JOHN M. SHANK AND DIXIE AUTO INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLANTS,
v.
KONSTANTINOS IOANNIS FASSOULAS, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, JOHN FASSOULAS, ET AL., APPELLEES
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The trial court granted a new trial after a jury returned an inconsistent verdict in an automobile-pedestrian injury case. The appellate court affirmed the grant of a new trial on all issues, rejecting the defendants' argument that the plaintiffs waived their right to challenge the verdict by failing to object before jury discharge, and determining that liability remained sufficiently contested to warrant retrial on that issue as well as damages.
The trial court properly exercised its discretion to grant a new trial on all issues. A party's failure to timely object to verdict form does not deprive the trial judge of authority to grant a new trial in the exercise of sound discretion. Because liability was hotly contested during trial and unequivocally established, a new trial on both liability and damages was appropriate rather than damages alone.
[1] A trial court may grant a new trial based on an inconsistent verdict, even if the party seeking the new trial did not object to the verdict's form before the jury was dis…
[2] A jury verdict that awards damages to one plaintiff but none to another, in a case arising from the same incident, may be deemed inconsistent.
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“We do not construe either case to diminish the authority of the trial judge to grant a motion for a new trial in the exercise of his sound discretion, even if no objection has been asserted in a timely manner.”
Establishes that failure to timely object to verdict form does not strip the trial judge of discretionary authority to grant a new trial motion.
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Join FLexlaw to unlock all legal intelligenceA minor child, Konstantinos Fassoulas, was struck by an automobile driven by John Shank. The jury returned a verdict finding for the plaintiffs but aw…
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HENDRY, Judge.
The defendants in the trial court are appealing an order by the trial court granting a new trial on all issues. By a cross-appeal, the plaintiffs contend a new trial should be held only on the issue of damages.
This action stems from an automobile-pedestrian accident in which the plaintiff, Konstantinos Fassoulas, a minor under six years old, was struck by an automobile driven by defendant, John Shank.
The jury returned the following verdict at the conclusion of the case:
“We, the Jury, find for the Plaintiff, Konstantinos Ioannis Fassoulas and assess His damages in the sum of none ($0) Dollars, and for the Plaintiff John Fassoulas and assess His damages in the sum of One Thousand Five Hundred and no/100 ($1,500.00) Dollars, and for the Plaintiff Edith Fassoulas and assess Her damages in the sum of none ($0) Dollars. . . ."
Thereafter, both parties filed motions for a new trial, and the court granted a new trial finding that the verdict in favor of the plaintiffs was inconsistent and unsupported by the law or the facts.
The defendants now submit that the court erred by granting a new trial because the plaintiffs did not object to the inconsistent verdict prior to discharge of the jury. Further, defendants argue that the court should have entered a final judgment in accordance with the verdict which was reasonable in light of the law and the evidence.
Defendants cite Lindquist v. Covert, Fla.App.1973, 279 So. 2d 44 and Higbee v. Dorigo, Fla.1953, 66 So. 2d 684, as support for their contention that the trial court could not grant a new trial on the ground that the verdict was inconsistent, where the plaintiffs failed to object to the form of the verdict before the jury was discharged.
We find that neither case supports the defendants’ contention. Each signifies that where a party has not timely objected to the form of a verdict, that point has not been properly preserved for purposes of appellate review.
We do not construe either case to diminish the authority of the trial judge to grant a motion for a new trial in the exercise of his sound discretion, even if no objection has been asserted in a timely manner.1
With respect to the defendants’ next assertion that the verdict was reasonable, we think this case resembles both Pickel v. Rosen, Fla.App.1968, 214 So. 2d 730 and Hancock v. Smith, Fla.App.1971, 248 So. 2d 211, involving similar inconsistent verdicts.
In our view, the holdings in each of these cases, decided by this court, clearly justified the action taken by the court in granting a new trial.
By their cross-appeal, however, the plaintiffs point out that in Pickel v. Rosen, supra, and Hancock v. Smith, supra, this court remanded for a new trial on damages alone. Therefore, it is urged that the trial court should not have ordered a re-trial on all the issues including liability in this case.
