Florida Court Cases - Case Law and Opinions from the Courts of Florida - unoffical reports - Opinions

ROMINGER LEGAL

Florida Case Law & Florida Court Opinions - Florida Law

Need Legal Help?

LEGAL RESEARCH CENTER

LEGAL HEADLINES - CASE LAW - LEGAL FORMS

NOT FINDING WHAT YOU NEED? -CLICK HERE

This court case was taken from the Florida Court's web site. Search our site for more cases - CLICK HERE

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
KEITH JORDAN and
NOT FINAL UNTIL TIME EXPIRES TO
LESLEY JORDAN,
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED.
Appellants,
v.
CASE NO.: 1D01-3526
TERRY LEE BROWN and
JOHN E. BROWN, JR.
_____________________/
Opinion filed September 26, 2003.
An appeal from the Circuit Court for Leon County.
Nikki Ann Clark, Judge.
Harold R. Mardenborough Jr., of McFarlain & Cassedy, P.A., Tallahassee, for
Appellants.
Thomas J. Brown and Hubert R. Brown of Brown and Brown, P.A., Tallahassee, for
Appellees.
VAN NORTWICK, J.
Keith Jordan and Lesley Jordan, defendants in a statutory liability suit filed by
Terry Lee Brown and her husband, John E. Brown, Jr., appellees, pursuant to section
767.01, Florida Statutes (1995), appeal an amended final order determining that the jury

verdict in their favor was against the manifest weight of the evidence and awarding the
Browns a new trial. Because we conclude that the trial court abused its discretion, we
reverse.
Mrs. Brown was employed as a home health aide by Tallahassee Memorial
Regional Medical Center. In that capacity, she worked in the Jordans' home. While
at the Jordans' home, the Jordans' dog aggressively jumped on Mrs. Brown, causing
her to fall. She finished work that day. Over the next few days Mrs. Brown saw
several physicians complaining of back pain. The Browns filed an action against the
Jordans seeking damages for statutory liability under section 767.01, Florida Statutes
(1995)("Owners of dogs shall be liable for any damage done by their dogs to a
person. . . ."). The Jordans acknowledged that their dog caused Mrs. Brown to fall,
admitted liability under section 767.01, but denied that she suffered any injury.
Because the Jordans admitted statutory liability, at trial, the central issue was
whether Mrs. Brown had suffered an injury in the fall. The medical records and notes
or testimony of the physicians who examined her for complaints of pain were
introduced into evidence. The record reflects that none of these physicians found any
objective basis for Mrs. Brown's subjective complaints of pain or could opine that she
suffered any permanent injury as a result of the fall. Mrs. Brown introduced the
testimony of a chiropractor and a physical rehabilitation doctor, each of whom opined
2

that she had suffered a permanent injury.
At trial, the Jordans also introduced a surveillance tape of Mrs. Brown, which
showed her fully ambulatory and having no difficulty performing her varied work
tasks. This tape was markedly different than a videotape taken of Mrs. Brown in the
doctor's office only a few months earlier, in which Mrs. Brown appeared to be having
considerable difficulty performing tasks. Counsel for the Jordans stressed the
differences in these videos to the jury, challenging Mrs. Brown's credibility. In
addition, the Jordans demonstrated inconsistencies in Mrs. Brown's testimony and her
lack of candor with the economist who testified as an expert on her behalf.
On the jury verdict form, the first question for the jury was whether Mrs. Brown
had suffered an injury as a result of the fall caused by the Jordans' dog. At the
conclusion of the trial, the jury returned a verdict finding that Mrs. Brown had not
suffered an injury as a result of the fall. Accordingly, the jury never answered the
remaining questions concerning the amount of damages sustained by Mrs. Brown.
Thereafter, the Browns filed a motion for new trial or, alternatively, motion for
an additur. The trial court entered an order granting a new trial. The initial order,
however, failed to set forth the specific grounds for the trial court's action. Pursuant
to rule 1.530(f), Florida Rules of Civil Procedure, and Prime Motor Inns, Inc. v.
Waltman, 480 So. 2d 88, 89-90 (Fla. 1985), this court relinquished jurisdiction and the
3

