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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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Proving Your Case Through Circumstantial Evidence

Posted by David Adelstein on May 15, 2016
Evidence / Comments Off on Proving Your Case Through Circumstantial Evidence

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The plaintiff puts on her case through circumstantial evidence so that inferences can be drawn from that evidence.  The defendant moves for a directed verdict after the plaintiff put on her case through circumstantial evidence. The trial court denies the motion and the jury enters a verdict in favor of the plaintiff. The defendant appeals the trial court’s denial of the motion for a directed verdict. The standard of review for the denial of a motion for directed verdict is de novo.   Broward Executive Builders, Inc. v. Zota, 41 Fla.L.Weekly D1126a (Fla. 4th DCA 2016).

In Broward Executive Builders, the plaintiff, a painter, fell and seriously injured herself. No one witnessed the fall and the plaintiff was unable to testify. The plaintiff claimed that defendant general contractor caused her fall by failing to install required guardrails that would have prevented the fall.

[A plaintiff] must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Broward Executive Builders, supra, quoting Sanders v. ERP Operating Ltd. P’ship, 157 So.3d 273, 277 (Fla. 2015).

Without any direct evidence relating to the cause of the plaintiff’s injury, the plaintiff needed to establish the defendant general contractor’s liability through circumstantial evidence, predominantly through an expert accident reconstructionist. While the plaintiff may prove facts in a negligence case through circumstantial evidence, an inference drawn from the circumstantial evidence “must be the only reasonable inference that can be formed from that evidence for the plaintiff to build further inferences upon it.” Broward Executive Builders, supra.

While it certainly could be inferred from the circumstantial evidence that the plaintiff fell and sustained injuries, it could not be reasonably inferred that the plaintiff fell from a location where the guardrails would have prevented her fall. The circumstantial evidence did not exclude other reasonable inferences about the location where the plaintiff fell, what the plaintiff was doing when she fell, or what caused the fall. In other words, it could not be solely inferred that the defendant’s failure to install the required guardrails caused the plaintiff’s injuries—there were other reasonable possibilities relating to the fall that could be inferred.

[B]ecause there is no evidence of how she fell or where exactly she fell from, it would be complete speculation and conjecture for any trier of fact to conclude that the lack of guardrails contributed to causing her injuries. The burden of proof rested upon appellees [plaintiff] to prove appellant’s [defendant] negligence. Where there is evidence that the harm could have occurred even in the absence of the appellant’s conduct, proof of causation cannot be based on mere speculation, conjecture, or inferences drawn from other non-exclusive inferences.

Broward Executive Builders, supra (reversing the trial court and remanding for judgment to be entered in favor of defendant general contractor). 

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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Witness Laying Foundation for Business Records Exception Need Not be the Person that Prepared the Business Records

Posted by David Adelstein on February 16, 2016
Appeal, Evidence / Comments Off on Witness Laying Foundation for Business Records Exception Need Not be the Person that Prepared the Business Records

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If you have visited this blog before, then you know the importance I place on the business records exception to the hearsay rule in civil business disputes. (Check out this article too.) Lately, the business records exception to the hearsay rule is a hot topic in mortgage foreclosure cases.

In yet another foreclosure case, Wells Fargo Bank, N.A., as Trustee, on Behalf of the Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-1 v. Balkisson, 41 Fla.L.Weekly D308a (Fla. 4th DCA 2016), the trial court entered an involuntary dismissal in favor of the borrower and against the lender after sustaining the borrower’s objection to hearsay based on the lender not properly laying the foundation for the business records exception to the hearsay rule. (An involuntary dismissal is essentially the same thing as a directed verdict in a non-jury bench trial. Similar to a directed verdict, the standard of appellate review for a motion for involuntary dismissal is de novo. See Wells Fargo Bank, supra.) The trial court sustained the hearsay objection because the loan servicer’s records custodian witness was unable to describe the specialized computer programs utilized to generate the payment history and default notice. The trial court’s ruling in sustaining the objection precluded the lender from presenting the payment history and the default notice into evidence meaning the lender could not prove its case at trial. The Fourth District Court of Appeal reversed.

The Fourth District explained that a testifying witness establishing the business records exception to the hearsay rule “need not be the person who actually prepared the business records. Instead, the witness just need be well enough acquainted with the [record keeping] activity to provide testimony.” Wells Fargo Bank, supra (internal quotations and citation omitted).

