J.L. Prop. Owners Ass'n, Inc. v. Schnurr
| Decision Date | 05 January 2022 |
| Docket Number | 4D19-3474 |
| Citation | 336 So.3d 291 |
| Parties | J.L. PROPERTY OWNERS ASSOCIATION, INC., Appellant, v. Timothy F. SCHNURR, as executor of the Estate of James V. Schnurr, and Christine Schnurr, individually, Appellees. |
| Court | Florida District Court of Appeals |
Kathryn L. Ender, Todd R. Ehrenreich, and Brian Goldenberg of Lewis Brisbois Bisgaard & Smith, LLP, Coral Gables, for appellant.
Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Gregg A. Schlesinger, Jonathan Gdanski, Zane Berg, and Cristina Sabbagh of Schlesinger Law Offices, P.A., Fort Lauderdale, Crane A. Johnstone of Johnstone Law, P.A., Fort Lauderdale, and Thomas P. Angelo and James W. Carpenter of Angelo & Banta, P.A., Fort Lauderdale, for appellees.
James Schnurr collided with a bollard while riding his bike in the Jonathan's Landing community. As a result of the accident, he was rendered a quadriplegic. The jury found in favor of Mr. Schnurr and his wife on claims for negligence and loss of consortium. Appellant, J.L. Property Owners Association ("JLPOA"), argues the trial court erred by: (1) precluding Jonathan's Landing, Inc. ("the developer"), the original entity that installed the bollards, from appearing on the verdict form as a Fabre defendant, (2) giving a preemptive jury instruction relating to JLPOA's control of the premises, (3) committing cumulative error, and (4) denying a new trial, where the trial court found the future medical expenses were excessive and the party adversely affected by the remittitur did not agree to the remittitur.
As to issue 1, we affirm, as the trial court did not err, in these circumstances, in not placing the developer on the verdict form as a Fabre defendant. We affirm issues 2 and 3 without further comment. As to issue 4, however, we find the trial court erred by not granting a new trial for future medical expenses. As such, we affirm on all issues, except we reverse and remand for a new trial on future medical expenses.
James Schnurr and his wife, Christine Schnurr, were riding bicycles on a promenade in the Jonathan's Landing community when his bicycle struck one of two bollards installed within the promenade at a spot located just before the promenade crossed the roadway. The bollards were posts in the ground used to block roadway traffic from turning into the promenade.
As a result of hitting the bollard, Mr. Schnurr was ejected from his bicycle and landed on the ground. He sustained fractures to his neck which rendered him a quadriplegic. Mr. Schnurr was sixty-four years old at the time of the accident.
The Schnurrs filed suit, asserting negligence and loss of consortium against JLPOA and Jonathan's Landing Golf Club ("Golf Club"). Among its affirmative defenses, JLPOA asserted that the developer designed and installed the bollards. The Golf Club settled before trial.
The evidence at trial showed that Jonathan's Landing is a master planned community. In 1992, the developer granted JLPOA a nonexclusive easement for ingress and egress of the promenade. In 1995, the developer transferred ownership of the community to the Golf Club. The developer ceased to exist in 2009.
JLPOA's articles of incorporation and the amended declaration of covenants and restrictions stated that JLPOA had a duty to maintain the promenade. Additionally, JLPOA's corporate representative and JLPOA's president at the time of the accident both testified that JLPOA had a duty under the declaration to maintain the promenade.
Multiple experts testified that the bollards were inconspicuous and difficult to see because they blended into the background. The bollards were painted "beige or tan" instead of a high contrast color, such as yellow. The bollards had small reflectors on them, but they were not reflective. There were no pavement markings or other warnings to alert a person traveling in the promenade that they were approaching the bollards.
The bollards were installed without a permit and were contrary to various building codes and construction guidelines. Evidence was conflicting as to when the bollards were installed and who installed them. The bollards did not appear on the original design plan or the 1998 survey, but they did appear on the 2004 survey, which suggested they were installed sometime between 1998 and 2004. However, a former employee of the developer testified the bollards were installed in the mid-1980s when the clubhouse construction was complete, sometime around 1984 or 1985.
After a motion by the Schnurrs, the trial court precluded the addition of the developer as a Fabre defendant on the jury verdict form. The trial court found that the developer did not have a duty to maintain the property and did not have control over the property because the developer was "long gone." However, the trial court permitted JLPOA to argue as a defense that the developer had installed the bollards.
