00-3420 MCI EXPRESS, INC. VS. FORD MOTOR CO.

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 00-3420 MCI EXPRESS, INC. VS. FORD MOTOR CO.

Case Date: 09/30/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002 MCI EXPRESS, INC., BETTY MYERS, and DONALD KAPLAN, as assignee, Appellants, vs. FORD MOTOR CO. and FORD MOTOR CREDIT CO., Appellees. ** ** Opinion filed September 30, 2002. An Appeal from the Circuit Court for Miami-Dade County, Herbert Stettin, Judge. Adorno & Zeder, and Raoul G. Cantero, III and Natalie J. Carlos, for appellants. Carlton Fields, and Wendy F. Lumish, for appellees. Before GERSTEN, GREEN, and SORONDO, JJ. PER CURIAM. MCI Express, Inc. ("MCI"), Betty Myers, individually, and Donald Kaplan, as assignee, appeal the trial court's orders of final judgments in favor of defendants Ford Motor Co. ("Ford") ** ** ** ** ** ** LOWER TRIBUNAL NO. 97-27472 CA CASE NO. 3D00-3420

and Ford Motor Credit Co. ("Ford Credit"). FACTS

We reverse.

MCI, a company in the long-haul trucking business, leased forty-six Aeromax A-95 trucks from Ford. The trucks consistently suffered from driveline and vibration problems. MCI reported

driveline failures in twenty-one of their trucks, as well as other problems allegedly caused by the vibrations (such as cracks in the windshields, tire wear, etc.). MCI sued Ford and Ford Credit for breach of express and implied warranties, rescission fraud of and/or contract

misrepresentation,

negligence,

and

(specifically against Ford Credit).

MCI alleged that its trucks

suffered from several manufacturing and design defects, that the drivelines would fail and fall off the trucks, and that the driveline malfunctions caused severe vibration, damaging other parts of the vehicles. Ford Credit then filed a counterclaim

against MCI, including counts of breach of contract, replevin and wrongful detention. During the seven-week trial, Ford produced evidence showing that while there had been some problems with the drivelines on the Aeromax trucks, the damages claimed by MCI were not attributed to a design defect but to poor maintenance, abusive driving practices, and outright sabotage. MCI had a high turnover of truck drivers

and maintenance workers and often failed to carry insurance on the trucks. Additionally, the company's maintenance records showed

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large gaps between service on the trucks. At trial, MCI's counsel brought forth a bag of tape recordings during the testimony of Roy Bray, MCI's CEO. The tapes contained conversations between Bray and the truck lessors regarding the terms of the lease agreements. One of the tapes was inadvertently included and contained conversations between Myers (MCI's

president) and Bray.

Both Bray and Myers testified that the

conversations on that tape occurred several years before MCI leased the Ford trucks. One of the conversations on the tape concerned a vision Bray allegedly had in church of his mother waving at him, which MCI argues places the tape between 1988 and 1989, years before MCI leased the first Ford truck in question. Ford objected to the introduction of the tapes, as they had not had the opportunity to listen to them. MCI's counsel agreed that the tapes The trial judge and be marked for

would

identification, but not introduced into evidence at that time, and Ford was given an opportunity to listen to and transcribe them. During the last week of trial, Ford offered the tapes into evidence during its examination of Myers. The one tape inadvertently

produced was played in the judge's chambers and the judge ruled that the tape itself would be admitted as an admission against interest. On the tape, Bray and Myers discuss the possibility of committing insurance fraud. The court excluded this particular

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conversation as inadmissible character evidence, but admitted the portion of the tape concerning the church vision and a derogatory statement made by Bray regarding his truck drivers. MCI requested that this reference to his drivers as "Goddamn Cubans," be

substituted with the word "drivers." MCI argued that any probative value the derogatory, ethnically charged comment might have was outweighed by the prejudice resulting from allowing the jury to hear it since five of the jurors were Hispanic. The court found

Bray's opinion of his drivers was relevant to rebut his prior testimony that he had good drivers and refused to redact the phrase from the conversation, allowing the tape, (excluding the insurance fraud conversation), to be played for the jury. Ford made an edited version of the tape (without the insurance fraud conversation) to send to the jury for its deliberations. Inexplicably, the jury ended up with both the edited and unedited tapes. The court gave a general curative instruction, stating that the tape that the jurors had listened to had been inadvertently delivered and included inadmissible material that should be disregarded and that the court would give them an edited tape to review. The jury returned a verdict in favor of Ford on all of MCI's claims and in favor of Ford Credit, specifically, for its breach of contract claim against MCI. MCI filed a motion for a new trial,

which was denied. The court entered a judgment in Ford's favor and

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MCI appeals. MCI contends that the jury's consideration of the excluded conversation regarding insurance fraud and Ford and Ford Credit's exploitation of the "Goddamn Cubans" slur, was so prejudicial that MCI should be granted a new trial. Ford and Ford Credit maintain

that MCI did not properly preserve the issue for appellate review, and that the jury's consideration of the inadmissible conversation was not so prejudicial as to warrant a new trial. ANALYSIS I. PRESERVATION

The first issue raised on appeal is whether MCI waived its right to a mistrial by coupling the motion for same with a request that the court reserve ruling until after the jury returned a verdict. Upon discovering that the jurors had heard the unedited tape, which included the insurance fraud conversation, MCI's counsel moved for a mistrial. The conversation between MCI's

counsel and the trial judge, in pertinent part, went as follows: MCI's COUNSEL: What I would ask the Court would be whether the Court would consider if we did move for a mistrial

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