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Florida Second DCA reverses trial court, rules that plaintiff in slip and fall case was not entitled to new trial based on newly discovered evidence

On September 30, 2020, in Neapolitan Enterprises, LLC, v. Fishman, No. 2D19-4541, the Florida Second DCA reversed a trial court order which had granted the plaintiff in a slip and fall negligence case relief from an adverse judgment due to evidence that was allegedly discovered after the entry of a final judgment for the defendant. The plaintiff filed his motion pursuant to Fla. R. Civ. P. 1.540(b)(2), which provides that based on a motion filed within one year of the entry of a final judgment, “and upon such terms as are just,” a court may relieve a party from a final judgment for reasons of “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing.” The plaintiff alleged in his motion that one of the defendant’s allegations at trial, that plaintiff had been diagnosed with Parkinson’s disease, was based on a medical record that had been turned over to the defense by the plaintiff’s physician which actually related to another patient. The Second DCA concluded that the plaintiff was not entitled to relief because he had failed to assert or establish that despite exercising due diligence, he was unable to discover the error regarding the medical records until months after trial.

In a footnote, the Second DCA noted that plaintiff had also claimed in his motion “in a rather cursory fashion” that he was entitled to relief based on “mistake” under Fla. R. Civ. P. 1.540(b)(1), a prong of the statute that does not expressly incorporate a due diligence requirement. This would appear to have been the prong of Rule 1.540(b) which was most applicable to the plaintiff’s case since he was not really presenting new evidence but instead claiming that false evidence was mistakenly introduced at trial. The Second DCA disposed of this issue with the observation that the plaintiff did not argue at the evidentiary hearing that he was entitled to relief based on mistake.