В сложной финансовой ситуации приходит на помощь кредит наличными в Казахстане.

Fiduciary Duty Owed by Escrow Agent

Posted by David Adelstein on November 28, 2019
Trial Perspectives / Comments Off on Fiduciary Duty Owed by Escrow Agent

The use of escrow agreements and escrow agents is common.   They are used in relationship to purchase-sale or real estate contracts.  They are also used in relationship to certain settlement agreements.  The escrow agent may be a third-party, such as a title company or financial institution, or it may be a law firm representing a party in the transaction or case. 

An escrow agent owes a fiduciary duty to the parties to the escrow transaction or agreementCarter Development of Massachusetts, LLC v. Howard, 44 Fla. L. Weekly D2833a (Fla. 1st DCA 2019).  “Any limitation on the use of money placed in an escrow pursuant to an agreement is governed solely by the terms of that agreement.”  Id

While an escrow agent owes a fiduciary duty to a party to the escrow agreement, how escrowed monies will be disbursed are governed by that agreement. 

In Carter Development of Massachusetts, parties entered into an agreement associated with the investment in a real estate project.  An investor was depositing $650,000 into the developer’s law firm’s trust account where the money was held by the law firm pursuant to the terms of an escrow agreement between the developer and the law firm.   Subsequently, the developer and law firm entered into an escrow agreement governing the disbursement of the escrowed proceeds.

The investment or project failed and the investor wanted money back arguing that the money should not have been disbursed to the developer.  However the money, or most of it, was gone as the law firm disbursed the money pursuant to the escrow agreement with the developer.  The investor sued the law firm for, among other claims, breach of fiduciary duty by the escrow agent.  However, the investor was NOT a party to the escrow agreement.  This meant that the law firm, as the escrow agent, owed no duty to the investor – there was no fiduciary duty owed to the investor.

The moral is that if the investor wanted control as to the disbursement of the escrowed proceeds, it should have made itself a party to the escrow agreement and negotiated those terms. The investor’s current deal did not give the investor that right as it was not a party to the escrow agreement between the law firm and the developer.

 

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.

 

 

 

 

Tags: , , , ,

Code Enforcement Board Appeal

Posted by David Adelstein on November 24, 2019
Appeal, Standard of Review / Comments Off on Code Enforcement Board Appeal

If you have ever been in front of an enforcement board (such as a code enforcement board or have received a final order relating to a code enforcement issue), you may be familiar with your appellate rights under Florida Statute s. 162.11:

An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board to the circuit court. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board. An appeal shall be filed within 30 days of the execution of the order to be appealed.

You appeal the enforcement board’s final administrative order to the circuit court.  This is a plenary appeal as a matter of right.   

If you don’t like the circuit court’s ruling, then you can appeal by second-way certiorari to the district court, but this appeal is limited to: (1) whether the circuit court afforded procedural due process; and (2) whether the circuit court applied the correct law.  Central Florida Investments, Inc. v. Orange County, 2019 WL 5848987 (Fla. 5thDCA 2019).  This is a very tough appeal.

An example of second-way certiorari can be found in Central Florida Investments where the Orange County Code Enforcement Division cited the petitioner for a violation of the building code “with regard to what were deemed to be unsafe conditions in a structure that had been partially demolished.”  Central Florida Investments, 2019 WL at *1.   The petitioner contested the violation and a hearing was held with a final administrative order being entered against the petitioner.  The petitioner took an appeal asking the circuit court to reverse the final administrative order under a limited standard of appellate review.  This is a standard of review more limited than the plenary appeal the petitioner was entitled.  The petitioner did this because of confusing case law that would suggest this limited standard of review could arguably apply, however, such case law was not in reference to appeals under s. 162.11.  See Central Florida Investments.  

The district court of appeal, limited by its second-way certiorari review, granted certiorari ONLY because it appeared the circuit court did not apply the correct limited standard of appellate review.  The district court of appeal was going to hold the petitioner’s feet to the fire regarding the more limited standard of appellate review by the circuit court, but considering the circuit court, sitting in an appellate capacity, applied an incorrect standard of review, remanded the matter back to the circuit court to state whether the circuit court applied the limited appellate review the petitioner sought. 

