128 So. 3d 242
Fla. Dist. Ct. App.2013Background
- Developers (Blake and Blake Development) and investors (Ellis and Ellis Diversified) were involved in a real estate project; no written agreement between them.
- The attorney initially jointly represented developers and investors, then later represented the investors in the dispute.
- Developers sued the investors (breach of contract, unjust enrichment) and sued the attorney for legal malpractice for failing to disclose/obtain consent to a conflict of interest.
- Jury found for developers on claims against investors; on malpractice, jury found attorney-client relationship and negligence but awarded zero damages.
- Developers moved for additur (seeking at least nominal damages); trial court granted additur of $10 and then, after developers objected to amount, granted a new trial on damages under section 768.74(4).
- Attorney appealed; the appellate court reversed both the additur and the new-trial orders and remanded to reinstate the jury verdict for zero damages against the attorney.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether additur of nominal damages was legally appropriate after jury found malpractice but awarded zero damages | Developers: jury’s finding of negligence but zero damages was inadequate; nominal damages are proper when a legal wrong is proven but damages not shown | Attorney: no basis for additur because developers failed to prove damages and did not request nominal damages or instruction | Court: Reversed — additur was erroneous; no legal basis for nominal award given malpractice requires redressable harm and plaintiffs waived nominal damages |
| Whether trial court complied with statutory criteria for ordering additur | Developers: statutory factors support correcting inadequate award | Attorney: trial court did not apply or cite §768.74(5) criteria with record support | Court: Trial court failed to identify or apply §768.74(5) criteria supported by the record; error of law |
| Whether jury could reasonably award zero damages on malpractice claim | Developers: finding of negligence implies damages; zero verdict contradicts finding | Attorney: conflicting evidence and lack of proof of damages permit zero verdict | Court: Zero verdict sustainable where no evidence of damages tied to malpractice; jury could reasonably find no redressable harm |
| Whether new trial on damages was authorized after additur | Developers: objected to additur amount and thus are "party adversely affected" entitled to new trial under §768.74(4) | Attorney: because additur lacked legal basis, there was no valid additur to trigger §768.74(4) protection | Court: Because additur was invalid, developers were not entitled to new-trial relief; new-trial order reversed |
Key Cases Cited
- Stevens v. Cricket Club Condominium, Inc., 784 So.2d 517 (Fla. 3d DCA 2001) (nominal damages allowed for breach of fiduciary duty)
- Muroff v. Dill, 386 So.2d 1281 (Fla. 4th DCA 1980) (nominal damages may be awarded where breach or invasion of right is established)
- Coble v. Aronson, 647 So.2d 968 (Fla. 4th DCA 1994) (malpractice accrual requires redressable harm)
- Smith v. Fla. Healthy Kids Corp., 27 So.3d 692 (Fla. 4th DCA 2010) (zero verdict may be upheld where evidence of damages is conflicting)
- Ortlieb v. Butts, 849 So.2d 1165 (Fla. 4th DCA 2003) (trial court may not veto jury verdict by additur when jury could reasonably reach verdict)
- H & U Foods, Inc. v. Ellison, 439 So.2d 923 (Fla. 4th DCA 1983) (plaintiff’s failure to request nominal-damages instruction or seek nominal damages waives entitlement)
- Morgan Stanley & Co. v. Coleman (Parent) Holdings, Inc., 955 So.2d 1124 (Fla. 4th DCA 2007) (plaintiff not entitled to another opportunity to prove damages not presented at trial)
- Adams v. Wright, 403 So.2d 391 (Fla. 1981) (new-trial/remittitur orders must reference record support for additur/remittitur)
- Waste Mgmt., Inc. v. Mora, 940 So.2d 1105 (Fla. 2006) (party adversely affected by additur/remittitur who objects is entitled to new trial on damages)