Nordyne, Inc. v. Florida Mobile Home Supply, Inc.

• Decision Date: 20 October 1993
• Docket Number: 91-3739 and 92-2362,Nos. 91-3094,s. 91-3094
• Citation: 625 So.2d 1283
• Parties: 18 Fla. L. Weekly D2273 NORDYNE, INC., Appellant, v. FLORIDA MOBILE HOME SUPPLY, INC., Appellee.
• Court: Florida District Court of Appeals

Page 1283

625 So.2d 1283

18 Fla. L. Weekly D2273

NORDYNE, INC., Appellant, v. FLORIDA MOBILE HOME SUPPLY, INC., Appellee.

Nos. 91-3094, 91-3739 and 92-2362.

District Court of Appeal of Florida,

First District.

Oct. 20, 1993.

Barry Richard of Greenberg, Traurig, Hoffman, Rosen, Lipoff & Quentel, P.A.; and Julian Clarkson and Michael L. Rosen of Holland & Knight, Tallahassee, for appellant.

Ben H. Wilkinson, Cathi C. Wilkinson and D. Andrew Byrne of Pennington, Wilkinson, Dunlap, Bateman & Camp, P.A., Tallahassee, and Mark L. Mallios and R. Stuart Huff, Coral Gables, for appellee.

WEBSTER, Judge.

Defendant/appellant (Nordyne) appeals and plaintiff/appellee (FMHS) cross appeals, following the entry of a final judgment, after a jury trial, in a relatively complex business tort case. The jury found for FMHS on claims alleging fraud and tortious interference with business relationships, awarding both compensatory and punitive damages. The jury also found for Nordyne on a counterclaim seeking to recover a debt alleged to be outstanding on account of the business relationship which had existed between the parties. However, the trial court subsequently entered a judgment notwithstanding the verdict in favor of FMHS on the counterclaim.

Nordyne argues that the trial court erred by (1) denying Nordyne's motion for directed verdict as to both the fraud and the interference with business relationships claims; (2) admitting testimony of various witnesses; (3) allowing on the issue of damages evidence of

profits which would supposedly be lost by FMHS as a result of Nordyne's actions, during the five years following those actions; (4) entering a judgment notwithstanding the verdict in favor of FMHS on Nordyne's counterclaim; and (5) imposing for discovery violations uncovered post-trial sanctions against Nordyne in the form of a new trial on the amount of punitive damages to which FMHS is entitled, attorney fees and a money judgment in the nature of a fine. On its cross appeal, FMHS argues that the trial court erred when it failed to award attorney fees and costs based upon Nordyne's unreasonable rejection of demands for judgment made by FMHS. We affirm in part, and reverse in part.

I. DENIAL OF NORDYNE'S MOTION FOR DIRECTED VERDICT

We conclude that Nordyne has failed to preserve for review the propriety of the trial court's denial of its motion for directed verdict questioning the sufficiency of the evidence to support either the fraud or the interference with business relationships claim. Nordyne concedes that the record fails to reflect that it renewed that motion at the close of the evidence. As a general rule, one who fails to renew a motion for directed verdict at the close of the evidence waives the right to challenge on appeal the propriety of the trial court's denial of such a motion made prior to the close of the evidence. See, e.g., Prime Motor Inns, Inc. v. Waltman, 480 So.2d 88 (Fla.1985); 6551 Collins Ave. Corp. v. Millen, 104 So.2d 337 (Fla.1958); Aldana v. Winn-Dixie Stores, Inc., 517 So.2d 729 (Fla. 3d DCA 1987).

Nordyne argues that the right to challenge on appeal the sufficiency of the evidence presented at trial may be preserved either by a motion for directed verdict made at the close of the evidence, or by a motion for new trial. Therefore, because it moved for a new trial in the trial court, its right to challenge the sufficiency of the evidence has been adequately preserved. We disagree. In the first place, Nordyne has not raised as error the trial court's denial of its motion for new trial. It challenges only the denial of its motion for directed verdict. Moreover, Nordyne did not assert in its motion for new trial that the jury's verdict was contrary to the manifest weight of the evidence. Therefore, it has, likewise, failed to preserve that issue for review. See, e.g., Ruth v. Sorensen, 104 So.2d 10 (Fla.1958); Southern American Fire Ins. Co. v. Rinzler, 324 So.2d 133 (Fla. 1st DCA 1975); Winnemore v. Morton, 214 So.2d 509 (Fla. 4th DCA 1968); Mr. Land, Inc. v. Rabinowitz, 134 So.2d 859 (Fla. 3d DCA 1961).

Had Nordyne preserved its right to challenge on appeal the sufficiency of the evidence to support the claims for fraud and interference with business relationships, the outcome on this issue would be unaffected. Our review of the record satisfies us that the evidence presented on the claims was sufficient to justify their submission to the jury, and the jury's verdict.

We do not agree with Nordyne's contention that the fraud claim was based either exclusively or principally upon allegations of nondisclosure or concealment. On the contrary, the allegations regarding that claim relied principally upon intentional misrepresentations. In our view, the evidence was sufficient to support findings that (1) Nordyne made false statements to FMHS regarding a material fact--its intent to continue to permit FMHS to distribute its product; (2) Nordyne knew when it made the statements that they were false; (3) Nordyne intended that FMHS rely upon the false statements; and (4) FMHS did rely upon the false statements, to its detriment. Such evidence is sufficient to establish a claim for fraudulent representations. See, e.g., Lance v. Wade, 457 So.2d 1008 (Fla.1984).

As to the claim for tortious interference with business relationships, we believe that the evidence was sufficient to support findings that (1) business relationships existed between FMHS and its customers; (2) Nordyne was aware of those relationships; (3) Nordyne intentionally interfered with those relationships solely out of malice and, therefore, without justification; and (4) FMHS sustained damage as a result of Nordyne's interference with those relationships. Such

evidence is sufficient to establish a claim for tortious interference with a business relationship. See, e.g., Florida Fern Growers Ass'n v. Concerned Citizens of Putnam County, 616 So.2d 562 (Fla. 5th DCA 1993); O.E. Smith's Sons, Inc. v. George, 545 So.2d 298 (Fla. 1st DCA 1989).

II. ADMISSION OF TESTIMONY

Nordyne claims error in the trial court's admission of the testimony of four witnesses--Messrs. Parks, Owens, Burlingame and Dalton. We find it unnecessary to discuss this issue at length. The testimony of Parks and Owens was admitted for the limited purpose of establishing intent, motive or plan, and the jury was instructed accordingly. Evidence of the type offered through Parks and Owens is admissible when relevant to prove intent, motive or plan. Fla.Evid.Code Sec. 90.404(2)(a). Our review of the record leads us to conclude that Nordyne failed to preserve its objection to the testimony of Burlingame and Dalton, because it failed either to object contemporaneously or to renew its previously filed motion in limine addressed to those two individuals. Fredericson v. Levinson, 495 So.2d 842 (Fla. 3d DCA 1986). Our review of the record leads us to conclude, further, that the trial court did not abuse its discretion by ruling as it did regarding the testimony of those four witnesses. See Dale v. Ford Motor Co., 409 So.2d 232 (Fla. 1st DCA 1982) (absent abuse of discretion, ruling regarding admissibility will not be disturbed).

III. PERMITTING EVIDENCE OF LOST FUTURE PROFITS

Nordyne next argues that the trial court erred when it permitted an expert witness retained by FMHS to testify regarding profits which would be lost by FMHS as a result of Nordyne's actions, during the five years following those actions. According to Nordyne, lost future profits may be recovered only under what is known as the "benefit-of-the-bargain rule," and that rule applies only to breach of contract actions. In fraud and tortious interference cases, Nordyne argues, the appropriate measure of damages is set out in what is known as the "out-of-pocket rule." We disagree.

It is important to note that Nordyne does not contend either that the amount of lost future profits was not established with sufficient certainty, or that the evidence was insufficient to establish that such profits would be lost as a proximate result of its wrongful acts. Rather, it argues only that, as a matter of law, lost future profits are not a recoverable item of damages for claims based upon fraud or tortious interference.

In tort actions, the goal is to restore the injured party to the position it would have been in had the wrong not been committed. Glades Oil Co. v. R.A.I. Management, Inc., 510 So.2d 1193 (Fla. 4th DCA 1987). In most cases, the measure of damages which will accomplish this goal is that provided by the "out-of-pocket rule." However, in some cases, the measure of damages afforded by that rule will prove inadequate to achieve the desired goal. To address those latter cases in which the claim is for fraud, what has been described as the "flexibility theory" has been developed. The "flexibility theory" permits the court to use either the "out-of-pocket" or the "benefit-of-the-bargain" rule, depending upon which is more likely fully to compensate the injured party. E.g., Gregg v. U.S. Industries, Inc., 887 F.2d 1462 (11th Cir.1989) (applying Florida law); DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532 (Fla. 3d DCA), cert. denied, 238 So.2d 105 (Fla.1970). Thus, in Martin v. Brown, 566 So.2d 890, 891 (Fla. 4th DCA 1990), relying upon DuPuis and Strickland v. Muir, 198 So.2d 49 (Fla. 4th DCA 1967), the court said: "Florida has adopted two standards for the measurement of damages in an action for fraudulent representation. Either may be used to do justice as the circumstances demand. The first standard is the 'benefit of the bargain' rule.... The second standard is the 'out-of-pocket' rule...." Accord Martha A. Gottfried, Inc. v. Amster, 511 So.2d 595 (Fla. 4th DCA 1987); Getelman v. Levey, 481 So.2d 1236 (Fla. 3d DCA 1985), review denied, 494 So.2d 1150 (Fla.1986); Schryburt v. Olesen, 475 So.2d 715 (Fla. 2d We recognize that a certain degree of uncertainty exists in this state regarding the...