We disagree because from the record and the defendants’ brief it is clear that the liability issues were a hotly contested feature of the previous trial. Both during and after trial, the defendants moved for directed verdicts on liability.
It is our determination that Shank’s liability for negligence was not unequivocally established in the first trial so as to foreclose a new trial on that issue. Remsburg v. Mosley, Fla.1952, 58 So. 2d 432; Lawson v. Swirn, Fla.App.1972, 258 So. 2d 458; 1661 Corporation v. Snyder, Fla.App.1972, 267 So. 2d 362.
For the foregoing reasons, the order appealed is affirmed, and the cause is remanded to the trial court for a new trial on all issues.
Affirmed.
. We note that in their motion for a new trial the basic legal grounds urged by the plaintiffs was that the verdict was “inadequate.” It was the court’s conclusion that the verdict also was “inconsistent.” To urge in a motion for a new trial that a verdict either was inadequate or excessive is certainly not an unusual ground for a new trial. The mere fact that the court on its own initiative [See, B.CP 1.530(d)] employs the word “inconsistent” should not be sufficient to trigger a waiver against the plaintiffs.
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Sears Roebuck & Co. v. Arlee Jackson and Mugge Rivers, 433 So. 2d 1319 (Fla. 3d DCA 1983)…ew trial. A close examination of these cases reveals, however, that the “error” complained of was either one which could not have been brought to the trial court’s attention any sooner than in the motion for new trial, see, e.g., Shank v. Fassoulas, 304 So. 2d 469 (Fla. 3d DCA 1974), or one which was arguably fundamental, obviating the necessity for preservation, see, e.g., Easton v. Bradford, 390 So. 2d 1202 (Fla. 2d DCA 1980), rev. dismissed, 399 So. 2d 1141 (Fla. 1981); Southwestern Insurance Co. v. Stanto…
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Cowart v. Kendall United Methodist Church & Atl. Mut. Ins. Co., 476 So. 2d 289 (Fla. 3d DCA 1985)…rred by the failure to assert that position when the verdicts were returned. Holland America Cruises, Inc. v. Underwood, 470 So. 2d 19 (Fla. 2d DCA 1985); City of Fairbanks v. Smith, 525 P. 2d 1095 (Alaska 1974).2 See also Shank [*291] v. Fassoulas, 304 So. 2d 469 (Fla. 3d DCA 1974) (indicating that finding of "inconsistency” between injured child’s zero verdict and money award to parent, made initially by court in new trial order, could have been raised by plaintiff only by objection at trial, although plain…
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Ursula H. Smith v. Telophase Nat'l Cremation Soc'y, Inc., 471 So. 2d 163 (Fla. 2d DCA 1985)…anted a new trial on the issue of damages alone. There, the court held that the evidence as to both issues was so inextricably interlaced that the new jury should consider both the issue of liability and the issue of damages. In Shank v. Fassoulas, 304 So. 2d 469 (Fla. 3d DCA 1974), the issue there involved the situation we have previously discussed of liability being found on the part of the defendant, but no damages being assessed on behalf of the plaintiff. Since an award of no damages was inadequate if l…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Higbee et ux. v. Dorigo, 66 So. 2d 684 (Fla. 1953)
- Pickel v. Rosen, 214 So. 2d 730 (Fla. 3d DCA 1968)
- The 1661 Corp. v. Snyder, 267 So. 2d 362 (Fla. 1st DCA 1972)
- Lindquist v. Emy Lou Covert and Allyn Richard Myers, 279 So. 2d 44 (Fla. 4th DCA 1973)
- Remsberg v. Mosley, 58 So.2d 432 (Fla. 1952)
- In re Est. of Irving S. Richter, 258 So. 2d 458 (Fla. 3d DCA 1972)
- Izar Lawson and Reto Lawson v. Swirn, 258 So. 2d 458 (Fla. 1st DCA 1972)
- Hancock v. Smith, 248 So. 2d 211 (Fla. 3d DCA 1971)