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.

 

Tags: , , ,

How to Factor a Postoffer Settlement into a Proposal for Settlement Analysis

Posted by David Adelstein on November 17, 2019
Trial Perspectives / Comments Off on How to Factor a Postoffer Settlement into a Proposal for Settlement Analysis

A plaintiff may serve a proposal for settlement (a/k/a offer of judgment) to create a mechanism to recover attorney’s fees as the prevailing party.  When it comes to proposals for settlement served by the plaintiff on the defendant, Florida Statute s. 768.79 provides:

(b) If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney’s fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served.

For purposes of the determination required by paragraph (a), the term “judgment obtained” means the amount of the net judgment entered, plus any postoffer collateral source payments received or due as of the date of the judgment, plus any postoffer settlement amounts by which the verdict was reduced. For purposes of the determination required by paragraph (b), the term “judgment obtained” means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced.

Of interest is the underlined language talking about adding back “post offer settlement amounts” to the calculation.

For example, say the plaintiff sues multiple defendants.  It serves a proposal for settlement on a defendant and the defendant does not accept the proposal.  During the case, the plaintiff settles with the other defendant and proceeds to trial against the defendant that refused to accept the proposal.   The plaintiff’s net judgment would be reduced by the amount of the settlement BUT when it comes to determine whether the plaintiff should be entitled to its fees against the defendant it proceeded to trial against, this postoffer settlement is added back to the net judgment to see if plaintiff’s judgment is at least 25 percent more than the offer.

This was the situation in Wilcox v. Neville, 2019 WL 5584878 (Fla. 1st DCA 2019).  In this car accident case, a plaintiff sued two defendants.  During the case, the plaintiff served a proposal for settlement on each defendant.  One of the defendants  accepted the proposal against him for $60,400.  The other defendant did not accept the plaintiff’s proposal and the case moved to trial.  At trial, the jury returned a verdict for $126,592.33.  The trial judge reduced this amount by the $60,400 settlement with the co-defendant and insurance benefits, to come up with a net judgment amount of $58,856.73.  The issue, for purposes of determining whether the plaintiff should be entitled to attorney’s fees pursuant to its proposal, was whether the $60,400 should be added back to the net judgment of $58,856.73 for purposes of the attorney’s fees calculation.   The appellate court held the trial court was required to add this back:

Thus, the clear and unambiguous language of section 768.79(6) requires the judgment obtained to include the amount of any settlement by a co-defendant after the date of service of the offer on the defendant by which the verdict was reduced.  Here, it is undisputed that [plaintiff] reached a $60,400 settlement with [co-defendant] after serving her offer on [other defendant] and the verdict was reduced by that amount.  Accordingly, the trial court was required to add the $60,400 settlement amount to the net judgment in calculating the judgment obtained and determining [plaintiff’s] entitlement to fees. 

Wilcox, 2019 WL at *4.

Hence, when it comes to the attorney’s fees calculation for purposes of proposal for settlements, keep in mind that postoffer settlements will be added back into the calculation, even if the verdict or judgment is reduced by virtue of this settlement.

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.

 

Tags: , , ,

Refuting Affirmative Defenses in Motion for Summary Judgment

Posted by David Adelstein on November 10, 2019
Appeal, Burden of Proof / Comments Off on Refuting Affirmative Defenses in Motion for Summary Judgment

When a plaintiff moves for summary judgment, the plaintiff has the burden to negate affirmative defenses.   Failing to address applicable affirmative defenses provides no value because the plaintiff has not done anything to refute the defense or establish its legal insufficiency.  Summary judgment should not be granted if a plaintiff fails to address applicable affirmative defenses.   “‘Where the movant merely denies the affirmative defenses and the affidavit in support of summary judgment only supports the allegations of the complaint and does not address the affirmative defenses, the burden of disproving the affirmative defenses has not been met.’”  Hurchalla v. Homeowners Choice Property & Casualty Ins. Co., Inc., 44 Fla. L. Weekly D257a (Fla. 4th DCA 2019) quoting Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784, 786 (Fla. 5th DCA 2003).

