Farm’s counsel be admonished in front of the jury, and that the court reserve ruling on the motion for mistrial. State Farm stated that it understood that the court would rule on the motion for mistrial after the verdict. On appeal, State Farm attempts to assert a contrary position that is unsupported by the record. [*11] Page 11 of 14 A trial court may exercise its discretion to determine whether to rule on a motion for mistrial immediately or to reserve ruling until after the jury verdict. Ed Ricke and Sons, Inc. v. Green by and Through Swan, 468 So. 2d 908 (Fla. 1985). A motion for a mistrial coupled with a request that the court reserve ruling on the motion until after the jury has completed its deliberation does not constitute a waiver and prohibit appellate review of the motion. Id. at 910. As such, State Farm’s contention that Gables waived its objection or its motion for mistrial by asking for both a curative instruction with an admonishment of counsel and a mistrial is incorrect. Furthermore, the record below evidences that State Farm was aware that in proceeding with the trial, the judge would be admonishing counsel and would be ruling on the motion for mistrial after the verdict. Accordingly, the record does not support State Farm’s argument on appeal that the court erred in giving both a curative instruction for the trial to proceed and granting the motion for mistrial after the verdict. Nor does State Farm cite to any legal authority which requires such a conclusion. In addition, State Farm argues that the trial court misinterpreted the Motion in Limine and its own ruling on the Motion in Limine. It is clear from the record, however, that the trial court remembered and understood its ruling on the Motion in [*12] Page 12 of 14 Limine. When State Farm asked the trial judge to state the basis1 for granting the motion for mistrial, the judge stated: Because it is very prejudicial. First of all, if I recall directly, I denied that motion in limine, which was motion in limine number eight. But I did address the fact that Pelier was a part owner. And, honestly, to ask a question about him being a part owner is -- He is not a witness in the case. And an attorney can't -- If he was going to be a part of this case he wouldn't be able to represent the client. And then it is making him a witness in the case and it is very prejudicial. (emphasis added). State Farm also asserts that the trial court erred when it denied the insuror’s motion to interview the jury.² State Farm’s position is contrary to case law precedent. “Jury inquiry is limited to allegations which involve an overt prejudicial act or external influence, such as a juror receiving prejudicial non-record evidence or an actual, express agreement between two or more jurors to disregard their juror 1 The trial court’s finding of prejudice is based on Rule 4-3.7, Rules Regulating the Florida Bar, which provides that a lawyer “shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client,” subject to certain exceptions not applicable here. The rule was designed to prevent the evils that arise when a lawyer dons the hat of both an advocate and a witness for his or her own client. State v. Scott, 717 So. 2d 908 (Fla. 1998). A lawyer serving in a dual role of both advocate and witness can prejudice the tribunal and the opposing party because the trier of fact may be confused or misled by a lawyer serving as both advocate and witness, especially where the trier of fact is a jury. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. When they are one in the same, it may not be clear whether the statement of an advocate-witness should be taken as proof or as analysis of the proof. Roberts v. State, 840 So. 2d 962 (Fla. 2002); Allied Signal Recovery Trust v. Allied Signal, Inc., 934 So. 2d 675 (Fla. 2d DCA 2006). Where an attorney will be a material witness, an indispensable witness, or when the attorney’s conduct may be a central figure in the case, that attorney is subject to being precluded from representing the client at trial. KMS Restaurant Corp. v. Searcy, Denney, Scarola, Barnhart & Shipley, P.A., 107 So. 3d 552 (Fla. 4th DCA 2013); Graves v. Lapi, 834 So. 2d 359 (Fla. 4th DCA 2003); Fleitman v. McPherson, 691 So. 2d 37, 38 (Fla. 2d DCA 1997).

Anderson v. State, 18 So. 3d 501, 519 (Fla. 2009). [*13] Page 13 of 14 oaths and instructions.” Reaves v. State, 826 So. 2d 932, 943 (Fla. 2002). Juror interviews are not permitted relative to any matter that inheres in the verdict itself and relates to the jury’s deliberations. Id.; Gray v. State, 72 So. 3d 336, 337 (Fla. 4th DCA 2011). When State Farm failed to follow the trial court’s ruling on the Motion in Limine by asking Plana if Pelier owned Gables, it was the trial judge who was best suited to determine the prejudice, if any, resulting from that question. The trial court found the question to be very prejudicial. From its vantage point, the trial court discerned prejudice that could not be remedied by a curative instruction. Having made that determination, even if another judge may have handled the situation differently, it cannot be said that the trial court acted unreasonably. In summary, the trial court exercised its sound discretion in ruling on the motion for mistrial. The record supports the trial court’s proper exercise of its sound discretion. Applying the reasonableness test, it is clear that the trial court did not abuse its discretion. See Flores, supra., 46 So. 3d at 95. For the foregoing reasons, we find that the trial judge did not abuse her discretion in granting the motion for mistrial and ordering a new trial. Accordingly, the August 15, 2019 Order on Plaintiff’s Motion for Mistrial is AFFIRMED. TRAWICK and WALSH, JJ. concur. [*14] Page 14 of 14 COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

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