International Ins. Co. v. Ballon, 79-1473

• Decision Date: 09 September 1981
• Docket Number: No. 79-1473,79-1473
• Citation: 403 So.2d 1071
• Parties: INTERNATIONAL INSURANCE COMPANY, American Home Assurance Company, Federal Insurance Company, Palm Beach Towers Condominium Association, Inc., and Merchant Police of the Palm Beaches, Inc., Appellants, v. Frederick E. M. BALLON, et al., Appellees.
• Court: Florida District Court of Appeals

Page 1071

403 So.2d 1071

INTERNATIONAL INSURANCE COMPANY, American Home Assurance Company, Federal Insurance Company, Palm Beach Towers Condominium Association, Inc., and Merchant Police of the Palm Beaches, Inc., Appellants, v. Frederick E. M. BALLON, et al., Appellees.

No. 79-1473.

District Court of Appeal of Florida, Fourth District.

Sept. 9, 1981.

Montgomery, Lytal, Reiter, Denney & Searcy, Larry Klein, West Palm Beach, and Karon, Morrison & Savikas, Chicago, Ill., for appellant International Ins. Co.

Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O'Hara & McCoy, Miami, for appellant American Home Assurance Co.

Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P.A., Miami, for appellant Federal Ins. Co Magill & Reid, P.A., Palm Beach, and Edna L. Caruso, West Palm Beach, for appellant Palm Beach Towers Condominium Ass'n, Inc.

J. Burke Culler, Jr. of Adams, Coogler, Watson & Smith, West Palm Beach, for appellant Merchant Police of the Palm Beaches, Inc.

Louis L. Williams of Farish, Farish & Romani, West Palm Beach, for appellees.

Thomas E. Kingcade and Jack S. Cox of Levy, Plisco, Shapiro, Kneen, Kingcade & McCarthy, P.A., Palm Beach, for appellees Harold Hassenfeld and Harold Rosenthal.

LETTS, Chief Judge.

This appeal results from the granting of a new trial in favor of certain plaintiff condominium unit owners who suffered first an adverse directed verdict in favor of one defendant at the close of the plaintiffs' case and later on an adverse jury verdict as to all other defendants. The suit, filed by said unit owners against the condominium association, the association's officers and directors, and the independently contracted for security guard service, was predicated on the alleged negligence of the defendants being the proximate cause of the loss of valuable possessions stolen from commonly located safety deposit boxes which were broken into and ransacked during the course of a major and successful nighttime robbery. We reverse.

Addressing ourselves first to the trial judge's change of heart as to the directed verdict in favor of the security guard service at the close of the plaintiffs' case, we are convinced he erred in basing the rescission of it on "testimony presented in the (remaining) defendants' case" (emphasis supplied). By the time the trial progressed to the point where the remaining defendants put on their defense, the successful recipient of the directed verdict had ceased to be a defendant and was long gone home rejoicing, because the unit owners had failed to present a prima facie case of negligence against it. Our reading of the record supports that directed verdict and it was improper to resurrect the issue, in absentia, by way of facts and circumstances emerging from the testimony of, and the evidence from, the remaining defendants during the presentation of their defense. See Fish Carburetor Corporation v. Great American Insurance Company, 125 So.2d 889, 892 (Fla. 1st DCA 1961); Tillman v. Baskin, 260 So.2d 509 (Fla.1972) and H. Trawick, Florida Practice & Procedure § 22-13 (1980).

Notwithstanding the foregoing, the unit owners argue that the trial judge's decision to rescind the directed verdict was not merely grounded on testimony presented in the remaining defendants' case but also upon "further consideration." They thus suggest that the further consideration was in fact a reexamination of the plaintiffs' case. However, the trial judge did not so state and the language employed appears to be only of the "boiler-plate" variety. Even if he did intend a re-examination of the plaintiffs' case, it would have been insufficient to merely incant the words "upon further consideration." Obviously the rescission of the directed verdict under the facts of this case and under the language of the trial court's order, was a grant of a new trial against the recipient of the directed verdict. This being so, we are of the belief that the trial court would be required to "articulate reasons for so doing so that the appellate courts may be able to fulfill their duty of review." Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla.1978). The words "upon further consideration" fall far short of any such requirement. We conclude the directed verdict must be reinstated.

