directed verdict

Proving ALL of the Elements of a Fraudulent or Negligent Misrepresentation Claim

Posted by David Adelstein on November 24, 2017
Trial Perspectives / Comments Off on Proving ALL of the Elements of a Fraudulent or Negligent Misrepresentation Claim

Fraud claims are hard to prove. Any fraud claim or claim predicated on a misrepresentation is an intentional tort; therefore, it requires proof that the defendant had the intent to induce the plaintiff to act on a misrepresentation and the plaintiff actually relied on and acted on the misrepresentation. While fraud-type claims are perhaps commonly pled, pleading a fraud-type claim and proving a fraud-type claim are two different things. A party can plead a fraud-type claim to get passed a motion to dismiss. Proving the fraud-type claim, however, is a different story. Plaintiffs need to understand the elements they are required to prove so they know the evidence they need to introduce at trial to satisfy the elements and, hence, their required burden of proof. Likewise, defendants also need to understand the elements so that they can move for a directed verdict and preserve any appellate issue. 

An example of the difficulty in proving a fraud claim can be found in Arlington Pebble Creek, LLC v. Campus Edge Condominium Association, Inc., 42 Fla. L. Weekly D2370a (Fla. 1st DCA 2017).   Here, the defendants converted an apartment complex into a condominium and sold the condominium units. The unit owners took control of the condominium association from the defendants. The association then sued the defendants claiming that they knew of water intrusion problems, failed to fully remedy the problems, and turned over the association to the unit owners knowing the association would incur huge expense in upkeep and preserving common areas.

The association sued the defendants for both fraudulent misrepresentation and negligent misrepresentation.

A claim for fraudulent misrepresentation requires the association to prove the following four elements: 1) the defendants committed a false statement of a material fact (a misrepresentation); 2) the defendants knew the representation was false; 3) the defendants intended that the misrepresentation would induce the association to act on it; and 4) the association was injured acting in reliance on the misrepresentation. Arlington Pebble Creek, supra.

A claim for negligent misrepresentation requires the association to prove the following four elements: 1) the defendants committed a false statement of material fact that they believed to be true but was in fact false (a misrepresentation); 2) the defendants should have known the representation was false; 3) the defendants intended to induce the association to act on the misrepresentation; and 4) the association acted in justifiable reliance on the misrepresentation causing injury to the association. Arlington Pebble Creek, supra.

During trial, the defendants moved for a directed verdict arguing the plaintiff failed to prove all of the elements of a fraudulent or negligent misrepresentation claim. “‘A direct verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party, support the movant’s case as a matter of law and there is no evidence to rebut it.’” Arlington Pebble Creek, supra, quoting Wald v. Grainger, 64 So.3d 1201, 1205 (Fla. 2011).  The trial court denied the defendants’ motion for a directed verdict and ultimately a jury verdict and final judgment was entered against the defendants. The defendants appealed the trial court’s denial of their motion for directed verdict.  

The appellate court reversed the final judgment directing the trial court to enter judgment in favor of the defendants because the association did not prove all of the required elements of either a fraudulent misrepresentation or negligent misrepresentation claim. Specifically, the association failed to prove the third and fourth elements of the claims.   The association failed to prove any evidence of intent by the defendants or that the defendants induced reliance by the association—there was also no evidence that the association actually relied on any misrepresentation.

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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Caveat Emptor = Buyer Beware = Watch Out!

Posted by David Adelstein on August 18, 2017
Trial Perspectives / Comments Off on Caveat Emptor = Buyer Beware = Watch Out!

Caveat Emptor.  Buyer Beware!!!! This is a doctrine that applies to commercial property transactions. Watch out and do your due diligence when entering into a commercial real estate transaction. If you do not, the doctrine of caveat emptor will apply which puts the onus on you, the buyer, to discover material facts relating to the property.

In Transcapital Bank v. Shadowbrook at Vero, LLC, 42 Fla.L.Weekly D1657b (Fla. 4th DCA 2017), a bulk buyer purchased 123 out of 164 condominium units for approximately $11 Million.   The buyer, thereafter, sued the seller / lender for fraud, among other counts, claiming it was misled about the value of the property and, particularly, each of the condominium units.

Post-trial, the seller / lender appealed claiming the trial court erred in denying its motion for directed verdict at trial. The appellate court agreed that the trial court erred. Why?

The doctrine of caveat emptor applied to this commercial transaction where the buyer purchased 123 condominium units. “This doctrine places the duty to examine and judge the value and condition of the [commercial] property solely on the buyer and protects the seller from liability for any defects.” Transcapital Bank, supra, quoting Turnberry Court Corp. v. Bellini, 962 So.2d 1006, 1007 (Fla. 3d DCA 2007).

There are three exceptions to the applicability of caveat emptor: 1) where the buyer has been prevented from making an independent inquiry regarding the property due to a trick from the buyer; 2) where the buyer does not have equal opportunity to become apprised of a material fact; and 3) where the seller discloses some facts but not the whole truth regarding those facts. Transcapital Bank, supra citing Turnberry Court Corp. v. Bellini, 962 So.2d 1006, 1007 (Fla. 3d DCA 2007).   None of the exceptions, however, applied to this transaction. “Even if any of the defendants [seller / lender] had misrepresented the property’s appraised value, such a misrepresentation would not be actionable under the doctrine of caveat emptor in the absence of evidence that the defendants resorted ‘to some fraudulent means in preventing a prospective purchaser from making an examination of the property under consideration.’Transcapital Bank, supra, citing Farnham v. Blount, 11 So.2d 785, 790 (Fla. 1942).