While the witness was not familiar with how data was entered into the computer system, there is no requirement that the witness have such knowledge to satisfy the business records exception to the hearsay rule. The witness was sufficiently familiar with the loan servicer’s practices and procedures in generating the payment history and notice of default to lay the foundation for the business records exception.

 

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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De Novo Standard of Appellate Review for Construction of Arbitration Provision

Posted by David Adelstein on February 10, 2016
Standard of Review / Comments Off on De Novo Standard of Appellate Review for Construction of Arbitration Provision

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Your contract contains an arbitration provision meaning you are required to arbitrate your dispute instead of litigate your dispute (in court).  Nonetheless, your opponent files a lawsuit against you and you move to compel the dispute to arbitration pursuant to the arbitration provision in your contract.  But, the trial court denies your motion to compel arbitration based on its interpretation of the arbitration provision. So, what do you do? You file an interlocutory appeal to appeal this ruling since you want to arbitrate your dispute.  The appellate standard of review for the construction (interpretation) of an arbitration provision is de novo.  See MuniCommerce, LLC v. Navidor, Ltd., 41 Fla. L. Weekly D317b (Fla. 4th DCA 2016) (reversing trial court’s order compelling arbitration based on its construction of arbitration provision).  

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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Statutory Construction Subject to De Novo Standard of Appellate Review

Posted by David Adelstein on February 07, 2016
Appeal, Standard of Review / Comments Off on Statutory Construction Subject to De Novo Standard of Appellate Review

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Oftentimes, courts are required to engage in statutory construction and this statutory construction becomes a driving issue in the dispute. Statutory construction is the process of a court interpreting law and then applying that law to a set of facts. For example, if your case turns on the interpretation of a particular Florida statute applied to your facts, this would be statutory construction. 

On appeal, the issue of statutory construction is subject to a de novo standard of appellate review. Taylor Morrison Services, Inc. v. Ecos, 163 So.3d 1286, 1289 (Fla. 1st DCA 2015). A de novo standard of review means the appellate court is going to review the trial court’s record anew without giving deference to the trial court.

I discussed the facts in Taylor Morrison Services here. The issue on appeal was whether a homebuilder (contractor) was unlicensed at the time of contract with the homeowners (per Florida Statutes Chapter 489). The trial court declared that the homebuilder was unlicensed by interpreting Florida’s licensing law and applying that law to the facts before it. In reviewing this issue on appeal (and ultimately reversing the trial court’s statutory construction), the First District stated:

The correctness of the trial court’s order turns on an issue of statutory construction, which is subject to de novo review. Proper statutory analysis begins with the plain language of the statute, which is to be considered in context, and not construed in a way that renders any portion of the statute meaningless. When the [statutory] language is unclear or ambiguous, it is appropriate to apply established principles of interpretation to discern the meaning of the governing text.

Taylor Morrison Services, 163 So.3d at 1289 (internal citations omitted).

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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Know Your Standard of Appellate Review Regarding the Admissibility of Evidence

Posted by David Adelstein on March 21, 2015
Appeal, Standard of Review, Uncategorized / Comments Off on Know Your Standard of Appellate Review Regarding the Admissibility of Evidence

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The standard of appellate review regarding the trial court’s admissibility of evidence is an abuse of discretion. See Vavrus v. City of Palm Beach Gardens, 927 So.2d 992 (Fla. 4th DCA 2006); Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass’n, Inc., 884 So.2d 1087 (Fla. 4th DCA 2004).  Naturally, a party needs to preserve this issue by objecting to the admissibility of the evidence.  If a trial court sustains an objection and excludes the evidence, the party trying to introduce the evidence should make a proffer / offer of proof

On the other hand, the standard of review for the trial court’s interpretation of a contract, which is a question of law, is subject to the much more favorable de novo standard of appellate review. See Jenkins v. Eckard Corp., 913 So.2d 43 (Fla. 1st DCA 2005); RNK Family Limited Partnership v. Alexander-Mitchell Associates, 788 So.2d 1035 (Fla. 2d DCA 2001). This means the appellate court can examine the contract and reach a completely different legal interpretation than the trial court. See Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163 (Fla. 4th DCA 2003). Best explained by the Fourth District Court of Appeal in Gilman Yacht Sales, Inc. v. FMB Investments, Inc.766 So.2d 294, 296 (Fla. 4th DCA 2000) (internal citations omitted):

The interpretation of a written contract is a question of law to be decided by the court. An appellate court is not bound to give the trial judge’s interpretation or construction of a contract any weighted presumption of correctness. To the contrary, a decision construing a contract is reviewable on appeal under a de novo standard of review, and therefore we are required to consider for ourselves anew the meaning of the disputed contractual language.

