Motion for Directed Verdict (or to Set Aside the Verdict) is an Important Trial Consideration

Posted by David Adelstein on May 21, 2016
Evidence, Standard of Review / Comments Off on Motion for Directed Verdict (or to Set Aside the Verdict) is an Important Trial Consideration

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After the plaintiff puts on its case-in-chief, you, as the defendant, move for a directed verdict. (Check out this article too for more on directed verdicts.)  The court denies the motion for a directed verdict. You put on your defense and then the case is submitted to the jury. The jury returns a verdict in favor the plaintiff. You then move to set aside the verdict (also called a motion for judgment notwithstanding the verdict). The trial court denies your motion and enters final judgment consistent with the jury’s verdict. You appeal the trial court’s denial of the motion for directed verdict / motion to set aside the verdict.

An appellate court must review a trial court’s determination on a motion for judgment notwithstanding the verdict de novo and “evaluate the evidence in the light most favorable to the non-moving party, drawing every reasonable inference flowing from the evidence in the non-moving party’s favor.” Miami-Dade Cnty. v. Eghbal, 54 So. 3d 525, 526 (Fla. 3d DCA 2011). Additionally, we must sustain a jury verdict if it is supported by competent substantial evidence. Hancock v. Schorr, 941 So. 2d 409, 412 (Fla. 4th DCA 2006).

Frieri v. Capital Investment Services, Inc. , 41 Fla.L.Weekly D1189a (Fla. 3d DCA 2016).  

In other words, the appellate court will evaluate the evidence in favor of the non-moving plaintiff (part that did not move for the directed verdict) drawing reasonable inferences in its favor. If there was competent substantial evidence supporting the jury’s verdict, the court will affirm the judgment in favor of the plaintiff.

Now what if after the plaintiff puts on its case-in-chief, you, as the defendant, move for a directed verdict and the trial court grants the directed verdict in your favor and against the plaintiff.   The plaintiff appeals the trial court’s granting of your motion for directed verdict.

While the standard of review for the trial court’s entry of a directed verdict is de novo, an appellate court “can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.Banco Espirito Santo Int’l, Ltd. v. BDO Int’l, B.V., 979 So. 2d 1030, 1032 (Fla. 3d DCA 2008) (quoting Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 329 (Fla. 2001)).

Frieri, supra.

In other words, the appellate court will evaluate the evidence to see if no proper view of the evidence, and all inferences drawn from the evidence, could support a verdict in favor of the plaintiff. Thus, if the plaintiff fails to introduce any evidence substantiating its claims (or a claim) against the defendant (i.e.,to sustain a verdict in favor of the plaintiff), then the appellate court will affirm the directed verdict.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Moving for a Directed Verdict and, then, a Motion to Set Aside the Verdict

Posted by David Adelstein on January 15, 2015
Appeal, Evidence / Comments Off on Moving for a Directed Verdict and, then, a Motion to Set Aside the Verdict

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Moving for a directed verdict is a standard procedure in a jury trial.  Simply put, after the plaintiff puts on its case-in-chief (evidence supporting its claims against the defendant), the defendant moves for a directed verdict stating that even assuming all of the evidence is true and undisputed, and all inferences relating to that evidence favor the plaintiff, the plaintiff failed to prove its case as a matter of law and a jury cannot reasonably enter a verdict in favor of the plaintiff based on that evidence. See Wald v. Grainger, 64 So.3d 1201 (Fla. 2011); see also Etheredge v. Walt Disney World Co., 999 So.2d 669, 672 (Fla. 5th DCA 2008) (“In other words, a motion for directed verdict shall be granted only if no view of the evidence could support a verdict for the non-moving party and that the trial court therefore determines that no reasonable jury could render a verdict for that party.”)     

This is best explained by the Florida Supreme Court:

“A party moving for a directed verdict admits the truth of all facts in evidence and every reasonable conclusion or inference which can be drawn from such evidence favorable to the non-moving party. A directed verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party [plaintiff or party putting on evidence in support of their claim], support the movant’s case as a matter of law and there is no evidence to rebut it.

 Wald, 64 So.3d at 1205 (Fla. 2011) (citations omitted).

