Document for Nelson Faguaga Plaintiff vs. Jeris Stethem, III Defendant

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                Filing # 85031349 E-Filed 02/15/2019 06:10:39 PM

The Circuit Court of Appeal of the
Seventeenth Judicial Circuit

NO. CACE-18017210
Jeris Stethem, III, et al.,
Defendants-Appellants,
-versus-
Nelson Faguaga,
Plaintiff-A ppellee.

ON APPEAL FROM THE COUNTY COURT OF
THE SEVENTEENTH JUDICIAL CIRCUIT

APPELLEE’S JOINT ANSWER BRIEF FOR DON MEYLER INSPECTIONS,
JMI SERVICES, AND JERIS STETHEM

FAUDLIN PIERRE
ATTORNEY AT LAW
Attorney for Plaintiff-Appellee
Florida Bar No. 56770

18900 Northeast 1“ Court

Miami, Florida 33179

Phone: (305) 336-9193
Email: fplaw08@yahoo.com

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/15/2019 06:10:39 PM.****Table of Contents

Table of Contents
Table of Citations...

Preliminary Statement.
Statement of the Case and Fact:

VT. Tmtroducction 2... eee eeeeeeeeeeeeeeseseseeseeeeseeeeesesesececacseceeeeeesesnsnsesseseeeeeserseseeeeeseeeeeete 1
IL. Procedural History ............ccccsssesessesesssesessesesesececsesessesesesnensaeseseeeeesaraeeneneneeeeeeeee 1
TE. Statement of Facto... eeeeceesecsesecsseseesesesecececseseesesesesneneaeseseeeeecaeseseeneaseeeeeeee 3
Argument Summary ..0.0.0......ccceceeeeceseccseseseeeeseeesesessesceeeceeeecsesesesececeeseeteseecaeseeeeese 18
AYQUMENE 0c cece eeeeeeseseeseeeeseeseeesesececacaeseeseseersnsnsasseseeeeesessesesesececeeseeeeseecaeseeeeees 20
T. Standard of ROViGW .0......seseesessesseseesesseseesecsesseseeaesneaecneceeseenescaesneeeesesneseeaeeneeee 20

II. The trial court did not abuse its discretion in not presenting the issue of
agency to jury, where Defendants did not request the issue to be included in the
instructions or verdict form and were responsible for its omission. .................... 21

Ill. The trial court did not abuse its discretion by adopting a verdict form that
did not apportion fault amongst Defendants, where Defendants failed to request
the form, agreed with the form and final instructions, and led the trial court to

conclude their liability Was ViCATIOUS. ............ccsesesseseseseeteseseeeteeeeeeeteeterseseeeeeeeeeeeee 27

IV. Defendants failed to preserve any challenges to Faguaga’s closing

argument and cannot do so for the first time on appeal... eeeeseeceeeeeeeeeeee 34
COmclusion....... eee eeecseceeceeseeeesesseeeeneesceeesessencesesneesencssenseassneeseasseeeceesaneaseeseensneces 36
Certificate of Service... 2c... ccceceececececeeeeeeceeeeceeeeceeeeeseseucaneeceeceneeseeceneeceeces 37
Certificate of Compliance... cc ececcesesececeseeseseeesesesecseneeneneeearseeecncacaeeeeseeeenes 37Table of Citations

Cases

Aarmada Prot. Sys. 2000 v. Yandell, 73 So. 3d 893 (Fla. 4th DCA 2011)...... 35, 36

Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010) .........22-esssececceeseeseeseeeeeeceesteeeseeeeeeeeeseeees 29

Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459 (Fla.
2005).

Baker v. R.J. Reynolds Tobacco Co., 158 So. 3d 732 (Fla. 4th DCA 2015)........... 30
Benjamin v. Diel, 831 So. 2d 1227 (Fla. 4th DCA 2002)........eeeeeeeseeeeseeeeseeeeseeeee 35
Beverly Health & Rehab. Servs., Inc. v. Freeman, 709 So. 2d 549 (Fla. 2d DCA
DS tet ee et ee et ete et eee et eee et et ae eet et la et 30
Brumage v. Pulmer, 502 So.2d 966 (Fla. 3d DCA 1987).........:.escsseeseeeseeseeeeeeseeeee 36
Castlewood Int’l Corp. v. LaFleur, 322 So. 2d 520 (Fla. 1975) .......ceesesseseseeeeseeees 31
Dicus v. Dist. Bd. of Trs., 734 So. 2d 563 (Fla. 5th DCA 1999) oo... eee eee 26
Feliciano v. Sch. Bd., 776 So. 2d 306 (Fla. 4th DCA 2000) uu... 22, 23
Forman v. Wallshein, 671 So.2d 872 (Fla. 3d DCA 1996) .......eesesssseceeeeeeteseseeeees 36
Fred Howland, Inc. v. Morris, 196 So. 472 (Fla. 1940).........ssscssesssseseseeeeseseseeeees 22

Grobman v. Posey, 863 So. 2d 1230 (Fla. 4th DCA 2003)
Holub v. Holub, 54 So. 3d 585 (Fla. 1st DCA 2011) ..
Jaar v. Univ. of Miami, 474 So. 2d 239 (Fla. 3d DCA 1985)
Jarrard v. Jarrard, 157 So. 3d 332 (Fla. 2d DCA 2015)

Keller Indus., Inc. v. Morgart, 412 So. 2d 950 (Fla. 5th DCA 1982) oes 26
Lawrence v. Florida kast Coast Railway Co., 346 So. 2d 1012 (Fla. 1977)............ 7
League of Women Voters of Fla. v. Detzner, 179 So. 3d 258 (Fla. 2015)... 25
Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000) ..............- 19, 21, 34
P&S & Co. LLC v. SJ Mak, LLC, 254 So. 3d 535 (Fla. 3d DCA 2018) ............-. 29