It is important for parties to know the standard(s) of appellate review they may confront when appealing a trial court’s ruling as the standard of review will dictate the amount of deference the appellate court is required to give the trial court’s ruling. A de novo standard of review is much more favorable than an abuse of discretion standard of review.  The appellate standard of review is an essential component of appellate practice and will be identified in an appellate brief.   And, besides the standard of review, a party defending an appeal (appellee) may argue that to to the extent the trial court erred, such error was nothing more than a harmless error that did not contribute to the 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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Application of the Business Records Exception to the Hearsay Rule

Posted by David Adelstein on January 18, 2015
Appeal, Evidence, Standard of Review / Comments Off on Application of the Business Records Exception to the Hearsay Rule

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Hearsay (an out-of-court statement offered at trial for the truth of the matter asserted) is inadmissible at trial. But, there are exceptions to this exclusionary hearsay rule to allow such evidence / testimony to be admissible at trial.

Previously, I wrote about one exception known as the business records exception contained in Florida Statute s. 90.803. The business records exception is commonly relied on in business disputes in order to admit business records as evidence.  

What if there is an appeal concerning the admissibility of evidence introduced at trial under an exception to the hearsay rule?

 

Standard of Appellate Review

 

Whether evidence is admissible under an exception to the hearsay rule, such as the business records exception, is subject to a de novo standard of appellate review. See Browne v. State, 132 So.3d 312, 316 (Fla. 4th DCA 2014).   

 

Application of Business Records Exception

 

Landmark American Insurance Company v. Pin-Pon Corp., 2015 WL 71849 (Fla. 4th DCA 2015) is recent a case where the appellate court remanded the dispute back to the trial court for a new trial as to damages because the trial court improperly allowed evidence to fall within the business records exception to the hearsay rule.  The evidence should have been deemed hearsay and should not have been admissible under the business records exception.

This case involved an insurance coverage dispute over damages a hotel sustained from a hurricane. After trial, the hotel received a judgment against its insurer. The insurer appealed and an issue on appeal concerned whether the trial court erred in admitting the hotel’s repair (damages) estimate.

The hotel, to support its repair damages, introduced into evidence a composite exhibit through its architect.   The exhibit contained the architect’s repair scope of work (to repair the damage stemming from the hurricane). The exhibit also contained cost information (pricing the architect’s repair scope of work) that was not prepared by the architect. Rather, the cost information was prepared by the hotel’s general contractor with subcontractor invoices and proposals as the supporting back-up.

Because documents within the composite exhibit (such as the cost information) were not prepared by the architect and, thus, would ordinarily constitute hearsay, the hotel tried to establish that the cost information generated by the contractor and subcontractors would be admissible under the business records exception to the hearsay rule.

The architect testified that in its normal course of business it prepared a repair scope of work (drawings) to address the hurricane damage. This repair scope of work was given to the hotel’s contractor to cost / price. The contractor then submitted the cost / pricing information to the architect for review. The architect testified that these were the types of records it would ordinarily maintain in its ordinary course of business.   Based on this testimony, the trial court ruled that the business records exception applied (since the cost information would be hearsay) and allowed this composite exhibit to be introduced as evidence.

The appellate court, in a detailed discussion about the business records exception to the hearsay rule, explained:

For a record to be admissible under the business records exception, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. However, the fact that a witness employed all the “magic words” of the exception does not necessarily mean that the document is admissible as a business record.

To lay a foundation for the admission of a business record, it is not necessary for the proponent of the evidence to call the person who actually prepared the business records. The records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation. Stated another way, the witness just need be well enough acquainted with the activity to provide testimony.   To the extent the individual making the record does not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity.

Nonetheless, the fact that a document is incorporated into a business’s records does not automatically bring the document within the business records exception to the hearsay rule. Otherwise, every letter which plaintiff’s employer received in connection with the operation of his business and which was subsequently retained as part of his business records ipso facto would be fully competent to prove the truth of its contents.”

Pin-Pon Corp., 2015 WL at *7 (internal quotations and citations omitted).

