Barth v. KhubaniBarth v. Khubani
We have for review Barth v. Khubani, 705 So.2d 72 (Fla. 3d DCA 1997), which expressly and directly conflicts with Charlemagne v. Francis, 700 So.2d 157 (Fla. 4th DCA), review dismissed, 703 So.2d 476 (Fla.1997).1 We have jurisdiction.
The issue presented by the conflict is whether an appellate court may apply the “two issue rule” to bar review of a general defense verdict where the appellee pled two or more defenses at trial and the appellant alleges error only as to one such defense. Petitioner filed a complaint against respondents alleging breach of contract and fraud.2 The trial court granted
[W]e find that the plaintiff did not properly preserve the statute of frauds issue for review on appeal. Because a general verdict form was submitted to the jury, it is unclear whether the jury found the underlying contract to be unenforceable because it was barred by the statute of frauds, because the plaintiff had failed to perform the conditions precedent, or because no valid contract existed. Therefore, in the absence of an objection to the use of the general verdict form, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to demonstrate prejudice.
Barth, 705 So.2d at 73. We agree.
The district court correctly applied the “two issue rule” barring appellate review of petitioner‘s claim of error in the jury instruction as to one defense where, as here, respondents relied on three separate defense theories at trial. The “two issue rule” provides:
[W]here there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to establish that he has been prejudiced.
Whitman v. Castlewood Int‘l Corp., 383 So.2d 618, 619 (Fla.1980). The rule is based on the principle that reversal is improper where no error is found as to one of the issues that can independently support the jury‘s verdict. See Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181, 1186 (Fla.1977). In Colonial Stores, this Court cautioned that although it may seem that injustice might result from application of the “two issue rule,” the rule is an economical tool that limits appellate review to issues that actually affect the case and that litigants may avoid application of the rule by simply requesting a special verdict that would illuminate the jury‘s decision making process and the affect of any alleged error: “It should be remembered... that the remedy is always in the hands of counsel.” Id.
When a general verdict for the plaintiff is on review, the rule is applied by focusing on the causes of action, such that an appellate claim of error raised by the defendant as to one cause of action cannot be the basis for reversal where two or more theories of liability (or causes of action) were presented to the jury.5 On the other hand, when the jury returns a
This Court adopted the rule from the case law of California, Connecticut, Ohio and South Dakota, all of which focus on the number of defense theories when applying the rule to general verdicts in favor of the defense. See Colonial Stores, Inc., 355 So.2d at 1186. See Philpott v. Mitchell, 219 Cal.App.2d 244, 32 Cal.Rptr. 911, 918-19 (1963) (“Every intendment is in favor of the judgment of the lower court, and this means, among other things, that this court, on appeal, may assume that the jury by its general [defense] verdict found for [the defendant] on every issue submitted.“); Johnson v. Pagano, 184 Conn. 594, 440 A.2d 244, 245-46 (1981) (“Thus, if any of the court‘s instructions are shown to be proper and adequate as to any one of the defenses raised, the general verdict [for the defense] will stand irrespective of any error in the charge as to the others.“); Bush v. Harvey Transfer Co., 146 Ohio St. 657, 67 N.E.2d 851, 856 (1946) (“The two-issue rule ... [has been] applied to sustain a verdict for ... defendants [where] there were two separate and distinct defenses made, either one of which in itself, if established, was sufficient to defeat the cause of action of the plaintiff.“); McCrystal v. Trumbull Mem. Hosp., 115 Ohio App.3d 73, 684 N.E.2d 721, 728 (1996); Bankwest, Inc. v. Valentine, 451 N.W.2d 732, 736 (S.D.1990) (“As [defendant] raised several affirmative defenses to the Bank‘s claim, it is difficult to determine how the jury reached its verdict.... [Thus] the construction which sustains the [defense] verdict must be applied.“).
In the present case, the Third District correctly applied the rule by properly focusing on the three theories of defense pled at trial. On appeal, petitioner attacked the verdict based solely on an alleged error as to the statute of frauds instruction. Since respondents argued three theories of nonliability—failure of proof, failure of a condition precedent, and the statute of frauds, the appellate court did not violate the maxim that the “two issue rule” only applies when the prevailing plaintiff submits more than one cause of action or the prevailing defendant submits more than one separate and distinct defense theory and the parties agree to a general verdict form.
Accordingly, we approve Barth and disapprove the conflict cases to the extent they are inconsistent with our decision.7
It is so ordered.
HARDING, C.J., and WELLS, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.
Notes
The record shows that the trial judge concluded the jury instruction as to petitioner‘s breach of contract action with the following instruction:
If the greater weight of the evidence does not support the claim of the plaintiff, your verdict should be for the defendants. However, if the greater weight of the evidence does support the claim for the plaintiff, then you shall consider the defenses raised by the defendants.