Petit-Dos v. Sch. Bd. of Broward Cty., 2 So. 3d 1022 (Fla. 4th DCA 2009) .......... 20Philip Morris USA Inc. v. Marchese, 231 So. 3d 473 (Fla. 4th DCA 2017)........... 20

Rose v. State, 787 So. 2d 786 (Fla. 2001) .........2..2:s.esceseeseeseeseeeeeseeseeeeteeeeeeeeteeeeeeees 24
Santiago v. Abramovitz, 96 So. 3d 1091 (Fla. 4th DCA 2012) oo... eeeceeeseeseeseeeeees 34
Spicer v. State, 22 So. 3d 706 (Fla. 5th DCA 2009) ..0........ceeseeceescesseseeeeeeeneeseeeeeeeee 26
Triana v. FI-Shock, Inc., 763 So. 2d 454 (Fla. 3d DCA 2000) .0....eeceeeeeeseeeeeeeees 20
USAA Cas. Ins. Co. v. Howell, 901 So. 2d 876 (Fla. 4th DCA 2005)..........0..200 34

Volusia Cnty. v. Niles, 445 So. 2d 1043 (Fla. Sth DCA 1984)..
Wald v. Grainger, 64 So. 3d 1201 (Fla. 2011).
Weber v. State, 602 So. 2d 1316 (Fla. 5th DCA 1992)...

Whitman v. Castlewood Int’l Corp., 383 So. 2d 618 (Fla. 1980) 0... 22, 28
York v. State, 932 So. 2d 413 (Fla. 2d DCA 2006)... eeseseecesseseeseesesseeeeseeeeseeseeees 32
Rules

Fla. R. Civ. P. 1.190... eeeccececsecessecseesenecseeseseeseecescnceseseenseseseenssseseateecensansaeeneaneacenees 21
ea R eet O eee a a eae eet ead edt eee 21

iiiPreliminary Statement

This brief refers to Jeris Stethem, III as the Appellant, Defendant, or by,
“Stethem.” This brief refers to JMI Services, Inc. as the Appellant, Defendant, or
by, “JMI.” This brief refers to Meyler, Inc. doing business as Don Meyler
Inspections as the Appellant, Defendant, or by, “DMI.” This brief refers to Jeris
Stethem, IIT, JMI Services, Inc., and Meyler, Inc. doing business as Don Meyler
Inspections, as the Appellants or Defendants. This brief refers to Nelson Faguaga,
the plaintiff below, as Appellee, Plaintiff, or “Faguaga’. In this brief, the symbols
“R.” and “T.” refers to the record on appeal and the transcript of proceedings,

respectively.

ivStatement of the Case and Facts

I. Introduction

Defendants appeal a jury verdict that ruled in their favor on all but one
count, asserting errors they waived, invited, and was consistent with their pleading
and trial strategy. In six years of litigation, Defendants litigated this matter as a
single unit. They had one lawyer to represent them. They had a single answer, that
referred to them collectively. They asserted no affirmative defenses that assigned
fault to each other. They submitted jury instructions consistent with this strategy.
Now on appeal, they assert error because the jury instructions and verdict form —
which they agreed to — did not treat them separately. For those reasons, and others,
this Court should affirm the judgment below. DMI, separately from the other
Defendants, challenges -- for the first time on appeal -- comments made in
Faguaga’s closing argument. This challenge is not preserved for review. Similarly,

this Court should affirm.

IL. Procedural History
Faguaga filed this action on March 12, 2012. R. 8. Faguaga amended his
complaint twice. R. 2-7. In his second amended complaint, Faguaga claims were
negligent misrepresentation, false information negligently supplied for the
guidance of others, negligence, and negligent hiring. /d. Defendants filed their joint

answer and affirmative defenses on May 21, 2013. R. 252-265. Defendants’affirmative defenses were failure to state a cause of action, economic loss rule,
comparative fault, intervening/superseding cause, failure to mitigate, laches,
assumption of risk, waiver and estoppel, res judicata and collateral estoppel as to
the negligent misrepresentation claim, and no personal liability. Jd.

This action was heard before a jury between May 22, 2018 and May 24,
2018. R. 1533-1534. In three days of trial, the jury heard testimony from 7
witnesses and considered 21 exhibits. R. 1113-1116. After evidence was presented,
a jury entered a verdict for Faguaga on the claim of negligent misrepresentation in
the amount of $12,500.00. R. 1141. The jury ruled against Faguaga on the claims
of negligence, negligent hiring, and false information negligently supplied for the
guidance of others. R. 1139-1142. For the claim of negligent misrepresentation, the
jury apportioned fault and attributed 70% to Defendants and 30% to Nelson
Faguaga. R.1141. After apportionment, the trial court found that Faguaga was
entitled to a judgment in his favor in the amount of $8,750.00. R. 1159.

Defendants filed a motion for judgment notwithstanding the verdict. R.
1150-1153. Defendants requested the trial court enter judgment in its favor based
on comparative negligence. /d. The trial court denied Defendants’ motion. R. 1155.

Defendants did not file a motion for new trial or a motion to conform their

pleadings with the evidence. R. 1-1503.On June 21, 2018, the trial court awarded prejudgment interest in the amount
of $2,437.90. R. 1160. The total amount awarded to Faguaga in the final judgment
was $11,187.90. R. 1159-1161. The judgment was filed on June 22, 2018. Jd.

On July 5, 2018, Defendants filed their notice of appeal to this Court. R.
1183-1186.

Ill. Statement of Facts
a. Pleadings

In his second amended complaint, Faguaga alleged that Defendants
negligently inspected and falsely reported the condition of his roof. R. 2-7.
Faguaga pled: “Don Meyler Inspection, in turn employed Jeris Stethem III and JMI
Services, Inc. to conduct the inspection.” /d. at 2-3. Faguaga further alleged: “On
February 2, 2011, DMI, and its agents Jeris Stethem III and JMI Services, Inc.
conducted the inspection.” /d. at 3. Faguaga repeatedly alleged that “Stethem/JMI
was grossly negligent and was an agent of DMI, DMI is held liable for the tortious
acts of Stethem/JMI.” Id. at 4, 5, 6.

In response, Defendants filed their answer and affirmative defenses. R. 252-
265. In reference to their liability, conduct, actions, Defendants referred to
themselves collectively as “Defendants” 107 times. /d. Defendants admitted that

DMI hired JMI and Stethem to perform the inspection on Faguaga’s property. /d.at 253. Finally, Defendants conceded in their joint answer that the inspections are
conducted by DMI or its agents. /d. at 257.
As their sixth affirmative defense, Defendants jointly plead,

DEFENDANTS affirmatively allege that, although they have no
liability to Plaintiff, any liability found on their part, and any damages
awarded in favor of the Plaintiff, are subject to the comparative fault
provisions of Fla. Stat. § 768.81. DEFENDANTS are not liable for
more than their proportionate share of any economic and non-
economic damages in relation to all other responsible parties and non-
parties, after reduction for Plaintiff's comparative percentage of fault,
including those for whom Plaintiff is responsible.

Id. at 262. The affirmative defense did not seek to apportion fault among each of
the Defendants but treated them as a single unit consistent with the remainder of
their answer.

As their ninth affirmative defense, Defendants collectively plead,

DEFENDANTS affirmatively allege that it [sic] is not liable to
Plaintiff because the Plaintiff was himself negligent, which negligence
was a legal cause of the loss or damage alleged by the Plaintiff.
Examples of Plaintiff's Negligence in this matter include but are not
limited to; the Plaintiff failing to act as a reasonable prudent purchaser
of a home when he failed to thoroughly inspect the property himself,
and failed to acquire the services of an inspector and/or contractor to
inspect the property or roof in a thorough and full manner.

Id. at 263. Again, Defendants make clear that they are not placing fault on
each other within their answer.

b. Trial EvidenceIn addition to pleading agency, the parties introduced evidence pertaining to
agency at trial. Faguaga introduced, without objection, the four-point inspection
report showing the agency relationship between the parties. T.150:18-151:1, R.
1307-1311. Faguaga testified he was aware of the statement contained in the report
which said, “observations set forth in this inspection report were made by visual
inspection only by an experienced four-point inspector acting as agent for Don
Meyler Inspections.” T. 153:22-154:3, R. 1307. Faguaga then introduced, without
objection, the windstorm inspection report that also showed the existence of an
agency relationship. T. 154:12-19, R. 1312-1321. The report reads in pertinent part
that the inspection company performing the inspection was: “JMI Services, Inc. for
Don Meyler Inspections.” R. 1316.

Finally, Faguaga introduced Stethem’s responses to interrogatories with no
objections. T. 318:18-25. In response to question 1, Jeris Stethem stated:

I was an employee of DMI from 2005 to 2009. I then obtained a
Residential Contractors license, which was required to continue my
employment. From 2009 to 2011, the way I was paid changed from
employee (W2) to Contractor (1099) ... DMI had all the control over
the details of the work provided to me; all the inspection | performed
were scheduled and handled by DML. I also had to sign a non compete
agreement and exclusively do inspections for DMI. JMI does not
provide any services; it’s connected to the residential contractors
license. After I formed JMI Services nothing changed in the working
relationship with DMI except I was now responsible for more taxes,
corporation fees, etc. I was paid the same as prior to forming the
corporation.

R. 1459.On the stand, Stethem voluntarily admitted he was an agent. As the only
employee of JMI, Stethem conceded he worked on behalf of DMI, he was paid by
DMI, and the only person he worked for was Don Meyler Inspections. T. 33 1:23-
332:14. When asked whether Stethem was an agent of DMI at the time of the
inspection, Stethem stated, without objection, “Jeris Stethem was an employee at
JMI Services, which was doing work for DMI.” T. 357:22-358:6.

Defendants also introduced evidence pertaining to agency and vicarious
liability. On cross-examination by his counsel, Stethem testified that his duties as a
contractor were no different than when he was an employee for DMI. T. 360:15-
22. Stethem reiterated on cross that DMI was his only contract for work as a so-
called independent contractor. T. 360:24-361:2. On re-direct examination, without
objection, Stethem read aloud for the jury that, “observations set forth in this
inspection report were made by visual inspection only by an experienced four-
point inspector acting as agent for Don Meyler Inspections.” T. 379:7-21. When
asked whose signature was on the four-point inspection exhibit, Stethem admitted
it was his signature. /d. Stethem’s signature and printed name is conveniently
placed directly above Don Meyler Inspections with no reference to JMI Services,
Inc. R. 1307. Finally, without objection, DMI testified to Stethem’s role as an
agent. T. 494:10-496:10.

c. Verdict FormAfter the second day of trial, the trial court conducted a 30-minute charging
conference solely for the verdict form. T. 508:7-524:14. At the conference,
Faguaga argued that the court could not apportion fault amongst vicariously liable
defendants. Jd. at 509:9-510:12; R. 262.

In response, Defendants presented a new theory of their comparative fault
defense. /d. at 510:14-511:25. Defendants’ trial counsel contended that the jury
was entitled to determine the fault of each Defendant in relation to each other even
though they were defending this action as a united front and believed they were all
in the same position. T. 510:14-511:25. Defendants argued:

In this case, had Mr. Pierre --he is alleging in his Pleading, second

amended Pleading, he uses the word agent. Well, that’s something that

we’re disputing throughout is of whether there is an agency relationship

and J believe we put evidence on at Trial that could have made that

an issue in the Jury’s mind whether or not there’s an agency

relationship or whether it’s independent contractor and although we

are here as a united front, because we believe that all the three

Defendants are in the same position, he [Faguaga] elected to sue each
one of the three [Defendants].

Id. at 510:22-511:9.