A defendant may move for a directed verdict after the plaintiff puts on all of its evidence.  A plaintiff can move for a directed verdict after the defendant puts on all of its evidence as to an affirmative defense.  And, a plaintiff (referred to as a counter-defendant) can move for a directed verdict after the defendant (referred to as a counter-plaintiff) puts on all of its evidence if the defendant has counter-sued the plaintiff.

A party moves for a directed verdict in accordance with Florida’s Rules of Civil Procedure.  See Fla.R.Civ.P. 1.480.   If the motion for directed verdict is denied, which is not uncommon, the trial continues.   But, and this is a very, very important but:

“When a motion for a directed verdict is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 15 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict [also commonly referred to as a motion for a judgment notwithstanding the verdict]. If a verdict was not returned, a party who has timely moved for a directed verdict may serve a motion for judgment in accordance with the motion for a directed verdict within 15 days after discharge of the jury.” 

Fla.R.Civ.P. 1.480(b).  This means that if a party moves for a directed verdict and that motion is denied, the trial continues and will be submitted to the jury to render a verdict.  If the verdict favors a party (e.g., plaintiff), the opposing party (e.g., defendant) within 15 days can file a motion for the court to set aside the verdict and enter a judgment in accordance with the earlier motion for directed verdict.   This is important because if a party does NOT timely move for the court to set aside the verdict and enter judgment in accordance with the directed verdict, the party will NOT have properly preserved the directed verdict for appealSee Murray v. State, 27 So.3d 781 (Fla. 3d DCA 2010) (defense failed to timely preserve directed verdict for appeal because it did not move the court to set aside the verdict and enter judgment in accordance with the directed verdict).

(Notably, it used to be that a party needed to renew a motion for a directed verdict at the conclusion of the trial—close of all of the evidence.  Florida Rule of Civil Procedure 1.480 was amended in 2010 removing the requirement to renew a motion for directed verdict at the close of all of the evidence in order to preserve the right to file a motion to set aside the verdict.  Now, a party just needs to timely move for a directed verdict at the close of the opposing party’s evidence and then timely file the motion to set aside the verdict.)

Oftentimes, a party at the conclusion of a trial will move the court to set aside the verdict and enter judgment notwithstanding the jury’s verdict or, alternatively, move the court for a new trialSee Fla.R.Civ.P. 1.480(b).   Hence, if the court is considering granting a motion for directed verdict, it may deny the motion to see how the jury decides the evidence.  If the jury still finds in favor of a party, the judge can (if a party timely moves for a judgment not withstanding the verdict) still enter a judgment notwithstanding the verdict.

The standard of appellate review if a trial court grants a directed verdict is de novoSee Merritt v. OLMHP, LLC, 112 So.3d 559 (Fla. 2d DCA 2013).   This is the same standard of review if a trial court grants a motion to set aside the verdict and enter judgment in accordance with the motion for direct verdict (again, also called a motion for judgment notwithstanding the verdict).  See Specialty Marine & Industrial Supplies, Inc. v. Venus, 66 So.3d 306 (Fla. 1st DCA 2011).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Admitting a Business Record Under the Hearsay Exception

Posted by David Adelstein on May 06, 2017
Evidence / Comments Off on Admitting a Business Record Under the Hearsay Exception

If you have perused this blog, then you know if there is a new case discussing the business records exception to the hearsay rule, I am writing about it.   The reason being is that it comes up in many business disputes. Lately, there has been a trend where this business records exception comes up in mortgage foreclosure cases where the borrower argues that the lender failed to properly introduce key evidence (such as payment histories) under the business records exception. As a result, the evidence was inadmissible hearsay warranting a reversal of a foreclosure judgment.

The recent opinion in Evans v. HSBC Bank, USA, 42 Fla. L. Weekly D1033a (Fla. 2d DCA 2017) is but another example of the business records exception coming up in a mortgage foreclosure case.   At trial, the lender offered the testimony of an employee of a loan subservicer to introduce the borrower’s payment history from different servicers. Her knowledge came from reviewing records. However, she confirmed during examination that (i) she really did not create the payment history of the borrower, (ii) another servicer created most of the payment history, (iii) the payment history was transferred over to her company, (iv) she did not know who created most of the entries on the payment history, and (v) she did not know the procedures used to incorporate other payment servicer’s records into her company’s records. Notwithstanding, the trial court admitted the payment history into evidence over the borrower’s objection that the payment history was inadmissible hearsay not satisfying the business records exception to the hearsay rule.

