Surety Mortg., Inc. v. Equitable Mortg. Resources, Inc., 87-3614

• Decision Date: 16 November 1988
• Docket Number: No. 87-3614,87-3614
• Citation: 13 Fla. L. Weekly 2549,534 So.2d 780
• Parties: 13 Fla. L. Weekly 2549 SURETY MORTGAGE, INC., d/b/a SMI Financial, a Division of Surety Mortgage, Inc., Appellant/Cross-Appellee, v. EQUITABLE MORTGAGE RESOURCES, INC., a Florida corporation, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 780

534 So.2d 780

13 Fla. L. Weekly 2549

SURETY MORTGAGE, INC., d/b/a SMI Financial, a Division of Surety Mortgage, Inc., Appellant/Cross-Appellee, v. EQUITABLE MORTGAGE RESOURCES, INC., a Florida corporation, Appellee/Cross-Appellant.

No. 87-3614.

District Court of Appeal of Florida Second District.

Nov. 16, 1988.

Rehearing Denied Dec. 13, 1988.

Steven Carta of Simpson, Henderson, Savage & Carta, Fort Myers, for appellant/cross-appellee.

Anne S. Mason of Joseph C. Mason, Jr., P.A., Clearwater, for appellee/cross-appellant.

SCHOONOVER, Judge.

The appellant, Surety Mortgage, Inc., d/b/a SMI Financial, a Division of Surety Mortgage, Inc. (SMI), challenges a final judgment entered in its favor in an action it brought against the appellee, Equitable Mortgage Resources, Inc. (EMR). EMR cross-appeals that same final judgment. We find that the trial court erred in denying SMI's motion for new trial on the issue of damages and, accordingly, reverse.

SMI filed an action against EMR seeking damages for breach of contract and fraudulent misrepresentation. EMR subsequently filed a third party action seeking indemnification from its former employee who had entered into the contract with SMI. EMR voluntarily dismissed the third party action before the parties' jury trial, and SMI voluntarily dismissed its fraudulent misrepresentation claim at the close of its case-in-chief. Thus, only SMI's breach of contract claim was submitted to the jury.

The jury returned a special verdict finding that EMR materially breached the contract with SMI "such that [SMI] is entitled to reliance damages[.]" In addition, however, the jury found that the total amount of SMI's reliance damages was zero. The trial court entered a final judgment pursuant to the jury verdict and subsequently denied SMI's motion for new trial on the issue of damages. SMI then filed a timely notice of appeal. EMR has cross-appealed contending that if a new trial is ordered, the new trial must be on both damages and liability because the trial court erred by refusing to instruct the jury on mitigation of damages.

We agree with SMI's contention that the trial court erred by denying the motion for new trial. The decision of whether to grant a motion for new trial is within the trial judge's broad discretion because his contact with the trial and ability to observe the behavior of the witnesses places him in the best position to fully comprehend the processes by which the jury, as trier of fact, reached its ultimate decision. See Cloud v. Fallis, 110 So.2d 669 (Fla.1959). The trial judge has the duty to grant such a motion, however, where the jury has been influenced by extraordinary considerations, mislead by the force and credibility of the evidence, or when the verdict, as in the case sub judice, fails to comport with the manifest weight of the evidence. Haendel v. Paterno, 388 So.2d 235 (Fla. 5th DCA 1980).

It is not necessary to grant a new trial in all cases where the jury returns a zero verdict. In fact, where conflicting evidence exists concerning...