Both parties provided the court with case law for the court to decide the
issue. T. 508:20-22. Defendants relied on Lawrence v. Florida East Coast Railway
Co., 346 So. 2d 1012 (Fla. 1977) (requiring the use of special verdicts in trials
involving comparative negligence, and making their use discretionary in other

cases) and Faguaga relied on American Home Assurance Co. v. National RailroadPassenger Corp., 908 So. 2d 459 (Fla. 2005). T: 512:1-5, R.1107-1112. The trial
court considered the cases provided by the parties and found that Lawrence was
inapplicable. T. 512:1-513:7. Specifically, the trial court stated that:
My understanding of Last Coast is that the Trial Judge refused to
submit a verdict to the Jury that would reflect a percentage of
negligence, thereby reducing the damages in proportion to the amount

of the negligence attributable to the decedent. It’s not a case that talks
about apportioning damages amongst the Defendants.

T. 512:6-13. The trial court then held that: “I will agree with the Plaintiff and order
that the verdict form be modified so that it does not state the percentage of
negligence among the Defendants but it does state the percentage of negligence
between the Plaintiff and the Defendant.” T. 513:1-7. Defendants then expressed
agreement with the Court’s ruling. The exchange went as follows:

THE COURT: I don’t see that there’s any case law that indicates that
we need to apportion damages among the Defendants.

MS. BANGOR: I am agreeing with Your Honor, that’s your decision
and Ill abide by that absolutely.

T. 513:20-25.

Defendants never made an objection related to agency. Instead, Defendants
asked the trial court whether “we’re going to just accept the agency applies and
that they’ve established that there is an agency relationship?” T. 513:17-19. In
response the trial court states: “I don’t see that there’s any case law that indicates
that we need to apportion damages among the Defendants.” Jd. at 20-22.

Acknowledging that the trial court did not understand Defendants’ inquiry,

8Defendants explained: “But my question is, is the Jury going to be given an
opportunity in the verdict form to say, DMI was negligent but Jeris wasn’t? Or
Jeris was negligent but DMI was not?” T. 513:25-514:4. In response, the Court did
not issue a ruling and began discussing the ethical implications of Defendants’
counsel representing them. T. 514:7-25.

Defendants provided a proposed verdict form as to negligence claim but did
not provide one for the other claims. R. 1014-1016. In contrast, Faguaga submitted
a verdict form for each claim. R. 1010-1013. Defendants’ verdict form was titled,
“Form 1. Model Form of Verdict for General Negligence with Apportionment of
Fault.” R. 1014-1015, T. 518:1-24. Under the form, apportionment would only
apply once the jury determined that all the Defendants were liable. The form
stated:

If your answer to question 1, 2, 3, and 4 is NO, your verdict is for the

defendants, Jeris Stethem III, JMI Services, Inc., and Don Meyler

Inspections and you should not proceed further except to date and sign

this form and return it to the courtroom. If your answer to question 1,
2, 3, and 4 is YES, please answer question 5.

R. 1014. The trial court reviewed Defendants’ verdict form with the parties. T.
518:1-519:1, 520:23-522:1.

In the middle of the trial court’s review of Defendants’ verdict form,
Defendants interjected and argued a separate and distinct issue. Specifically,

Defendants stated:My issue is with grouping all the Defendants together because, my
problem is, what if the Jury thinks that -- when we say the Defendants,
what if they think that, well they weren’t all and this goes to his client,
you know, it helps him. What if they weren’t all negligent but they
might think one of them was and so they say, well...I’m not speaking
to the issue of the proportionment [sic], it’s just whether or not one
person...In my mind I’m thinking, if I read that instruction! I would
think that--because it says, were the Defendants negligent? Well,
there’s three Defendants they were all negligent but I think one might
have been.

Id. at 519:4-11, 16-18, 22-25, 520:1-2.

Tn response, the trial court stated: “I have reviewed your case law and
reviewed his memorandum and my ruling is set and I hear your objection and you
have a standing objection.” T. 521:19-22. This standing objection only pertained to
whether the jury could determine the negligence of each defendant on the claim of
negligence. /d. The trial court continued to review Defendants’ verdict form for
negligence. T. 520:22-521:18. Defendants made no objections regarding grouping
defendants for negligent misrepresentation for the verdict form. T. 508:7-524:14.

On the morning of the third day of trial, the trial court asked the Defendants
if they received the revised verdict form and if they agreed with it. The exchange
went as follow,

THE COURT: All right, very nice. Also, Mr. Pierre was kind enough
to forward the verdict forms. Ms. Bangor, do you have your laptop?

MS. BANGOR: I do. I did receive it and I did review it.

' Defendants’ trial counsel used the term “instruction”, but she was referring to the
verdict form interrogatory.

10THE COURT: Okay, great. And you’re in agreement that this what our
discussions were yesterday?

MS. BANGOR: Yes.
THE COURT: So no objections to the verdict forms.

Id. 530:7-18. In response, Defendants failed to raise an objection and remained
silent. Jd. The negligent misrepresentation verdict form read in relevant part:

1. Did Defendants or any combination of the Defendants
negligently misrepresent the condition of the roof to Nelson Faguaga?

YES NO _

2. Was this misrepresentation the legal cause of Nelson Faguaga’s
damages?

YES NO

3. State the percentage of any negligence or fault, which was a legal
cause of damage to Nelson Faguaga that you charge to:

Defendants %
Nelson Faguaga %
Total must be 100%

R. 1141. The questions in the negligent misrepresentation verdict form differed
from the discussions that occurred at the charging conference related to negligence
verdict form. /d., T. 508:7-524:14.

d. Jury Instructions

During trial, the court read the jury instructions several times. Prior to the
jury being sworn in, the court stated: “I am going to read the long summary of

claims that we put together yesterday... Anybody have any objections or questions

11regarding the instructions that I am reading? Okay.” T. 93:23-24, 94:5-7. No
parties objected. /d. After the jury was sworn in, the trial court read the summary
of claims and expressly stated, “The law is as follow.” /d. at 107:19-111:21. With
respects to the negligent misrepresentation claim, the trial court read to the jury:
“Nelson Faguaga’s third claim is negligent misrepresentation claims the
Defendants made statements concerning material facts. Mr. Faguaga claims that
Defendants stated the roof was in good condition. The Defendants denied this
claim.” Jd. at 110:7-12.

