TERESA ALDANA, APPELLANT,
v.
WINN-DIXIE STORES, INC., A FLORIDA CORPORATION, APPELLEE
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Teresa Aldana appealed from a jury verdict in a negligence and assault and battery case against Winn-Dixie Stores, Inc., challenging the comparative negligence offset and seeking a new trial on punitive damages. The jury awarded her $75,698.60 in compensatory damages (reduced by 30% comparative negligence) and $25,000 in punitive damages on the negligence claim, but found for the defendant on the assault and battery claim. The appellate court affirmed the judgment, rejecting all of the plaintiff's arguments for relief.
The appellate court affirmed the judgment, holding that: (1) the plaintiff waived the directed verdict argument by failing to move for one at the close of all evidence; (2) no abuse of discretion was shown in refusing to reinstruct on assault and battery, which involved no punitive damages issue; and (3) the plaintiff failed to show material injury from defense counsel's closing arguments, particularly since the jury found for her on liability and the punitive damages award was adequate.
[1] A party waives the right to appellate review of a trial court's failure to direct a verdict on a claim if the party does not move for a directed verdict on that claim at…
[2] Refusal to reread a jury instruction is not an abuse of discretion warranting a new trial unless sufficient record evidence demonstrates prejudice.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the plaintiff never moved for a directed verdict on the assault and battery claim at the close of all the evidence and, accordingly, has waived this point for appellate review”
Establishes that failure to make a timely motion for directed verdict waives the issue on appeal
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Join FLexlaw to unlock all legal intelligenceTeresa Aldana brought a negligence and assault and battery action against Winn-Dixie Stores, Inc. The jury found for the plaintiff on the negligence c…
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PER CURIAM.
This is an appeal by the plaintiff Teresa Aldana from a final judgment based on a jury verdict in a negligence/assault and battery action. The jury found for the plaintiff on her negligence claim and awarded her $75,698.60 in compensatory damages (reduced by a 30% comparative negligence finding) and $25,000 in punitive damages; the jury found for the defendant Winn-Dixie Stores, Inc., however, on the plaintiff’s assault and battery claim. The plaintiff claims that certain errors occurred below which entitle her to (1) a striking of the 30% comparative damage finding, and (2) a new trial on punitive damages only. We cannot agree and affirm.
First, the plaintiff contends that the trial court erred in not directing a verdict on her assault and battery claim, and that with such a directed verdict she would be entitled to the $75,698.60 compensatory damages awarded by the jury without the 30% comparative negligence offset. We reject this argument because the plaintiff never moved for a directed verdict on the assault and battery claim at the close of all the evidence and, accordingly, has waived this point for appellate review. Prime Motor Inns, Inc. v. Waltman, 480 So. 2d 88, 90 (Fla.1985).
Second, the plaintiff contends that the trial court erred in not rereading a jury instruction on assault and battery. We conclude that no abuse of discretion in refusing such reinstruction is shown on this record sufficient to entitle the plaintiff to a new trial, as urged, on punitive damages only. Indeed, the subject instruction had nothing to do with punitive damages. Henry v. State, 359 So. 2d 864 (Fla.1978); Bennett M. Lifter, Inc. v. Varnado, 480 So. 2d 1336 (Fla. 3d DCA 1985), rev. dismissed, 484 So. 2d 7 (Fla.1986).
Third, the plaintiff contends that the trial court erred in denying her motion for new trial on punitive damages only based on the defense counsel’s final arguments to the jury. We reject this point because no showing is made on this record that any of these arguments, many of which were not even objected to, caused the plaintiff any material injury. The jury found for the plaintiff and awarded her $75,098.60 in compensatory damages which the plaintiff finds perfectly adequate; most, if not all, of the complained-of arguments go to the liability and compensatory damage issues on which the jury found for the plaintiff; and the amount of punitive damages awarded was perfectly adequate given the facts and circumstances of this case. See St. Regis Paper Co. v. Watson, 428 So. 2d 243, 247-48 (Fla.1973); Brumage v. Plummer, 502 So. 2d 966, 968-69 (Fla. 3d DCA), rev. denied, 513 So. 2d 1062 (Fla.1987); Gregory v. Seaboard Sys. R.R., 484 So. 2d 35, 38-39 (Fla. 2d DCA), rev. denied, 492 So. 2d 1334 (Fla.1986); Wasden v. Seaboard Coast Line R.R., 474 So. 2d 825 (Fla. 2d DCA 1985), rev. denied, 484 So. 2d 9 (Fla.1986).
Finally, we see no merit in the plaintiff’s point concerning the final judgment, and, accordingly, the said judgment is in all respects
Affirmed.
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Cited By
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Nordyne, Inc. v. Fla. Mobile Home Supply, Inc., 625 So. 2d 1283 (Fla. 1st DCA 1993)…e trial court’s denial of such a motion made prior to the close of the evidence. See, e.g., Prime Motor Inns, Inc. v. Waltman, 480 So. 2d 88 (Fla.1985); 6551 Collins Ave. Corp. v. Mitten, 104 So. 2d 337 (Fla.1958); Aldana v. Winn-Dixie Stores, Inc., 517 So. 2d 729 (Fla. 3d DCA 1987). Nordyne argues that the right to challenge on appeal the sufficiency of the evidence presented at trial may be preserved'either by a motion for directed verdict made at the close of the evidence, or by a motion for new trial. Th…
Authorities Cited
- Henry v. State, 359 So. 2d 864 (Fla. 1978)
- B.G. Wasden v. Seaboard Coast Line R.R. Co., 474 So. 2d 825 (Fla. 2d DCA 1985)
- ST. Regis Paper Co. v. J.B. Watson, Sr., 428 So. 2d 243 (Fla. 1983)
- Prime Motor Inns, Inc. v. Waltman, 480 So. 2d 88 (Fla. 1985)
- Bennett M. Lifter, Inc. v. Varnado, 480 So. 2d 1336 (Fla. 3d DCA 1985)
- Gregory v. Seaboard Sys. R.R., Inc., 484 So. 2d 35 (Fla. 2d DCA 1986)
- Corcoran v. State, 502 So. 2d 966 (Fla. 1st DCA 1987)
- Brumage v. Ritchie Plummer, D.O., 502 So. 2d 966 (Fla. 3d DCA 1987)