The appellate court held that the architect did not properly lay the foundation for the cost documentation within the composite exhibit to establish that the documentation fell within the business records exception to the hearsay rule. In particular, the architect could not show: (i) the documentation was made by or from information transmitted by a person with knowledge, (ii) the documentation was made at or near the time of the event since the architect had no knowledge when the documentation was made, and (iii) whether the preparer of the documents had knowledge or received information from a person with knowledge.

Because this documentation should have been deemed inadmissible, the appellate court remanded the case back to the trial court for a new trial on damages since there was a reasonable possibility that the error in admitting this evidence contributed to the jury’s verdict (i.e., the error in admitting this evidence was not a harmless error).

This case demonstrates the importance in properly laying the foundation so that documents are properly admitted into evidence.  As mentioned above, business disputes generally involve parties admitting evidence under the business records exception to the hearsay rule.  Thus, knowing how to properly lay the foundation for such evidence is important because if that evidence is improperly admitted there is a good chance that error in admitting the evidence will not constitute a harmless error

 

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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Abuse of Discretion Standard of Review for Trial Court Granting or Denying New Trial

Posted by David Adelstein on December 24, 2014
Appeal, Standard of Review / Comments Off on Abuse of Discretion Standard of Review for Trial Court Granting or Denying New Trial

Trial Court

Previously, I discussed the de novo appellate standard of review relating to a summary judgment.

Now, I’d like to discuss the appellate standard of review when a trial judge grants or denies a motion for a new trial. This means there was a trial. There was a presumed winner and there was a presumed loser. The presumed loser, by way of example, moved for a new trial with the trial court and that motion was either (a) granted by the trial court prompting the presumed winner to appeal the trial court’s granting of a new trial, or (b) denied by the trial court prompting the presumed loser to appeal the trial court’s denial of a new trial.

When a trial court grants or denies a motion for a new trial, the appellate standard of review is abuse of discretion. See Moore v. Gillett, 96 So.3d 933 (Fla. 2d DCA 2012); Izquierdo v. Gryroscope, Inc., 946 So.2d 115 (Fla. 4th DCA 2007). This is a more challenging standard of review than the de novo standard of review previously discussed.

Under this abuse of discretion standard of review, the appellate court operates under the presumption that the trial court correctly exercised its discretion in granting / denying the new trial and the trial court’s ruling will not be reversed unless it clearly abused its discretion. See Moore, 96 So.3d 933.

An appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion.

Izquierdo, 946 So.2d at 117-18 quoting Brown v. Estate of Stuckey, 749 So.2d 490 (Fla. 1999).

What if a trial court grants a new trial because the court believes the jury’s verdict was contrary to the manifest weight of the evidence? The manifest weight of the evidence that the trial court relied on to grant a new trial in light of the jury verdict must be clear, obvious and indisputable—if the evidence is conflicting, then it is up to the jury to weigh that evidence (and it would be an abuse of discretion for a trial court to grant a new trial). See K-Mart Corp. v. Collins, 707 So.2d 753 (Fla. 2d DCA 1998). Stated differently, it would be an abuse of discretion if a trial court granted a new trial in light of the jury’s verdict simply because the judge disagreed with how the jury weighed conflicting evidence. See Pena v. Vectour of Florida, Inc., 30 So.3d 691 (Fla. 1st DCA 2010).

 

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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De Novo Appellate Standard Of Review For Summary Judgments

Posted by David Adelstein on December 14, 2014
Appeal, Standard of Review / Comments Off on De Novo Appellate Standard Of Review For Summary Judgments

De Novo Appellate Standard

An appellate court’s standard of review when reviewing a trial court’s summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000); accord L’Etoile Homeowners Ass’n, Inc. v. Fresolone, 940 So.2d 1170 (Fla. 4th DCA 2006). A de novo standard of review means that the appellate court will examine the trial court’s record anew and will rule on the record evidence and law without giving any deference to the trial court. This is a favorable standard of review for an appellant (party appealing trial court’s ruling) because there is no deference afforded to the trial court’s findings.

As explained by the Fifth District Court of Appeal:

In order to determine the propriety of a summary judgment, a reviewing court should determine whether there is any genuine issue regarding any material fact and whether the moving party is entitled to judgment as a matter of law. The party seeking summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact. On appeal, a reviewing court should consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the nonmoving party. If the slightest doubt exists, of course, summary judgment must be reversed.

Delta Fire Sprinklers, Inc. v. OneBeacon Ins. Co., 937 So. 2d 695, 697-98 (Fla. 5th DCA 2006) (internal citations omitted).

 

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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