For example, the case of Hurchalla involved an insurance coverage declaratory relief action where the insurer argued there is no coverage for an underlying action because the policy did not provide coverage for intentional acts.  During the case, the insurer moved for summary judgment, which was denied.  However, the underlying action went to trial and a verdict was entered against the insured based on the insured’s intentional act.  The insurer renewed its motion for summary judgment.  The insured opposed arguing that that the insurer had not negated her affirmative defenses.  The trial court nevertheless granted the insurer’s renewed motion for summary judgment.

The appellate court reversed.   The appellate standard of review of an order granting a motion for summary judgment is de novoHurchalla, supra.  

Here, the insured alleged affirmative defenses and nothing was done by the insurer to address their legal insufficiency or to factually disprove them.  “Where the defendant has raised affirmative defenses, the plaintiff must factually refute them or establish that they are legally insufficient before being entitled to summary judgment in its favor.”  Hurchalla, supra.  This failure to address affirmative defenses resulted in a reversal of the trial court’s granting of the motion for summary judgment.

 

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.

 

Authentication of Photograph at Trial

Posted by David Adelstein on November 03, 2019
Burden of Proof, Evidence / Comments Off on Authentication of Photograph at Trial

A photograph needs to be authenticated at trial just like any other evidence.  A recent decision impacts what can happen if a photograph at trial is NOT properly authenticated.

In City of Miami v. Kho, 44 Fla.L.Weekly D2555c (Fla. 3d DCA 2019), a plaintiff slipped and fell on a sidewalk.  The plaintiff claimed she slipped in a difference in elevation of the sidewalk which constituted a dangerous and defective condition that the City of Miami had knowledge of.  The plaintiff could not prove the City had actual knowledge of the difference in elevation of the sidewalk at-issue, so she focused on constructive knowledge.  To do this, the plaintiff introduced a Google Maps photograph.  (The case says Google Maps but perhaps it was a photograph from Google Earth.).   The photograph was years prior to the incident and depicted that the condition of the sidewalk with the elevation differential was in existence for years such that the City should have known about it. 

A photograph from Google Maps or Google Earth is not self-authenticating so it still needs to be properly authenticated.   However, the plaintiff did not present any testimony from anyone with personal knowledge of the sidewalk’s condition as of the date of the photograph.  The plaintiff also did not present any testimony from a Google representative or anyone with knowledge of Google’s photographing system.  The plaintiff simply introduced the photograph through her expert, despite objection from the City, even though the expert also could not authenticate the photograph. 

A jury awarded the plaintiff damages and the City appealed with the primarily appellate issue concerning the admission of the Google photograph into evidence. 

The Third District held there are two ways a photograph can be admitted into evidence:

“There are two methods of authenticating photographic evidence.”  The first is the “pictorial testimony” method, which requires a witness with personal knowledge to testify that the image fairly and accurately depicts a scene.  The second is the “silent witness” method, under which the photograph “may be admitted upon proof of the reliability of the process which produced the tape or photo.”  A trial judge may admit a photograph under the silent witness method after considering the following factors:

(1) evidence establishing the time and date of the photographic evidence;

(2) any evidence of editing or tampering;

(3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product;

(4) the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; and

(5) testimony identifying the relevant participants depicted in the photographic evidence.

Kho, supra (internal citations omitted).

