Third DCA Throws Out Case Alleging "Repugnant Environmental Violations"

On September 28, the Third District Court of Appeal in Florida reversed a trial court’s decision to grant a new trial to a plaintiff corporation seeking indemnification for “repugnant environmental violations” after a jury rendered a verdict for the defendant landowners. In Harris v. Grunow, ______ So. 3d ________, 2011 WL 4467379 (Fla. 3d DCA 2011), the Third District held that the plaintiffs failed to show that defendants introduced improper statements, and that a new trial was unwarranted.

Plaintiffs John E.D. Grunow, Jr. and O.R. Golf Partners sued neighboring landowners Joel and Judy Harris for various tort claims, alleging that the couple ordered landscapers to cut down protected mangrove trees to improve the Harrises’ ocean view. After a two week trial, a jury rendered a verdict for the Harrises and the court entered a final judgment. The plaintiffs moved for a new trial and to set aside the jury verdict, and the trial court granted their motions. In doing so, the trial court concluded that a new trial was warranted for three reasons: 1) defendants’ counsel violated an order in limine concerning settlement with former defendants in the action; 2) introduced out-of-court statements to impeach its own witnesses; and 3) used improper “empty chair” commentary during closing argument by emphasizing that specific witnesses were not called by the plaintiffs.

The Order In Limine

The plaintiffs moved for an order in limine prohibiting evidence or testimony of settlement with other defendants in the case. The trial court granted the motion. During direct examination of plaintiff’s former landscaper, defense counsel asked the witness if he was concerned he would be “pulled into this case,” to which the witness responded “we already were.” In the plaintiff’s motion for a new trial, they argued, and the trial court agreed, that this statement violated the order in limine prohibiting testimony of plaintiff’s settlement. The District Court, however, rejected this argument. After noting Florida’s public policy encouraging settlement and preventing prejudice of a jury, as well as the statutory prohibitions against introducing evidence concerning settlement negotiations, the District Court concluded that neither the question nor answer violated the order in limine because evidence of another claim is not evidence of a settlement or compromise of the claim.


With regard to the out-of-court statements, defense counsel used prior statements made under oath during a deposition in another legal proceeding to impeach inconsistent answers to the same questions at trial. The District Court rejected plaintiffs’ assertion that the witness was called primarily for the purpose of introducing inadmissible hearsay since the record reflected additional substantive testimony by the same witness unrelated to the prior sworn statements. Therefore, use of the prior statements was appropriate for impeachment because the record reflected the inconsistency of the answers provided by the witness.

The District Court noted that when a witness is unable to recall facts at trial that the witness was able to recall when giving the prior sworn testimony, the proper procedure is to ask the witness to silently read the relevant parts of the prior statement in an effort to refresh the witness’s recollection before re-asking the question. If the witness remains unable to recall the event in question, then the prior sworn statement can be used to impeach the witness’s credibility.

“Empty Chair” Commentary

The District Court held that defense counsel’s closing argument, which criticized the plaintiffs’ failure to call relevant witnesses identified during trial, was not improper because the plaintiffs countered the argument during rebuttal. Moreover, assuming for the sake of argument the statements were improper, the plaintiffs did not object to the commentary during closing argument or move for a mistrial. The District Court noted four requirements that must be met before relief can be granted from improper, but unobjected-to, closing argument: (1) the challenged argument must be improper; (2) the improper argument must be harmful; (3) the improper argument must be incurable; and (4) proof that the improper argument so damaged the fairness of the trial that the public interest in our system of justice requires a new trial. The plaintiffs failed to satisfy any of these requirements.

You can read a copy of the Court’s decision here.

Categories: Environmental/SustainabilityLitigationCivil ProcedureTorts
Tags: Jamie A. ColeEdward G. GuedesMichael S. PopokClifford A. SchulmanJoseph H. SerotaLaura K. WendellMatthew H. MandelFort Lauderdale Appellate Law AttorneysMiami Appellate Law AttorneysSouth Florida Appellate Law AttorneysFort Lauderdale LitigatorsMiami LitigatorsFort Lauderdale Environmental Law AttorneysMiami Environmental Law AttorneysSouth Florida Environmental Law Attorneys South Florida Litigators
Author(s): Michelle Vos