KENNETH S. BERN, APPELLANT,
v.
DAVID SPRING, APPELLEE

Fla. 3d DCA | 1990-07-31
No. 88-3066
Before BASKIN, JORGENSON and GODERICH, JJ.
565 So. 2d 809 Florida District Court of Appeal, Third District (1990) Positive Treatment
Cited by 8 cases

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Synopsis

Kenneth Bern appeals from an order granting a new trial after a jury verdict in his favor in a personal injury case. The appellate court reverses, finding that the trial court impermissibly usurped the jury's role as factfinder by granting a new trial based on the verdict being against the weight of the evidence when the facts were disputed.


Holding

The trial court abused its discretion by granting the new trial motion. Where facts are in dispute and the record reveals sufficient evidence to support the jury's verdict, a trial court cannot grant a new trial based on the verdict being against the weight of the evidence, as this impermissibly usurps the jury's role as factfinder.


Headnotes

[1] An appellate court reviews a trial court's order granting a new trial for a clear showing of abuse of discretion.

[2] A trial court abuses its discretion when granting a new trial if reasonable people could differ as to the propriety of the action taken.

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Key Quotes

“A verdict is against the clear weight of the evidence where the evidence 'is clear, obvious and indisputable.'”

Establishes the strict standard for overturning a jury verdict based on weight of evidence

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Facts & Procedural History

Bern was driving when he was approached by two vehicles in a threatening manner that sandwiched his car. As someone threw an item through his window a…

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Opinion of the Court
BASKIN, Judge.

BASKIN, Judge.

Kenneth S. Bern appeals from an order granting a new trial following a jury verdict in his favor. We reverse.

Bern was driving in his automobile when he was approached from behind by another vehicle. The vehicle turned toward Bern in a threatening manner. Bern stopped at a traffic light and another vehicle joined the first one, sandwiching Bern’s vehicle between the two cars. Bern attempted to evade the vehicles, but turned into an intersection they were blocking. As he tried to avoid the intersection, someone hurled an item through his window. Bern again attempted to leave the area, but one of the vehicles blocked his way. One of the occupants approached Bern’s car with an ax handle and began striking Bern’s vehicle. Again attempting to escape the situation, Bern backed up his vehicle, causing it to hit the vehicle which had transported David Spring to the scene. Spring alleged that he was seated in the back seat of the ear at the time.

Spring sued Bern for damages for personal injuries he incurred as a result of the collision. At trial, the testimony was conflicting as to the distance between Bern’s vehicle and the vehicle Spring was occupying, and as to whether Spring was in or out of the vehicle at the time it was struck. There was also testimony that Spring was “jumping around” at the scene and threatening Bern with a lawsuit in connection with a prior back operation. The jury returned a verdict in Bern’s favor. Spring moved for a new trial; the trial court granted the motion. Bern appeals.

In reviewing a post-trial order granting a new trial, the appellate court must give the trial court’s decision considerable deference. Rety v. Green, 546 So. 2d 410 (Fla. 3d DCA), review denied 553 So. 2d 1165 (Fla.1989). Where the court has expressed reasons for its order, the appropriate standard of review is whether there has been a clear showing of abuse of discretion by the trial court. Winn-Dixie Stores, Inc. v. Robinson, 472 So. 2d 722 (Fla.1985); Rety. “If reasonable [people] 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.” Baptist Memorial Hosp., Inc. v. Bell, 384 So. 2d 145, 146 (Fla.1980); Rety.

In its order granting Spring’s motion for a new trial on all issues, the trial court stated that “the verdict returned by the jury is against the manifest weight of the evidence.” The trial court indicated the evidence it felt should have persuaded the jury to find in Spring’s favor. “A verdict is against the clear weight of the evidence where the evidence ‘is clear, obvious and indisputable.’ ” McNair v. Davis, 518 So. 2d 416, 418 (Fla. 2d DCA 1988). However, a trial court cannot use this reason “to impanel itself as a ‘seventh juror with veto power.’ ” McNair, 518 So. 2d at 418 (citations omitted).

By granting the motion for a new trial, the trial court impermissibly usurped the jury’s power as factfinder. This case did not present a clear, indisputable series of events; the facts surrounding the incidents that occurred when Bern backed his car into the vehicle Spring was allegedly occupying were in dispute. The record reveals sufficient evidence and testimony to support a jury finding in Bern’s favor. Thus, the jury verdict was not contrary to the weight of the evidence. The trial court’s order granting a new trial was clearly improper and constituted an abuse of discretion. We therefore reverse the order granting a new trial, and remand for the entry of a final judgment consistent with the jury verdict.

Reversed and remanded.


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Citator

Cited By

  • Uniroyal Tire Co. v. Trujillo, 711 So. 2d 606 (Fla. 3d DCA 1998)
    …t of the evidence.” The law is clear that a verdict is against the manifest weight of the evidence only when it is clear, obvious, and indisputable that the jury was wrong. See Becker v. Williams, 652 So. 2d 1182 (Fla. 4th DCA 1995); Bern v. Spring, 565 So. 2d 809 (Fla. 3d DCA 1990); Andrews v. Tew, 512 So. 2d 276 (Fla. 2d DCA 1987); Crown Cork & Seal Co. v. Vroom, 480 So. 2d 108 (Fla. 2d DCA 1985). In applying this standard, we conclude that the trial court abused its discretion in granting a new’trial. We…
  • COX v. Am. Pioneer Life Ins. Co., 626 So. 2d 243 (Fla. 5th DCA 1993)
    …ted, Inc. v. Bockover, 374 So. 2d 96 (Fla. 2d DCA 1979), exercise of which must find support in the record. Russo v. Clark, 147 So. 2d 1 (Fla.1962); White v. Martinez, 359 So. 2d at 8. Applying the foregoing principles, the court in Bern v. Spring, 565 So. 2d 809 (Fla. 3d DCA 1990) reversed the trial court’s order granting a new trial for the stated reason that the verdict was against the manifest weight of the evidence. The trial court found that the evidence should have persuaded the jury to find in the pl…
  • Lake Worth Boating Ctr., Inc. v. Bomze, 591 So. 2d 235 (Fla. 4th DCA 1991)
    …ecord. See Wackenhut Corp. v. Canty, 359 So. 2d 430, 435 (Fla.1978); Eley v. Moris, 478 So. 2d 1100, 1104 (Fla. 3d DCA 1985). The appropriate standard of review is whether [*237] there has been a clear showing of abuse of discretion. Bern v. Spring, 565 So. 2d 809, 810 (Fla. 3d DCA 1990). We conclude there has been in this case. See McNair v. Davis, 518 So. 2d 416 (Fla. 2d DCA 1988); Gallagher v. Federal Ins. Co., 346 So. 2d 95, 97 (Fla. 3d DCA), cert. denied, 354 So. 2d 980 (Fla.1977); Yacker v. Teitch, 330…

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