Opinion
Nos. 79-915, 80-1372.
December 29, 1981. Rehearing Denied January 21, 1982.
Appeal from the Circuit Court, Dade County, Thomas A. Testa, J.
Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow Olin and Joel S. Perwin and Joel D. Eaton, Barranco, Darlson Daniel, Miami, for appellants.
Edward C. Vining, Jr., Miami, for appellee.
Before HENDRY, NESBITT and BASKIN, JJ.
We approved the trial court's finding that real estate broker J. Bruce Vining failed to inform Harold and Maude Smith of certain material facts pertaining to his sale of their property when we affirmed a summary judgment against Vining on the issue of his liability to the Smiths for the fraudulent secret profit he obtained. Vining v. Smith, 343 So.2d 871 (Fla.3d DCA 1977), cert. denied, 355 So.2d 518 (Fla. 1978). On remand, trial resulted in a jury award to the Smiths of compensatory damages totaling $154,000 and punitive damages of $77,000. In response to a motion filed by Vining, the court granted a new trial predicated upon its belief that the jury failed to consider Vining's expenses in determining compensatory damages and failed to consider Vining's financial resources in computing punitive damages. We reverse because our examination of the record discloses no impropriety on the part of the jury. Putnam Lumber Co. v. Berry, 146 Fla. 595, 2 So.2d 133 (1941).
J. Bruce Vining failed to inform the Smiths that the State of Florida was interested in the property, that its value had increased, and that Vining was the actual purchaser of the property.
The jury was empowered to evaluate the evidence and appears to have complied with the court's instructions. An order granting a new trial is appropriate only when the verdict is against the manifest weight of the evidence or when it is influenced by considerations outside the record. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla. 1978); Cloud v. Fallis, 110 So.2d 669 (Fla. 1959); see Thompson v. Williams, 253 So.2d 897 (Fla.3d DCA 1971). Neither defect appears in this record.
We reject as incorrect the court's explanation that because punitive damages were half the amount of compensatory damages a new trial on punitive damages became necessary when the court granted a new trial on compensatory damages. Although punitive damages must bear a relationship to the fact of injury or invasion of legal right, they need not bear a reasonable relationship to the actual damages awarded by the jury. Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla. 1976). The degree of punishment to be imposed is a matter for jury decision and punitive damages will be held excessive only when they bear no relation to the amount a defendant is able to pay and when the tort lacks the required degree of malice or disregard for rights.
In Wackenhut Corp. v. Canty, supra, the court acknowledged that in Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla. 1976), it had repudiated the requirement that punitive damages bear a reasonable relationship to compensatory damages.
Wackenhut Corp. v. Canty, supra, citing Maiborne v. Kuntz, 56 So.2d 720 (Fla. 1952) and Zippy Mart, Inc. v. Mercer, 244 So.2d 522 (Fla. 1st DCA 1970).
Although Vining did not produce a statement of net worth, the jury heard testimony regarding his ownership of property and of assets from which it could determine his ability to pay. Bould v. Touchette, 349 So.2d 1181 (Fla. 1977); Rinaldi v. Aaron, 314 So.2d 762 (Fla. 1975); Atlas Properties, Inc. v. Didich, 226 So.2d 684 (Fla. 1969). Contrary to the trial court's statement, the verdict was not against the manifest weight of the evidence. Cloud v. Fallis, supra. In our opinion, the trial court acted under an erroneous legal assumption in ordering a new trial. United States Life Insurance Company in the City of New York v. Town Country Hospital, Inc., 390 So.2d 71 (Fla.2d DCA 1980); City of Hollywood v. Jarkesy, 343 So.2d 886 (Fla. 4th DCA 1977); National Western Life Insurance Co. v. Walters, 216 So.2d 485 (Fla.3d DCA 1968).
We find no material error in the procedure utilized to reconstruct the record following the removal from the clerk of the original exhibits introduced at trial. Harmon v. Department of Health Rehabilitative Services, 364 So.2d 788 (Fla. 1st DCA 1978).
For these reasons, we reverse the order granting a new trial and remand the cause to the trial court with directions to reinstate the jury's verdict and enter judgment with interest from the original entry date of the judgment. The Order Correcting and Supplementing the Record on Appeal is affirmed.
