RUDOLPH J. FREI, M.D., P.A., AND RICHARD F. BROHAMMER, M.D., APPELLANTS,
v.
EVE ALGER AND DONALD ALGER, APPELLEES

Fla. 4th DCA | 1995-05-24
No. 94-0263
HERSEY, and GLICKSTEIN, JJ., concur., POLEN, J., dissents with opinion.
655 So. 2d 1215 Florida District Court of Appeal, Fourth District (1995) Positive Treatment
Cited by 7 cases

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Synopsis

The Fourth District Court of Appeal reversed a trial court's order granting a new trial on damages in a personal injury case. The appellate court found that the trial court abused its discretion by granting a new trial when the jury's nominal damages award was supported by the evidence and within the jury's discretionary authority.


Holding

The appellate court held that the trial court abused its discretion in granting a new trial because the record did not affirmatively show impropriety of the verdict, and the jury's nominal damages award was within its discretionary authority and supported by the evidence.


Headnotes

[1] An order granting a new trial is a discretionary decision that will not be reversed absent a showing of an abuse of discretion.

[2] A stronger showing of abuse of discretion is required to overturn an order granting a new trial than is required to overturn an order denying a new trial.

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Key Quotes

“a stronger showing of abuse of discretion is required to overturn an order granting a new trial than is required to overturn an order denying a new trial”

Establishes the stringent standard of review applicable to orders granting new trials

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Facts & Procedural History

Eve Alger was struck by a falling tree limb on premises controlled by Drs. Frei and Brohammer. Eve and her husband Donald sued for negligent failure t…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal from the trial court’s order granting appellees’ motion for a new trial on the issue of damages. For the reasons that follow, we reverse and remand with directions to reinstate the jury verdict.

Appellee Eve Alger was hit by a falling tree limb on premises controlled by appellants. Mrs. Alger and her husband sued appellants for negligently failing to maintain the premises in a reasonably safe condition. The case proceeded to a jury trial. The jury returned a verdict finding appellants the legal cause of Mrs. Alger’s injury and also finding Mrs. Alger forty percent at fault. The jury awarded nominal damages to Mrs. Alger. The jury did not award any damages on Mr. Alger’s claim for loss of consortium. The Algers filed a motion for a new trial which was granted by the trial court. The trial court stated in paragraph three of its order that:

3. This Court grants Plaintiffs Motion for New Trial on the issue of damages only, granting to the Plaintiffs a new trial on the issue of compensatory damages in that the jury failed to apply the applicable law to the evidence to such an extent that this Court, in its discretion, grants a new trial to the Plaintiff as the verdict of the jury on the issue of damages was contrary to the manifest wight [sic] of the evidence, and it is this Court’s opinion that the jury did not apply or take into consideration all elements of damages as charged by this Court.

An order granting a new trial is a discretionary decision which will not be reversed absent a showing of an abuse of discretion. Baptist Memorial Hosp. Inc. v. Bell, 384 So. 2d 145 (Fla.1980); Weems v. Dawson, 352 So. 2d 1196 (Fla. 4th DCA 1977), cert. denied, 359 So. 2d 1221 (Fla.1978).

Moreover, a stronger showing of abuse of discretion is required to overturn an order granting a new trial than is required to overturn an order denying a new trial. Castle-wood Int’l Corp. v. La Fleur, 322 So. 2d 520 (Fla.1975); Davis v. O’Dell, 506 So. 2d 1107 (Fla. 4th DCA 1987); Niebla v. Flying Tigers Line, Inc., 533 So. 2d 816 (Fla. 3d DCA 1988). The supreme court has also held that when the order under consideration is deficient as failing to include the record references in support of the trial court’s finding, the appellate court can independently review the record in support of that conclusion. Wackenhut Corp. v. Canty, 359 So. 2d 430, 435 (Fla.1978).

