H. HARRY BRANAM AND JEANETTE BRANAM, APPELLANTS,
v.
AQUA-CLEAR POOLS, INC., APPELLEE
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The Branams appealed a jury verdict in favor of Aqua-Clear Pools after the contractor sued for unpaid contract balance. The court reversed, finding the verdict manifestly against the weight of evidence demonstrating clear photographic proof of defective workmanship in pool, spa, and patio construction.
The verdict was manifestly against the weight of the evidence and contrary to its legal effect. The court reversed and remanded with directions to enter judgment for the Branams against Aqua-Clear, enter partial judgment establishing Aqua-Clear's liability to the Branams, and grant a new trial on damages.
[1] A jury verdict is against the manifest weight of the evidence when it is clearly and unequivocally contradicted by the record, including photographic evidence.
[2] A court may reverse a jury verdict and remand for a new trial when the verdict is manifestly against the weight of the evidence and contrary to its legal effect.
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Join FLexlaw to unlock all legal intelligence“The record, including photographic evidence, clearly and unequivocally demonstrates flawed workmanship by Aqua-Clear.”
Establishes the factual basis for the appellate reversal—objective evidence of defective performance
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Join FLexlaw to unlock all legal intelligenceThe Branams hired Aqua-Clear, the highest-priced of three bidders, based on promised first-class workmanship for pool, spa, and patio construction. Aq…
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FLETCHER, Judge.
J. Harry Branam and his wife, Jeanette Branam [the Branams], appeal an adverse final judgment and a judgment of attorney’s fees, entered after a jury verdict in favor of Aqua-Clear Pools, Inc. We find that the verdict was against the manifest weight of the evidence and reverse both judgments.
The Branams entered into a contract with Aqua-Clear for the construction of a pool, spa, and patio, after having requested price estimates from Aqua-Clear and two other companies. Aqua-Clear, although the highest in price of the companies, was selected by the Branams on the basis of its promise of first-class workmanship. Aqua-Clear’s performance under the contract was not to the satisfaction of the Branams, who declined to pay the balance of the contract price. Aqua-Clear sued for the balance and the Branams counterclaimed for damages incurred in correcting allegedly unworkmanlike performance by Aqua-Clear.
The record, including photographic evidence, clearly and unequivocally demonstrates flawed workmanship by Aqua-Clear. The interlocking bricks of the patio were installed without the proper foundation, causing gaps; the patio was not pitched, causing drainage problems (the only drainage available being through the gaps in the interlocking bricks); the border of the patio was a non-matching cement finish; the pool pump room was built so as to lean over; the spa was built out of round; etc. The Branams were forced to contract for and expend sums for corrective work. The proper result was then achieved, as reflected by subsequently taken photographic evidence.
We are unable to reach into the jurors’ minds to determine what swayed them in arriving at a verdict in favor of Aqua-Clear.
However, the verdict was “ ‘manifestly against the weight of the evidence [and] contrary to [its] legal effect,’ [thus] [i]n con science we could not allow this result to stand.” See State v. Moses, — So. 2d-[1996 WL 82673], 21 Fla.L.Weekly D525, D526 n. 1 (Fla. 3d DCA February 28, 1996) (citing Florida Nat’l Bank of Gainesville v. Sherouse, 80 Fla. 405, 86 So. 279 (1920)), and cases cited therein.
Accordingly, in case no. 94-2564, we reverse and remand with directions to (1) enter judgment in favor of the Branams in the action brought by Aqua-Clear; (2) enter partial judgment for liability of Aqua-Clear in the action brought by the Branams; and (3) grant a new trial on the issue of the amount of damages in the Bra-nams’ claim against Aqua-Clear. In case no. 95-2951, we reverse the judgment of attorney’s fees.
Reversed and remanded.
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Nisaratana ("Kitty") Russell and George Russell v. KSL Hotel Corp., 887 So. 2d 372 (Fla. 3d DCA 2004)…had ruled otherwise. Miller v. First American Bank and Trust, 607 So. 2d 483 (Fla. 4th DCA 1992); see Florida Nat'l Bank v. Sherouse, 80 Fla. 405, 86 So. 279 (1920); Newman v. Smith, 77 Fla. 633, 82 So. 236 (1918); Branam v. Aqua-Clear Pools, Inc., 672 So. 2d 69 (Fla. 3d DCA 1996); Ziontz v. Ocean Trail Unit Owners Ass’n, Inc., 663 So. 2d 1334 (Fla. 4th DCA 1993). Accordingly, I would order a new trial in this case.…
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Miami-Dade Police Dep't v. Martinez, 838 So. 2d 672 (Fla. 3d DCA 2003)…reverse the finding, even though the trial judge personally saw and heard the witnesses testify, and even though there were conflicts in the testimony, and there was some evidence tending to support the finding.”); Branam v. Aqua-Clear Pools, Inc., 672 So. 2d 69 (Fla. 3d DCA 1996); Ziontz v. Ocean Trail Unit Owners Ass’n, Inc., 663 So. 2d 1334 (Fla. 3d DCA 1993). We are content, however, to malee this observation only in dictum and place it only in a footnote because even accepting the trial judge's findin…
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Dennies Contracting Co., Inc. v. Burton H. Hersh, 702 So. 2d 1381 (Fla. 3d DCA 1997)…f the evidence and the “justice of the cause” as to fall within that narrow class of cases in which an appellate court may grant a new trial notwithstanding the existence of evidence which justifies the verdict, see Branam v. Aqua-Clear Pools, Inc., 672 So. 2d 69 (Fla. 3d DCA 1996), we are bound to affirm. See Espino v. Anez, 665 So. 2d 1080 (Fla. 3d DCA 1995); Raheb v. Di Battisto, 483 So. 2d 475 (Fla. 3d DCA 1986). Affirmed.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Fla. Nat'l Bank of Gainesville v. Sherouse, 80 Fla. 405 (Fla. 1920)