After having plead fourteen affirmative defenses, the jury instructions only
included the following defenses:

Jeris Stethem, IIT, JMI Services, Inc., and Don Meyler Inspections deny

the claims[.] They also claim that Nelson Faguaga was negligent in

failing to timely notify the Defendants of any problems within the scope

of the inspection performing repairs to the roof for which he had no

training and failing to timely repair or replace the roof once leaks were

detected, causing Mr. Faguaga’s damages. Additionally, the

Defendants claim that they were intervening superceding causes for Mr.

Faguaga’s loss. Finally, Defendant’s claim that Nelson Faguaga had a
duty to mitigate or limit damages but failed to do so.

Id. at 109:24-110:13. The jury instructions like Defendants’ defenses did not
include any suggestion that Defendants were seeking apportionment of fault
amongst each other. /d. Consistent with their answer, Defendants abandoned any

comparative negligence defense as between each other. /d.

12On the third and final day of trial, the trial court conducted a separate
charging conference for the jury instructions. T. 581:10-589:10. The parties
submitted proposed jury instructions for the trial court to consider. R. 954-1009.
Defendants proposed jury instructions failed to include instructions pertaining to
agency or comparative negligence. R. 995-1009. Consistent with their trial
strategy, Defendants’ proposed jury instruction requested that the jury determine
their liability as a single unit. For example, Defendants’ burden of proof on main
claim instruction stated: “However, if the greater weight of the evidence supports
one or more of Nelson Faguaga’s claims, then your verdict should be for Nelson
Faguaga and against the defendants on those claims.” R. 998. Defendants’
proposed jury instruction for negligent misrepresentation read:

First, whether Jeris Stethem, III, JMI Services, Inc. and/or Don Meyler
Inspections made a statement concerning a material fact that they
believed to be true but which was in fact false;

Second, whether Jeris Stethem, III, JMI Services, Inc. and/or Don
Meyler Inspections were negligent in making the statement because
they should have known the statement was false;

Third, whether in making the statement, Jeris Stethem, II, JMI
Services, Inc. and/or Don Meyler Inspections intended or expected that
another would rely on the statement;

Fourth, whether Nelson Faguaga justifiably relied on the false
statement, and, if so,

Fifth, whether the false statement was a legal cause of loss or damage
to Nelson Faguaga.

R. 1008 (emphasis added).

13The only objection made to the final jury instructions pertained to the
standard of care, an objection made by Faguaga. T. 582:23-584:7. Defendants
made no objections. /d. at 581:10-589:10. At the conference, the trial court
expressly stated: “So you all have had an opportunity to review my instructions
and they will go back with the Jury with the exception of the back page.” Jd. at
589: 7-10. Again, Defendants did not object. /d.

The trial court read the jury instructions to the jury. /d. at 589:19-608:19.
Noteworthy, the trial court read the following defense: “They further deny that
they caused him damages. Jeris Stethem, III, JMI Services, Inc. and Don Meyler
Inspections have denied all of these claims. They also claim that Nelson Faguaga
was negligent in failing to timely notify Defendants of any issues.” /d. at 592:6-11.

As it relates to the negligent misrepresentation claim, the trial court read the
following:

The issues for your determination are:

First, whether Defendants made a statement concerning a material fact
that it believed to be true but which was in fact false.

Second, whether Defendants were negligent in making statement
because Defendants should have known the statement was false.

Third, in making the statement, Defendants intended or expected that
another would rely on the statement.

And fourth, whether Nelson Faguaga justifiably relied on the false
statements.

14T. 599:4-16, R. 1127. The only affirmative defense instruction given — without
objection — was the duty to mitigate damages. Specifically, the trial court read,

The Defense claims that Mr. Faguaga had a duty to mitigate the
damages he suffered. This means that the parties seeking damage has a
duty to exercise reasonable diligence and ordinary care in attempting to
minimize his damages after injury has been inflicted. The care and
diligence required of him is the same as that would be cause by a man
of ordinary prudence under like circumstances.

T. 606:9-17, R. 1134. Defendants did not request instructions for comparative
negligence or agency. T. 589:19-608:19. Defendants failed yet again to object to
these instructions as they were contemporaneously being read to the jury. Jd. The
trial court then gave the law of the case instructions, and said:
You will have a copy of my instructions with you when you go to the
Jury Room to deliberate. All the instructions are important and you
must consider all of them together. There are no other laws that apply

in this case. And even if you do not agree with these laws you must use
them when reaching a decision in this case.

Id. at 647:13-20. After the jury retired to deliberate, the trial court gave the parties
one last time to object the instructions and the parties did not object. /d. at 656:9-
13. The exchange went as follows,

COURT: Okay. The Jury having retired to deliberate. Does anyone
have any objections to the final instructions as read?

MR. PIERRE: No, Your Honor.
MS. BANGOR [Counsel for Defendants]: No, Your Honor.
Id.

e. Closing Argument

15After the trial court read the jury instructions, Faguaga’s counsel began his

closing argument. T. 607:14-25. The argument lasted for approximately 30

minutes. /d. at 558:10-15. During closing, Faguaga’s counsel stated, without

objection:

Lies are terrible things. You see, lies have caused economies to go
into recession. Lies have torn families apart. Lies have caused
countries to go to war. And no matter how white the lie is, no matter
how small the lie is, it has a devasting impact. And you heard
evidence today, which Mr. Faguaga, even though the Defendants
tried to minimize this lie, it created a devastating impact.

Id. at 608:21-609:2. Faguaga’s counsel also stated, without objection:

They’re also going to say, you know what, he should have mitigated
these damages. How is he going to mitigate a damage that you caused?
They lied. He wasn’t a part of the inspection. What he did try to do,
which seems inconsistent to me, he actually tried to fix the roof.