Here, the Google photograph at-issue was not authenticated by a person. There was no testimony that the photograph fairly and accurately depicted the condition of the sidewalk as of the date stamp on the photograph.  Also, there was no testimony as to the authentication of the photograph under the silent witness method.  The plaintiff “did not present any evidence as to the operating capabilities or condition of the equipment used by Google Maps. There also was no testimony as to the procedures employed by Google Maps in taking the photograph. Given the lack of evidence as to any of the relevant factors [identified above], the trial court did not make any findings regarding admissibility under the silent witness method.”  Kho, supra

But, here is the harsh outcome of the fact that this Google photograph was not properly authenticated at trial.  The appellate court reversed and remanded with instructions to enter judgment in favor of the City.   Even though the plaintiff obtained a jury verdict at trial, the plaintiff does not get another bite out of the apple to retry her case with proper proof.  The plaintiff “was aware that the City would be contesting the photograph’s admissibility and had ample time to prepare the extrinsic evidence necessary to properly authenticate it. Thus, the City is entitled to judgment in its favor.”   Kho, supra.  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.

 

Tags: , , , ,

Must be a Meeting of the Minds for there to be a Settlement

Posted by David Adelstein on October 30, 2019
Trial Perspectives / Comments Off on Must be a Meeting of the Minds for there to be a Settlement

A settlement agreement is governed under the tenets of contract law – there needs to be a meeting of the minds for there to be a settlement.  Ideally, you want this meeting of the minds to be memorialized in writing in a settlement agreement.  However, what if it is not memorialized in a written settlement agreement?

As is true of contracts generally, a settlement agreement is formed “only when one party makes an offer and another party accepts it.”  An acceptance sufficient to create an enforceable agreement “must be (1) absolute and unconditional; (2) identical with the terms of the offer; and (3) in the mode, at the place, and within the time expressly or impliedly stated within the offer.”  This ensures that there is a “meeting of the minds” between the parties on all essential terms. “[W]here it appears that the parties are continuing to negotiate as to essential terms of an agreement, there can be no meeting of the minds.”

Basner v. Bergdoll, 44 Fla.L.Weekly D2593a (Fla. 1st DCA 2019) (internal citations omitted).

By way of example, in Basner, an automobile accident occurred. The accident was caused by a vehicle driven by the child of the owners.  The owners’ insurer sent a check to the plaintiffs and a release that required the plaintiffs to release the owners and their child.  The plaintiffs marked up the release because they did not want to release the owners’ child and signed the release, but held onto, and did not cash, the check.  The plaintiffs did not hear back from the insurer and ultimately returned the check and sued the owners and their child. 

The owners moved for summary judgment contenting there was a settlement agreement and they had been released.   The trial court agreed and enforced the release as to the owners.  The appellate court, however, reversed because there was NO meeting of the minds. The plaintiffs marked up the release and, thus, did not agree to the terms the insurer proposed in issuing the check, which was a release of the owners and the owners’ child.  Instead, the plaintiff’s made a counteroffer in marking up the release in agreeing to release only the owners.  When the plaintiffs did not hear back from the owners’ insurer, they returned the check ultimately terminating their counteroffer.  Hence, there was NO meeting of the minds.

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.

Tags: , , ,

Party Recovering Judgment Entitled to Recoverable Costs

Posted by David Adelstein on October 12, 2019
Appeal, Standard of Review / Comments Off on Party Recovering Judgment Entitled to Recoverable Costs

Florida Statute s. 57.041(1) provides, “The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.” 

Thus, in most cases, when it comes to the recovery of recoverable costs, if you obtain a judgment against the other party, you are entitled to such costs under section 57.041.   There is no analysis as to which party truly prevailed in the case (which is oftentimes the analysis when dealing with attorney’s fees). See Sherman v. Sherman, 2019 WL 4658446, *5 (Fla. 4th DCA 2019) (“Under section 57.041(1), costs should be awarded to the ‘party recovering judgment.’”).  If you recover a judgment in your favor, you should be entitled to recoverable costs. 

When a trial court denies a party’s costs, there is a de novo standard of appellate review.  See Sherman, 2019 WL at *2.  Also, when a party is appealing the excessiveness of the costs awarded to the opposing party that recovers a judgment in its favor, there is a de novo standard of appellate review.  Id.

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.

