Jacobs v. Westgate

• Decision Date: 13 September 2000
• Docket Number: No. 3D99-1473.,3D99-1473.
• Citation: 766 So.2d 1175
• Parties: Jonathan JACOBS, Appellant, v. Christopher WESTGATE and Russell Lyons, Appellees.
• Court: Florida District Court of Appeals

766 So.2d 1175

Jonathan JACOBS, Appellant, v. Christopher WESTGATE and Russell Lyons, Appellees.

No. 3D99-1473.

District Court of Appeal of Florida, Third District.

September 13, 2000.

Goldberg & Hirsh; I. Richard Jacobs; Lauri Waldman Ross, Miami, for appellant.

Adams & Adams, Miami; Gallagher & Howard and Betsy E. Gallagher, Tampa; Joel Lumer, Miami, for appellees.

Before GERSTEN, SHEVIN and SORONDO, JJ.

PER CURIAM.

Jonathan Jacobs appeals the trial court's Amended Final Judgment. We reverse.

Jacobs sued his landlord, Christopher Westgate and a neighbor, Russell Lyons. He alleged that he and Westgate lived together in Westgate's house, pursuant to an oral lease agreement, and that the lease was in full force and effect on April 6, 1995. On that date, Jacobs returned to the residence and found himself locked out and his personal property thrown into the street. He initially sued for 1) wrongful eviction; 2) violation of section 83.67, Florida Statutes (1997); 3) conversion; and 4) negligence. Westgate and Lyons answered asserting affirmative defenses of comparative negligence and/or failure to mitigate damages and a counterclaim for non-payment of rent. Jacobs' wrongful eviction claim was voluntarily dismissed, with Westgate withdrawing his counterclaim as a result of the dismissal. The case then proceeded to a jury trial on Jacobs' negligence claim against both defendants. At trial, Jacobs testified to the following: On March 29, 1995, Westgate handed him a piece of paper that Westgate had just typed on his computer. This paper was a postdated document that alleged to be dated fifteen days earlier and gave Jacobs until the next day to quit the premises. Jacobs immediately called his attorney. The parties decided they did not want to get any lawyers involved, so Jacobs informed Westgate that he had a new lease and would be moving out in two weeks. On April 6, 1995, immediately after Jacobs left for work in the morning, Westgate summoned his neighbor, Lyons, and told him that Jacobs' belongings were taking up too much space in the garage. Westgate told Lyons that he wanted to move Jacobs' personal property out of the house so that Jacobs could not get back in. Together, they moved all of Jacobs' belongings into the street where the garbage was ordinarily left and covered it with a tarp. Westgate then changed the garage door code as well as all of the locks to the house.

Jacobs came home a few hours later to discover his belongings on the street. He asked Westgate to move his property back into the garage because it was about to start raining. Westgate refused, but offered him a telephone to call someone.

Jacobs then telephoned the police. The police told him he could either get an emergency injunction to get back into the house or he could take it up in court later and move his property. After the police left, Jacobs went to a nearby mall to call a moving company. He then drove back to Westgate's house.

Westgate testified at trial that Jacobs made two or three additional trips to the mall to call the movers. He further testified that either he or Lyons remained at the house during the time after Jacobs' property was moved out of the house until the time it was taken away by the movers who arrived at approximately 1:30 p.m.

Westgate further testified that it started to drizzle when the movers arrived, while Jacobs testified it had been pouring for some time. Westgate gave the movers a check for $750, and they piled Jacobs' property into the moving truck.

Jacobs testified as to the value of the property he lost. He said that the total value of all his property lost or damaged was $175,000. He lost $150,000 of property completely, with salvaged items totaling approximately $25,000 which he kept in a warehouse. The damaged or lost property included clothing, stereo equipment, jewelry, antiques, cameras and photograph equipment, paintings, cash and all of Jacobs' comic books, baseball cards, football cards and rare camera collection.

At the conclusion of the defense's case, Jacobs moved for a directed verdict on the issue of Westgate's and Lyons' negligence, as well as the defense of "comparative negligence." The trial court denied his motions.

Over Jacobs' further objections, the trial court instructed the jury on the defense of mitigation of damages in addition to the defense of comparative negligence. Jacobs also objected to the defendants' proposed verdict form, which treated comparative negligence and mitigation of damages as separate defenses, urging that the defense of mitigation was subsumed in comparative negligence and that it was unfair to permit the defense two separate attempts at a verdict reduction. The court overruled these objections, accepting the defense argument that these were separate issues.

