IN THE SUPREME COURT OF FLORIDA. CASE NO. SC Third DCA Case No. 3D PETITIONER, JAMES L. BERRY'S BRIEF ON JURISDICTION

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1 JAMES L. BERRY, IN THE SUPREME COURT OF FLORIDA vs. Petitioner, TERRY PLUMBING & HOME SERVICES, INC., CASE NO. SC Third DCA Case No. 3D Respondent. / PETITIONER, JAMES L. BERRY'S BRIEF ON JURISDICTION On Review from the District Court of Appeal, Third District State of Florida DAVID L. DEEHL Florida Bar No MICHELE K. FEINZIG, Of Counsel Florida Bar DEEHL & CARLSON, P.A. Attorneys for Petitioner JAMES L. BERRY 2600 Douglas Road, Suite PH-7 Coral Gables, Florida Telephone: (305) Telecopier: (305)

2 TABLE OF CONTENTS Page(s) TABLE OF CITATIONS... i STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999). STATEMENT OF REASONS WHY REVIEW SHOULD BE GRANTED... 8 CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT. 10

3 TABLE OF CITATIONS Page(s) Alaqua Lakes Realty, Inc. v. Burch, 790 So. 2d 604, 608 (Fla. 5 th DCA 2001)... 6, 8, 9-10 Aurbach v. Gallina, 721 So. 2d 756, 758 (Fla. 4 th DCA 1998), approved, 753 So. 2d 60 (Fla. 2000)... 6 Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999)... 3, 4, 6, 7, 8, 9 Ford Motor Co. v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981)... 8 Knowles v. State, 848 So. 2d 1055, 1056 (Fla. 2003)... 8 McCown v. Estate of Seidell, 831 So. 2d 218, 220 (Fla. 5 th DCA 2002)... 7, 8 Republic Servs. of Fla., L.P. v. Poucher, 851 So. 2d 866, 871 (Fla. 1 st DCA 2003)... 9 Robertson v. State, 829 So. 2d 901, 904 (Fla. 2002)... 8 Trujillo v. Uniroyal Tire Co., 753 So. 2d 1256, 1257, n. 1 (Fla. 2000).. 6, 7, 8 OTHER AUTHORITIES Art. V, ' 3(b)(3) Fla. Const. (1980)... 8 Fla. R. App. P (a)(2)(A)(iv)... 8 i DEEHL & CARLSON, P.A., SUITE PH-7 DOUGLAS CENTRE, 2600 DOUGLAS ROAD, CORAL GABLES, FL TEL. (305)

4 STATEMENT OF THE CASE AND FACTS 1 Petitioner/Plaintiff JIM BERRY seeks review of a decision of the Third District Court of Appeal which, inter alia, reversed an additur award granted by the trial court in his favor, increasing his future pain and suffering damages by $125,000, from $25,000 to $150,000. (A. 1, pp. 3-4, 9) JIM BERRY, a South Florida television sportscaster, had his face and mouth ripped apart by a dog belonging to TERRY PLUMBING s employee, William Blackford, while Blackford was making a service call at BERRY s home. (A. 1, p. 2). JIM BERRY sought compensation for his severe and traumatic injuries in this action against TERRY PLUMBING. (A. 1, p. 2). The jury found that TERRY PLUMBING, in violation of its own stated policy, negligently allowed an aggressive dog, which had already bitten and/or acted aggressively to two other people and was known to have dangerous propensities, to accompany Blackford, its plumber, on a service call to JIM BERRY s home, without taking measures to protect the safety of customers like BERRY. (A. 1, p. 2). The verdict in favor of JIM BERRY assessed TERRY PLUMBING as 70% negligent and BERRY 30% comparatively negligent, and awarded past medicals of $7,637.10, future medicals of $20,000, past pain and suffering of $50,000 and 1 Petitioner JAMES L. BERRY will be referred to in this Brief as JIM BERRY. Respondent TERRY PLUMBING & HOME SERVICES, INC. will be referred to as TERRY PLUMBING. References to A. are to the Appendix to this Brief. 1

5 future pain and suffering of $0. (A. 1, pp. 3, 6). The verdict was resubmitted for further deliberation, though, after which the jury came back with a new award of $25,000 for future pain and suffering. (A. 1, pp. 3, 6-7). After a post-trial hearing, additur of $125,000 was granted to BERRY s future pain and suffering damages, increasing that award to $150,000. (A. 1, pp. 3-4, 7). TERRY PLUMBING filed an appeal challenging, inter alia, the trial court s grant of additur to the future intangible damages award. (A. 1, pp. 1-2). The Third District Court of Appeal s opinion improperly focused on the quantum of evidence before the jury, holding [i]n light of the evidence presented and the Record before us, we conclude that the jury could have reached its verdict in a manner consistent with the evidence presented. (A. 1, pp. 7-9). The Third District therefore reversed the additur of $125,000 and remanded with directions that judgment be entered consistent with the jury verdict (which had awarded $25,000 for future pain and suffering). (A. 1, p. 11). JIM BERRY sought rehearing, rehearing en banc or certification, but his motion was denied on May 4, (A. 2). JIM BERRY's Notice to Invoke the Discretionary Jurisdiction of this Court was then timely filed on June 3,

