Concealed information during discovery

Florida Case Law

MOLINOS DEL S.A. v. E.I. DUPONT, 4D06-20 (Fla.App. 4 Dist. 12-20-2006) MOLINOS DEL S.A., DESARROLLO INDUSTRIAL BIOACUATICO S.A., AQUAMAR, S.A. EMELORSA-EMPACADORA EL ORO S.A., and INDUSTRIAL Y AGRICOLA 44, S.A., Appellants, v. E.I. DUPONT de NEMOURS AND COMPANY, Appellee. No. 4D06-20. District Court of Appeal of Florida, Fourth District. December 20, 2006.

Appeal of a non-final order from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; David
Krathen, Judge; L.T. Case Nos. 97-20375-27 and 98-14192-27.

Joel S. Perwin of Joel S. Perwin, P.A., Miami, Robert J.
McKee and Kelly B. Gelb of Krupnick, Campbell, Malone,
Buser, Slama, Hancock, Liberman & McKee, P.A., Fort
Lauderdale, and Scott Mager of Mager Law Group, P.A., Fort
Lauderdale, for appellants.

Jane Kreusler-Walsh and Rebecca Mercier-Vargas of Jane
Kreusler-Walsh, P.A., West Palm Beach, and Daniel F. Molony
and David S. Johnson of Shook, Hardy & Bacon, L.L.P.,
Tampa, for appellee.

HAZOURI, J., and MAASS, ELIZABETH T., Associate Judge,
concur.

GROSS, J.

Molinos Del S.A., Desarrollo Industrial Bioacuatico S.A.
(Dibsa), and Aquamar, S.A. Emelorsa-Empacadora El Oro S.A.
(Aquamar), appeal the denial of their motions for relief
from judgment filed under Florida Rule of Civil Procedure
1.540(b), based on newly discovered evidence. The circuit
court denied the motions because they were filed more than
one year after the entry of two final judgments in
appellants’ favor. In earlier appeals, this court reversed
both judgments and directed that judgments be entered in
favor of DuPont, the defendant.

We reverse the circuit court’s denial of appellants’ Rule
1.540(b) motions, holding that the one-year time limit
under the rule begins to run from the time the circuit
court entered new judgments in compliance with our
mandates, and not from the time of the original judgments.

Appellants own shrimp farms in Ecuador. In 1998, appellants
each brought a lawsuit against DuPont involving Benlate, a
fungicide manufactured and sold by DuPont and used in
banana farms near appellants’ properties.

Aquamar and Dibsa’s cases went to jury trial. Dibsa’s case
resulted in a final judgment of $14,315,599.17 rendered on
February 16, 2001. Aquamar secured a final judgment of
$12,335,475 rendered on April 19, 2001. DuPont appealed
both judgments.

While the appeals were pending, Dibsa and Aquamar learned
that DuPont may have concealed information during
discovery. Shortly after rendition of the Dibsa final
judgment and return of the Aquamar verdict, plaintiffs’
counsel obtained two DuPont interoffice memoranda, referred
to as the Coombs and Nickle memos, which discussed the
potential impact of an aquatic monitoring study.
Plaintiff’s counsel then filed a Freedom of Information
Request with the Environmental Protection Agency seeking
studies referenced in the Coombs and Nickle memoranda. The
EPA sent plaintiff’s counsel an aquatic monitoring report
in mid-June 2001, which documented certain environmental
effects of Benlate run-off.

Over 17 months after receiving the aquatic monitoring
report from the EPA, and after this court heard oral
argument in the Dibsa case, Dibsa and Aquamar filed motions
for sanctions in the trial court, seeking to strike
DuPont’s pleadings for alleged discovery violations.
Appellants claimed that DuPont’s conduct had adversely
affected them by reducing their damages and compromising
the record. DuPont’s response argued, among other things,
that the trial court lacked jurisdiction to consider the
motions because of the pending appeals.

The trial court declined to consider the sanctions motions
because it lacked jurisdiction. Later, Dibsa and Aquamar
moved this court to relinquish jurisdiction to permit the
trial court to “determine whether sanctions (including
striking DuPont’s pleadings) should be imposed upon DuPont
for discovery violations.” Dibsa and Aquamar told this court
that the sanctions should “includ[e] the possibility of
vacating the Plaintiff’s judgment[s] in order to strike
DuPont’s pleadings and retry the cases on damages alone.”
Dibsa and Aquamar also asked this court to withhold “the
issuance of any opinion in either [Dibsa or Aquamar to]
allow the trial court to address the prejudice of DuPont’s
discovery violations on the already completed trials, and
consider an appropriate remedy.” This court denied both
motions. After the trial court entered an order in other
Benlate cases finding that the plaintiffs were entitled to
sanctions for discovery violations, Dibsa and Aquamar filed
renewed motions to relinquish jurisdiction, which we also
denied.

Ultimately, this court reversed both the Aquamar and Dibsa
judgments. See E.I. DuPont de Nemours & Co. v. Desarrollo
Indus. Bioacuatico, S.A., 857 So. 2d 925 (Fla. 4th DCA
2003), review denied, 869 So. 2d 538 (Fla. 2004); E.I.
DuPont de Nemours & Co. v. Aquamar S.A., 881 So. 2d 1 (Fla.
4th DCA 2004), cert. denied, 543 U.S. 1177 (2005). The
mandate in Dibsa issued on December 5, 2003; the mandate in
Aquamar issued on October 4, 2004. The circuit court
entered final judgments on February 11, 2005 in both cases
consistent with this court’s mandate.