As you know from prior articles, hearsay is an out of court statement (written or oral) offered for the truth of the matter asserted.   Thus the payment history (a written out of court statement) is hearsay.   But, there are exceptions to the hearsay rule to introduce certain hearsay evidence. One applicable exception is the business records exception.

To admit a business record under the exception, a party must lay the right foundation that:

  • the business record was made at or near the time of the event;
  • the business record was made by or from information transmitted by an individual with knowledge;
  • the business record was kept in the ordinary course of business; and
  • it was a regular practice of the business to make such a record.

Of course, there is more to this with many cases discussing these foundational requirements. In this case, the witness could not properly lay the foundation since she did not know the procedures of prior loan servicers or even the procedure to incorporate their business records into her company’s business records. There was no testimony establishing the reliability of such records that is the hallmark to admitting evidence under a business records exception to the hearsay rule.   Based on this lack of reliability, the appellate court reversed the trial court’s ruling.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Timely Filing Motion for Attorney’s Fees and Costs

Posted by David Adelstein on February 11, 2017
Trial Perspectives / Comments Off on Timely Filing Motion for Attorney’s Fees and Costs

Florida Rule of Civil Procedure 1.525 provides:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.

This is a specific statutory time period and a motion for rehearing does NOT toll this 30 day period. Jackson v. Anthony, 39 So.3d 1285, 1286 (Fla. 1st DCA 2010). This means that a motion for a final judgment taxing attorney’s fees and costs must be made within 30 days after the filing of a judgment or voluntary dismissal that concludes the action as to that party. (A court in certain circumstances may grant an extension of time to this 30 day period if the motion for extension is filed within 30 days).   Not timely filing a motion for attorney’s fees and costs can result in…(you guessed it)…a loss of a party’s right to recover attorney’s fees and costs.

In Hovercraft of South Florida, LLC v. Reynolds, 42 Fla. L Weekly D367a (Fla. 5th DCA 2017), the plaintiffs prevailed and received a final judgment. The defendant moved for a new trial and/or rehearing which was denied.   Within 30 days of the denial of the defendant’s motion for rehearing, but well outside the 30 days from when the final judgment was entered, the plaintiffs moved for attorney’s fees and costs. However, the motion for attorney’s fees was not timely filed within 30 days of the filing of the final judgment meaning…(you guessed it again)…the plaintiff’s lost the right to recover their attorney’s fees and costs!!!  Do not let this happen to you.  

Notably, an exception to this 30 day requirement is if the final judgment itself determines entitlement to attorney’s fees reserving only the right to determine the quantum of the reasonable attorney’s fees.   Hovercraft of South Florida, supra (“In order to avoid the thirty-day requirement, the judgment itself must determine entitlement to attorney’s fees and costs and reserve jurisdiction only as to the amount owed.”) Notwithstanding this exception, file the motion for attorney’s fees and costs within 30 days — no excuses.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

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Just Say NO! to Frivolous Claims! Otherwise 57.105 May Apply!

Posted by David Adelstein on June 30, 2016
Trial Perspectives / Comments Off on Just Say NO! to Frivolous Claims! Otherwise 57.105 May Apply!

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As a lawyer, it is important to examine your client or prospective client regarding the facts of their case. In this manner, it is important to conduct legal research to support legal arguments, especially arguments applied to the facts. The bottom line is that you want to make sure you are NOT filing a frivolous claim or defense, which is typically one that (a) is NOT supported by material facts necessary to support the claim or defense or (b) NOT supported by the application of the law. See Fla. Stat. s. 57.105. If you do, you could be exposed to sanctions—be liable for the opposing party’s attorney’s fees and costs. But such exposure can also run to the lawyer.

Florida Statute s. 57.105 provides:

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or

(b) Would not be supported by the application of then-existing law to those material facts.