Id. at 625:9-14.

Based on the evidence, Faguaga’s counsel asked the jury to hold Defendants

accountable. Specifically, Faguaga’s counsel stated, without objection:

It cost him some money, yes, but it also cost him some grief, it cost
some inconvenience and it cost him some mental anguish. But I also
told you at the beginning of this case that you hold an awesome power.
You see, you don’t get to send people to jail, that’s over there, that’s in
the criminal department. The only thing you can do as Jurors is to award
damages. That’s how we hold people accountable.

Further in the examination, Faguaga’s counsel argued the award must be based on

the evidence. Specifically, Faguaga’s counsel said:

[A]s hard as that may seem and as it difficult as it may be, you guys
have the obligation to award money. The evidence shown-- and let’s

16just split it up to two different categories; one is economic damages,
financial losses, it’s clear. Mr. Faguaga spent $10,665 to replace the
roof. You saw the receipts, you saw the checks, it’s there and there’s no
question about it. He also spent $850.00 to replace the ceiling. You saw
the ceiling photos, you saw it with your own eyes. It was pretty terrible,
it was pretty bad. That cost him $850.00. The sum of that is $11,515.
That’s how much it’s going to cost for him to be ina situation he would
have been had they not screwed up.... Nelson Faguaga may receive an
award for non-economic injuries such as pain and suffering,
inconvenience, physical impairment and mental anguish. Yes, it’s hard
to place. It’s hard to en-capsulize. But you as a Jury, based off of your
past experience, you know that this comes with, not just the financials
of replacing the roof but it comes with the aggravation, the living under
the roof that has leaks, then going to your boss, asking him for a loan
and saying, because I can’t afford it because I recently just bought a
new house with a bad roof. ...But the aggravation must be assessed and
ladies and gentlemen, the non-economic damages must be
assessed....Ladies and gentlemen, we would submit to you that you
should award the full jurisdictional limit in this case of $15,000 because
that’s what it would cost to place Mr. Faguaga in a situation that he
would entertain. And as a final matter, when you go back into that
deliberation room, I want you guys to remember that we’ve met the
burden, that they had the responsibility to replace the roof, to tell the
truth. And you have that awesome power to send a message today.

Id. at 623:11-624:1, 624:21-625:8,625:24-626:1, 626:9-19. At no point during
Faguaga’s counsel 30-minute closing argument did the Defendants object or move
for a mistrial for any of the comments made. /d. at 608:2-626:22. Defendants did
not move or file a motion for a new trial based on any improper, un-objected to,

closing arguments. R. 1-1503, T. 1-665.

17Argument Summary

The error belongs to the Defendants not the trial court. Trial judges have
difficult jobs. The difficulty of that job is amplified when they preside over jury
trials. This job is further complicated when litigants and their counsel fail to raise
timely objections, express agreement with court’s rulings, and only to later raise
those issues on appeal. Under these circumstances, a litigant is barred from
complaining and assigning error to the trial court.

On appeal, Defendants complain of error stemming from three things.
Defendants complain that the trial court failed to present the issue of agency to
jury. Second, they complain that the trial court failed to instruct and submit a
verdict form to the jury which apportioned fault amongst Defendants. Finally, even
though the Defendants did not challenge Faguaga’s closing arguments below,
DML, separately, now contends this Court should reverse based on improper
arguments. Defendants’ arguments are wrong, waived, or both.

The trial court did not abuse its discretion in not instructing the jury on
agency. Defendants did not request charges on agency or object to its omission but
agreed to its omission. There was no error, and if there was -- it was invited by
Defendants.

Second, the trial court did not err in adopting a verdict form agreed to by

Defendants. That verdict form was consistent with Defendants’ answer and their

18proposed jury instructions. Florida Rule of Civil Procedure 1.470(b) and binding
precedence mandate that before assigning error to a trial court for failure to charge
the jury, the complaining party must have requested the proposed instruction in
writing. Defendants never requested jury instructions on apportioning fault as to
each other regarding negligent misrepresentation claim nor did they do so in
writing. Moreover, there can be no error as to the verdict form that comported with
the agreed to instructions. Consistent with Defendants’ strategy and concessions,
the trial court did not abuse its discretion in adopting a verdict form that did not
apportion fault amongst vicariously liable defendants.

As it relates to Faguaga’s closing argument, DMI does not, and cannot,
argue on appeal that the trial court failed to grant it a new trial based on improper
arguments because DMI failed to preserve any challenges to Faguaga’s closing
argument and cannot do so for the first time on appeal. DMI failed to adhere with
the Supreme Court’s warning in Murphy v. International Robotic Systems, Inc.,
766 So. 2d 1010 (Fla. 2000). As such, this Court is barred from reviewing any
substantive challenges to Faguaga’s closing argument.

In conclusion, the judgment below should be affirmed because it was the

Defendants not the trial court who erred.

19Argument
I. Standard of Review

Florida appellate courts review a trial court’s ruling to give a particular jury
instruction or include a special interrogatory on a verdict form for abuse of
discretion. Triana v. F'I-Shock, Inc., 763 So. 2d 454, 458 (Fla. 3d DCA 2000).
Stethem and JMI admit that this is the standard of review. Stethem Br. 13.

DMI, on the other hand, states that the standard review should be de novo.
DMI Br. 15. DMI is wrong. De novo is not the standard of review. “The standard
of review is typically determined by the ‘nature of the adjudication’ or the function
that the trial court is performing at the time of the alleged error. It is rarely
determined by the topic or area of law in which the decision making occurs.”
Jarrard v. Jarrard, 157 So. 3d 332, 336 n.3 (Fla. 2d DCA 2015).

The case cited by DMI is inapposite. Philip Morris USA Inc. v. Marchese,
231 So. 3d 473, 475 (Fla. 4th DCA 2017), holds that appellate courts apply a de
novo standard of review when presented with the legal question of whether certain
conduct qualifies as negligence or intentional tort under the comparative fault
statute. See Petit-Dos v. Sch. Bd. of Broward Cty., 2 So. 3d 1022, 1024 (Fla. 4th
DCA 2009)(same). That challenge is not before this Court and was not before the

trial court.