Shortly after the Aquamar decision, on October 19, 2004,
Dibsa and Aquamar each filed a motion for relief from
judgment under Rule 1.540(b)(2), based on essentially the
same facts that formed the basis for their motions for
sanctions previously filed in the trial court. The
timeliness of these motions is at issue in this appeal.

The circuit court denied appellants’ Rule 1.540(b) motions
as untimely, because they had not been filed within one
year of the entry of the original, 2001 final judgments.

A basic principle under the rules of civil procedure is
that litigation must be brought to an end. “The doctrine of
decisional finality provides that there must be a ‘terminal
point in every proceeding . . . at which the parties and
the public may rely on a decision as being final and
dispositive of the rights and issues involved therein.'”
Fla. Power Corp. v. Garcia, 780 So. 2d 34, 44 (Fla. 2001)
(citing Austin Tupler Trucking Inc. v. Hawkins, 377 So. 2d
679, 681 (Fla. 1979)).

As an exception to the rule of finality, Rule 1.540(b)
gives the trial court jurisdiction to relieve a party from
a final judgment in a narrow range of circumstances. See
Bane v. Bane, 775 So. 2d 938, 941 (Fla. 2000); see also
Abram v. Wolicki, 864 So. 2d 18, 20 (Fla. 4th DCA 2003)
(stating that rule 1.540(b) provides relief from judgment
only “under a limited set of circumstances”); Am. Fire &
Cas. Co. v. Dawson, 400 So. 2d 849, 849 n. 1 (Fla. 2d DCA
1981) (holding that an order is final unless it falls
strictly under an exception in 1.540(b)). Like its
counterpart, Federal Rule 60,[fn1] Rule 1.540(b) allows a
court “to strike the proper balance between two often
conflicting principles — that litigation must be
brought to a final close and that justice must be done.”
Federal Practice and Procedure, Civil Rules, 2006 Quick
Reference Guide, Commentary on Rule 60, p. 939; see Kippy
Corp. v. Colburn, 177 So. 2d 193, 196 (Fla. 1965); Pruitt
v. Brock, 437 So. 2d 768, 772 (Fla. 1st DCA 1983).

Rule 1.540(b) provides that “the court may relieve a party
. . . from a final judgment” and, for the grounds at issue
in this case, “[t]he motion shall be filed within a
reasonable time and . . . not more than 1 year after the
judgment . . . was entered.” Generally, the time for filing
Rule 1.540(b)(2) and (b)(3) motions begins to run from entry
of a final judgment, not from resolution of an appeal from
judgment. See In re Guardianship of Schiavo, 792 So. 2d
551, 558 (Fla. 2d DCA 2001); see also Marco Tech. Corp. v.
Reynolds, 520 So. 2d 63, 65 (Fla. 4th DCA 1988). The
pendency of an appeal does not extend the one-year limit
for filing a Rule 1.540(b) motion. See, e.g., Weiss v.
Berkett, 907 So. 2d 1181, 1183 (Fla. 3d DCA 2005);
Flemenbaum v. Flemenbaum, 636 So. 2d 579, 580 n. 1 (Fla.
4th DCA 1994).

Like the parties, we have found no Florida case factually
on point, where a party that obtained a favorable judgment
in the trial court discovered the grounds to set it aside
while the judgment was on appeal. We therefore look to
federal law under Rule 60. Identical to Florida, federal
precedent holds that “the pendency of an appeal does not
extend the one-year limit” for filing a Rule 60 motion.
Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane,
FEDERAL PRACTICE AND PROCEDURE (2d ed. 1995) ? 2866,
n. 17. However, “if the appeal should result in a
substantive change in the judgment,” the time [for filing a
Rule 60] motion would run from the entry of the new
judgment entered on mandate of the appellate court.” Id.;
see Berwick Grain Co. v. Illinois Dept. of Agric., 189 F.3d
556, 559 (7th Cir. 1999) (wherein the court indicated that
it was “willing to assume that, with respect to Rule
60(b)(1), a new, one-year period is triggered by an
appellate ruling that substantially alters a district
court’s judgment”); Gegenheimer v. Galan, 920 F.2d 307, 310
(5th Cir. 1991). A “substantive change” in a judgment
occurs when the appellate court “‘has disturbed or revised
legal rights and obligations which, by [the] prior judgment,
had been plainly and properly settled with finality.'”
Simon v. Navon, 116 F.3d 1, 3 (1st Cir. 1997) (quoting FTC
v. Minn.-Honeywell Regulator Co., 344 U.S. 206, 212
(1952)).

Without delineating the parameters of a “substantive
change” in a judgment on appeal, we can say that such a
change occurred here. The appeals effected the most
substantive of changes in the Dibsa and Aquamar judgments
— it reversed them and directed that judgments be
entered in favor of DuPont. The time for appellants to file
their Rule 1.540(b) motions thus ran from February 11,
2005, the date the new judgments were entered in compliance
with this court’s mandates. The Rule 1.540(b) motions were
therefore timely filed. This result is consistent with the
language of the rule — the “judgments” from which
appellants sought relief were those entered after DuPont’s
successful appeals.

We reverse the circuit court’s order denying the Rule
1.540(b) motions for untimeliness. Nothing in this opinion
forecloses the trial court from considering the motions on
their merits or ruling on whether the motions were brought
within a “reasonable time” within the meaning of the rule.

Reversed and Remanded.

* * *

Not final until disposition of timely filed motion for
rehearing.

[fn1] Federal Rule 60(b) provides in pertinent part:

On motion and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a
final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence which by
due diligence could not have been discovered in time to
move for a new trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse
party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any
other reason justifying relief from the operation of the
judgment. The motion shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was entered
or taken.

The federal rule is substantially the same as Rule
1.540(b).