FLAGSTAR COMPANIES, INC. v. Cole-Ehlinger, 4D03-3248.

Decision Date01 June 2005
Docket NumberNo. 4D03-3248.,4D03-3248.
Citation909 So.2d 320
PartiesFLAGSTAR COMPANIES, INC. and Denny's Inc., Appellants, v. Sherryl COLE-EHLINGER and Charles A. Ehlinger, Appellees.
CourtFlorida District Court of Appeals

Paul R. Regensdorf of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Fort Lauderdale, for appellants.

Richard B. Doyle, Jr., of Loughren & Doyle, P.A., Fort Lauderdale, for appellees.

STEVENSON, J.

While working as a waitress at a Denny's located on University Drive in Plantation, Florida, Sherryl Cole-Ehlinger fell and injured herself when she caught her heel on a kickplate, which had been installed to repair the base of the restaurant's salad bar. Cole-Ehlinger sued two corporate defendants, Denny's Inc. ("Denny's"), which was at the bottom of the corporate hierarchy, and Flagstar Companies, Inc. ("Flagstar"), which was at the top. A jury found in favor of Cole-Ehlinger with respect to the claims asserted against both defendants, awarding damages in excess of $550,000. Both defendants have appealed, asserting that the trial court should have granted their motions for directed verdict or, alternatively, for new trial. We reverse in part and affirm in part.

The Verdict Against Flagstar

Cole-Ehlinger sought to hold Flagstar responsible for her injuries by pleading and presenting two alternative theories: Flagstar was the owner/possessor of the University Drive premises or Flagstar undertook an obligation to maintain the University Drive premises and, in either case, breached its duty of care as a consequence of the negligent repair of the salad bar. Without distinguishing between the two theories, the jury returned a verdict in favor of Cole-Ehlinger and against Flagstar. Flagstar argues that, regardless of which theory the verdict is predicated upon, the trial court should have granted its motion for directed verdict or, failing that, its post-trial motion for new trial as the evidence does not support the verdict.

A trial court should grant a motion for directed verdict "only when the evidence shows that the jury could not reasonably differ as to the existence of a material fact." Union Carbide Corp. v. Kavanaugh, 879 So.2d 42, 44 (Fla. 4th DCA 2004). In determining whether such standard has been met "the court must evaluate the evidence in the light most favorable to the nonmoving party" and "[i]f different reasonable inferences may be drawn or there is conflicting evidence, the case should be submitted to the jury." Id. On appeal, a ruling on a motion for directed verdict is reviewed de novo. See Tenny v. Allen, 858 So.2d 1192, 1195 (Fla. 5th DCA 2003)

. In this case, the trial court should have directed a verdict in favor of Flagstar.

With respect to the owner/possessor theory, Cole-Ehlinger points to the testimony of Frank Ruiz, a current facilities manager of "Flagstar Denny's," who testified that all of the Denny's corporate stores, including the one located on University Drive, are owned by Flagstar. Flagstar, on the other hand, points to (1) the testimony of corporate representatives to the effect that Denny's owned the actual restaurants and that there were two levels of corporations between Denny's and Flagstar and (2) the actual lease for the University Drive premises, which is between Luis Schwab, the owner, and Denny's, as lessee. The bottom line here is that a jury could not "reasonably differ" as to the issue of ownership/possession of the restaurant premises. Whatever the basis for Ruiz's belief that Flagstar owned the actual restaurants, such belief cannot prevail in the face of evidence regarding the actual corporate structure and demonstrating that Denny's actually leases the premises.

The negligent maintenance theory of liability turns upon the existence of evidence establishing that a Flagstar employee made the decision to repair the deteriorating salad bar door by installing a kick plate, rather than replacing the door, or that a Flagstar employee actually made the repair. The key to the existence of an employer/employee relationship is "the right to...

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10 cases
  • Leggett Group, Inc. v. Davis
    • United States
    • Florida District Court of Appeals
    • October 10, 2007
    ...This court reviews a trial court's decision on a motion for directed verdict using the de novo standard. See Flagstar Cos. v. Cole-Ehlinger, 909 So.2d 320, 322 (Fla. 4th DCA 2005). "A motion for directed verdict should be granted when there is no evidence or reasonable inferences upon which......
  • Jallali v. Nova Southeastern University
    • United States
    • Florida District Court of Appeals
    • October 1, 2008
    ...4th DCA 2001). On appeal, a trial court's ruling on a motion for directed verdict is reviewed de novo. Flagstar Cos., Inc. v. Cole-Ehlinger, 909 So.2d 320, 322 (Fla. 4th DCA 2005). Nova's legal relationship with Jallali was "solely contractual in character, and there is an implied condition......
  • Devon Med. Inc. v. Ryvmed Med. Inc.
    • United States
    • Florida District Court of Appeals
    • May 11, 2011
    ...for directed verdict is de novo.” Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16, 20 (Fla. 4th DCA 2006) (citing Flagstar Cos. v. Cole–Ehlinger, 909 So.2d 320 (Fla. 4th DCA 2005)). “Upon a directed verdict motion, the weight of the evidence and all reasonable inferences therefrom must be vie......
  • Contreras v. U.S. Sec. Ins. Co.
    • United States
    • Florida District Court of Appeals
    • March 22, 2006
    ...turn. The standard of review on appeal of the trial court's ruling on a motion for directed verdict is de novo. Flagstar Cos. v. Cole-Ehlinger, 909 So.2d 320 (Fla. 4th DCA 2005). In reviewing the granting of a directed verdict, an appellate court must view the evidence and all inferences of......
  • Request a trial to view additional results
1 books & journal articles
  • Negligence cases
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • April 1, 2022
    ...1. Toole v. State , 270 So.3d 371, 388 n.123 (Fla. 4th DCA 2019) (Ciklin, J., concurring). 2. Flagstar Companies, Inc. v. Cole-Ehlinger , 909 So.2d 320 (Fla. 4th DCA 2005). 3. Sullivan v. Dry Lake Dairy, Inc ., 898 So.2d 174, 175 (Fla. 4th DCA 2005). 4. Royal & Sunalliance v. Lauderdale Mar......

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