KENNETH L. TOBIN, APPELLANT,
v.
ALFIERI MASERATI, S.P.A., A FOREIGN CORPORATION AND MASERATI AUTOMOBILES, INC., A FOREIGN CORPORATION, APPELLEES
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Kenneth Tobin appeals an adverse jury verdict in a Florida Lemon Law case against Maserati manufacturers. The Third District Court of Appeal affirms the judgment, rejecting Tobin's arguments regarding directed verdict entitlement, manifest weight of evidence, excluded testimony, and trial counsel's final argument.
The court affirmed the judgment, holding that: (1) the jury verdict was supported by substantial competent evidence and was not against the manifest weight; (2) plaintiff's evidence was contradicted by defense testimony and exhibits; (3) any evidentiary error was not properly preserved and was harmless; and (4) without trial objection and absent fundamental error, defense counsel's argument did not warrant reversal.
[1] A jury verdict is supported by substantial competent evidence when the record contains sufficient evidence to sustain the verdict.
[2] Evidence of alleged statutory violations is contradicted when defense testimony and exhibits present an opposing view.
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Establishes the standard for reviewing jury verdicts and the court's finding that the verdict was not against the manifest weight of evidence.
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Join FLexlaw to unlock all legal intelligenceTobin brought an action under the Florida Motor Vehicle Warranty Enforcement Act (Lemon Law) against Alfieri Maserati and Maserati Automobiles. The ju…
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PER CURIAM.
The plaintiff Kenneth L. Tobin appeals an adverse final judgment based on a jury verdict entered in an action based on the Florida Motor Vehicle Warranty Enforcement Act [“Lemon Law”]. Ch. 681, Fla.Stat. (1985). He raises three points on appeal, as well as a subsidiary evidentiary point. None of these points present reversible error, and, accordingly, we affirm.
First, we reject the plaintiff’s point in which he contends that he was entitled to a directed verdict at trial, or at least new trial, because (a) the jury verdict was against the manifest weight of the evidence, (b) the plaintiff’s evidence showing violations of the “Lemon Law” [§§ 681.-101-681.111, Fla.Stat. (1985)] was uncon-troverted, and (c) the trial court erred in excluding certain statements of the defendants’ agents. A careful review of the trial transcript and briefs of the parties discloses that the jury verdict is supported by substantial competent evidence; see Groth Air Serv., Inc. v. Florida Freight Terminal, Inc., 489 So. 2d 785 (Fla. 3d DCA 1986); Thompson v. Jacobs, 314 So. 2d 797, 799-800 (Fla. 1st DCA 1975); Bryans v. Sears, Roebuck & Co., 191 So. 2d 624, 625 (Fla. 1st DCA 1966), the plaintiff’s evidence of alleged “Lemon Law” violations by the defendants was contradicted by defense testimony and exhibits; see Martin v. Stone, 51 So. 2d 33, 35 (Fla.1951); Altman Cooling Corp. v. Florida Heat & Power, Inc., 305 So. 2d 225, 226 (Fla. 4th DCA 1974), cert. denied, 330 So. 2d 725 (Fla.1975); Nunberg v. Brodsky, 224 So. 2d 727, 729 (Fla. 3d DCA 1969); and the claimed evidentiary error was not properly preserved for appellate review by a proffer of the excluded testimony, and the error, if any, was entirely harmless. See Lawson v. Loftin, 155 Fla. 685, 688, 21 So. 2d 202, 204 (1945); Crawford v. Shivashankar, 474 So. 2d 873, 874 (Fla. 1st DCA 1985); Musachia v. Terry, 140 So. 2d 605, 607-08 (Fla. 3d DCA 1962).
Second, we reject the plaintiffs point in which he asserts that he was entitled to a new trial because of defense counsel’s final argument to the jury. No objection was raised at trial to this argument and no showing of fundamental error has been made. White Constr. Co. v. Dupont, 455 So. 2d 1026, 1030 (Fla.1984); Kinya v. Lifter, Inc., 489 So. 2d 92, 94 (Fla. 3d DCA), rev. denied, 496 So. 2d 142 (Fla.1986); Nelson v. Reliance Ins. Co., 368 So. 2d 361, 361-62 (Fla. 4th DCA 1978).
