FIRST DISTRICT COURT OF APPEAL

IN AND FOR THE STATE OF FLORIDA

THE PRESTIGE GALLERY, INC.,

a Florida Corporation, M. CRAIG HORNSBY,

and COLBY HORNSBY

Appellants,

vs. CASE NO: 1D18-2318

EDWARD F. NAPLETON; NORTH L.T. CASE NO.: 2013 CA 002044

AMERICAN AUTOMOTIVE SERVICES, INC.

doing business as NAPLETON DEALERSHIP GROUP,

NAPLETON’S TALLAHASSEE IMPORTS, LLC,

doing business as, NAPLETON INFINITI,

and FRANK “PETE” DEE GRINNELL,

Appellees.

__________________________/

APPELLANTS’ INITIAL BRIEF

ON APPEAL FROM A FINAL ORDER OF THE CIRCUIT COURT FOR

THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA

LYONS & FARRAR, P.A.

Attorneys for Appellant

MARSHA L. LYONS

Florida Bar No. 128281

1637 Metropolitan Blvd. Ste. A-2

Tallahassee, Florida 32308

Direct: 850-264-6806

Fax: (850) 222-5583 - facsimile

marsha.lyons@lyonsandfarrar.com

Filing # 85626156 E-Filed 02/27/2019 09:45:48 PM

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TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... i

TABLE OF CITATIONS ........................................................................................ iii

INTRODUCTION ..................................................................................................... 1

STATEMENT OF THE CASE AND FACTS .......................................................... 2

SUMMARY OF THE ARGUMENT ......................................................................10

ISSUES PRESENTED FOR REVIEW ...................................................................13

ISSUE 1: IT WAS ERROR FOR THE COURT TO ALLOW THE

DEFENDANTS TO IMPEACH CRAIG HORNSBY USING THE HIGHLY

PREJUDICIAL COMMENTS OF A FEDERAL JUDGE USED A JUDGMENT

ENTERED INAN UNRELATED CASE WHICH ORDER WAS NOT

ENTERED UNTIL YEARS AFTER THE INCIDENTS REFERRED TO IN

THE COMPLAINT, TO MISCHARACTERIZE ACTIONS IN A FEDERAL

BANKRUPTCY CASE AS “FAIR COMMENT” ON THE EVIDENCE WHEN

IT WAS CLEARLY CONTRARY TO WHAT WAS STATED IN THE

ACTUAL COURT ORDER .................................................................................13

ISSUE 2: IT WAS ERROR FOR THE COURT TO EXCLUDE THE

TESTIMONY OF MULTIPLE PLAINTIFFS’ WITNESSES PARTICULARY

WHEN DEFENDANTS WERE WELL AWARE OF THESE WITNESS AND

THEN TO ALLOW DEFENDANTS’ COUNSEL TO COMMENT ABOUT

THEIR ABSENCE ...............................................................................................20

ISSUE 3: IT WAS ERROR FOR THE COURT TO PRECLUDE THE

PRESTIGE GALLERY FROM PRESENTING EVIDENCE OF ACTUAL

DAMAGES AND THEN GRANT A DIRECTED VERDICT ON THE CLAIM

FOR UNFAIR COMPETITION AND GIVE THE JURY ERRONEOUS

INSTRUCTION ON DAMAGES AND LIABILITY .........................................26

ii

ISSUE 4: THE CUMULATIVE EFFECT AND SERIOUSNESS AND

PERVASIVENESS OF DEFENSE COUNSELS’ IMPROPERT COMMENTS

IN CLOSING ARGUMENT REQUIRE REVERSAL. .......................................35

CONCLUSION ........................................................................................................46

CERTIFICATE OF SERVICE ................................................................................46

CERTIFICATE OF COMPLIANCE .......................................................................47

iii

TABLE OF CITATIONS

Cases

Advantage Telephone Directory Consultants, Inc. v. GTE Directories Corp. 943

F.2d 1511 (11th Cir. 1991) ....................................................................................33

BDO Seidman, LLP. v. Banco Espirito Santo Int’l, 38 So. 3d 874 (Fla. 3d DCA

2010) .............................................................................................................. 20, 21

Binger v. King Pest Control, 401 So. 2d 1310, 1313 (Fla. 1981). ................... 25, 26

Bocher v. Glass, 874 So. 2d 701 (Fla. 4th DCA 2004) ............................................40

Carnival Corp. v. Pajares, 972 So. 2d 973 (Fla. 3d DCA 2007) ..................... 26, 40

Carvajal v. Penland, 120 So. 3d 6 (Fla. 2d DCA 2013) ..........................................44

Chin v. Caiaffa, 48 So. 3d 300 (3d DCA 2010).......................................................45

City of Orlando v. Pineriro, 66 So. 3d 1064 (Fla. 5th DCA 2011) .........................41

Cohen v. Pollack, 674 So. 2d 805 (Fla. 3d DCA 1996). .................................. 40, 44

Duffel v. S. Walton Emergency Servs. 501 So. 2d 1352 (1st DCA 1986) ................34

Harrell v. Aztec Envtl. , Inc. 921 So. 2d 805 (Fla. 1st DCA 2006) ..........................27

Hernandez v. Home Depot U.S.A., 695 So. 2d 484 (Fla. 3d DCA 1997) ................29

JVA Enters., I, LLC v. Prentice, 48 So. 3d 109 (Fla. 4th DCA 2010) .....................29

Knoizen v. Bruegger, 713 So. 2d 1071 (Fla. 5th DCA 1998) ..................................43

Krause v. State, 98 So. 3d, 71, 73 (Fla.4th DCA 2012)............................................31

Marrero v. Hialeah, 581 F. Supp. 1207 (S.D. Fla. 1984) ...................................36

MDVIP v. Beber, 222 So. 3d 555 (Fla. 4th DCA 2017) ..........................................46

Montgomery Ward & Co. v. Duncan, 311 U.S. 243(1940) .....................................31

Moore v. Taylor Concrete & Supply Co., 553 So. 2d 787 (Fla. 1st DCA 1989) ... 42,

43

Murphy v. Int’l Robotics Sys. Inc. 766 So. 2d 1010 (Fla. 2000) ................ 41, 43, 44

Nipper v. Snipes, 7 F. 3d 415 (4th Cir. 1993) .................................................... 21, 22

Pascual v. Dozier, 771 So. 2d 552, (Fla. 3d DCA 2000) ........................................27

Pippin v. Latosynski, 622 So. 2d 566 (Fla. 1st DCA 1993) .....................................44

Ridarsick v. Amirkanian, 146 So. 2d 580 (Fla. 3d DCA 1963) ...............................46

Rubrecht v. Cone Distrib. 95 So. 3d 950 (Fla. 5th DCA 2012) ..............................21

Ryan v. State, 457 So.2d 1084 (Fla. 4th DCA 1984) ...............................................45

Scott v. Busch, 907 So. 2d 662 (Fla. 5th Cir. 2005) ..............................................38

iv

Slip-N-Slide Records, Inc. v. TVT Records, LLC., 2007 U.S. Dist. LEXIS 80788 (S.

D. Fla. 2007) .........................................................................................................33

Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc. 921 So. 2d 43 (Fla. 3d DCA 2006)

...............................................................................................................................45

Twyman v. Roell, 166 So. 215 (1936). .............................................................. 31, 32

W.W. Gay Mechanical Contractor, Inc. v. Wharfside Two, Ltd., 545 So. 2d 1346

(Fla. 1989) .............................................................................................................32

Statutes

Fla. Stat. §90.404 .....................................................................................................24

Fla. Stat. §90.405 .....................................................................................................24

Fla. Stat. §57.105 ....................................................................................................39

Rules

Fed. R. Civ. P. Rule 608(b) ......................................................................................24

Rules Regulating the Florida Bar, Rule 4-3.4(e) .....................................................44

Other Authorities

3 Fla. Jur. 2d, Appellate Review, §294 at 348 (1978) ..............................................34

405.2 SUMMARY OF CLAIMS AND CONTENTIONS ......................................35

http://hrbklaw.com/closingArgumentObjections.shtml ...........................................40

McCormick on Evidence §153 (7th ed. 2014) ..........................................................23

www.americanbar.org/groups/litigation/committees/trial-

evidence/practice/2018/tips-effective-closings/ ...................................................40

1

INTRODUCTION

This is an appeal and cross appeal by the Appellants/Cross-Appellees and the

Appellees/ Cross-Appellants from the trial court’s entry of a Final Judgment

following a jury trial and the Court’s denial of certain post-trial motions. The

Appellants/ Cross-Appellees were the Plaintiffs in the case below. 1(R. 3441-3442)

(App. 1)(R. 3434-3440) (App. 2) (R. 3421-3431) (App. 3) (R. 3417-3420)(App. 4).

This was an action by Craig Hornsby, The Prestige Gallery, and Colby

Hornsby, the owner of The Prestige Gallery for slander, tortious interference, unfair

competition, civil conspiracy, attempt to monopolize and permanent injunction

against the Defendants Edward F. Napleton (“Napleton”) Napleton’s Tallahassee

Imports, LLC, doing business as Napleton Infiniti (“Napleton Infiniti”) and Frank

“Pete” Dee Grinnell (“Grinnell”) based on their actions against the Plaintiffs who

owned and operated a pre-owned vehicle dealership directly across from Napleton

Infiniti.2 Napleton owned and operated in excess of 50 dealerships in multiple states.

1 The parties will be referred to by name or as they appeared in the proceedings

below. References to the Record on Appeal and or Supplemental Record will be by

the designation “R” or “SR” and the page number. References to the Appendix will

be by “App” and the tab number. 2 Claims for Slander were brought by all Plaintiffs against all Defendants. The

claims for tortious interference were brought by Prestige Gallery against all

Defendants. Action for unfair competition and attempt to monopolize were on

behalf of The Prestige Gallery against Napleton Infiniti. The count for civil

2

Plaintiffs contend that the Defendants, Napleton, and Pete Grinnell, directed and

instructed their management and employees to make false and defamatory

statements and to take other actions to impugn and harass the Plaintiffs, their

employees, and customers, in a direct and concerted effort to financially harm The

Prestige Gallery and destroy their business, to force The Prestige Gallery to close or

fail, so that the Napleton Infiniti dealership could acquire its location. (R.1752-1772)

(App. 5).

STATEMENT OF THE CASE AND FACTS

Craig Hornsby has been in the automobile dealership business his entire adult life.

In 1996, Craig Hornsby purchased property on Capital Circle, NE which became an Infiniti

franchise, later known as Prestige Infiniti, from a local non-performing dealership. (R. 030-

063).

In 2004, The Colby and Craig Hornsby Trusts purchased a building located across

the street from the Prestige Infiniti dealership to allow the dealership to showcase highline

pre-owned cars which they designated as The Prestige Gallery. When the economy

collapsed in 2010, a Honda dealership belonging to Craig Hornsby was forced into

Chapter 11 reorganization protection, until such time he could sell the dealership or arrange

conspiracy was on behalf of The Prestige Gallery against all Defendants and the

claim for Permanent Injunction was stated for all Plaintiffs against all Defendants.

3

a different floorplan source. Because that dealership’s and Prestige Infiniti’s debts were

cross-collateralized, Prestige Infiniti was brought into the bankruptcy as well. As a result

of those proceedings, Defendant Napleton’s Tallahassee Imports, LLC (Napleton Infiniti)

acquired the Infiniti dealership and procured that portion of the real estate on which the

Infiniti dealership had operated. (R. 1752-1772) (App. 5). Defendants, Napleton Infiniti,

Napleton, and Grinnell wanted to obtain all of the property used by The Prestige Gallery

(including land and a building) for the used car operations of Napleton Infiniti and tried to

do so within the bankruptcy but that property was not part of the bankruptcy estate. (R.

1752-1772 ) (App. 5). As a result they tried to rent the property, buy the property and even

attempted to buy the mortgage from the bank. When those efforts failed Napleton,

Napleton Infiniti, and Grinnell, directed and instructed their management and employees

to make false and defamatory statements and to take other actions to impugn and harass

the Plaintiffs, their employees, and customers, in a direct and concerted effort to financially

harm The Prestige Gallery and ruin the reputation of theHornsbys. (R. 1752-1772) (App.

5). The Plaintiffs filed their initial Complaint it 2013 which contained dozens of allegations

from customers and potential customers setting forth statements that had been made

describing Craig Hornsby as a “crook”, stating that he had run the business down and

“should be in jail,” told customers and potential customers that The Prestige Gallery3

3 The Prestige Gallery was incorporated by Colby Hornsby as the sole owner and

director on June 13, 2011with the intent to sell pre-used vehicles at the same

location as the Prestige Infiniti dealership had used to sell pre-owned vehicles for

4

wasn’t in business, that “they took down payment money,” that customers “would never

get their title” and sold “wrecked” cars. (R. 1752-1772 ) (App. 5).

By the time the case was ready to go to trial the Plaintiffs had filed a Revised Fourth

Amended Complaint which contained causes of action for multiple causes of action as well

as punitive damages. (R. 1752-1772)(App. 5). Immediately before the trial the Court

granted Defendants’ Motion for Summary Judgment on all claims against Napleton

(except for the claim for injunction) and on all the Plaintiffs’ claims for conspiracy and

tortious interference. (R 2669-2680).

Although allegations concerning the relationship between Napleton and his

ownership and control of his numerous dealerships had appeared in the complaints since

the inception of the case the Friday before the trial Defendants filed a Motion in Limine to

exclude such evidence as “irrelevant” and argued that Napleton Infiniti was a “stand alone

company” and any relationship to Napleton or his or his companies was not relevant to the

case. (R. 2752-2760). The day jury selection began the Plaintiffs presented a detailed

proffer showing the overlap of the Napleton dealerships, that they shared addresses,

websites, control, and funds and was highly relevant to the claims related to the attempt to

monopolize and compete unfairly claims (R. 2752-2760). In spite of that the Court would

the 30 years prior to the alleged incidents involved in the Complaints although the

Defendants were allowed to attack Ms. Hornsby on her attempts to compare the

sales figures of The Prestige Gallery and the used car sales at the same location

under the same name when it was a part of Prestige Infiniti. (SR. 3579-3590).

5

not allow the Plaintiffs to refer to such matters. Finally over a week after the case had begun

testimony from another of Napleton’s representatives convinced the Court that this

information was relevant to the case. (R. 030-063,212-237,277-307,740-761,809-830,

1752-1772) (SR. 3657-3818). However at that point the jury had heard nothing about

Napleton or his vast empire of dealerships in multiple states so all they knew was that there

was a company called Napleton Infiniti that had been incorporated shortly before The

Prestige Gallery.

Almost a year prior to the trial the Court entered An Order in Limine to

prevent the Defendants from using highly prejudicial statements made by Judge

Hinkle in an Order entered in October 2016, including that he had committed “fraud

on the Court” in a totally separate case, Michael Craig Hornsby v. NMAC Case No.

4:15-cv-00231. This was not raised again until trial and the Court allowed

Defendants to cross-examine Hornsby with the findings in this Order. (R. 1093-

1096,1127-1128,3227-3241). (App. 6,7,8).

The Court also allowed the Defendants to continually characterize Craig

Hornsby’s failure to list an unexpired lease on the property Napleton was trying to

acquire on the schedule of assets in his 2011 bankruptcy as “fraud on the Court”

even though that property was not part of the bankruptcy estate and the Bankruptcy

Court specifically found that Napleton and the Trustee knew or should have known

about the existence of the property. (R. 3111-3115) (App. 9). That case also did not

6

involve the other two Plaintiffs and there was no evidence that anyone (other than

Defendants’ counsel) ever characterized it as “fraud on the Court.” (R. 3111-3115)

(App. 9).

In a similar light Defendants’ counsel continually referred to a $2 million-

dollar judgement held by NMAC as outstanding and unpaid by Craig Hornsby. The

only evidence was from the Plaintiffs who testified that that matter had been settled

by requiring the Plaintiffs to take out a $2 million-dollar life insurance policy on Mr.

Hornsby and pay the premiums and that upon Hornsby’s death all benefits would go

to NMAC. (SR. 3566-3567, 3605-3606, 3631).

Witness Denice Wooley testified that while she was employed at Craig

Hornsby’s prior dealership in 2010 that she saw him “cutting and pasting” financial

reports for that dealership’s auditor reviews. (SR. 4140-4141, 4162-4166). She also

testified for the first time at trial that Mr. Hornsby had directed a Ms. Jones to take

deal jackets out of the office while the auditors were there. (SR. 4141-4142, 4185).

Although Plaintiffs were able to locate the witness and proffered her testimony that

Ms. Wooley’s accusations were false and that the doctoring of the documents as

described was physically impossible, the Court precluded her from testifying

because Plaintiffs had not listed her as a witness although she didn’t know about her.

As a result, Ms. Wooleys’ accusations were unrefuted and the Defendants made that

argument in its closing.

7

In another instance the Defendants successfully precluded the Plaintiffs from

presenting the testimony of Howard Bolton in what it characterized as Defendants’

“bad” acts, i.e. the “bad” conduct of Napleton Infiniti employees, of hiding/

misplacing potential customers keys so as to make them stay longer at the dealership

while shopping.

Although Defendants knew Mr. Bolton had testified about the keys and

succeeded in keeping such testimony out they then used Ms. Parr’s testimony about

the same actions to discredit her. While arguing that Ms. Parr was the only witness

to testify that Grinnell had called Hornsby a “crook” even though that was not true,

defense counsel tried to paint her as unstable, expressing concerns for her health,

and in closing characterized her testimony as “incredible.”

The defendants were also allowed to present several pieces of evidence

regarding Hornsby‘s arrests in 2010 for issues relating to not providing titles to

individuals who purchased vehicles from his prior dealerships. This had occurred as

a result of the dealerships being taken over by the manufacturer and later the

bankruptcy court when Mr. Hornsby encountered financial problems. The charges

were all eventually dropped and the state attorneys testified to that fact. There was

also an order from the bankruptcy put into evidence which directed Nissan to release

the titles. This all occurred several years before the matters involved in this case and

also did not involve Colby Hornsby or The Prestige Gallery. The court allowed

8

evidence of these arrests based on Defendants argument that the “alleged” slander

couldn’t damage Hornsby because the arrests already damaged his reputation. But

Defendants were allowed to not only put in evidence concerning the arrests and the

publicity surrounding them but also items that would not be available to the general

public such as booking tapes, TV broadcasts, mugshots, and interviews conducted

at the time of his arrest. (R. 3088).

Although the Court continually allowed the Defendants to present evidence

related to acts occurring both before and after the event time-line in the Complaint

it precluded the Plaintiffs from doing so holding that it was irrelevant. One such

instance was a timely disclosed fact witness, Wenceslao Troncoso who was a

customer of the Defendants who spoke with a sales manager, Tim Kelly in early

2017 and testified that Kelly made slanderous statements about Mr. Hornsby and

The Prestige Gallery to him. Defendants moved to have him excluded and the Court

agreed finding that his testimony was outside the scope of the case since it occurred

after the case was filed. (R. 4066-4071).

Later in their case, the Defendants called Sid Chandra, former Manager of

Napleton Infiniti from 2014-2017. When Plaintiffs objected to his testimony as

irrelevant citing to the Court’s previous ruling, the objection was overruled. (SR.

4103-4126). Mr. Chandra was allowed to testify and stated that while he was

manager there were no instances of his employees or managers slandering Hornsby

9

or The Prestige Gallery. Had Mr. Troncoso been allowed to testify in front of the

jury, his testimony would have directly rebutted Mr. Chandra’s testimony. Plaintiffs

raised the issue again and this time the Court said Plaintiffs could recall him. But at

that point Mr. Troncosco, was unavailable and his proffered testimony could not be

transcribed in time to be read to the jury.

During closing argument, the Court allowed Defense counsel to make

personal attacks not only on the Plaintiffs but Plaintiffs’ counsel as well.

Defendants’ counsel turned and looked at the Plaintiffs/Counsel gesturing broadly

with his arm outstretched and stated: “Shame on you…” … “Shame on everybody

over there who decided this (referencing an email) that was in evidence in the trial.

(R. 3347-3348, 3349-3368)( App. 10).

Mr. Coppins also characterized 90% of Plaintiffs’ evidence as irrelevant and

a waste of time, told the jury that the Plaintiffs had turned a one week trial into three

weeks and advised them that the Court had already decided that various claims

brought by Plaintiffs were baseless, had been disposed of by the Court and were no

longer for their consideration. Keeping on this same theme, Mr. Coppins told the

jury, that even though they had been there for nearly three weeks that if they were

to consider punitive damages that they would have to be here even longer. He did so

even though when the jury instructions were being discussed prior to closing the

10

Court had announced that it would not give an instruction on punitive damages until

after the jury made a decision on liability. 4 (R.3347-3348, 3349-3368) (App. 10).

The court also gave erroneous jury instructions precluding the jury from

awarding compensatory damages to a corporation on a slander per se claim. The

Court also refused to instruct the jury that per se slanderous statements made against

a small company and its employees were necessarily attributable to the company and

its owners and then allowing Defendants to argue that Colby Hornsby could only be

slandered if someone made a slanderous statement using her name. (R. 3282-3286)

(App. 11).

SUMMARY OF THE ARGUMENT

The Plaintiffs contend that the Court erred by allowing the Defendants to use

highly prejudicial statements concerning Craig Hornsby made by a federal judge in

other litigation involving only Craig Hornsby an Order in Limine had been entered

nearly a year before trial which had not been raised since until the Defendants

unexpectedly raised it. (R. 1093-1096, 1127-1128) (App.6, 8). The Court allowed

Defendants to use that Order thus prevented the Plaintiffs from attempting to

address those issues in jury selection, opening and in witness preparation and

permeated the entire atmosphere of the trial and certainly substantially prejudiced

4 The Court later changed that decision but that was not until after Mr. Coppins

had told the jury that if they considered punitive damages they would have to

extend their three week long service even longer.

11

not only Craig Hornsby but The Prestige Gallery and Colby Hornsby as well. This

error was exacerbated when the Court permitted the Defendants to totally

mischaracterize Hornsby’s failure to include a lease on The Prestige Gallery

property as some type of “fraud on the court” even though that property was not part

of the bankruptcy estate and the bankruptcy Court order clearly held that Napleton

and the Trustee knew or should have known of its existence and the case occurred

in 2011. (R.3111-3115)(App. 9).

Additionally the court the precluded testimony of a witness singularly

important to refuting trial testimony that Craig Hornsby was “cooking the books”

because Plaintiffs had not listed her, even though Defendants’ witness had

admittedly not mentioned her presence and Defendants were obviously aware of it.

The Court also precluded the testimony of witness who would have confirmed

details of a portion of the testimony of key Plaintiff witness, Kim Parr, and

Defendants used the absence of that testimony to attack her credibility. The Court

also precluded any testimony concerning the Napleton empire until over a week into

the trial even though it was highly relevant to the Defendants’ motives and the

Plaintiffs claims for unfair competition. Further the Court allowed Defendants to

refer to Plaintiffs and their counsel as “shameful” and the Plaintiffs’ causes of action,

and evidence derisively and with distain and that the case descended into a trial of

Craig Hornsby for multiple “bad” acts totally unrelated to the real issues in this

12

matter and resulted in depriving not only Craig Hornsby, but all of the Plaintiffs of

a fair trial and in a gross miscarriage of justice. (R. 3347-3348, 3349-3368)( App.10).

Additionally, Plaintiffs contend that the Court erroneously precluded the

Plaintiff, The Prestige Gallery from presenting evidence of its damages and then

instructed the jury that because there was no evidence of financial damages that the

only damages that could be awarded to The Prestige Gallery on its claim for slander

per se was “nominal” and punitive damages. (SR. 3592-3594). That resulted in a

verdict for The Prestige Gallery in the sum of $80,000 and a motion to set that verdict

aside by the Defendants, the denial of which resulted in the Defendant’s Cross

Appeal. (R. 3092-3103, 3153-3162). The Court also refused to instruct the jury that

Colby Hornsby, the owner and operator of The Prestige Gallery, could be slandered

by statements made about the business or its owners and operators and instead could

only have such a claim if someone actually used her name in the course of making

such slander. (R. 3282-3286) (App. 11).

The fact that The Prestige Gallery had been precluded from presenting

evidence of damages was also the basis for the Court directing a verdict for the

Defendants on the unfair competition claim.

13

ISSUES PRESENTED FOR REVIEW

ISSUE 1: IT WAS ERROR FOR THE COURT TO ALLOW THE

DEFENDANTS TO IMPEACH CRAIG HORNSBY USING THE HIGHLY

PREJUDICIAL COMMENTS OF A FEDERAL JUDGE USED IN A

JUDGMENT ENTERED IN AN UNRELATED CASE WHICH ORDER WAS

NOT ENTERED UNTIL YEARS AFTER THE INCIDENTS REFERRED TO

IN THE COMPLAINT, TO MISCHARACTERIZE ACTIONS IN A

FEDERAL BANKRUPTCY CASE AS “FAIR COMMENT” ON THE

EVIDENCE WHEN IT WAS CLEARLY CONTRARY TO WHAT WAS

STATED IN THE ACTUAL COURT ORDER

The admissibility into evidence of judicial findings of fact from another case

is subject to the abuse of discretion standard. However such findings are not a public

record or report and “judicial findings of fact “present a rare case where, by virtue

of having been made by a judge, they would likely be given undue weight by the

jury, thus creating a serious danger of unfair prejudice.” Nipper v. Snipes 7 F. 3d

415, 416-417 (4th Cir. 1993).

It was also error to allow Defense counsel to mischaracterize Hornsby’s

failure to include a lease on The Prestige Gallery property as “fraud on the court”

even though that property was not part of the bankruptcy estate and the bankruptcy

Court order clearly held that Napleton and the Trustee knew or should have known

of its existence. (R. 3111-3115)(App. 9).

On April 18, 2017 Defendants asked the Court to take judicial notice of

several bankruptcy orders plus a U.S. District Court order granting summary

judgment and entering judgment for the Defendant Nissan Motor Acceptance

14

Corporation’s (NMAC) in connection with Craig Hornsby claim for malicious

prosecution and false imprisonment in the case of Michael Craig Hornsby v Nissan

Motor Acceptance Corp., Case No.: 4:15 cv 231-RH/CAS. This Order was entered

in October of 2016 and had no bearing on Plaintiff’s reputation at the time of the

events which were the subject of this case. The Order, unlike the arrest, was not

publicly made available and disseminated. (R. 1127-1128)(App. 6) (R. 3227-

3241)(App. 8).

Plaintiffs filed a Motion in Limine and the Court entered an Order

preliminarily finding that it could take judicial notice of the fact that the order had

been entered but not its contents. Judge Hinkle’s Order was not mentioned again

until over two weeks into the trial when Defendants quoted from a copy of the Order

during examination of Mr. Hornsby. (SR. 4237-4238).

Q. Isn’t it true that the Court’s dismissal of your lawsuit

against NMAC was based on a finding that you had

committed quote egregious litigation misconduct?

Plaintiffs’ counsel immediately objected and asked for a side bar, citing to

multiple cases regarding the hearsay nature of such findings and the highly prejudicial

nature of admitting findings by a Federal Judge in an unrelated matter, the Defendants

argued that it was admissible under the “public record” exception 90.403(SR. 4243-

4244)) and was relevant since Hornsby had brought a case for slander where

“reputation and honesty is fundamentally at issues. (SR.4243).

