Stevens Markets, Inc. v. Markantonatos

• Court: Florida Supreme Court
• Writing for the Court: CALDWELL; ROBERTS and ERVIN, JJ., and WARREN; THORNAL; O'CONNELL; THOMAS, J., dissents and agrees with THORNAL, C.J., and O'CONNELL
• Citation: Stevens Markets, Inc. v. Markantonatos, 189 So.2d 624 (Fla. 1966)
• Decision Date: 29 June 1966
• Docket Number: No. 34626,34626
• Parties: STEVENS MARKETS, INC., and Florida corporation, and Gray Security Service, Inc., a Florida corporation, Petitioners, v. Irene MARKANTONATOS, a minor, by her father and next friend, Nick Markantonatos, and Nick Markantonatos, Individually, Respondents.

Page 624

189 So.2d 624

STEVENS MARKETS, INC., and Florida corporation, and Gray Security Service, Inc., a Florida corporation, Petitioners, v. Irene MARKANTONATOS, a minor, by her father and next friend, Nick Markantonatos, and Nick Markantonatos, Individually, Respondents.

No. 34626.

Supreme Court of Florida.

June 29, 1966.

Rehearing Denied Sept. 29, 1966.

Reginald L. Williams and Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, for petitioners.

Kelner & Lewis, Miami, for respondents.

CALDWELL, Judge.

This cause is here on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, ¹ which affirmed the judgment of the trial court for the plaintiff in an action for damages for false imprisonment, unlawful detention, unauthorized search and assault and battery. Petitioner, defendant below, has raised seven points for review, three of which merit our consideration.

The complaint alleged damages arising from detention and search of the minor plaintiff on suspicion of shoplifting. The jury verdicts, as first submitted to the Court, were for No Dollars compensatory damages and $5,000 punitive damages for the minor plaintiff, Irene Markantonatos, and $1,500 compensatory damages for the plaintiff's father. When the verdicts were submitted, but neither read nor recorded, the trial judge called counsel to the bench and stated the verdicts indicated an obvious misunderstanding by the jury of the instructions. The judge directed the jury to retire and again consider the compensatory award to the minor plaintiff without further considering the punitive damages awarded her or the compensatory award to her father and charged the jury as follows:

'Gentlemen of the jury, it is the Court's opinion that the verdict that you have returned to the Court in reference to Irene Markantonatos, that it is incumbent--of course, the law requires first of all that some degree of compensatory damages be fixed by the jury before punitive damages can be fixed by the jury.

'Now, compensatory damages can be nominal, very nominal, and with that instruction, I am asking you gentlemen to return to the jury room; and only with that verdict in reference to Irene Markantonatos, to affix there, in the compensatory damages category, a sum of money--whether it be nominal or otherwise I leave with your discretion--and you are the tryers of the facts and you heard the testimony in the case.'

On appeal defendants assigned as error (1) the trial court's resubmission of the verdict for No Dollars compensatory damages to the jury and (2) the resubmission of that verdict alone without allowing the jury to further consider the punitive damage award to the minor plaintiff or the compensatory damage award to her father. The District Court held that, although a verdict of No Dollars is ordinarily a good verdict in this State, such a verdict may be resubmitted to the jury when it is apparent that the jury misunderstood the court's instruction. The opinion does not discuss point two, supra, the propriety of resubmitting only one of the three original verdicts.

Petitioner contends the decision of the District Court, approving the resubmission to the jury of only one of three verdicts, conflicts with Grant v. State, 33 Fla. 291, 14 So. 757, 23 L.R.A. 723 (1894); Rentz v. Life Oak Bank, 61 Fla. 403, 55 So. 856 (1911); Bryant v. State, 34 Fla. 291, 16 So. 177 (1894) and Tobin v. Garry, 127 So.2d 698 (Fla.App.2d 1961). The cases cited hold that until the verdicts in a case are received, accepted and recorded by the court, such verdicts are still under the control of the jury. The Tobin case, supra, at page 700, held:

'* * * The validity of a verdict is a question for the Court and until it is received and recorded by the Court, it is still within the control of the jurors. See Nelson v. McMillan, 151 Fla. 847, 10 So.2d 565. It is clearly the right and duty of the Court before discharging the jurors to call their attention to a defective verdict and give them an opportunity to return a proper verdict. Rentz v. Live Oak Bank, 61 Fla. 403, 55 So. 856. When they are sent back to further or reconsider the matter, the case is still in their hands. They are not bound by their former action. They are at liberty to review the case and to bring in an entirely new verdict.'

It is established that when a verdict is returned for correction the jury may alter it in substance or submit a different verdict. Until a verdict is accepted by the court and recorded the entire cause remains in the hands of the jury. No case is cited and none is found sanctioning the resubmission of less than all the multiple verdicts in a cause. The Dawson ² and Money ³ cases cited by the District Court upheld the resubmission of verdicts awarding punitive damages without an award of compensatory damages but, in those cases, the courts resubmitted all verdicts. In neither of the cases cited was the punitive damage award withheld from the jury, as in the instant case. ⁴ The District Court erred in affirming the trial court's resubmission of only one of three verdicts involved in this cause.

A third point raised by petitioner, not disposed of by the District Court, merits consideration. The record discloses that, after the trial judge had instructed the jury to reconsider the compensatory damage award to plaintiff, he directed the clerk to prepare the verdict form by writing in the $5,000 punitive award and leaving a blank space for the amount of compensatory damages. The judge then conferred with counsel:

'THE COURT: Do you gentlemen have any objection if I just hand this verdict to the...