The jury found that JLPOA was negligent in failing to warn Mr. Schnurr of a dangerous condition. However, the jury also found that JLPOA was not negligent in failing to maintain the promenade in a reasonably safe condition. The jury assigned fault as follows: 45% to JLPOA, 50% to Mr. Schnurr, and 5% to the Golf Club.
The jury found damages in the total amount of $41,050,000. That amount included, for Mr. Schnurr, $4.8 million in past medical expenses, $12 million in future medical expenses, $750,000 for past lost earnings, $3.5 million for future lost earning capacity, $10 million for past loss of the capacity for the enjoyment of life, and $5 million for future loss of the capacity for the enjoyment of life. The total amount also included, for Mrs. Schnurr, $5 million for loss of consortium.
On May 30, 2019, JLPOA moved for remittitur. JLPOA requested that the trial court remit the award for future medical expenses to $5,782,811 or, alternatively, order a new trial. During a hearing on September 12, 2019, the Schnurrs’ counsel stated that they would accept the $5,782,000 figure. Only at the end of the hearing did the Schnurrs’ counsel inform the court and JLPOA that Mr. Schnurr had died five days before the hearing. In response, JLPOA stated that "[t]here are certain issues that now come up." The hearing concluded after discussions of additional filings and a future hearing.
Shortly thereafter, JLPOA moved for leave to amend its post-trial motion for new trial and remittitur due to Mr. Schnurr's death. JLPOA requested that the court award a new trial on damages or, alternatively, to remit the future damages award to zero. The trial court denied the amended motion for leave to amend and remitted Mr. Schnurr's future medical expenses to $5,782,811, finding that amount was supported by the trial testimony and the evidence. In doing so, the trial court noted that section 768.74 requires a trial court to determine whether a damage award is excessive "in light of the facts and circumstances which were presented to the trier of fact."
After the trial court's order, JLPOA filed an objection to entry of final judgment, expressly objecting to remittitur and requesting that a new trial be ordered on all future damages. During a subsequent hearing, JLPOA reiterated its rejection of the remittitur and again requested a new trial on future damages. The Schnurrs’ counsel responded that JLPOA was not entitled to a new trial because JLPOA "got exactly what they asked for." The trial court overruled JLPOA's objection, finding that the court was limited to the evidence presented at trial, and death is not something to consider in addressing remittitur. The trial court did not address whether JLPOA had a right to a new trial by now rejecting the amount of remittitur.
The trial court, after applying the jury's comparative fault percentage findings, entered a final judgment directing that Mr. Schnurr recover from JLPOA $12,497,054.15 and Mrs. Schnurr recover $2,250,000 for a total judgment of $14,747,054.15. Following a motion, Mr. Schnurr's estate was substituted as a plaintiff. This appeal follows.
JLPOA argues that the trial court erred in striking JLPOA's Fabre defense as to the developer, a non-party to this lawsuit, and by preventing the jury from apportioning fault to the developer on the verdict form. JLPOA further argues that a non-party Fabre defendant need not have control over the premises to be included on a verdict form for apportionment of fault. The Schnurrs argue that the trial court correctly excluded the developer from the verdict form since the developer was not involved in the premises for decades prior to Mr. Schnurr's injury.
We review de novo "[w]hether a Fabre defendant should have been on the verdict form." Okeechobee Aerie 4137, Fraternal Order of Eagles, Inc. v. Wilde , 199 So. 3d 333, 341 (Fla. 4th DCA 2016).
The comparative fault statute, section 768.81, Florida Statutes, provides that "[i]n a negligence action, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability." § 768.81(3), Fla. Stat. (2019). "[I]n determining noneconomic damages fault must be apportioned among all responsible entities who contribute to an accident even though not all of them have been joined as defendants." Nash v. Wells Fargo Guard Servs., Inc. , 678 So. 2d 1262, 1263 (Fla. 1996). "A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts is wholly or partially responsible for the negligence alleged." Royal Palm Hotel Prop., LLC v. Deutsche Lufthansa Aktiengesellschaft, Inc. , 133 So. 3d 1108, 1110 n.1 (Fla. 3d DCA 2014) (citation omitted).
JLPOA had the burden of proving the developer's fault contributed to the accident in order to include the non-party on the verdict form. Nash , 678 So. 2d at 1264. "In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by...
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