 

 

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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Challenging Standard for Granting Directed Verdict

Posted by David Adelstein on June 25, 2016
Evidence, Trial Perspectives / Comments Off on Challenging Standard for Granting Directed Verdict

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If there is a jury trial, there will be a motion for directed verdict. But, the standard for granting a motion for directed verdict is challenging; if the directed verdict is granted, an appeal will be filed arguing the trial court’s error in granting the directed verdict.

James v. City of Tampa, 2016 WL 3201221 (Fla. 2d DCA 2016) was a personal injury action. The issue at trial was whether the plaintiff’s injuries from a car accident constituted a permanent injury (as this issue impacted damages to be awarded to the injured plaintiff). At the conclusion of all of the evidence, the trial court granted the defendant’s motion for directed verdict on the issue of whether the plaintiff suffered a permanent injury, meaning the directed verdict prevented the jury from considering whether the injuries were permanent, and if so, damages associated with the permanent injuries. Naturally, the plaintiff appealed.

Regarding the challenging burden in granting a motion for directed verdict:

A motion for directed verdict should be granted only where no view of the evidence, or inferenced made therefrom, could support a verdict for the nonmoving party. In considering a motion for directed verdict, the court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor of the nonmoving party. In there are conflicts in the evidence or different or reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury. The standard of review on appeal of the trial court’s ruling on a defendant’s motion for directed verdict is the same test used by the trial court in ruling on the motion.

James, supra, quoting Sims v. Cristinzio, 898 So.2d 1004, 1005-06 (Fla. 2d DCA 2005).

Here, the appellate court had no choice but to reverse the directed verdict remanding the matter back to the trial court for a new trial as to damages. The plaintiff put on expert testimony regarding the issue of permanent damages and the defendant cross-examined the plaintiff and presented its own rebutting expert. Thus, the issue of permanency was really a question for the jury as the directed verdict would only be appropriate where “the evidence of injury and causation is such that no reasonable inference could support a jury verdict for the plaintiff…on the permanency issue.” James, 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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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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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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Proximate Causation in a Negligence Action and the Granting of a Directed Verdict in a Negligence Action

Posted by David Adelstein on March 07, 2015
Burden of Proof, Evidence / Comments Off on Proximate Causation in a Negligence Action and the Granting of a Directed Verdict in a Negligence Action

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Mostly everyone has heard of the term “negligence.” Negligence actions oftentimes form the basis of personal injury claims and, in certain instances, property damage claims. (For example, this article discusses negligence actions in premise liability claims.)

To prove a negligence claim, a plaintiff must prove the following elements: 1) the defendant owed a duty of care to the plaintiff, 2) the defendant breached that duty of care, 3) the defendant’s breach proximately caused damages to the plaintiff, and 4) the plaintiff suffered injuries / damages.

The Florida Supreme Court in Sanders v. ERP Operating, Ltd. Partnership, 2015 WL 569041 (Fla. 2015) recently discussed the application of a directed verdict in a negligence action (the case was a negligent security action). The district court of appeal held that the plaintiff, as a matter of law, failed to prove the element that her injuries were proximately caused by the defendant’s breach of a duty of care. The Florida Supreme Court reversed with two important rulings regarding 1) the element of proximate causation in a negligence action and 2) the granting of a directed verdict in a negligece action.

Element of Proximate Causation in Negligence Action

 

 As to the element of proximate causation, the Florida Supreme Court held:

“Whether or not proximate causation exists is a question of fact, involving an inquiry into whether the respondent’s [defendant] breach of duty [of care] foreseeably and substantially contributed to the plaintiff’s injuries. This Court has made clear that plaintiffs alleging negligence in Florida must meet the more likely than not standard of causation as Florida courts require proof that the negligence probably caused the plaintiff’s injury.”

Sanders, supra, at *3 (internal citations and quotations omitted).

Directed Verdict in Negligence Action

 

As to the granting of a directed verdict, the Florida Supreme Court held:

“In order for a court to remove the case from the trier of fact and grant a directed verdict, there must only be one reasonable inference from the plaintiff’s evidence. Where the jury only has to draw one inference from direct evidence to reach a decision regarding the defendant’s negligence, the jury is entitled to make the ultimate factual determination regarding whether the defendant’s breach was the proximate cause of the harm suffered. Thus, if the jury is forced to stack inferences to find that the plaintiff presented a prima facie case of the defendant’s negligence, then a directed verdict is warranted. An appellate court reviewing the grant of a directed verdict must view the evidence and all inferences of fact in the light most favorable to the non-moving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the non-moving party.”

Sanders, supra, at *3 (internal citations and quotations omitted).

Take-Aways

 

The following bullet points are important take-aways from this Florida Supreme Court case:

  • When proving a negligence action, make sure you understand the elements you need to prove and the evidence required to support the elements.
  • The element of proximate causation is typically a question of fact and is generally proven by the “more likely than not” standard—the plaintiff must prove that the defendant’s breach probably (e.g., more likely than not) caused the plaintiff’s injuries / damage.
  • A directed verdict entered against a plaintiff will only be proper if no proper view of the evidence and all inferences from the evidence can sustain a verdict in favor of the plaintiff as a matter of law.

 

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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