THELMA JENKINS, AS ADMINISTRATRIX OF THE ESTATE OF MERTON EARLE JENKINS, DECEASED, APPELLANT,
v.
ARAB TERMITE AND PEST CONTROL OF FLORIDA, INC., ET AL., APPELLEES
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The court affirmed the trial judge's grant of a new trial or remittitur reducing punitive damages from $125,000 to $50,000, holding that a trial judge may properly order such relief when punitive damages appear disproportionate to the defendant's culpability, applying an abuse of discretion standard.
The court affirmed that the trial judge did not abuse discretion because reasonable men could differ on whether the punitive damages award was disproportionate to the defendant's tortious conduct.
[1] A trial judge may order a new trial or remittitur of punitive damages when the manifest weight of the evidence shows the award is out of all reasonable proportion to the…
[2] A trial judge's finding that punitive damages are excessive must be affirmatively supported by the record or include a finding that the jury was influenced by matters out…
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Join FLexlaw to unlock all legal intelligence“the amount of the punitive damages awarded by the jury clearly shocked the judicial conscience of the Court, as under the facts of the case the acts of the defendant lacked the degree of maliciousness and/or outrageous disregard for the decedent's rights required to sustain the amount of the punitive damages verdict”
The trial judge's stated reason for ordering new trial or remittitur based on disproportionate punitive damages
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Join FLexlaw to unlock all legal intelligenceA jury awarded $125,000 in punitive damages in a case involving Arab Termite and Pest Control. The trial judge found the punitive damage award shockin…
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DANAHY, Judge.
The trial judge in this case entered an order granting a new trial as to all issues unless the appellant agreed to a remittitur reducing the punitive damages awarded by the jury from $125,000 to $50,000. In his order, the trial judge said that “the amount of the punitive damages awarded by the jury clearly shocked the judicial conscience of the Court, as under the facts of the case the acts of the defendant lacked the degree of maliciousness and/or outrageous disregard for the decedent’s rights required to sustain the amount of the punitive damages verdict.” On appeal to this court, we reversed on the ground that the trial judge’s stated reason for granting a new trial or remittitur was improper. Jenkins v. Arab Termite and Pest Control, 388 So. 2d 44 (Fla. 2d DCA 1980).
The supreme court quashed our decision, holding that it is proper for a trial judge to issue an order for a new trial or remittitur when the manifest weight of .the evidence shows that the amount of punitive damage assessed is out of all reasonable proportion to the malice, outrage, or wantonness of the tortious conduct. The court went on to say that either this finding must be affirmatively supported by the record or the judge must find that the jury was influenced by matters outside the record. Arab Termite and Pest Control v. Jenkins, 409 So. 2d 1039 (Fla.1982). Pointing out that because of the basis of our original opinion, we had not determined whether the trial court’s decision was affirmatively supported by the record (i.e., the manifest weight of the evidence) or by the findings in the judge’s order, the supreme court remanded the case to us to provide “the appropriate appellate review” as to that issue.
On remand, we have considered the briefs and oral argument of the parties on this issue and have reviewed the record. Although not stated in the supreme court’s opinion quashing our decision, we consider our duty of review to be a determination
whether the trial judge abused his discretion. That is the standard established in Cloud v. Fallis, 110 So. 2d 669 (Fla.1959), and reaffirmed in Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla.1978), and Baptist Memorial Hospital, Inc. v. Bell, 384 So. 2d 145 (Fla.1980). As stated in Baptist Memorial Hospital, Inc. v. Bell:
In reviewing this type of discretionary act of the trial court, the appellate court should apply the reasonableness test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980).
Applying the reasonableness test in this case, it is our opinion that reasonable men could differ on the question whether the manifest weight of the evidence showed that the amount of punitive damages assessed was out of all reasonable proportion to the malice, outrage, or wantonness of the tortious conduct of the appellee. Accordingly, we find no abuse of discretion and affirm.
HOBSON, A.C.J., and RYDER, J., concur.
PER CURIAM.
The motion for rehearing is denied. Remsberg v. Mosley, 58 So. 2d 432 (Fla.1952); Shank v. Fassoulas, 304 So. 2d 469 (Fla. 3d DCA 1974); 1661 Corp. v. Snyder, 267 So. 2d 362 (Fla. 1st DCA 1972); and Lawson v. Swirn, 258 So. 2d 458 (Fla. 1st DCA 1972).
HOBSON, A.C.J., and RYDER and DAN-AHY, JJ., concur.
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Ursula H. Smith v. Telophase Nat'l Cremation Soc'y, Inc., 471 So. 2d 163 (Fla. 2d DCA 1985)…y the jury on the issue of liability. 1661 Corporation v. Snyder, 267 So. 2d 362 (Fla. 1st DCA 1972). In reaching our conclusion on this issue, we were at first caused some concern by the apparent approval in Jenkins v. Arab Termite & Pest Control, 422 So. 2d 922 (Fla. 2d DCA 1982), of the trial court’s grant of a new trial as to all issues unless a remittitur had been agreed to reducing the amount of punitive damages. That case grew out of the earlier appeal to this court in Jenkins v. Arab Termite & Pest C…1 / 2
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Hockensmith v. Waxler, 524 So. 2d 714 (Fla. 2d DCA 1988)…Morgan, 213 So. 2d 632 (Fla. 3d DCA 1968). However, punitive damages may not be assessed in an amount which will clearly bankrupt or destroy a defendant. Arab Termite & Pest Control of Florida, Inc. v. Jenkins, 409 So. 2d 1039 (Fla.1982), on remand, 422 So. 2d 922 (Fla. 2d DCA 1982). In this case, the award of punitive damages greatly exceeded the firm’s net worth. Therefore, the denial of the motion for remittitur was error. Accordingly, we remand for remittitur of punitive damages. In the event remittitur…
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White v. Burger King Corp., 433 So. 2d 540 (Fla. 4th DCA 1983)…tory damage award entered against Camiami, Inc., we believe the justice of the cause requires a new trial on all issues. See, e.g., Baynard v. Liberman, 139 So. 2d 485 (Fla. 2d DCA 1962) and Jenkins v. Arab Termite and Pest Control of Florida, Inc., 422 So. 2d 922 (Fla. 2d DCA 1982). Accordingly, the judgment of the trial court is reversed with directions for further proceedings consistent herewith. ANSTEAD and HURLEY, JJ., and MINER, CHARLES E., Jr., Associate Judge, concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959)
- The Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla. 1978)
- Baptist Mem'l Hosp., Inc. v. Bell, 384 So. 2d 145 (Fla. 1980)
- Arab Termite & Pest Control OF Fla., Inc. v. Jenkins, 409 So. 2d 1039 (Fla. 1982)
- THE Florida BAR v. Hollingsworth, 409 So. 2d 1039 (Fla. 1982)
- The 1661 Corp. v. Snyder, 267 So. 2d 362 (Fla. 1st DCA 1972)
- Remsberg v. Mosley, 58 So.2d 432 (Fla. 1952)
- Shank v. Konstantinos Ioannis Fassoulas, 304 So. 2d 469 (Fla. 3d DCA 1974)
- In re Est. of Irving S. Richter, 258 So. 2d 458 (Fla. 3d DCA 1972)