15

In spite of the fact that Plaintiffs cited to cases which held that judicial findings

did not fall within the “public records” exception, the Court held that it did (SR, 4248-

4349) and also that he would allow the Defendants to ask such questions. (SR. 4257-

4258). The Plaintiffs indicated that once the Defendants asked such questions that

she would immediately move for a mistrial which the Court indicated it would deny.

(SR. 4257-4258).

As a result, the Defendants were allowed to ask Mr. Hornsby:

Q. Mr. Hornsby, isn’t it true that in the NMAC litigation,

there was a motion to dismiss your case for fraud on the

court?

A. Incorrectly.

Q. Isn’t it true that the motion was based on your

falsification of evidence?

A. Incorrectly.

Q. Sir, my question is, isn’t it true that the motion that was

filed to dismiss your case for fraud on the court was based

on your falsification of evidence?

A. And my answer is, incorrectly.

Ms. Marsha Lyons: Your Honor…..

The Court: To clarify, his question is, were the

allegations….you said its incorrect. Was that what was

alleged?

A. That was what was alleged in the motion.

(SR 4258-4259).

Plaintiffs renewed their motion for mistrial which the Court denied.

Defense counsel continued:

Q. Isn’t it true, Mr. Hornsby, that the court granted the

motion to dismiss for fraud on the court?

A. Yes.

16

(SR. 4260)

The trial Court also stated on a number of occasions that he had not even read

the Order so he couldn’t possibly have weighed its probative value versus its

prejudicial effect. (SR-4242)(R. 3349-3368)(App. 10). The Court allowed Mr.

Coppins to question Craig Hornsby about the Judge Hinkle’s findings and it became

the central theme of the trial. The Court did not properly consider the prejudicial

effect of the use of this Order under Fla. Stat. §90.403. Although it is believed that

the Court’s intention originally was to allow Mr. Coppins to only cross-exam Craig

Hornsby about the Order to see if he would be able to impeach him if he denied the

case was dismissed, the Order was quickly turned into “hard evidence” that Craig

Hornsby had fabricated evidence and committed fraud on the Court. The case of

BDO Seidman, LLP. v. Banco Espirito Santo Int’l, 38 So. 3d 874, (Fla. 3d DCA

2010), involved the appeal by an accounting firm for the alleged breach of its

professional duties to its former client the bankrupt nonparty E.S. Bankest. In that

case BDO argued that the trial court erred by taking judicial notice of a bankruptcy

court order and allowing the order to be shown to the jury. In reversing the judgment

entered against BDO, the court stated that the trial court erroneously “took the view

that the facts determined by the bankruptcy court we're properly admissible in this

case.” Id at 880. The Third District held that BDO’s objection it was hearsay should

have been sustained

17

Additionally, Rubrecht v. Cone Distrib. 95 So. 3d 950, 958 (Fla. 5th DCA

2012) dealt with an appellate opinion noting “writing by a judge that derives its

substance from many sources. A statement made in the opinion may be true only as

far as evidence appears in that case”…..and “cannot be a substitute for proof of fact.”

The BDO opinion also points out that a request for judicial notice “is also

subject to analysis under § 90.403 Florida Statutes which deals with exclusion on

the grounds of prejudice or confusion.” BDO Seidman at 880. The decision also

notes that there is a particular problem of prejudice in connection with findings by a

judge because, “judicial findings of fact ‘present a rare case where, by virtue of their

having been made by judge, they would likely be given undue weight by the jury,

thus creating a serious danger of unfair prejudice’.” (Id internal citations omitted).

In Nipper v. Snipes, 7 F. 3d 415 (4th Cir. 1993), the controversy arose out of a

sale of limited partnership interests in real estate. During the trial, plaintiffs

introduced into evidence over defendants’ objection an order entered in another case

concerning another real estate transaction in which Nipper and Ted Snipes were

involved. That order referred to factual findings of misrepresentations made by

Snipes, and to Mrs. Snipes knowingly filing false affidavits. Plaintiff argued that it

should be admitted to show an ongoing conspiracy. In that case the Court instructed

the jury after portions were read and in its charge to the jury that it was only to be

18

used for the limited purpose of showing the existence of a conspiracy. Even though

the jury found in favor of the defendants on that claim, the Court reversed on appeal.

In that case as in this one the Plaintiff in Nipper argued that it was admissible

under the Public Records exception to hearsay. The Court rejected that claim stating

that:

Rule 803(C), on its face, does not apply to judicial findings

of fact; it applies to “factual findings resulting from an

investigation made pursuant to authority granted by law.”

A judge in a civil trial is not an investigator, rather a judge.

(Id at 417).

The Court was correct in its granting Plaintiffs’ Motion in Limine and erred

in allowing Defendants to use the other orders and denying Plaintiffs’ initial Motion

for Mistrial after Counsel blurted it out without first seeking the Court’s permission

to ask the question when the Order was still in effect asking Mr. Hornsby “isn’t it

true that a Judge dismissed your case for falsifying documents filed with the Court?”

When the Court made its ruling related to the use of Judge Hinkle’s Order, it

had not read the Order in question. If the Court had not read the Order in its entirety

how could the Court make rulings on the prejudicial effect of that Order against its

probative value. (SR. 4242) (R.3349-3368).

Federal Rule §405(2) provides that “specific instances of conduct” can be

admissible “When a person’s character or character trait is an essential element of a

charge, claim, or defense, the character or trait may also be proved by relevant

19

specific instances of the person’s conduct.” The court relied on this provision to

allow the Defendants to introduce the Defendants’ characterization of Judge

Hinkle’s ruling into evidence.

In the case at bar, the only “element” of truthfulness related to the Plaintiffs’

claims are the issues of damage to their reputations, at the time of the slander in

2011-2013. Plaintiffs were not allowed to present evidence of their damages.

Moreover, and most importantly, just because it is admissible, doesn’t mean it

should be admitted. The Court must still weigh the prejudicial effect of such

evidence against the probative value. Allowing the jury to be presented with a

Federal Judge’s conclusions in another case was extremely prejudicial.

Most significantly, Earhardt recognizes at §404.2 page 217 (2014 ed) “only

rarely does the substantive law or the pleadings define a person’s character as an

element of a claim or defense.” According to McCormick on Evidence §153 (7th ed.

2014) and the notes of the Advisory committee:

Of the three methods of proving character provided by the

rule, evidence of specific instances of conduct is the most

convincing. At the same time it possesses the greatest

capacity to arouse prejudice, to confuse, to surprise,

and to consume time. Consequently the rule confines the

use of evidence of this kind to cases in which character is,

in the strict sense, in issue and hence deserving of a

searching inquiry. (Emphasis Suppled)

Rule 405 deals with allowable methods of proving character. It does not deal

with the circumstances under which character is admissible. The latter issue is

20

governed by Rule 404. According to the notes of advisory committee, under Rule

405, “The express allowance of inquiry into specific instances of conduct on cross-

examination in subdivision (a) and the express allowance of it as part of a case in

chief when character is actually in issue in subdivision (b) contemplate that

testimony of specific instances is not generally permissible on the direct examination

of an ordinary opinion witness to character. Similarly as to witnesses to the character

of witnesses under Rule 608(b). Opinion testimony on direct in these situations

ought in general to correspond to reputation testimony as now given, i.e., be confined

to the nature and extent of observation and acquaintance upon which the opinion is

based.”

Because this case involved slander claims the Judge allowed Defendants to

impeach the Plaintiffs on the specific findings made by Judge Hinkle years after the

acts of slander.

ISSUE 2: IT WAS ERROR FOR THE COURT TO EXCLUDE THE

TESTIMONY OF MULTIPLE PLAINTIFFS’ WITNESSES

PARTICULARY WHEN DEFENDANTS WERE WELL AWARE OF

THESE WITNESS AND THEN TO ALLOW DEFENDANTS’ COUNSEL

TO COMMENT ABOUT THEIR ABSENCE

The Standard or Review for excluding an undisclosed witness should be

guided by whether the undisclosed witness will prejudice the objecting party and

prejudice in this sense refers to “surprise.” Binger v. King Pest Control, 401 So. 2d

21

1310, 1313-1314 (Fla. 1981). It can also exclude witnesses whose testimony is

cumulative or irrelevant but it is error for the Court to exclude witnesses and to then

permit the objecting party to use their absence as a basis for strengthening their own

case.

Defendants called Denise Wooley to testify at trial that Hornsby “cut and

pasted” reports given to auditors. At trial she revealed for the first time that there

was another person, Mary Jones who had knowledge of those incidents. In response

to this testimony, Plaintiffs located Ms. Jones and attempted to call her to rebut

Wooley’s testimony. Defendants objected because she had not been listed as a

witness. Plaintiffs were not aware of Jones existence until Wooley’s trial testimony

Defendants obviously were. Plaintiffs proffered Ms. Jones testimony outside the

presence of jury which rebutted many of the damaging statements made by Wooley.

Later Mr. Coppins used the fact that the only other witness was Hornsby and used

the absence of Jones to bolster Wooley’s statements.

4 I remember sitting here one time when he said,

5 well, you just faked that, or that's your belief. And

6 Denise Wooley said, no, sir, that's my testimony.

7 Now, of course, Mr. Hornsby said, nope, that never

8 happened. I will stand by, and suggest you stand by

9 the weight and credibility of Denise Wooley.

(Page 20, Lines 4-9) (App. 10)

In Carnival Corp. v. Pajares, 972 So. 2d 973, 978 (Fla. 3d DCA 2007),

22

Prior to trial, Carnival attempted to amend its expert

witness list to include an economist, …to offer an

alternative life-care plan…. Pajares, who objected to the

amendment, prevailed… During examination of Gary

Anderson, Pajares' forensic economist, Pajares' counsel

improperly elicited testimony from Anderson that no

alternative life-care plan was submitted by

Carnival…The improper question and answer were

compounded by Pajares' counsel's comments in closing

argument that Anderson's testimony was unrefuted, and

that Carnival could have produced its own expert and an

alternative life-care plan, but failed to do so.

Like the Plaintiff in Carnival Corp., the Defendants’ counsel knew that

Plaintiffs were prepared to offer testimony from a witness to rebut Wooley which

did not prejudice Defendants but the exclusion of Jones did greatly prejudice the

Plaintiffs.

The court held in Binger v. King Pest Control, 401 So. 2d 1310, 1313-1314

(Fla. 1981), that:

…a trial court can properly exclude the testimony of a

witness whose name has not been disclosed in

accordance with a pretrial order. The discretion to do so

must not be exercised blindly, however, and should be

guided largely by a determination as to whether use of

the undisclosed witness will prejudice the objecting

party. Prejudice in this sense refers to the surprise in fact

of the objecting party, and it is not dependent on the

adverse nature of the testimony.

While “The exclusion of a witness can be deemed harmless if the testimony

would have been cumulative,” Harrell v. Aztec Envtl. , Inc. 921 So. 2d 805, 806 (Fla.

1st DCA 2006), in this case Ms. Jones testimony was the only possible testimony

23

beside that of Craig Hornsby and was vital to the Plaintiffs attempts to defuse

evidence about Plaintiff Craig Hornsby’s alleged attempt to commit fraud.

In Pascual v. Dozier, 771 So. 2d 552, 553 (Fla. 3d DCA 2000), the Court

cautioned that “….a trial court should exercise caution when the witness sought to

be excluded is a party’s only witness or one of the party’s most important

witnesses…” When characterizing Mr. Hornsby’s testimony:

17 I have never had a bad floor plan report. That's

18 sort of true. You never got a bad report, but you were

19 cutting and pasting data and cooking the books while

20 the NMAC people were on board to find out where are my

21 cars and have they been paid for.

(Page 17, Lines 17-21)(App. 10)

In another instance they used excluded testimony of Howard Bolton to

attack the credibility of one of the Plaintiffs’ key witnesses Kim Parr.

In Defendants’ closing statement he stated:

But more critical to that conversation and the

credibility of that Ms. Parr, is the fact that she said

two other things that made absolutely no sense. In the

same breath that she testified that Mr. Grinnell used

the word crook in her presence referring only to Craig

Hornsby -- and that's an important -- she

simultaneously said that Mr. Grinnell told her that if

a customer comes to our store and does not buy a car

that first visit, you are to -- and these are her words

-- excuse me -- piss them off so bad that they will

never come back. The other thing she said was if you

get their keys, throw them on the roof.

Mr. Scharlepp and I went what? Apparently, if we

fly a drone over Napleton Infiniti, we are going to see

thousands of keys up there if Ms. Parr's testimony is

24

to be believed. (R. 3347-3348,3349-33368) (App. 10).

(Page 24, Lines 13-25, Page 25, Lines 1-3) (Emphasis supplied) (App. 10)

The Defendants successfully moved in limine to prevent the Plaintiffs from

presenting evidence of the “bad” actions of the Defendants. In this instance, the

slanderous statement was made while discussing the bad conduct of Napleton Infiniti

employees, more specifically, hiding/misplacing potential customers keys so as to

make them stay longer at the dealership while shopping. Mr. Coppin’s

characterization of Mrs. Parr’s testimony as outlandish and not to be believed comes

after the Plaintiffs asked the Court to rule on an objection over portions of Mr.

Howard Bolton’s video deposition. In the video deposition, Mr. Bolton describes a

similar incident with his keys, but the court sustained the Defendants’ objection.

Florida Courts have held that counsel cannot successfully move to have

evidence excluded and then in closing arguments argue that the lack of said evidence

is dispositive. “Case law indicates it is improper for a lawyer, who has successfully

excluded evidence, to seek an advantage before the jury because the evidence was

not presented.” JVA Enters., I, LLC v. Prentice, 48 So. 3d 109 (Fla. 4th DCA 2010).

In Hernandez v. Home Depot U.S.A., 695 So. 2d 484 (Fla. 3d DCA 1997), the Third

District Court of Appeal granted a Motion for New Trial after Defense counsel had

successfully moved in limine to prevent testimony related to the Defendant’s

negligence:

25

In final argument, defense counsel, who had succeeded in

excluding this available and proffered evidence of his

client's negligence, then--in what must be the ultimate

gotchaism--whipsawed the plaintiff for not producing

that very testimony.

The excluded testimony of Mr. Bolton supports the statements made by Mrs.

Parr and strengthens her testimony. On its face, the statements by Mrs. Parr do sound

a bit outlandish, but the testimony of Mr. Bolton as it speaks to the practice of

Napleton Infiniti employees taking customers keys and “pissing them off” if they

don’t buy a car. Defendants successfully moved to have it excluded, but then used

its absence as a basis for attacking the credibility and believability of Mrs. Parr

stating:

Plaintiffs had timely disclosed the fact witness, Wences Troncosco who was

a customer of the Defendants who spoke with a sales manager, Tim Kelly in 2017,

during which he made slanderous statements about Mr. Hornsby and the Prestige

Gallery. Defendants moved to have him excluded from testifying on the basis that

his testimony was irrelevant since the events described occurred in early 2017 and

the case was filed in 2013. The Court sustained that objection. During the

Defendants case in chief, Defendants called Sidd Chandra, former Manager of

Napleton Infiniti from 2014-2017. When Plaintiffs objected to his testimony as

outside the scope of the timeframe as previously ruled by the Court, the objection

was overruled and Mr. Chandra was allowed to testify. Chandra testified that there

26

were no instances where any of his employees or Managers slandered Mr. Hornsby.

The events described by Mr. Troncosco directly rebut Mr. Chandra’s testimony.

When he was called the Plaintiffs were not allowed to present his testimony

to the jury. When this issue was raised with the Court, Plaintiffs were given

permission to recall Mr. Troncosco, but by then he was unavailable and his proffer

could not be transcribed in time to be read to the jury. 5

ISSUE 3: IT WAS ERROR FOR THE COURT TO PRECLUDE THE

PRESTIGE GALLERY FROM PRESENTING EVIDENCE OF ACTUAL

DAMAGES AND THEN GRANT A DIRECTED VERDICT ON THE

CLAIM FOR UNFAIR COMPETITION AND GIVE THE JURY

ERRONEOUS INSTRUCTION ON DAMAGES AND LIABILITY

Generally, the trial court has broad discretion in the admissibility of evidence.

However, a party may seek a new trial when the “trial was not fair to the party

moving; and may raise questions of law arising out of alleged substantial errors in

admission or rejection of evidence or instructions to the jury.” Montgomery Ward

& Co. v. Duncan, 311 U.S. 243,251 1940). The Florida Supreme Court has stated

that “the uncertainty which defeats recovery in [lost profit] cases has reference to

the cause of the damages rather than the amount of it.” Twyman v. Roell, 166 So.

5 The Court also allowed Defendants to utilize Judge Hinkle’s Order which was not

rendered until October of 2016, also well outside the time frame the Court found

relevant to the Plaintiffs’ claims, the testimony of Denice Wooley about acts which

allegedly took place in 2010, and acts in the Bankruptcy case which took place

prior to 2013 as well.

27

215,218 (1936). “Generally speaking the standard on review for jury instructions is

“’abuse of discretion” however that ‘discretion as with any issue of law is strictly

limited by case law.’” Krause v. State, 98 So. 3d, 71, 73-74 (Fla.4th DCA 2012). In

this instance the Court gave an instruction which was clearly contrary to the law and

contrary to the Standard Jury instructions.

The Judge also refused to allow the Plaintiffs to introduce evidence of

damages computed using the comparison between what the used car lot of Prestige

Infiniti and what The Prestige Gallery had sold, taking into account the number of

vehicles in their inventory. Since The Prestige Gallery had just started business

when the incidents involving Napleton occurred they did not have a track record

they could rely on. The evidence was that The Prestige Gallery had always been a

used car lot, the building was the same, the space was the same and the same

number of people was working there. The Defendants objected and the Court held

that the sales from the Infiniti used car lot could not be used because there was too

much difference between the two businesses and that any such computation would

be purely speculation. (SR. 4574-4578).

The Florida Supreme Court decision in Twyman v. Roell, 166 So. 215, 218

(Fla. 1936), rejected the argument that damages were speculative because they could

not be shown with certainty. The Florida Supreme Court reaffirmed Twyman in

W.W. Gay Mechanical Contractor, Inc. v. Wharfside Two, Ltd., 545 So. 2d 1346

28

(Fla. 1989), rejecting the argument that damages could only be awarded if there was

some kind of “track record.” In W.W. Gay a new hotel sought damages for projected

diminished occupancy caused by foul-smelling odor. Court held that it was error not

to permit evidence if there was some “yardstick” which could be used.