 

 

 

Tags: , , , , ,

Amended Complaints and the “Relation Back” Doctrine

Posted by David Adelstein on October 05, 2019
Appeal, Trial Perspectives / Comments Off on Amended Complaints and the “Relation Back” Doctrine

There is a doctrine known as the “relation back” doctrine that refers to amended complaints and the statute of limitations.  Assume an original complaint was filed within the applicable statute of limitations.  Assume after the statute of limitations expired, an amended complaint is asserted with new claims.  Do the new claims in the amended complaint RELATE BACK to the original complaint so that the new claims are deemed filed within the statute of limitations? 

The recent opinion in Mitchell v. Applebee’s Services, Inc., 44 Fla. L. Weekly D2443a (Fla. 1st DCA 2019) explains Florida’s liberal policy in answering this question:

Whether an amended complaint relates back to the filing of the original complaint for statute of limitations purposes is a question of law subject to de novo review. Caduceus Props., LLC v. Graney, 137 So. 3d 987, 991 (Fla. 2014). As the Florida Supreme Court explained in Caduceus:

Generally, Florida has a judicial policy of freely permitting amendments to the pleadings so that cases may be resolved on the merits, as long as the amendments do not prejudice or disadvantage the opposing party. . . .

Permitting relation back in this context is also consistent with Florida case law holding that [Florida Rule of Civil Procedure] 1.190(c) is to be liberally construed and applied.

Id. at 991-92.

In other words, as long as the initial complaint gives the defendant fair notice of the general factual scenario or factual underpinning of the claim, amendments stating new legal theories can relate back . . . even where the legal theory of recovery has changed or where the original and amended claims require the assertion of different elements.

Mitchell, supra.

The key inquiry to determine whether an amendment relates back or is barred by the statute of limitations is whether the party in question had notice of the litigation during the limitations period under the original pleadings and the amendment merely adjusts the status of an existing party, or the amendment actually introduces a new defendant.Id. quoting HSBC Bank USA, Nat’l Ass’n v. Karzen, 157 So.3d 1089, 1091-92 (Fla. 1st DCA 2015).

When it comes to amended complaints filed after the expiration of the statute of limitations, it is one thing if you are amending a complaint to assert a claim against a new party.  It is another if you are amending a complaint to add claims against existing defendants based on the same transactions and occurrences as the original complaint.

 

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.

 

Tags: , , ,

Uneven Floor Level Does Not, in of Itself, Support Premise Liability Claim

Posted by David Adelstein on September 28, 2019
Trial Perspectives / Comments Off on Uneven Floor Level Does Not, in of Itself, Support Premise Liability Claim

Does an uneven floor level, in of itself, support a premise liability claim?  No!  Uneven floor levels are not so uncommon. 

The case of Contardi v. Fun Town, LLC, dealt with this issue in the context of an uneven floor at a skating rink – the difference between the skating rink floor and building’s subfloor.  A person was injured when exiting the skating rink to the building’s subfloor and, consequently, filed a premise liability lawsuit.   The owner of the skating rink was granted summary judgment and the summary judgment was affirmed on appeal finding that a premise liability claim did not exist as a matter of law.  The appellate court affirmed the summary judgment with an informative discussion as to premise liability claims, particularly in the context of uneven floors:

An owner/occupier of land owes an invitee two duties: (1) to use ordinary care in keeping the premises in a reasonably safe condition; and (2) to give timely warning of latent or concealed perils that are known or should be known by the owner or occupier but that are not known to the invitee or that by the exercise of due care, could not have been known by the invitee.  However, there is no duty to warn an invitee of an obvious danger. This duty does not change from a residential to a commercial context. 

Uneven floor levels in public places, by themselves, do not constitute latent, hidden, and dangerous conditions.  Dim lighting does not transform an otherwise-obvious change in floor elevation into a latent danger.  According to her own deposition testimony, [the plaintiff] had earlier that visit successfully exited the skating rink onto the floor under the same lighting conditions that were present when she fell. Because the uneven floor levels, even in dim lighting, constituted an open and obvious danger, Fun Town [owner of skating rink] had no duty to warn B.C. of the difference in the levels between the rink and the rest of the building floor.