I concur only with respect to the affirmance of the order reconstructing the record.
I strongly disagree with the reversal of the trial judge's order granting a new trial. A stronger showing is required to upset an order granting a new trial than an order denying a new trial. Cloud v. Fallis, 110 So.2d 669, 673 (Fla. 1959). In Castlewood International Corporation v. LaFleur, 322 So.2d 520, 522 (Fla. 1976), the principle with respect to an order granting a new trial was reiterated:
Since at least 1962, it has been the law of Florida that a trial court's discretion to grant a new trial is "of such firmness that it would not be disturbed except on clear showing of abuse. . . ." Cloud v. Fallis, 110 So.2d 669, 672 (Fla. 1959). A heavy burden rests on appellants who seek to overturn such a ruling, and any abuse of discretion must be patent from the record. See Hendricks v. Dailey, 208 So.2d 101, 103 (Fla. 1968); Russo v. Clark, 147 So.2d 1, 3-4 (Fla. 1962).
Mere disagreement from an appellate perspective is insufficient as a matter of law to overturn a trial court on the need for a new trial. Castlewood, supra, at 522.
The trial court's order with respect to the compensatory damages stated:
The competent and uncontradicted testimony introduced at trial showed without serious dispute by Plaintiffs that the Defendant incurred Ten Thousand ($10,000) Dollars expenses in connection with holding the real property purchased from the Plaintiffs. The court instructed the jury to consider these expenses in making its award of compensatory damages. The award of compensatory damages is in the amount of One Hundred and Fifty Four Thousand ($154,000) Dollars. The award does not take into consideration the expenses incurred. In light of the record, the jury's compensatory award demonstrates that the jury failed to consider the element of the Defendant's expenses as instructed by the Court.
Neither the majority nor the appellant can explain away this spectre which infected the jury verdict. The appellant urges several different theories to support his contention that the award was consistent with the evidence presented. It is precisely the type of speculation which the appellants would have us engage in that leads me to conclude that the trial judge was in the best position to determine the impropriety of the jury verdict.
The alleged $10,000 in expenses includes interest payments to mortgage holders in the amounts of $4,895.80 and $5,391.87 for a total of $10,287.67. Appellants argue that the jury could have concluded: (1) because defendant admits that part of the $5,391.87 did not relate to any "expense" incurred in connection with plaintiffs' property, the jury was entitled to disregard the figure entirely; or (2) the money was borrowed for economic reasons unrelated to the property; or (3) the interest opportunity on the "secret profit" was greater than the interest expense and therefore the money earned offset the money expended; or (4) an upward adjustment in the award should be made for prejudgment interest which when offset by the expenses equalled the award given.
While it is true that the superior vantage point does not give a trial judge unbridled discretion to order a new trial, see Wackenhut v. Canty, 359 So.2d 430 (Fla. 1978), where, as here, the evidence supports the trial judge's order that the verdict is contrary to the manifest weight of the evidence, that order must be affirmed.
Further, Defendant's testimony that he had no net worth was uncontradicted by Plaintiff. The Court instructed the jury to consider the financial resources of the Defendant in fixing the amount of punitive damages. The jury awarded Seventy Seven ($77,000) Thousand Dollars in punitive damages. In light of the testimony, such an award is excessive as bearing no relation to the amount the Defendant is able to pay and would result in economic castigating of the Defendant.
The Court is compelled to conclude that the jury did not have sufficient criteria to evaluate punitive damages and was not instructed on the reference of ability to pay and any resulting bankruptcy. See Canty v. Wackenhut Corp., 311 So.2d 808 (Fla.3d DCA 1977). As a result, the jury misconceived the law in awarding the punitive damages.
There was sufficient justification in the record for the trial judge's conclusion that the verdict was contrary to the manifest weight of the evidence.
As a final effort with respect to the compensatory damages, the appellants contend that a remittitur of $10,000 would be proper as an alternative to a new trial. Despite the fact that the trial judge's order specified $10,000, from the record as well as appellants' arguments (see n. 1), it is apparent that the amount is unclear. Consequently, it would be improper to order a remittitur. See Wackenhut Corporation v. Canty, supra, at 434 (Fla. 1978).