The trial court’s order did not contain reference to the record in support of the new trial and after an independent review of the record, we find none. As to past medical expenses, the jury was entitled to reject the various evidence of past medical expenses including the chiropractor’s undocumented testimony that there was three thousand dollars ($3,000.00) in past medical expenses. See Allstate Ins. Co. v. Thomas, 637 So. 2d 1008 (Fla. 4th DCA 1994) (jury entitled to reject expert medical testimony even if it was uncontradicted or contradicted by lay testimony).

As to future medical expenses, the jury exercised its discretion in not awarding these damages as any recovery would only be grounded on a mere probability that certain treatments might be obtained in the future. White v. Westlund, 624 So. 2d 1148, 1150 (Fla. 4th DCA 1993), review dismissed, 640 So. 2d 1109 (Fla.1994) (recovery of future medical expenses cannot be grounded on the mere possibility that certain treatment might be obtained at some point in the future).

Similarly, it was within the providence of the jury to not award future damages.

Finally, the jury’s zero award to Mr. Alger on his loss of consortium claim was not inconsistent, inadequate or against the manifest weight of the evidence. Tieche v. Panlener, 504 So. 2d 49 (Fla. 2d DCA 1987).

By only awarding nominal damages, the jury was sending a message that the injury in this case was minor. The record does not affirmatively show the impropriety of the verdict. Wackenhut, 359 So. 2d at 434. Nor was there an independent determination by the trial court that the jury was influenced by considerations outside the record. Id. We find that the trial court abused its discretion in granting a new trial on damages and reverse with directions to reinstate the jury verdict.

REVERSED AND REMANDED.

HERSEY, and GLICKSTEIN, JJ., concur. POLEN, J., dissents with opinion.

Dissent
POLEN, Judge,

POLEN, Judge,

dissenting.

I respectfully dissent. Notwithstanding the trial court’s failure to make specific references to the record in granting appellees’ motion for new trial, I believe the trial court was in the best position, having presided over the entire trial, to determine whether the verdict was against the manifest weight of the evidence. The majority recognizes the granting of a new trial is within the discretion of the trial court, and that a greater burden exists to overturn an order granting a new trial, as compared to an order denying a new trial. I would hold that appellants have failed to meet that high burden, and affirm.


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  • Hernandez v. Gonzalez, 124 So. 3d 988 (Fla. 4th DCA 2013)
    …tors, it also had a basis to reject their opinions about whether he was injured as a result of the accident.”). The law is also well-settled that a jury is entitled to reject evidence of past medical expenses in rendering its verdict. Frei v. Alger, 655 So. 2d 1215, 1216 (Fla. 4th DCA 1995). Here, the jury could accept or reject the evidence presented by Feliz, but decided by its verdict she did not suffer any loss, injury or damage from the accident. It is generally true that even when a jury finds the plain…
  • Veronica L. Robinson and Stephanie v. Robinson, 828 So. 2d 478 (Fla. 2d DCA 2002)
    …ere only $10,000 were supported by the evidence, and they were not inconsistent with the Dungan instruction. See Cameron v. Sconiers, 393 So. 2d 11 (Fla. 5th DCA 1980). The jury is entitled to reject evidence of past medical expenses. Frei v. Alger, 655 So. 2d 1215, 1216 (Fla. 4th DCA 1995). Where there is a dispute as to whether a plaintiffs injuries resulted from the accident, a verdict awarding the plaintiff only a portion of his damages does not require a new trial as a matter of law. Beauvais v. Edell, 76…
  • Rene Loyola, M.D. v. Metissia Ricks, 777 So. 2d 423 (Fla. 4th DCA 2000)
    …on by reserving ruling on the Plaintiffs motion for mistrial and subsequently granting the motion for new trial. With regard to the order granting a new trial, a trial court has broad discretion in determining a motion for new trial. Frei v. Alger, 655 So. 2d 1215, 1216 (Fla. 4th DCA 1995). However, “a stronger showing of abuse of discretion is required to overturn an order granting a new trial than is required to overturn an order denying a new trial.” Id. Section 768.041(3), Florida Statutes, provides that…

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