Lastly, while an obvious danger may discharge a landowner’s duty to warn, Fun Town still had a separate duty to maintain the premises in a reasonably safe condition. [The plaintiff] did not allege, argue, or present evidence in opposition to Fun Town’s summary judgment motion that the condition of the lip or step where B.C. fell was improperly maintained, in disrepair, or negligently designed. Accordingly, we conclude that the trial court properly entered summary judgment in favor of Fun Town.

Contardi, supra (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.

 

Tags: , , , ,

Improperly Moving to Set Aside the Verdict

Posted by David Adelstein on September 22, 2019
Appeal / Comments Off on Improperly Moving to Set Aside the Verdict

Florida Rule of Civil Procedure 1.480 governs motions for directed verdict and motions to set aside the verdict and to enter judgment pursuant to the directed verdict:

(a) Effect. A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury. A motion for a directed verdict shall state the specific grounds therefor. The order directing a verdict is effective without any assent of the jury.

(b) Reservation of Decision on Motion. 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. 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.

(c) Joined with Motion for New Trial. A motion for a new trial may be joined with this motion or a new trial may be requested in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.

The recent opinion in TLO South Farms, Inc. v. Heartland Farms, Inc., 44 Fla.L.Weekly D2385a (Fla. 2d DCA 2019), demonstrates what can happen if a defendant improperly moves to set aside a verdict based on a motion for directed verdict.  

In this case, a defendant moved for a directed verdict at the close of the plaintiff’s case-in-chief.  The court reserved ruling.  Due to the reservation, the defendant put on evidence to support its case.  The jury returned a verdict in favor of the plaintiff and the defendant filed a motion per Rule 1.480(b) to set aside the verdict and enter judgment in favor of the defendant per its motion for directed verdict. The defendant, also, per Rule 1.480(c), joined the motion with an alternative motion for a new trial. 

The trial court granted the motion to set aside the verdict and also granted the alternative motion for a new trial subject to the appeal (i.e., if the appellate court reverses the order to set aside the verdict, then the alternative motion for a new trial is granted).   The Second District reversed the trial court in entirety and remanded for the trial court to reinstate the jury’s verdict.  The appellate court’s basis for reversal, discussed below, is important to know.

Setting Aside the Verdict

 

The reason supporting the reversal as to the order to set aside the verdict was because the defendant’s motion to set aside the verdict per Rule 1.480(b) was based on an argument the defendant did NOT raise in its motion for directed verdict.  See TLO South Farms, supra (“[T]he trial court erred in granting the defendants’ motion to set aside the verdict and entering judgment in [defendant’s] favor on the FDUTPA [Florida’s Deceptive and Unfair Trade Practices Act] count based on their newly raised posttrial challenge to the evidence….”).  You cannot raise a new argument posttrial that was not raised in the motion for directed verdict.

Alternative Motion Granting New Trial

 

The trial court granted the alternative motion for new trial based on two issues: (i) the verdict on the Florida’s Deceptive and Unfair Trade Practice’s Act’s (“FDUTPA”) claim was inconsistent with the verdict on the negligence claim and (ii) the verdict on the FDUTPA claim was contrary to the manifest weight of the evidence.  

Regarding the first issue, the appellate court held that the defendant waived this argument because it never objected to inconsistent verdicts on the FDUTPA and negligence counts prior to the discharge of the jury.

Regarding the second issue, the appellate court held that a “trial court may order a new trial when the jury’s verdict is against the manifest weight of the evidence…[only when] the evidence is clear, obvious, and indisputable.”  TLO South Farms, supra (internal citations and quotations omitted).   The appellate court held the trial record did not support a ruling that the jury’s verdict was contrary to the manifest weight of the evidence.

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.

 

Tags: , , ,

Contact Me Now

Prove YOUR Case!

Contact:

David Adelstein ♦

(954) 361-4720 ♦

dadelstein@gmail.com