trial entered an amended order granting new trial which provides, in pertinent part, as
follows:
The uncontroverted evidence at trial was that the plaintiff had fallen
and been injured when the defendants' dog aggressively jumped
on or at her. There was no conflicting testimony as to the reason
for the plaintiff's fall. The identity and ownership of the dog were
not even contested issues. There was uncontroverted testimony
that plaintiff was injured and incurred medical bills as a result of
the fall. There was substantial controversy over the extent of the
plaintiff's injury, but none over the fact that she was permanently
injured as a result of the dog's conduct. The jury returned a
verdict finding that the dog's conduct was not the legal cause of
the plaintiff's injury. The verdict failed to comport with the
manifest weight of the evidence. Accordingly, the plaintiff is
entitled to a new trial.
The trial judge has broad discretionary authority in granting a new trial on the
grounds that the verdict is contrary to the manifest weight of evidence. See Brown v.
Estate of Stuckey, 749 So. 2d 490, 497-98 (Fla. 1999); Baptist Memorial Hospital, Inc.
v. Bell, 384 So. 2d 145, 146 (Fla. 1980). As the Brown court explained:
The trial judge's discretionary power to grant a new trial on
the grounds that the verdict is contrary to the manifest
weight of the evidence is the only check against a jury that
has reached an unjust decision on the facts. This
discretionary power emanates from the common law
principle that it is the duty of the trial judge to prevent what
he or she considers to be a miscarriage of justice. The role
of the trial judge is not to substitute his or her own verdict
for that of the jury, but to avoid what, in the judge's trained
and experienced judgment, is an unjust verdict.
4

Brown, 749 So. 2d at 495 (citations omitted). The trial court should always grant a
new trial if the jury has been deceived as to the force and credibility of the evidence
or has been influenced by considerations outside the record. Cloud v. Fallis, 110 So.
2d 669, 673 (Fla. 1959). Brown also explained our standard of review in an appeal of
an order granting a new trial:
When reviewing the order granting a new trial, 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. The fact that there may be substantial,
competent evidence in the record to support the jury verdict
does not necessarily demonstrate that the trial judge abused
his or her discretion.
Brown, 749 So. 2d at 497-98.
Here, the trial court ruled that the verdict was contrary to the manifest weight of
the evidence. This determination was based solely on the trial court's findings, as
stated in the order under review, that "[t]here was uncontroverted testimony that
plaintiff was injured and incurred medical bills as a result of the fall" and, further,
although there was substantial controversy over the extent of her injuries, that there
was "none over the fact that she was permanently injured as a result of the dog's
conduct." We find no record basis, however, to support the trial court's reasoning
5

in the order under review.
Liability was not contested at trial. However, whether Mrs. Brown had been
injured in the fall and the extent of her injuries were hotly contested, contrary to the
findings of the trial court's order. Mrs. Brown's case turned largely upon her
testimony that she injured her back in the fall caused by the Jordans' dog. The
Jordans introduced considerable testimony and a surveillance tape which demonstrated
inconsistencies in her story on material issues in the case. The Jordans' impeachment
of Mrs. Brown's testimony was legally sufficient to place her credibility in question.
As a result, the jury was entitled to judge her credibility and accept or reject her
testimony on all issues. See Roach v. CSX Transportation, Inc., 598 So. 2d 246, 250
(Fla. 1st DCA 1992). Because Mrs. Brown's entire case rose or fell on her testimony,
"if the jury disbelieved [Mrs. Brown's] story, then [her] entire claim for damages for
injuries collapsed." Chomont v. Ward, 103 So. 2d 635, 637-38 (Fla. 1958).
In reviewing an order granting new trial we are dependent on the trial court to
articulate reasons supporting its order. Wackenhut Corp. v. Canty, 359 So. 2d 430,
435 (Fla. 1978)("Orders granting motions for new trials should articulate reasons for
so doing so that appellate courts may be able to fulfill their duty of review by
determining whether judicial discretion has been abused."). For the reasons explained
above, we conclude that the trial court's finding that there was no controversy over
6

the fact that Mrs. Brown was permanently injured has no support in the record and is
clearly erroneous. Further, because it is clear from the record that the issue of whether
plaintiff was injured in the fall was highly controverted, the trial court's finding that
"[t]here was uncontroverted testimony that plaintiff was injured" is similarly clearly
erroneous. Accordingly, we find that the trial court abused its discretion under the
Brown test. Brown, 749 So. 2d at 496-98; see also Borino v. Publix Supermarkets,
Inc., 825 So. 2d 424, 426-27 (Fla. 4th DCA 2002); Department of Transportation v.
Rosario, 782 So. 2d 927 (Fla. 2d DCA 2001); Bailey v. Sympson, 148 So. 2d 729,
731 (Fla. 3d DCA 1963).
The trial court's order granting a new trial is REVERSED.
BOOTH AND HAWKES, JJ., CONCUR.
7

	ROMINGER LEGAL
		Florida Case Law & Florida Court Opinions - Florida Law
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE