Hernandez v. FelicianoHernandez v. Feliciano
Gregory C. Maaswinkel of Jeffrey M. Byrd, P.A., Orlando, for Appellee.
PETERSON, J.
Ingrid Hernandez appeals the trial court‘s order granting a new trial after a jury verdict rejected Mildred Feliciano‘s damage claim for personal injuries sustained in a motor vehicle accident.
Hernandez‘s vehicle was struck from behind by Feliciano‘s vehicle as Hernandez was making a right turn into a shopping center entranceway off Orange Blossom Trail in Orange County on a rainy afternoon. Feliciano claimed that she was unable to avoid colliding with Hernandez‘s vehicle because Hernandez turned her vehicle abruptly into her path without signaling in order to gain entrance to the shopping center. There were no third party witnesses to the accident.
WEIGHT OF THE EVIDENCE
A trial court has broad discretionary authority to grant a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence. See, e.g., Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999). The Florida Supreme Court explained:
The trial judge‘s discretionary power to grant a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence is the only check against a jury that has reached an unjust decision on the facts. This discretionary power emanates from the common law principle that it is the duty of the trial judge to prevent what he or she considers to be a miscarriage of justice. The role of the trial judge is not to substitute his or her own verdict for that of the jury, but to avoid what, in the judge‘s trained and experienced judgment, is an unjust verdict.
Id. at 495 (citations omitted). The trial court should always grant a new trial if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record. Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959). The Florida Supreme Court also explained an appellate court‘s standard of review when considering an appeal of a trial court‘s order granting a new trial:
When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. The fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion.
Brown, 749 So. 2d at 497-98. In the instant case, the trial court did not find that the jury was improperly influenced by considerations outside the record. Instead, it apparently found that the jury had been deceived as to the force and credibility of the evidence by ruling that the manifest weight of the evidence shows that Hernandez was negligent. But the trial court‘s order does not address the conflicting nature of the evidence presented at trial. Absent from the trial court‘s findings is Hernandez‘s adamant denial that she cut-off Feliciano, that Hernandez testified to being squarely within the far right lane of Orange Blossom Trail for what she estimated to be 100 paces or at least one minute prior to the collision impact from behind. Hernandez further testified that she was already turning into the driveway of the shopping center when Feliciano rear-ended her. It is undisputed that the front right of Feliciano‘s car impacted with the rear left bumper of Hernandez‘s car and that Hernandez‘s car was pushed all the way into the driveway by the impact.1
Although the trial court expressly found Hernandez to be “very honest,” it ultimately found Feliciano to be more credible on the issue of liability. Liability, however, is the primary issue the jury was charged with determining and the trial court abused its discretion in reaching a decision on that essential issue based upon what, at most, was conflicting evidence. In doing so, the court merely substituted its own verdict for that of the jury‘s. Review of the record does not support the trial court‘s order because the evidence was not manifestly weighted to either side. E.g., Hillsboro Plantation, Inc. v. Plunkett, 59 So. 2d 872 (Fla. 1952) (holding that trial court abused its discretion in granting new trial because in doing so he was weighing the sufficiency of the evidence which was a jury function); Midtown Enterprises, Inc. v. Local Contractors, Inc., 785 So. 2d 578 (Fla. 3d DCA 2001) (holding in action for breach of contract that the trial court abused its discretion by granting contractor a new trial after the jury returned a verdict in favor of subcontractor where trial court‘s reasons for granting a new trial were only based upon the weight of the evidence and the credibility of witnesses); Jones v. Stevenson, 598 So. 2d 219 (Fla. 5th DCA 1992) (holding the trial court abused its discretion by improperly weighing the evidence, where after the jury found that defendants were not liable in a wrongful death claim, the trial court concluded that the verdict was against the manifest weight of the evidence, although it expressly found that the witnesses for both sides were credible, because the evidence was equally compelling in favor of both sides, and the negligence issue was a factual dispute properly resolved by the jury); Phar-Mor of Florida, Inc. v. Steuernagel, 550 So. 2d 548 (Fla. 2d DCA 1989) (holding that in a negligence action arising out of a customer‘s slip-and-fall in a retail store, the trial court abused its discretion in granting a new trial to the plaintiffs, where the trial court had improperly acted as an “additional juror” in determining whether the defendants had done anything to warn its customers of a known hazard, and where the trial court had determined the issue on the basis of conflicting evidence). We conclude that the sole effect of the trial court‘s grant of a new trial on the issue of liability is to allow another jury to try the case as a result of dissatisfaction with the decision of the first jury.
