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Persaud v. Cortes

Florida Court of Appeals, Fifth District

May 19, 2017

VISHNU D. PERSAUD, Appellant,
v.
BARBARA CORTES, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOSHUA BATISTA, AND ON BEHALF OF HIS SURVIVORS, ANDREW T. SANTIAGO AND NICHOLAS GAJRAJ, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Marion County, Edward L. Scott, Judge.

          Angela C. Flowers, of Kubicki Draper, P.A., Ocala, for Appellant.

          Victor Kline, of Greenspoon Marder, P.A., and Alexander M. Clem, of Morgan & Morgan, P.A., Orlando, for Appellees, Barbara Cortes as Personal Representative of the Estate of Joshua Batista and on behalf of his survivors, and Andrew T. Santiago.

          No Appearance for Appellee, Nicholas Gajraj.

          WALLIS, J.

         Appellant, Vishnu D. Persaud, appeals the trial court's final judgment awarding $1.25 million in punitive damages in favor of Barbara Cortes, as personal representative of the estate of Joshua Batista, and Andrew T. Santiago (collectively, "Appellees"). Because the trial court abused its discretion by failing to provide a requested jury instruction, we reverse and remand for a new trial on punitive damages.

         In May 2009, Appellees filed a complaint against Persaud for wrongful death and negligence. The claims stemmed from a November 2008 accident in which Persaud's vehicle rear-ended a vehicle operated by Santiago and occupied by Joshua Batista, Cortes's son, causing it to strike a third vehicle before flipping into an adjacent median. The accident resulted in Batista's death, significant injury to Santiago, and ultimately two convictions for DUI manslaughter, for which the court sentenced Persaud to two life sentences.[1] Appellees later amended their complaint to include a claim for punitive damages, alleging that, at the time of the accident, Persaud had consumed a significant amount of alcohol-resulting in a .302 percent blood alcohol reading.

         After the compensatory phase of Persaud's bifurcated trial, the jury awarded a verdict of $244, 419 for Cortes and $75, 144.35 for Santiago. The trial court then proceeded to the punitive phase of the bifurcated trial, during which Persaud's counsel notified the trial court about the parties' competing requested jury instructions regarding punitive damages. Appellees' counsel explained the dispute as follows:

The difference is, Judge, the Defense would like to introduce the idea of the lack of financial resources so that the jury can't award an amount that would financially bankrupt or destroy Persaud. However, that's the purpose for what this language is allowed in. . . .
The Defense has offered nothing to show the net worth, or lack thereof, of Mr. Persaud. So they don't get the benefit of the bargain by arguing he's in jail, he doesn't have to pay.

         The trial court stated that it would read the portion instructing the jury that it should consider Persaud's "financial resources, " then omit the portion reading, "However, you may not award an amount that would financially destroy the defendant." Fla. Std. Jury Instr. (Civ.) 503.1(c)(2). After the discussion concluded, Appellees' counsel responded, "Your Honor, just for the record, we renew our objection to the implication of Persaud's financial resources and instruction. But I understand the Court's ruling."

         Persaud's mother later testified during the punitive damages phase of the trial, with the expressly agreed-to purpose of discussing the state of Persaud's financial resources. She testified that she sees Persaud once a month and that he has no money, no bank account, no property of any kind, and, as of 2008, no employment, with no expectation of future employment. In a 2010 deposition, read into evidence, Persaud testified that, from 2008 until the time of the deposition, he lived in his mother's home. Despite this testimony, the jury ultimately awarded punitive damages of $750, 000 (Cortes) and $500, 000 (Santiago).

         Persaud specifically argues the trial court abused its discretion by refusing to read the following instruction about the award of punitive damages: "[However, you may not award an amount that would financially destroy (defendant(s)).]" Fla. Std. Jury Instr. (Civ.) 503.1(c)(2). Below, Appellees challenged the reading of both this instruction and the instruction requiring the jury to consider Persaud's financial resources on the basis that Persaud had no intention of establishing his financial circumstances during trial-as evidenced by the lack of relevant exhibits noticed pretrial. Much of the discussion that followed during ...


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