Third, we reject the plaintiffs cumulative error point based on the above two points. No reversible error of any nature has been shown in this case. The final judgment under review is, therefore, in all respects
Affirmed.
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Holmes v. Redland Constr. Co., 557 So. 2d 911 (Fla. 3d DCA 1990)…or review. The rule is well settled that when a party fails to make a proffer of excluded evidence, any alleged error is not preserved for review. Callihan v. Turtle Kraals, Ltd., 523 So. 2d 800 (Fla. 3d DCA 1988); Tobin v. Alfieri Maserati, S.P.A., 513 So. 2d 699 (Fla. 3d DCA 1987), review denied, 520 So. 2d 586 (Fla.1988). Having concluded that a third contention raised by Holmes is without merit, the final judgment appealed from is affirmed.…
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Valenti v. Elser, 660 So. 2d 814 (Fla. 3d DCA 1995)…74 (Fla. 1st DCA 1993); Holmes v. Redland Constr. Co., 557 So. 2d 911 (Fla. 3d DCA 1990); Callihan v. Turtle Kraals, Ltd., 523 So. 2d 800 (Fla. 3d DCA 1988); Hutchins v. Hutchins, 522 So. 2d 547 (Fla. 4th DCA 1988); Tobin v. Alfieri Maserati, S.P.A, 513 So. 2d 699 (Fla. 3d DCA 1987), review denied, 520 So. 2d 586 (Fla.1988); Klondike, Inc. v. Blair, 211 So. 2d 41 (Fla. 4th DCA 1968); Cooley v. Rahilly, 200 So. 2d 258 (Fla. 4th DCA 1967), cert. denied, 207 So. 2d 690 (Fla.1967); Sutter v. Sutter, 172 So. 2d 91…
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Republic Nat'l Bank v. Araujo, 697 So. 2d 164 (Fla. 3d DCA 1997)…1030 (Fla. 1984); Americare Retirement Facilities, Ltd. No. 1 v. Linden, 664 So. 2d 1080, 1080 (Fla. 3d DCA 1995); Taylor v. Public Health Trust, 546 So. 2d 733, 734 (Fla. 3d DCA), review denied, 557 So. 2d 867 (Fla.1989); Tobin v. Alfieri Maserati, 513 So. 2d 699, 700 (Fla. 3d DCA 1987), review denied, 520 So. 2d 586 (Fla.1988); Brumage v. Plummer, 502 So. 2d 966, 968-69 (Fla. 3d DCA), review denied, 513 So. 2d 1062 (Fla.1987). As to the cross-appeal, we reverse the trial court’s denial of attorney’s fees t…
Authorities Cited (13 total)
- White Constr. Co., Inc. v. Dupont, 455 So. 2d 1026 (Fla. 1984)
- Martin v. Stone, 51 So. 2d 33 (Fla. 1951)
- Maynard Nelson and Myrtle Nelson v. Reliance Ins. Co., 368 So. 2d 361 (Fla. 4th DCA 1978)
- Musachia v. Terry, 140 So. 2d 605 (Fla. 3d DCA 1962)
- Thompson v. Jacobs, 314 So. 2d 797 (Fla. 1st DCA 1975)
- Kinya v. Lifter, Inc., 489 So. 2d 92 (Fla. 3d DCA 1986)
- Drowne v. Fla. Indus. Comm'n & DCS/Comptroller, 224 So. 2d 727 (Fla. 1st DCA 1969)
- Crawford v. Latha Shivashankar & Allstate Ins. Co., 474 So. 2d 873 (Fla. 1st DCA 1985)
- Corinne Lawson v. Loftin, 155 Fla. 685 (Fla. 1945)
- Groth AIR Serv., Inc. v. Fla. Freight Terminal, Inc., 489 So. 2d 785 (Fla. 3d DCA 1986)