SURETY MORTGAGE, INC., D/B/A SMI FINANCIAL, A DIVISION OF SURETY MORTGAGE, INC., APPELLANT/CROSS-APPELLEE,
v.
EQUITABLE MORTGAGE RESOURCES, INC., A FLORIDA CORPORATION, APPELLEE/CROSS-APPELLANT
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SMI obtained a jury verdict finding EMR liable for breach of contract but awoke zero damages. The trial court denied SMI's motion for new trial. On appeal, the court held that the zero damages award was inadequate given uncontradicted evidence of damages, and reversed the damages portion while affirming liability.
The trial court erred in denying the motion for new trial because the zero damages award was inadequate and failed to comport with the manifest weight of the evidence establishing more than nominal damages. The question of mitigation of damages does not require retrial of the liability question, which was not cross-appealed. On remand, if EMR presents sufficient evidence, it is entitled to an instruction on mitigation of damages.
[1] A trial court errs by denying a motion for a new trial when a jury's verdict fails to comport with the manifest weight of the evidence.
[2] A jury's award of zero damages may be reversed as inadequate when there is uncontradicted evidence establishing more than nominal damages, despite a finding of liability.
Previewing 2 of 5 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 jury found that EMR materially breached the contract with SMI "such that [SMI] is entitled to reliance damages[.]" In addition, however, the jury found that the total amount of SMI's reliance damages was zero.”
Establishes the paradoxical verdict finding liability and entitlement to damages but awarding nothing
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Join FLexlaw to unlock all legal intelligenceSMI sued EMR for breach of contract and fraudulent misrepresentation. EMR filed a third-party action against a former employee but dismissed it before…
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SCHOONOVER, Judge.
The appellant, Surety Mortgage, Inc., d/b/a SMI Financial, a Division of Surety Mortgage, Inc. (SMI), challenges a final judgment entered in its favor in an action it brought against the appellee, Equitable Mortgage Resources, Inc. (EMR). EMR cross-appeals that same final judgment. We find that the trial court erred in denying SMI’s motion for new trial on the issue of damages and, accordingly, reverse.
SMI filed an action against EMR seeking damages for breach of contract and fraudulent misrepresentation. EMR subsequently filed a third party action seeking indemnification from its former employee who had entered into the contract with SMI. EMR voluntarily dismissed the third party action before the parties’ jury trial, and SMI voluntarily dismissed its fraudulent misrepresentation claim at the close of its case-in-chief. Thus, only SMI’s breach of contract claim was submitted to the jury.
The jury returned a special verdict finding that EMR materially breached the con tract with SMI “such that [SMI] is entitled to reliance damages[.]” In addition, however, the jury found that the total amount of SMI’s reliance damages was zero. The trial court entered a final judgment pursuant to the jury verdict and subsequently denied SMI’s motion for new trial on the issue of damages. SMI then filed a timely notice of appeal. EMR has cross-appealed contending that if a new trial is ordered, the new trial must be on both damages and liability because the trial court erred by refusing to instruct the jury on mitigation of damages.
We agree with SMI’s contention that the trial court erred by denying the motion for new trial. The decision of whether to grant a motion for new trial is within the trial judge’s broad discretion because his contact with the trial and ability to observe the behavior of the witnesses places him in the best position to fully comprehend the processes by which the jury, as trier of fact, reached its ultimate decision. See Cloud v. Fallis, 110 So. 2d 669 (Fla.1959). The trial judge has the duty to grant such a motion, however, where the jury has been influenced by extraordinary considerations, mislead by the force and credibility of the evidence, or when the verdict, as in the case sub judice, fails to comport with the manifest weight of the evidence. Haendel v. Paterno, 388 So. 2d 235 (Fla. 5th DCA 1980).
It is not necessary to grant a new trial in all cases where the jury returns a zero verdict. In fact, where conflicting evidence exists concerning damages and reasonable men could believe that the plaintiff sustained no damages, a zero verdict will be upheld. See Boeck v. Diem, 245 So. 2d 687 (Fla. 2d DCA 1971). In this case, however, the jury found that EMR was liable and that SMI did in fact sustain damages, but awarded no damages despite uncontradicted evidence establishing more than nominal damages. Thus, the jury’s award was inadequate and must be reversed. See Thornburg v. Pursell, 446 So. 2d 713 (Fla. 2d DCA 1984).