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(4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

There are attorneys that will serve what is known as a “57.105 motion for sanctions” telling you that unless you dismiss the claim or defense within 21 days (known as the safe harbor time period) they will file the motion and seek fees and costs associated with the claim for defense.  Some attorneys do this as an intimidation tactic.  Notwithstanding, an attorney should consider the substance and merits of the motion.

But, what if a party’s 57.105 motion is defective or they do not give the 21 days safe harbor time period? In a recent decision Watson v. Stewart Tilghman Fox & Bianchi, P.A., 41 Fla. L. Weekly D1523a (Fla. 4th DCA 2016), a party served a defective 57.105 motion for sanctions. Nonetheless, the trial court still awarded sanctions (fees and costs) against the plaintiff and her lawyer on the court’s own initiative based on the frivolousness of the plaintiff’s lawsuit.   The appellate court held that a trial court can award sanctions (fees and costs) on its own initiative (based on the frivolousness of the claim) and, if it does so, the 21 day safe harbor provision does not apply. OUCH!  

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

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Jury Trial Considerations: Directed Verdict and the Verdict Form

Posted by David Adelstein on June 27, 2015
Appeal, Trial Perspectives / Comments Off on Jury Trial Considerations: Directed Verdict and the Verdict Form

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Previously, I discussed a motion for directed verdict and, then, a motion to set aside a jury’s verdict. This is an important procedural vehicle to know because a party opposing a claim generally always moves for a direct verdict. In some instances, the court reserves ruling on the directed verdict to see how the jury decides the case. If the jury enters a verdict in favor of the party moving for a directed verdict (e.g., the defendant) then the court does not need to rule on the motion for directed verdict (it becomes moot).

Recently, I wrote an article about a case involving a jury trial as to the enforcement of an oral contract. During the jury trial, the party opposing the oral contract’s enforcement–the defendant–moved for a directed verdict. The trial court reserved ruling on the motion for directed verdict to see how the jury would decide the case. The jury entered a verdict in favor of the plaintiff. Based on the verdict, however, the trial court granted the motion for directed verdict and entered judgment in favor of the defendant. The plaintiff appealed the trial court’s ruling and the First District Court of Appeal reversed the trial court and directed judgment in favor of the plaintiff consistent with the jury’s verdict.

The First District explained as it pertains to directed verdicts:

When a trial court overrides a jury’s verdict and directs entry of judgment for the non-prevailing party, our review is de novo, meaning we review the record to determine whether any view of the evidence supports the jury’s verdict…For this reason, if there are conflicts in the evidence or different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law.”

Loper v. Weather Shield Manufacturing, 40 Fla. L. Weekly D1492a (Fla. 1st DCA 2015) (internal citation and quotation omitted).

The case also references a special interrogatory verdict form which is a verdict form that asks the jury to answer specific questions relating to a plaintiff’s claim against a defendant and a defendant’s affirmative defenses.   In this case, a special interrogatory verdict form was submitted to the jury with carefully crafted questions. The jury answered questions on the verdict form benefitting the plaintiff that led to its verdict in favor of the plaintiff.

As an example of carefully crafted questions on a special interrogatory verdict form, the jury answered yes to the following questions pertaining to an owner’s breach of an oral contact claim against a manufacturer (again, check out the article for more facts regarding the case):

  1. Did Michael Loper [owner] and Weather Shield Manufacturing, Inc. [manufacturer], enter into an oral agreement regarding the windows at the Loper home?
  1. Did at least one of the parties (Michael Loper and/or Weather Shield Manufacturing, Inc.) fully perform his or its responsibilities under the oral agreement and do so within one year of that agreement?
  1. Did Michael Loper: (a) orally agree not to file a lawsuit against Weather Shield Manufacturing, Inc., in exchange for replacement of all defective windows and a new ten-year warranty; (b) reasonably rely in good faith on Weather Shield Manufacturing, Inc., to reduce this oral agreement to writing; and (c) reasonably rely on Weather Shield Manufacturing, Inc.’s words and action to change his position to his detriment?
  1. Did Weather Shield Manufacturing, Inc. breach the oral agreement?
  1. Did Michael Loper sustain damages as a result of Weather Shield Manufacturing, Inc.’s breach of the oral contract?

Loper, supra.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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