Passing next to the judge's grant of a new trial to the unit owners, notwithstanding a jury verdict for the remaining defendants, we begin by setting forth the judge's order in pertinent part:

THIS CAUSE came before the Court on Plaintiffs' Motion for a New Trial, and other motions. After argument of counsel, and having been fully advised in the premises, the Court finds as follows:

1. The Palm Beach Towers Condominium was robbed the night of April 14 1976. Plaintiffs had just returned to their apartments after having celebrated Passover, a religious holiday. Most of the Plaintiffs were retired winter residents and all were very wealthy. The jury's verdict was adverse to Plaintiffs and, very likely, was based upon prejudice. The Court observed from the Bench that most of the jurors were inattentive after the first two days of a lengthy thirteen-day trial.

The jurors were given full-sized legal pads to take notes. Counsel agreed to this procedure because of the alleged losses consisting of hundreds of individual items of jewelry amounting to millions of dollars. The Court further observed that only a few of the jurors were interested enough to take notes, and several did not take any notes. The Court reasonably concludes that many of the jurors had made a decision long before the testimony had been completed. The verdict in this case was clearly contrary to the manifest weight of the evidence.

2. The Court may have committed error in allowing confusing jury instructions as to gross negligence and simple negligence, and in failing to explain the different application to each defendant.

3. The Court should not have allowed witnesses Richard Duncan Pearson and Richard Kellogg to give opinion testimony when neither witness was qualified as an expert, and as to Richard Duncan Pearson, allowing his testimony when Plaintiffs were precluded from testing his knowledge and the basis of his opinions since he refused to answer questions relating to specific crimes and robberies committed by him in the past.

4. * * *

5. The Court, in an attempt to be fair, allowed counsel for the Defendants to exhibit conduct which far exceeds the bounds of advocacy. The Court did not restrain Defendants' counsel which it should have done, and as a result the jury was prejudiced by the forward, overzealous, aggressive, abrasive and at times obnoxious, conduct by Defendants' counsel toward Plaintiffs, Plaintiffs' counsel and the Court.

Therefore, based upon the foregoing, it is

ORDERED AND ADJUDGED that the aforesaid errors deprived Plaintiffs of a fair and impartial trial and, in the interest of justice, a new trial is hereby granted in this cause against all Defendants.

Appellate review of this order requires us to revisit the tension between the twin theories discussed in Wackenhut Corp. v. Canty, supra. On the one hand, we again acknowledge the rule that when substantial competent evidence is presented to the jury, its verdict should not be disturbed absent a showing that the jury was deceived by the evidence or influenced by outside considerations. On the other hand, we also acknowledge the rule of broad discretion which imparts to the trial judge the authority to grant a new trial when he concludes that the verdict is against the manifest weight of the evidence or if he determines the jury has been influenced by extra-record considerations or misled by the force and credibility of the evidence. In Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977), cert. denied, 359 So.2d 1221 (Fla.1978), this court, based on the facts in that case, opted in favor of the latter doctrine and indeed in Wackenhut, which came later, the Supreme Court also seemed to favor the broad discretion rule. See Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980) and Ford Motor Company v. Kikis, 401 So.2d 1341 (Fla.1981). However, the Wackenhut court was careful to add that although the trial court is in a better position to pass on the ultimate correctness of a jury verdict, "superior vantage point does not give a trial judge unbridled discretion to order a new trial" and he must give reasons for it in order to "facilitate intelligent appellate review." Id. at 434.

Such back and forth transfer of the power to decide ultimate correctness is somewhat reminiscent of spectators' heads during a tennis match, but we conclude from Wackenhut that the ball is squarely back in our court, so that we are charged with the authority to examine the trial judge's "reasons" for ordering the new trial. We have done so and we find them wanting.

The trial court's order initially stated that the jury verdict was "very likely based upon prejudice." What prejudice, and how likely? After the quoted words, the ensuing sentence in the order indicates that the prejudice may have been inattentiveness, but the two preceding sentences suggest obliquely that there may have been some anti-Semitism and antipathy to wealth. ¹ As to those two preceding sentences, neither the anti-Semitism nor antipathy to wealth is explained or illustrated and we cannot be sure the former was even intended. Moreover, the unit owners were largely suing their own directors and their own association, composed of fellow unit owners, so we cannot discern why the prejudice, if any, would not apply equally to both sides. ² This alleged prejudice was not alluded to in the motion for a new trial.

As to the stated inattentiveness of the jury, surely sometime during the trial the court or somebody would have commented on this inattentiveness and thus have a record of it. Further, 58 Am.Jur.2d New Trial, § 95 indicates that there have been few cases in which new trials have been...