That issue was considered again in Advantage Telephone Directory

Consultants, Inc. v. GTE Directories Corp. 943 F.2d 1511, 1518 (11th Cir. 1991)

explaining the process, “[a party] may offer proof of the extent of damages with

evidence that is indirect and based on estimates and assumptions, so long as the

assumptions rest on adequate data.” In Slip-N-Slide Records, Inc. v. TVT Records,

LLC., 2007 U.S. Dist. LEXIS 80788 (S. D. Fla. 2007) the Court considered damages

for tortious interference in connection with prospective sales of a new record album.

The opinion notes that:

the sales history for Pitbull albums was not lengthy, or that

there may have been differences in the music of Pitbull

and comparable artists, goes to the weight, not the

reliability of McBowman’s methodology….the Court

concludes that these are issues that go to the weight of

McBowman’s testimony, not to its legal admissibility or

reliability….Courts in both states [Florida and New York]

recognize the difficulty in proving the amount of lost

profits with exactitude and embrace the prevailing view

that even though damages may not be susceptible of

precise calculation, doubts should be resolved against the

wrongdoer.

29

Instructions at trial the Defendants argued that The Prestige Gallery had not

presented any evidence of damages and asked for a directed verdict on its claims

against Defendants and without proof of damages they were entitled to nothing.

Defendants also took the position that the instructions on the damages

available to The Prestige Gallery was legally correct in spite of the fact that they

were contrary to Florida Standard Jury Instruction 405.10 as well as both the Court’s

and Plaintiffs’ proposed instruction both of which were based on the standard

instruction. (R. 3228-3314) (App. 11).

Defendants also argued that Plaintiffs waived any objection to the instruction

by not objecting to proposed verdict forms that did not include a compensatory

damage option. But the instruction on nominal damages came about as a fall back

position after the Court announced it was going to direct a verdict on The Prestige

Gallery’s slander claim in totality. Once the Court has made a decision on a

particular issue a party may take action to lessen the effect of that ruling without

waiving their previous requests or objections.

In Duffel v. S. Walton Emergency Servs. 501 So. 2d 1352, 1358 (1st DCA

1986), the Court denied motions in limine to preclude evidence of the plaintiff’s

drug usage. Once that occurred the plaintiff introduced the evidence himself. In

holding that his previous objections were preserved the Court stated:

I think it obvious that the conduct of appellant’s trial

counsel in making disclosure of his client’s drug history

30

was a last desperate attempt to salvage a case that had

already been fatally infected by the lower court’s rulings

and the trial tactics of the Quades’ attorney. It was only

after her specific objections to the admissibility of such

evidence had been overruled that appellant submitted

evidence relating to her drug dependency. By analogy,

“the doctrine of waiver does not apply where the appellant

makes a proper objection of the matters included in court’s

general charge and when such an objection is overruled,

necessarily offers an instruction on such matters. 3 Fla.

Jur. 2d, Appellate Review, §294 at 348-349 (1978). No

lawyer…as was the appellant below …should ever be

forced to make such a Hobson’s choice: either go forward

with the trial with no reference to his client’s drug habits,

after nearly all his objections to clearly prejudicial

evidence had been overruled, or, faced with the adverse

ruling, to appeal to the jurors’ sense of justice and fairness

by “telling all”, in the hopes that his client’s openness and

candor would add credibility to the witness’s testimony

bearing upon disputed factual issues.

In their proposed jury instructions the Plaintiffs had also requested

language which stated as to the Defendant Pete Grinnell the following:

405.2 SUMMARY OF CLAIMS AND CONTENTIONS

(modifed)

The claims by the Plaintiffs in this case under

Counts I, II and III are as follows. Plaintiffs contend

that Defendant Pete Grinnell made, ratified or

condoned slanderous statements about Plaintiffs to

management and that employees, sales personnel and

management of Defendant Napleton Infiniti repeated

those and similar remarks about the Plaintiffs to

customers, and potential customers of the Plaintiffs

stating that they were "crooks" would steal their down

payments, not provide titles and or were selling

damaged vehicles and made defamatory statements

about the Plaintiff, Craig Hornsby, such as he is a "bad

31

man and should be in jail, " that they "didn't understand

why he wasn't in jail", that "he ran the place down" and

" shouldn't be allowed to own another dealership"

knowing such statements were false.

And that Defendants by doing so, as well as

ratifying, condoning, accepting and encouraging the

making of such statements were not only negligent but

that their actions were grossly negligent and or

willful. (R. 3276-3281)

That language was changed to "The defendant made a statement or

directed or assisted, either directly or indirectly.” (R. 3310-3314).

Defendants had made this argument since the initial complaint was filed

that Grinnell could only be liable for slander if he personally made the

statements. Those arguments had failed for over four years but at trial

Defendants' counsel objected to the Court's instruction as well as to the Plaintiffs'

which was more accurate as to what occurred, and was successful. So the jury

was told that Grinnell had to have made the slanderous statements himself to be

liable. Mr. Coppin used this modified instruction to argue in closing that Grinnell

could only be found liable if they found that that man himself spoke untruthful

defamatory words. (P. 23 lines 1-8). (R. 3349-3368) (App. 10).

In Marrero v. Hialeah, 581 F. Supp. 1207, 1211 (S.D. Fla. 1984), a civil

rights case which was based on the making of slanderous remarks about people

who had been arrested the Court discussed the absence of evidence in connection

with and attributing those actions to the City. The Court in that case found in that

32

case that there was no evidence using this language:

No evidence was introduced to show that the City

ratified, condoned, accepted, intentionally overlooked -

- or, indeed, even knew -- of Seay's antics. At the most,

this evidence shows that Seay committed a tort by

slandering the Marreros.

To the contrary in this case there was ample evidence that Grinnell

encouraged, directed managers and condoned the actions of the dealerships

managers and salesmen to slander the Plaintiffs. As a result, an instruction

should have been given holding him liable not just for what he personally said

but for what he instructed, ratified and condoned.

Similarly, the Plaintiffs had asked the Court to instruct the jury that if

someone such as Colby Hornsby is an owner of a company, such as The Prestige

Gallery and slanderous statements are made about "them" or "they" or the

"people that work there" such as were made here implying that "they" "sell bad

cars", "take down payments", "are a bunch of crooks" that such owners have

been slandered even though they haven't been specifically named. (R. 3276-

3281). The Court refused to give such an instruction and Mr. Coppins capitalized

on that as well.

And the evidence in this case is there isn't any, none,

that the word Colby Hornsby ever came out of

anybody's lips concerning slander. I guess we are going

to hear that, well, if you say Craig or Prestige, that's me

too. That is not what the law says. It has to be a

statement made about Colby Hornsby. (p. 26, lines 22-

33

25)(p. 27, lines 1-4) (emphasis supplied). ( R.. 3347-

3348)

Part of the first element of slander is that a statement was made

"concerning the plaintiff." The reason that Ms. Hornsby claims were allowed to

stand in this case is because statements were made concerning her business (not

her personally) and that because of the size of the company and the extent to

which the public views Ms. Hornsby and her company as one and the same, she

had a cause of action for slander ....because the nexus between her and the

company make statements against the company and her employees actionable.

Given the fact that Mr. Coppins clearly was making the argument (by way

of his examination of witnesses) that no one had said anything about Colby

Hornsby, the Plaintiffs were entitled to an instruction to clarify, that if slanderous

statements were made about The Prestige Gallery and its employees and

practices and there was a "sufficient nexus" between Colby Hornsby (as the

business owner) and The Prestige Gallery (the company), that allegations

concerning the business would tend not only to affect the reputation of The

Prestige Gallery but Colby Hornsby as well and the jury had a right to decide to

determine if that were the case.

Defendants had tried to make the argument since the filing of the initial

complaint that Colby Hornsby could not state a cause of action for slander

because there were no allegations of statements made against her personally.

34

They failed in that argument on each occasion until trial when the Court refused

to give an instruction to clarify that a business owner such as Colby Hornsby

could be slandered even though no one named her by name, it was effectively a

directed verdict in the Defendants' favor as no one had said anything about her

personally.

The case of Scott v. Busch, 907 So. 2d 662, 666 (Fla. 5th Cir. 2005), has

probably been cited in almost every response to the Defendants' motions and

renewed motions to dismiss claims involving Colby Hornsby. That case

involved a slander case by a woman who was trying to run a type of bed and

breakfast business by renting rooms in her home and a dispute that arose with

her neighbor concerning this endeavor. During the course of a campaign for City

Commission, the Defendant made statements implying that a person in her

neighborhood had obtained an illegal permit to build. The trial Court held that

these statements were either opinion or possibly implied the City had done

something wrong by issuing the permits and dismissed each complaint filed by

the plaintiff and ultimately awarded fees under Section 57.105 to the Defendant.

The Appellate Court reversed and held that:

this statement could equally infer that Treworgy [the

plaintiff] did something illegal, like bribery or extortion

to obtain the building permit. In a situation like this,

where the alleged defamation can be understood one of

two ways only one of which is defamatory to the

plaintiff, it is normally a decision for the fact-finder to

35

determine what a reasonable person hearing the

statement would likely have understood it to mean...

Slander is a spoken or oral defamation of

another...which tends to damage that person's

reputation, ability to conduct that person's business or

profession and which holds that person up to disgrace

and humiliation.

The jury should have been told that no one had to specifically name Colby

Hornsby as a crook, or accuse her by name of some illegal conduct and that the

jury should decide whether slanderous statements about alleged activities in her

closely held business was slander against her.

ISSUE 4: THE CUMULATIVE EFFECT AND SERIOUSNESS AND

PERVASIVENESS OF DEFENSE COUNSELS’ IMPROPERT COMMENTS

IN CLOSING ARGUMENT REQUIRE REVERSAL.

A decision as to whether or not to grant a new trial is subject to an abuse of

discretion standard. While trial Courts have “considerable discretion on motions for

new trial” the trial court abuses “its discretion by denying the motion where justice

requires a new trial based on the cumulative effect of the improper arguments.

Carnival Corp. v. Pajares, 972 So. 2d 973, 978 (Fla. 3d DCA 2007), citing Bocher

v. Glass, 874 So. 2d 701, 704 (Fla. 4th DCA 2004), and Cohen v. Pollack, 674 So.

2d 805,806 (Fla. 3d DCA 1996).

Immediately following closing the Plaintiffs’ moved for a mistrial listing all

the improper and prejudicial comments that had been made. (R. 3347-3348, 3349-

36

3368)(App. 10). While counsel did not do so during closing it is generally considered

more professional to not interrupt summation.6 The Court’s Order Denying

Plaintiffs’ Amended Renewed Motion for Mistrial And/Or New Trial especially in

regard to closing argument notes that Plaintiffs’ counsel did not make a

contemporaneous objection as one of the basis for denying the Motion for Mistrial.

(R. 3421-3431). But of course, if they had done so they would have spent most of

Defendants’ closing standing and objecting.

The Court stated in City of Orlando v. Pineriro, 66 So. 3d 1064 (Fla. 5th DCA

2011), quoting Murphy v. Int’l Robotics Sys. Inc. 766 So. 2d 1010, (Fla. 2000) that:

The purpose of closing argument is to help the jury

understand the issues in the case by “applying the

evidence to the law applicable to the case. Hill v. State,

515 So. 2d 176, 178 (Fla. 1987). “Attorneys should be

afforded great latitude in presenting closing argument,

but they must “confine their argument to the facts and

evidence presented to the jury and all logical deductions

from the facts in evidence.”

In this case, counsel spent virtually no time in his closing referring to the

evidence and the allegations that Craig Hornsby, Colby Hornsby and The Prestige

6www.americanbar.org/groups/litigation/committees/trial-

evidence/practice/2018/tips-effective-closings/ ABA Tips From the Bench:

Effective Closing Arguments, opined that: I rarely see many objections during

closing arguments, because I think counsel (correctly) see it as bad form”

http://hrbklaw.com/closingArgumentObjections.shtml Abraham Lincoln Inns of

Court – Objections During Closing Argument stated that it seems as though

objections during closing arguments are the exception rather than the norm.

37

Gallery had been slandered. Instead he referred to Mr. Lyons closing and his review

of the evidence as “…. run[ning] down every rabbit trail of every witness that he

talks about. I am not going to do that because 90 percent of what he was talking

about is irrelevant.” (Page 11, Lines 13-17). (App. 10). Instead Mr. Coppins

mentioned the word “slander” only 29 times in his closing, while he used the terms,

dishonest/dishonestly 27, fraud/fraudulently 20, false, fabricate, and or hide 9, for a

total of 56 times, and that does not include his references to arrest, booking, or

cooking the books. He only refers to the testimony of three witnesses besides Craig

Hornsby, and those not to explain their importance in connection with the allegations

of slander but to point out the lack of rebuttal or confirmation by the witnesses he

got excluded. (R. 3349-3368) (App. 10).

The “expressions by a lawyer of his personal opinion are in derogation of the

Code of Professional Responsibility (now Rules of Professional Conduct, of the

Rules Regulating the Florida Bar), and will not be condoned. In keeping with this

position, both [Third and Fifth] district courts have expressed the intention to reverse

and remand such impropriety for a new trial, even without a contemporaneous

objection.” Moore v. Taylor Concrete & Supply Co., 553 So. 2d 787, 792 (Fla. 1st

DCA 1989) Throughout the closing argument, Mr. Coppins made comments on the

credibility of witnesses, constantly referring to Mr. Hornsby’s testimony as

“dishonest” and stated that “[w]e learned a fundamental dishonest act by Mr.

38

Hornsby was the failure – it wasn’t an accident—to disclose a lease that Nissan

[Prestige] Infiniti held that permitted it to use and occupy that little building and land

over there.” (Page 15, Lines 16-20) (App. 10). The only evidence was that it wasn’t

part of the bankruptcy.

He also referred to a $ 2.2 million-dollar unpaid judgment held byNMAC

although the only testimony in the case was that the judgment had been settled by

requiring the Hornsby to take out and pay for a life insurance policy on Craig

Hornsby and that upon his death all proceeds would go to NMAC. (SR.3566-3567,

3605-3606, 3631).

“It is axiomatic that a lawyer's expression of his personal opinion as to the

credibility of a witness, or of his personal knowledge of facts in the case, is

fundamentally improper.” Moore v. Taylor Concrete & Supply Co., 553 So. 2d 787,

792 (Fla. 1st DCA 1989).

“Attorneys should be afforded great latitude in presenting closing argument,

but they must ‘confine their argument to the facts and evidence presented to the jury

and all logical deductions from the facts and evidence.’" Murphy v. Int'l Robotic

Sys., Inc.766 So. 2d 1010, 1027 (Fla. 2000) (citing to Knoizen v. Bruegger, 713 So.

2d 1071, 1072 (Fla. 5th DCA 1998). Rather than accurately state the evidence, Mr.

Coppins stated Mr. Hornsby committed “fraud in the bankruptcy”.

9 Dishonest trial testimony, I could be here for

10 another hour ticking off all the things that Mr.

39

11 Hornsby said in this trial that are not accurate.

12 By way of example, everything, everything -- well,

13 let's back up. I have never done anything dishonest in

14 my adult life in the car business, fraud in bankruptcy,

15 fraud on the court, fabrication of evidence. So we

16 start there.

(Page 17, Lines 9-16) (R. 3349-3368) (App. 10).

Defendants’ closing argument was not a logical analysis of the evidence, but

was instead an attack on character and creditability of Mr. Hornsby. repeatedly

referring to him as a dishonest person. “The closing argument was not intended to

encourage a ‘logical analysis of the evidence in light of the applicable law’; rather it

was designed to inflame the jurors' emotions.” Carvajal v. Penland, 120 So. 3d 6

(Fla. 2d DCA 2013) See Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010, 1028

(Fla. 2000); Intramed, 93 So. 3d at 507. Like the counsel in Carvajal, Mr. Coppin’s

closing argument was meant to enrage the jurors, including angering the jurors by

stating they could be forced to stay longer if they decided to award Plaintiffs’

punitive damages.

According to the Third DCA in Cohen v. Pollack, 674 So. 2d 805, 806-807

(Fla. 3d DCA 1996),

The trial court erred in not declaring a mistrial due to the

cumulative effect of appellees' counsel's remarks during

trial. Throughout the trial, appellees' attorney made

several statements that indicated his opinions and beliefs

regarding the case… An attorney's personal beliefs or

feelings toward a case or the trial's participants are

irrelevant and create reversible error.

40

Not only did Mr. Coppin’s closing argument attack the Plaintiffs and their

witnesses, but also attacked Plaintiffs’ counsel. In Pippin v. Latosynski, 622 So. 2d

566, 569 (Fla. 1st DCA 1993), the First District Court stated that: “counsel's

expression of personal outrage amounts to a personal opinion clearly in breach of

the Rules Regulating the Florida Bar, Rule 4-3.4(e)… We express the opinion that

arguments in derogation of this rule will not be condoned by this court, nor should

they be condoned by the trial court, even absent objection.”

Defendants’ counsel personally attacked the Plaintiffs’ counsel during his

closing argument, pointing at opposing counsel, saying:

12 Shame on everybody over there who decided this was

13 evidence in this trial. That was cruel and unnecessary

14 and proves nothing.

(Page 29, Lines 12-14) ( R. 3349-3368) (App. 10)

The Court did note as to this personal attack that “ In hindsight I probably

should have interrupted the argument on my own and asked counsel to approach to

discuss it.” (R. 3421-3431).

The Defendants’ counsels supposed outrage at Plaintiffs’ counsel was meant

to influence the opinion of the jury. “Resorting to personal attacks on the defense

counsel is an improper trial tactic which can poison the minds of the jury.” Ryan v.

State, 457 So.2d 1084 (Fla. 4th DCA 1984). See also Chin v. Caiaffa, 48 So. 3d 300,

309 (3d DCA 2010).

41

These arguments tied in to Defense Counsel’s claims that most of what the

Plaintiffs had presented was a waste of time and had been determined irrelevant by

the Court. At the very beginning of his closing argument counsel for the Defendant

made statements to the jury telling them that the Court had made legal rulings

disposing of multiple claims in the case, and the evidence was no longer to be

considered by them, was irrelevant, and had turned a one week case into a three week

trial. Such arguments are inappropriate. In the case of Susan Fixel, Inc. v. Rosenthal

& Rosenthal, Inc. 921 So. 2d 43, 47 (Fla. 3d DCA 2006) , the Court said that it was

error to admit into evidence the dismissal of previous defendants although it was

harmless in that case because it was a bench and not a jury trial.

The case of MDVIP v. Beber, 222 So. 3d 555 (Fla. 4th DCA 2017) involved

a suit for fraud and negligence in a medical malpractice case brought against a

“personalized healthcare program” based on the actions of one of its physicians.

Prior to closing the trial court had directed a verdict on issues of apparent agency

and joint venture and counsel advised the jury:

It’s already been determined as a matter of law that—by

the Court that Dr. Metzger was an apparent agent and was

engaged in a joint venture business enterprise; MDVIP

and Dr. Metzger together. So that’s not an issue for you to

determine, it’s already been determined for you.

The Court found that it was possible that the “jury having been told that the

judge has determined that Dr. Metzger was apparently MDVIP’s agent and that the

42

two were engaged in a joint venture, would have believed the only rational

conclusion to reach on the issue of actual agency was in Plaintiff’s favor.” Id at 556.

The Court in reversing the verdicts held that “[b]ecause there is a reasonable

possibility that the directed verdicts had a spillover effect on the verdict reached by

the jury, we cannot say the error in granting the directed verdict was harmless.” Id

at 557

In Ridarsick v. Amirkanian, 146 So. 2d 580 (Fla. 3d DCA 1963), a new trial

was ordered when the plaintiff’s counsel “implied that defendant’s attorney at the

trial was guilty of misconduct by repeatedly offering evidence which the court had

ruled out.” Although Mr. Coppins did not state that it was “misconduct” for the

Plaintiffs to offer such evidence, he implied that they were there to try to fool the

jury, waste their time or were idiots. In fact at the beginning of his opening, he said

that he had told them “I don’t know if I used the word waste—I don’t think I did—

but that this would take a lot longer than it should and it did.” Page 6, Lines 20-23)

(R. 3349-3368) (App. 10).

12 My colleague and professional friend, Mr. Lyons,

13 quite frankly continued that effort during his one-hour

14 presentation to you, because I would submit 45 or 50

15 minutes of that was irrelevant.

16 Let me explain what I mean by that. As a result of

17 all the time you spent back there and I don't know how

18 much time we spent behind that door, the claim of unfair

19 competition, the claim of bad behavior, the claim of

20 horn honking, or people acting badly, or whatever, that

43

21 entire body of evidence trying to suggest that Napleton

22 Infiniti is some cauldron (inaudible) is not before you.

23 This is a slander action and nothing else.

24 Claims of anti-trust and attempts to monopolize and

25 who sells what color cars when and where, and who parks

1 their cars when and where, and endless, endless evidence

2 of discussions about that is not at issue.

(Page 4, Lines 12-25, Page 5, Lines 1-2) (R. 3349-3368) (App. 10).

These statements were in fact a misstatement of the impact of the Court’s

rulings. In fact much of the evidence relevant on the monopoly and unfair

competition claims were also relevant to the Defendants’ defense of “truth and good

faith.” Defendants’ training of salesman testified to by witnesses Horne, Disney,

Bryson, Herring and Serine were calculated to run the Plaintiffs out of business and

were not in good faith. The “horn honking”, “claims of bad behavior”, and “people

acting badly” cited by Defendant as irrelevant were all relevant on good faith.

At the beginning of his closing Mr. Coppins told the jury that he was going to

“talk to them about the evidence not from memory, but from the actual court

reporter’s transcripts of Mr. Hornsby’s testimony, my [his] opening statement, and

Mr. Lyons opening statement.” (Page. 6, Lines 1-4). (R-3347-3348,3349-3368)

(App. 10). Then appearing to be quoting from Mr. Hornsby’s testimony he stated:

20 This is what I asked Mr. Hornsby a little

21 bit later: Isn't it true that you allege that your

22 credibility and reputation as a fair and honest

23 businessman was destroyed by NMAC, not Napleton

24 Infiniti, not Pete Grinnell, by NMAC?

25 Yes.

( Page 10, Lines 20-25) (R. 3349-3368) (App. 10).

44

The problem with that “quotation” is that it omits the rest of the answer, which

was something to the effect of yes it did at that time. When he quoted that on cross

examination, Mr. Lyons on redirect read the part left out by Mr. Coppins. Yet he

persists in this half-truth.

Then Mr. Coppins states at Page 18, that there were “mountains of evidence

of people whose problems preceded October of 2010 by months and months and

months.” But the only evidence of the number of people who had issues came from

Deputy Godwin and Jones and it was only Jones who testified about numbers and

he stated that out of the 37 counts in the Georgia indictment, Count 31 was blank

and the other Counts were made up of 23 people. He also admitted although he had

not done the analysis at the time that it would have been of interest to him to know

that in the 2 years prior to NMAC coming in that there were only 5 complaints. All

the others, 32 of them, occurred after NMAC’s arrival. Mr. Coppins also stated at

Page 31 that “He [Craig Hornsby] left a trail of victims who have not been made

whole…”, but there is no evidence of that. The Defendants presented only one of the

so-called “victims” before NMAC’s arrival and even he testified that he had gotten

a call from an attorney to address his concerns but misplaced the attorneys phone

number. The “mountains of evidence” in fact support Craig’s testimony. Among the

other two witnesses; Mr. Todd, August 31, was within 30 days of NMAC’s arrival

and Mrs. Jenson was well after NMAC took over as did the other 31 complaints.

45

Defendants’ counsel also argued that the only testimony that was presented

that Mr. Grinnell ever used the term “crook” in reference to Mr. Hornsby was Kim

Parr, whom he characterized as “upset, angry,” apparently ill, and a “long and close

social and family and business partner of Colby Hornsby”, all without support in

the evidence. (Page 23, Lines 14-25, Page 24, Lines 15-18, Page 25, Lines 9-10).

But the video testimony of Jeff Bryson and the skype testimony of Kirk Tracey,

both of whom were Napleton managers also stated that Pete Grinnell had used the

same language in reference to Mr. Hornsby and/or the Prestige Gallery as did Aaron

Liebeskind, a salesman for Napleton. . (R. 3163-3183, 3349-3368) (App. 10)

More significantly he mischaracterized the bankruptcy litigation and that

Hornsby “submitted a bankruptcy schedule of assets that did not include that lease

under penalties of perjury “which tied in very nicely with his pattern of attacks on

Craig Hornsby and that Craig Hornsby (Page 16, Lines 2-5) (R. R. 3163-3183,

3349-3368) (App. 10).

The Court indicated that this was a “fair comment on the evidence” but it

wasn’t. Although both Mr. Rich and Napleton attempted to make the argument

before the Bankruptcy Court that their failure to act was because of the fact that the

lease was not listed on the bankruptcy schedule, the Order Denying the Motion To

Assume and Assign Unexpired Lease clearly shows that according to the Judge, the

46

Trustee and Napleton “knew or should have known” of the existence of the lease.

(R. 3111-3115)(App. 9).

CONCLUSION

For the above reasons the Court should order that the finding of liability of

Napleton Infiniti to The Prestige Gallery should be upheld but that the case should

be remanded for a new trial on damages. Additionally, the verdicts in favor of the

Defendants should be reversed and the matter scheduled for a new trial on all issues.

LYONS & FARRAR, P.A.

Attorneys for Appellant

/s/ Marsha L. Lyons

Marsha L. Lyons

Fla. Bar No. 128281

1637 Metropolitan Blvd. Ste. A-2

Tallahassee, Florida 32308

Direct: 850-222-8811

Fax: (850) 222-5583 - facsimile

Matthew J. Leon

Fla. Bar No. 119264

Matthew.Leon@lyonsandfarrar.com

Attorneys for Appellants/Cross-Appellees

THE PRESTIGE GALLERY, INC.,

a Florida Corporation, M. CRAIG

HORNSBY, and COLBY HORNSBY

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

47

filed with the First District Court of Appeals and the foregoing document has been

sent to all counsel of record, including Michael F. Coppins,

mcoppins@coppinsmonroe.com, bmiller@coppinsmonroe.com and Zachery A.

Scharlepp, zascharlepp@coppinsmonroe.com, smcdowell@coppinsmonroe.com

1319 Thomasville Drive, Tallahassee, FL.32308 of Coppins, Monroe, Adkins and

Dinceman, P.A., counsel for the Defendants/Appellees, EDWARD F. NAPLETON,

NAPLETON’S TALLAHASSEE IMPORTS, LLC, doing business as, NAPLETON

INFINITI, and FRANK “PETE” DEE GRINNELL and will be served via the E-

Filing portal on all counsel of record in accordance with Rule 2.516 (b) (f) Florida

Rules of Judicial Administration and Florida Rule of Appellate Procedure 9.420 this

27th day of February, 2019.

/s/Marsha L. Lyons

MARSHA L. LYONS

CERTIFICATE OF COMPLIANCE

I certify that this brief was typed in 14-point Times New Roman font, and

fully complies with all other requirements of rule 9.210, Florida Rules of Appellate

Procedure.

/s/Marsha L. Lyons

MARSHA L. LYONS