20Similarly, appellate courts review for abuse of discretion only in
consideration of the correctness of a trial court’s ruling on a new trial based on an
improper, but unobjected-to, closing argument. Murphy v. International Robotic

Systems, Inc., 766 So. 2d 1010, 1031 (Fla. 2000).

Il. The trial court did not abuse its discretion in not presenting the issue of
agency” to jury, where Defendants did not request the issue to be included in
the instructions or verdict form and were responsible for its omission.

The trial court did not err by not presenting the issue of agency to the jury.
Florida Rule of Civil Procedure 1.470(b),

Not later than at the close of the evidence, the parties shall file
written requests that the court instruct the jury on the law set forth
in such requests. The court shall then require counsel to appear
before it to settle the instructions to be given. At such conference,
all objections shall be made and ruled upon and the court shall
inform counsel of such instructions as it will give. No party may
assign as error the giving of any instruction unless that party
objects thereto at such time, or the failure to give any instruction
unless that party requested the same.

? Defendants’ argument that agency/vicarious liability was not pled or tried
by consent is without merit and contradicted by their counsel’s admission. At the
verdict form charging conference, Defendants’ counsel stated:

In this case, had Mr. Pierre --he is alleging in his Pleading, second

amended Pleading, he uses the word agent. Well, that’s something

that we’re disputing throughout is of whether there is an agency

relationship and J believe we put evidence on at Trial that could have

made that an issue in the Jury’s mind whether or not there’s an

agency relationship{.]

T. 509:22-510:5. Counsel’s admission shows that Faguaga pled and tried the issue.
Notwithstanding, a “failure to amend the pleadings will not affect the result of the
trial of those issues.” Fla. R. Civ. P. 1.190 (b).

21“Tn a civil case, the policies behind the requirement of Rule 1.470(b), that
objections to jury instructions be properly preserved, override the necessity that a
jury be correctly charged on the law.” Feliciano v. Sch. Bd., 776 So. 2d 306, 308
(Fla. 4th DCA 2000); see also Fred Howland, Inc. v. Morris, 196 So. 472, 477
(Fla. 1940) (“It has long been the law of this State that one who wishes to avail
himself of the trial court’s omission to charge the jury on any point must ask the
court to give the desired instruction, and otherwise will not be permitted to assign
the court’s omission to so instruct as error.”). Similarly, the Florida Supreme Court
has long held: “Tn order to properly object to a general verdict form, counsel must
therefore submit a special verdict form together with the necessary explanatory
instructions in accordance with Florida Rule of Civil Procedure 1.470(b).”
Whitman v. Castlewood Int’l Corp., 383 So. 2d 618, 620 (Fla. 1980).

Defendants did not request agency instructions or interrogatories to be
presented to the jury. R. 995-1009, 1014-1016, T. 508:7-524:14, 581:10-589:10.
Defendants’ proposed jury instructions on negligent misrepresentation said that
collective liability hinged on whether anyone of the Defendants made a false
statement of fact not agency. R. 1008. Similarly, Defendants’ proposed verdict
form had nothing to do with agency. R. 1014-1016. Defendants’ proposed verdict

form concerned apportionment of fault on a negligence claim. /d. Defendants’

22verdict form makes no mention of agency and assumes that liability will be shared
on the negligence claim. Jd.

Defendants argue that the trial court erred by not letting the jury decide the
issue of agency because the trial court omitted this entirely from the jury verdict
sheet and the instructions. DMI Br. 19, Stethem Br. 28-29. The trial court did not
err because Defendants did not submit a written request on the issue. See Feliciano
v. Sch. Bd. of Palm Beach Cnty., 776 So. 2d 306, 307-08, (holding that even
though plaintiff was correct that the trial court had erred, the issue was not
preserved for review where she objected to defendant’s proposed instruction on
pretext but failed to offer her own written instruction to address the issue).

Defendants also did not make a request, written or oral, for agency
interrogatories in the verdict form. At the verdict form charging conference,
Defendants’ counsel asked: “So...we’re going to just accept the agency applies and
that they’ve established that there is an agency relationship...is [the] Jury going to
be given an opportunity in the verdict form to say, DMI negligent but Jeris
wasn’t?” T. 513:17-19, 513:24-514:3.

This was not a request for agency interrogatories. Liability on a theory of
agency is not based on whether the principal has committed a tort. On the contrary,
liability of a principal turns on whether the tort was committed within the scope of

the agent’s real authority. See Jaar v. Univ. of Miami, 474 So. 2d 239 (Fla. 3d

23DCA 1985) (principal may be held liable for the acts of its agent that are within the
course and scope of the agency). As the Florida Supreme Court explained, in
American Home Assurance Co. v. National Railroad Passenger Corp., 908 So. 2d
459, 467-468 (Fla. 2005),

The vicariously liable party has not breached any duty to the plaintiff;

its liability is based solely on the legal imputation of responsibility for

another party’s tortious acts. The vicariously liable party is liable only

for the amount of liability apportioned to the tortfeasor. In sum, the

doctrine of vicarious liability takes a party that is free of legal fault and
visits upon that party the negligence of another.

It was Defendants’ responsibility to request agency interrogatories such as: was
Stethem acting within the scope of his authority when he negligently inspected the
roof or was Stethem an agent of DMI? Under an agency theory, DMI could still be
found liable, if the jury found that it was not negligent but its agent Jeris Stethem
was negligent.

Moreover, no error can be assigned to the trial court where Defendants failed
to specifically raise the issue of agency and secure a ruling on the issue. Rose v.
State, 787 So. 2d 786, 797 (Fla. 2001) (noting that as a general rule, the failure of a
party to get a timely ruling by a trial court constitutes a waiver of the matter for
appellate purposes); Carratelli v. State, 832 So. 2d 850, 856 (Fla. 4th DCA 2002)
(‘The law in this district is still that the burden is on a party to secure a ruling

where the trial court has made no response at all to an objection.”).

24In the present case, the trial court did not rule on the omission of agency
because Defendants did not specifically raise the issue. T. 513:17-514:25. The trial
court did issue a ruling regarding apportionment — which Defendants agreed to --
but did not issue a ruling on the agency issue. T. 513:20-25, 514:7-25. Defendants
argue that they had a standing objection, but this standing objection pertained to
apportionment of damages on the negligence claim. T. 519:4-520:520:4, 19-22.

Defendants place the trial court in an impossible position. Defendants desire
to assign error to the trial court for not presenting the issue of agency to the jury,
where they did not request the charge, draft the charge, specifically alert the court
to the charge’s omission, or request a ruling on the charge’s omission. It is not the
trial court’s responsibility to guess Defendants’ theory of the case and charge the
jury accordingly. See League of Women Voters of Fla. v. Detzner, 179 So. 3d 258,
298 (Fla. 2015) (“One of the tenets of our adversarial system of justice is that a
court should limit itself to a consideration and resolution of disputed issues
between the parties before it.’””). Under these circumstances, Defendants are barred
from assigning error to the trial court. See Fla. R. Civ. P. 1.470 (b).

Defendants invited the error below, so they are not entitled to reversal.
“Under the doctrine of invited error, a party cannot successfully complain [on
appeal] of error for which he is himself responsible, or of rulings that he has

invited the trial court to make.” Volusia Cnty. v. Niles, 445 So. 2d 1043, 1048 (Fla.

255th DCA 1984). This doctrine holds true whether the error was invited solely by
trial counsel being unaware of the governing law, Spicer v. State, 22 So. 3d 706,
708 n.1 (Fla. Sth DCA 2009), or jointly by appellant and his opponent, Weber v.
State, 602 So. 2d 1316, 1319 (Fla. Sth DCA 1992). “The fault should not be laid
upon the trial judge; rather, it must be placed upon [the attorneys] who led the
court into error.” Keller Indus., Inc. v. Morgart, 412 So. 2d 950, 951 (Fla. Sth DCA
1982).

In the present case, Defendants were responsible for the agency’s issue
omission in the instruction and verdict form. Defendants agreed with the jury
instruction despite its omission of agency instructions. T. 656:9-13. Defendants
also agreed with the revised verdict form which omitted agency interrogatories. T.
530:7-18. Defendants’ answer acknowledged their vicarious liability by referring
to themselves 107 times as “Defendants” and admitting JMI and Stethem were
hired and agents of DMI. R. 252-265, 253, see Holub v. Holub, 54 So. 3d 585, 587
(Fla. 1st DCA 2011) (“parties are bound by their pleadings — admissions in
pleadings need not be proven further.”). Defendants’ counsel admitted to the trial
court that Defendants were defending the action as “a united front, because [they]
believe that all [] three Defendants [were] in the same position.” T. 510:14-
511:25, see Dicus v. Dist. Bd. of Trs., 734 So. 2d 563, 564 (Fla. 5th DCA 1999)

(“A party is also bound by factual concessions made by that party’s attorney before

26a judge in a legal proceeding.”). Defendants’ proposed jury instructions did not
include any agency instructions and proposed shared liability on the negligent
misrepresentation claim. R. 995-1009. Defendants’ proposed verdict form did not
contain any questions pertaining to agency and did not even address the negligent
misrepresentation claim. R. 1014-1015.

Under these circumstances, the trial court did not abuse its discretion by not

presenting the issue of agency to the jury. As such, there is no reversible error.

Ill. The trial court did not abuse its discretion by adopting a verdict form that
did not apportion fault amongst Defendants, where Defendants failed to
request the form, agreed with the form and final instructions, and led the trial
court to conclude their liability was vicarious.

The trial court did not abuse its discretion in adopting a verdict form that did
not apportion fault amongst Defendants for three reasons. First, Defendants never
submitted a verdict form on negligent misrepresentation that apportioned damages
amongst themselves; under controlling authority, the failure to submit a written
verdict form and accompanying instructions is fatal to any appellate challenges.
Second, Defendants expressed agreement with the revised verdict form and the
final instructions which excluded apportionment of fault amongst Defendants.
Third, consistent with Defendants’ pleadings and proposed instructions, the trial
court was correct in adopting a form that did not apportion fault amongst

vicariously liable defendants.

27Florida law requires parties submit proposed verdict forms to the trial judge.
Whitman v. Castlewood Int’l Corp., 383 So. 2d 618, 620 (Fla. 1980). A party who
does not submit a proposed verdict form cannot assign error on appeal related to
verdict forms. /d., Fla. R. Civ. P. 1.470 (b). Defendants never submitted a verdict
form apportioning damages between themselves related to the negligent
misrepresentation claim. R. 1014-1016. Defendants did not provide the trial court
any guidance as to the application of their comparative negligence defense. T. 1-
665. This is fatal to their arguments on appeal. Whitman, 383 So. 2d at 620.
Defendants submitted a verdict form apportioning fault amongst themselves with
respect to only Count III, the negligence claim. R. 5-6, 1014-1016. In reference to
the only claim on appeal here, Count I, Defendants submitted no verdict form to
the trial court on negligent misrepresentation (much less one that apportioned
damages). See id., 4. Their claim of error is therefore waived.

Defendants contend that their claim is not waive because they objected to
apportionment of fault amongst Defendants generally. However, this objection
pertained to the negligence claim only — an objection they eventually withdrew. T.
511:10-25, 513:20-25. Even, if they did not withdraw the objection by acquiescing
to the trial court’s ruling, this objection did not preserve the issue on the negligent

misrepresentation claim because “[i]n order for an argument to be cognizable on

28appeal, it must be the specific contention asserted as legal ground for the objection
... below.” Aills v. Boemi, 29 So. 3d 1105, 1108-09 (Fla.