6 SUMMARY OF ARGUMENT The Third District Court of Appeal failed to follow established law, totally disregarding the standard of review of decisions granting additur. The Third District should have reviewed the decision of the trial court in terms of whether the trial court s discretion to enter additur was proper. Erroneously, the appeals court determined whether the original jury verdict, not enhanced by additur, was supported by the evidence. The decision of the District Court simply cannot be reconciled with Brown v. Estate of Stuckey, 749 So. 2d 490, (Fla. 1999), where this Court held the abuse of discretion standard (which governs decisions granting additur) requires the appellate court to apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If reasonable persons could differ as to the propriety of the action taken by the trial court in increasing an inadequate award, there can be no finding of an abuse of discretion. As explained in Brown, the existence of substantial, competent evidence in the record to support the jury verdict does not demonstrate that the trial judge abused his discretion. In reviewing the trial court s grant of additur, the Third District merely examined the evidence, and finding there was evidence to support the jury s verdict, concluded the jury could have reached its verdict in a manner consistent with the evidence presented. The Third District never looked at the grant of 3

7 additur from the trial court s perspective, as opposed to that of the jury, and never determined whether the trial judge s decision to grant additur was an abuse of discretion (whether reasonable persons could have decided as the trial judge did). The Third District expressly failed to determine whether the trial judge abused his discretion in granting additur, as mandated by Brown. As the Third District s decision directly applies a standard of review rejected by this Court (whether substantial competent evidence supported the jury verdict), and fails to apply the correct standard as dictated by Brown, the decision expressly and directly conflicts with Brown, as well as other like decisions of this Court and other District Courts of Appeal. ARGUMENT THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999). Though correctly recognizing that trial judges have broad discretion in ruling on additur motions, which are reviewed for abuse of discretion (A. 1, p. 7), the Third District failed to apply that very standard in reviewing the grant of additur for JIM BERRY. In the instant case, the Third District looked at the criteria to be considered by trial courts in determining whether additur is appropriate, and against that backdrop reviewed evidence pertaining to JIM 4

8 BERRY s future pain and suffering. 2 (A. 1, p. 8). The court then stated we see no error in the jury s award of $25,000 and concluded [i]n light of the evidence presented and the Record that the jury could have reached its verdict in a manner consistent with the evidence presented. (A. 1, p. 9) (emphasis added). The Third District thus analyzed the propriety of the additur award for JIM BERRY by determining whether the evidence supported the jury award of $25,000 for future pain and suffering, effectively applying the substantial competent evidence standard. 3 In so doing, the Third District misapplied the standard of review for additur awards, by improperly focusing on what the jury did, as opposed to whether the trial judge could, in his discretion, grant additur. 2 The Third District recited (without considering all the evidence, such as evidence of emotional pain and suffering) some argumentative testimony (A. 1, p. 8). that Berry is not currently experiencing any pain; that Berry was back to work; that Berry s speech appears to be fine; that Berry may consider additional surgeries and that, although the surgeries are not necessary, they should be considered; that Berry experiences some numbness; and that his disability is cosmetic, not functional. 3 TERRY PLUMBING had argued to the Third District an incorrect standard of review that the standard should be de novo, and that the additur should be reversed because there was competent evidence to support the jury s award. It is possible that this argument misled the Third District to follow the second of these suggestions in deciding whether the additur was proper by simply determining whether there was evidence in the record to support the jury s award. 5

9 Florida law does not permit the reversal of additur just because there was evidence in the record to support the jury s verdict, but rather, requires a clear abuse of discretion. Aurbach v. Gallina, 721 So. 2d 756, 758 (Fla. 4 th DCA 1998), approved, 753 So. 2d 60 (Fla. 2000). The fact that there may be substantial, competent evidence in the record to support a jury verdict does not necessarily demonstrate that the trial judge abused his discretion in rejecting that verdict. Brown v. Estate of Stuckey, 749 So. 2d 490, (Fla. 1999). In a case decided several months after Brown, this Court noted that the standard of review discussed in Brown (in relation to new trial orders) also applies to the review of additur orders. Trujillo v. Uniroyal Tire Co., 753 So. 2d 1256, 1257, n. 1 (Fla. 2000). Thus, in reviewing additur orders, appellate courts must recognize the broad discretionary authority of the trial court and apply the reasonableness test to determine whether there was an abuse of discretion in granting additur. Brown, 749 So. 2d at If reasonable persons could differ as to the propriety of the trial judge s action, there can be no finding of an abuse of discretion and the trial court must affirm, even if there was substantial, competent evidence in the record to support the jury verdict. Id. at 498. See also Alaqua Lakes Realty, Inc. v. Burch, 790 So. 2d 604, 608 (Fla. 5 th DCA 2001) (where the appellant, in opposing additur, argued that the verdict was fully supported by the evidence and was, and could be, adduced in a logical manner by 6