The case was then submitted to the jury. As relevant to our discussion, the jury first found that Westgate and Lyons were negligent and that their negligence was the cause of Jacobs' damages. The jury went on to find that Westgate was 99% negligent, and Lyons was 1% negligent; that the total amount of Jacobs' damages were $60,000; and that Jacobs failed to mitigate his damages in the amount of $47,000.00. Thus, the net amount of damages was $13,000.00 Jacobs renewed his motions for directed verdict on both liability and comparative negligence. Jacobs also moved for a new trial asserting that the defendants' violation of the court's in limine order, by adducing bad character evidence, was solely to prejudice the jury and to minimize the amount of his loss. Jacobs further raised the submission of the case to the jury on erroneous instructions and verdict forms. The trial court denied these motions, and after amending the judgment to add prejudgment interest, entered judgment in Jacobs' favor for $16,964.81.

On appeal, Jacobs cites three grounds for reversal. First, Jacobs contends that he was entitled to a directed verdict on the issue of liability and the defense of comparative negligence. Next, Jacobs contends that the case was submitted to the jury on erroneous instructions and an erroneous verdict form. Finally, Jacobs maintains that the admission of bad character evidence on an irrelevant defense served no purpose but to prejudice the jury.

Liability and Comparative Negligence Defense Issues

With regard to Jacobs' contention that he was entitled to a directed verdict on the issue of liability and the defense of comparative negligence, we agree.

In negligence cases, motions for directed verdict should be treated with special caution because it is the function of the jury to weigh and evaluate the evidence. See Pascale v. Federal Express Corp., 656 So.2d 1351, 1353 (Fla. 4th DCA 1995). However, "[w]here reasonable persons can come to but one possible conclusion, issues of negligence become questions of law and should not be submitted to the jury." Borenstein v. Raskin, 401 So.2d 884, 886 (Fla. 3d DCA 1981). Under comparative fault principles, a plaintiff may have his judgment against any of the parties who wronged him, and if a single defendant is shown to have negligently caused injury, a directed verdict against him is proper. See Stresscon Int'l, Inc. v. Helms, 390 So.2d 139, 142 (Fla. 3d DCA 1980).

The law is clear that where a plaintiff is free of fault, he may move for a directed verdict on the issue of comparative negligence in addition to the issue of the defendant's liability. See Valdes v. Faby Enters., Inc., 483 So.2d 65 (Fla. 3d DCA 1986). Where there is no evidence tending to prove a plaintiff's comparative negligence, the issue should be taken from the jury. See Florida Ass'n of Workers for the Blind, Inc. v. Guillaume, 618 So.2d 275 (Fla. 3d DCA 1993).

Regarding the issue of the defendants' negligent care of Jacobs' property, the record reflects that the evidence of negligence in this case was overwhelming and reasonable people could not differ. Westgate admitted at trial that he decided to move Jacobs' belongings out of his house on the evening of April 5th, and that he told Lyons but did not tell Jacobs. Instead, Westgate waited for Jacobs to leave the house before he began moving the personal property. He admitted that he misled Jacobs regarding why he was not going to work that day. Westgate had no court order and no legal authority to move Jacobs' property out. He knew that Jacobs' property could be stolen because he had warned Jacobs previously about this risk. Westgate further testified that he knew rain showers could happen very quickly in South Florida. When rain began to threaten and both Jacobs and the police urged Westgate to store Jacobs' property temporarily so nothing further would be damaged, Westgate refused.

Lyons admitted that he had no right to move Jacobs' property out, that he knew it was wrong and told Westgate so, but argued that he was just helping a friend. Lyons conceded his own negligence when he testified that he knew what he was doing was negligent and improper when he did it.

In light of the foregoing evidence, we agree with Jacobs that there is no view of the evidence from which the jury could have returned a verdict entirely in either defendant's favor. Thus, the trial court erred in failing to grant Jacobs' motion for directed verdict on the issue of liability and, as Jacobs posits, all that entails. This means that Jacobs should have received a jury instruction that as a matter of law, these defendants were liable and the only issue left for the jury to decide was the amount of damages. See Fla. Stand. J. Instr. (Civil) 3.1(d).¹

Regarding the defense of comparative negligence, we agree with Jacobs that the doctrine of comparative negligence subsumes the concept of mitigation of damages. See Ridley v. Safety Kleen Corp., 693 So.2d 934 (Fla.1996). Accordingly, the defendants had the burden of proving the defense of comparative negligence. See Florida Ass'n of Workers for the Blind, Inc. v. Guillaume, 618 So.2d 275 (Fla. 3...