Although we agree with SMI’s position, we disagree with EMR’s contention that the question of liability must also be retried. The question of mitigation of damages in this case does not depend upon the question of liability which the jury decided in favor of SMI. That finding has support in the record and has not been cross-appealed. Upon remand, however, if EMR presents sufficient evidence to be entitled to an instruction on mitigation of damages, the instruction can be given. See Muroff v. Dill, 386 So. 2d 1281 (Fla. 4th DCA 1980), review denied, 392 So. 2d 1377 (Fla.1981).
We also reject EMR’s argument that because the verdict was inconsistent in finding that SMI was entitled to reliance damages and then awarding zero reliance damages, SMI waived its right to complain on appeal by failing to object at trial. A zero damage verdict for a plaintiff, even when coupled with a finding of liability against the defendant, may be tested for inadequacy in light of the evidence by an appropriate motion for new trial. Cowart v. Kendall United Methodist Church, 476 So. 2d 289 (Fla. 3d DCA 1985).
We, accordingly, affirm the trial court’s final judgment as to liability but remand for a new trial on damages.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
CAMPBELL, C.J., and RYDER, J., concur.
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Citator
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Cowen v. Thornton, 621 So. 2d 684 (Fla. 2d DCA 1993)…court, however, has ruled previously that there is no waiver of this issue when the plaintiff has filed a motion for new trial which challenged a zero verdict after a jury found liability. Surety Mortgage, Inc. v. Equitable Mortgage Resources, Inc., 534 So. 2d 780 (Fla. 2d DCA 1988). Thornton has filed a cross-appeal, contesting the trial court’s denial of his motion for directed verdict. Thornton, relying on Anicet v. Gant, 580 So. 2d 273 (Fla. 3d DCA), review denied, 591 So. 2d 181 (Fla.1991), argued that…
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Manhardt v. Shameem Tamton, M.D., Susan W. Short Pediatrics, P.A., 832 So. 2d 129 (Fla. 2d DCA 2002)…ced by considerations outside the record.’ ” Brown, 749 So. 2d at 497 (quoting Cloud, 110 So. 2d at 673); see also McCloud v. Sherman Mobile Concrete Co., 579 So. 2d 773, 774 (Fla. 2d DCA 1991); Surely Mortgage Inc. v. Equitable Mortgage Res., Inc., 534 So. 2d 780, 782 (Fla. 2d DCA 1988). Under those circumstances, “[t]he trial judge’s discretion permits the grant of a new trial although it is not clear, obvious, and indisputable that the jury was wrong.” Brown, 749 So. 2d at 497. In this case, counsel for D…
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McCLOUD v. Sherman Mobile Concrete Co., Inc., 579 So. 2d 773 (Fla. 2d DCA 1991)…enced by extraordinary considerations, misled by the force and credibility of the evidence, or when the verdict, as in this case, fails to comport with the manifest weight of the evidence. Surety Mortgage, Inc. v. Equitable Mortgage Resources, Inc., 534 So. 2d 780 (Fla. 2d DCA 1988). At trial, several physicians testified that Mr. McCloud was injured as a result of the accident and medical bills totaling $9,965.66 were introduced into evidence. Evidence was presented concerning lost wages and past and future…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959)
- Cowart v. Kendall United Methodist Church & Atl. Mut. Ins. Co., 476 So. 2d 289 (Fla. 3d DCA 1985)
- Muroff v. Dill, 386 So. 2d 1281 (Fla. 4th DCA 1980)
- Thornburg v. Pursell, 446 So. 2d 713 (Fla. 2d DCA 1984)
- Haendel v. Paterno, 388 So. 2d 235 (Fla. 5th DCA 1980)
- Boeck v. Diem, 245 So. 2d 687 (Fla. 2d DCA 1971)