THE STIPULATION
While a trial court has broad discretion when deciding whether to override
First, Hernandez argues that the trial court erred in granting a new trial on the ground that the parties’ stipulation as to the time of the accident was contrary to the testimony and evidence presented. In her motion for new trial and at the hearing on the matter, Feliciano asserted for the first time that the statement which was agreed to by the parties and contained in a joint stipulation confused the jury in light of the evidence adduced at trial regarding the time of the accident. At trial, Feliciano testified that the accident occurred around “3:40 p.m., 3:45 p.m.“, and that she was not on her cell phone at the time of the accident. Notwithstanding the stipulation, Feliciano‘s cellular phone bill, which was placed in evidence by her, revealed four phone calls, the first being placed at 3:42 p.m. to her parents, and the last to a towing company at 3:54 p.m. The trial transcript also shows that during opening statement, Hernandez‘s counsel represented that the parties stipulated that the accident occurred about 3:45 p.m., but that Feliciano‘s cell phone records indicate that she made a two-minute phone call at 3:43 p.m., and informed the jury that it will have to consider the phone records in view of the stipulation. Similarly, during closing, Hernandez‘s counsel argued that while Hernandez testified that Feliciano was not on her cell phone, the jury should still consider the phone bill and determine whether Feliciano was either on the phone or fumbling with her phone at the time of the accident and that perhaps Feliciano was not keeping a proper lookout. In light of the parties’ stipulation and the cellular phone bill in evidence, we view this as a fair argument by defense counsel. Even if we were to view the defense‘s argument as improper, there was no objection made to it, nor was there a request from Feliciano at trial that she be released from the stipulation. At most, there was a brief expression of concern about the stipulation by Feliciano while the jury was deliberating, but that belated concern did not constitute a request for a release from the stipulation or a request for a curative instruction on the matter. Any complaint about the stipulation and Hernandez‘s counsel‘s argument was untimely presented post-trial and not preserved for review.
FAILURE TO GIVE INSTRUCTIONS
Lastly, Hernandez argues that the trial court erred by granting a new trial based on its failure to give the non-standard jury instruction requested by Feliciano. Feliciano responds by representing that there were three individuals at trial, one venireman and two jurors, that inquired about whether a police officer would be testifying about the accident and whether a traffic citation was issued. The record, however, reveals the following: Only one juror asked the court if a policeman would be testifying about the accident because this juror just wanted to know what would be happening in the case. From this, Feliciano inferred that the juror wanted to learn which of the parties received a traffic citation. The trial court specifically stated that it did not know what the juror wanted to hear, and that the trial court did not necessarily interpret the juror‘s question in the same way. Feliciano‘s counsel also suggested that a standard jury instruction be given advising the jury not to speculate as to matters outside the evidence. That instruction had already been given and the court promised to emphasize it again before jury deliberations. The next morning, Feliciano asked the court to deliver the following non-standard jury instruction:
Florida law does not permit the disclosure in civil proceedings the facts of whether or not any party to this litigation did or did not receive a traffic citation. Therefore, you should make your own determinations as to the liability of any party based solely upon the evidence presented, and not speculate as to other matters not contained within the record.
In requesting the above “curative” instruction, Feliciano represented that a juror previously asked whether a trooper would be called to testify about either party receiving a citation. Immediately, the trial court recalled that the juror had not said a word about a citation and that the citation aspect was injected by Feliciano. Denying the request for the special instruction, the trial court concluded that the issue was a red herring and that the specificity in the proposed instruction would do more damage than good. The trial court then offered to take up the issue again if counsel wished to go back and check the record as to the juror‘s inquiry. Significantly,
We vacate the order granting a new trial and remand with instructions to reinstate the jury‘s verdict.
REVERSED and REMANDED.
SAWAYA, C.J., and THOMPSON, J., concur.