10 reasonable persons, but where the appellate court found this argument to be without merit because Brown [Brown v. Estate of Stuckey, supra] specifically rejected the notion that a trial court abuses its discretion in ordering a new trial solely because there is substantial, competent evidence in the record to support the verdict ). What the Third District should have done here, as required by the law of this Court, is to determine whether reasonable persons could differ as to the propriety of the trial judge s decision to grant additur. If reasonable persons could differ, and reasonable persons could agree with the grant of additur, there can be no finding of an abuse of discretion. Trujillo, supra; Brown, supra. See also McCown v. Estate of Seidell, 831 So. 2d 218, 220 (Fla. 5 th DCA 2002) (finding that if reasonable men could conclude that the evidence required additur as to future damages, then the trial court did not abuse its discretion in granting additur). Appellate courts must thus review the reasonableness of the trial court s decision in order to determine if there was an abuse of discretion not review whether there was evidence that could possibly be viewed to support the jury s verdict before additur, as the Third District did here. The Third District s decision in this case effectively holds that the standard of review is whether the jury s decision was reasonable in other words, whether the jury could have reached its verdict in a manner consistent with the evidence 7

11 presented (A. 1, p. 9). The decision is directly contrary to established case law holding that broad discretion must be afforded to the trial judge in ruling on a motion for additur, and that appellate courts must apply the reasonableness test to determine whether the trial court s grant of additur was reasonable (as opposed to whether the jury s original award of damages was reasonable). See, e.g. Brown, supra; Trujillo, supra; McCown, supra; Alaqua Lakes Realty, supra. The Third District s decision runs contrary to the broad discretion afforded trial courts under the additur statute, as well as the law prescribing the standard of review of additur awards, giving this Court jurisdiction to resolve the conflict. Fla. R. App. P (a)(2)(A)(iv); Art. V, ' 3(b)(3) Fla. Const. (1980). STATEMENT OF REASONS WHY REVIEW SHOULD BE GRANTED This Court should grant review in order to clear up the confusion created by conflicting precedents (the Third District s decision in the instant case versus Brown and like cases). 4 The standard of review is the first matter of law 4 This Court has found conflict where a District Court misapplied Supreme Court precedent. See, e.g., Robertson v. State, 829 So. 2d 901, 904 (Fla. 2002); Knowles v. State, 848 So. 2d 1055, 1056 (Fla. 2003). The misapplication of binding precedent creates conflict with the precedent itself. That is precisely what has occurred here, where the Third District misapplied (actually failed to apply) Supreme Court precedent concerning the proper standard of review of orders granting additur, creating case law that conflicts with that binding precedent. Alternatively, conflict exists because the Third District adopted a standard (substantial competent evidence) in direct conflict with binding precedent. See Ford Motor Co. v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981) (noting that a discussion of the legal principles applied by the appellate court can provide a 8

12 considered by an appellate court in reviewing any decision, including one concerning additur, and the abuse of discretion standard applies in many cases not just those involving a grant of additur. Courts looking at the decision of the Third District as guidance will see the substantial competent evidence standard used, despite the fact that this Court has made it clear that the reasonableness standard applies in determining whether a decision (like one involving additur) involves an abuse of discretion. Courts have long grappled (and continue to grapple) with application of the abuse of discretion standard, and the Third District s decision here only injects more confusion into the area. See, e.g., Republic Servs. of Fla., L.P. v. Poucher, 851 So. 2d 866, 871 (Fla. 1 st DCA 2003) (seemingly applying the substantial competent evidence standard to the review of an additur order despite recognizing that the proper standard is abuse of discretion). This Court should take jurisdiction and clarify application of the abuse of discretion standard. CONCLUSION This Court has discretionary jurisdiction to review the decision below, because it expressly and directly conflicts with a previous decision of this Court (Brown, supra), as well as decisions of other District Courts (e.g., Alaqua Lakes sufficient basis for conflict review, because it is not necessary to identify a specifically conflicting decision in order to have an express conflict). 9

13 Realty, supra). The Court should exercise that jurisdiction to consider the merits of JIM BERRY's argument and decide the important issue presented by this case. CERTIFICATE OF SERVICE I hereby certify that the foregoing was served by U.S. Mail on this day of June, 2005 to Mitchell L. Lundeen, Esq./Charles M-P George, Esq., George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, P.A., 4800 Le Jeune Road, Coral Gables, FL DEEHL & CARLSON, P.A. Attorneys for Petitioner JAMES L. BERRY 2600 Douglas Road, Suite PH-7 Coral Gables, Florida Telephone: (305) Telecopier: (305) By: DAVID L. DEEHL Florida Bar No MICHELE K. FEINZIG, Of Counsel Florida Bar No CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT I HEREBY CERTIFY that this brief is in Times New Roman 14-point font, and complies with the font requirements of Fla. R. App. P By: DAVID L. DEEHL JURISDICTION BRIEF 10