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The Hertz Corp. v. Gleason5/19/2004
he trial court entered a final judgment pursuant to the verdict. The plaintiff filed a motion for a new trial, which the court granted.
An order granting a motion for new trial is reviewed under an abuse of discretion standard. Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999). The defendant argues that the court improperly sat as a "seventh juror" when it granted the motion for new trial based on its finding that the jury disregarded "undisputed" testimony to the effect that the motor vehicle accident legally caused orthopedic and soft tissue injuries. The plaintiff responds that the undisputed evidence established that he sustained orthopedic and *1220 soft tissue injuries as a result of the accident. Thus, the jury's finding of no injury was contrary to the manifest weight of the evidence, and required a new trial.
The most significantly disputed issue in this case was whether the plaintiff had suffered any neurological damage as a result of the accident. The evidence in this case sharply conflicted on this issue. However, both plaintiff's and defendant's experts agreed that the plaintiff sustained some injury (orthopedic and soft tissue) as a result of the accident.
Section 59.35, Florida Statutes (2003) provides:
An appellate court may, in reversing a judgment of a lower court brought before it for review by appeal, by the order of reversal, if the error for which reversal is sought is such as to require a new trial, direct that a new trial be had on all the issues shown by the record or upon a part of such issues only. When a reversal is had, with direction for new trial on a part of the issues, all other issues shall be deemed settled conclusively in favor of the appellee.
The Third District had occasion to rely on this statutory provision to limit an order authorizing a new trial in North Dade Golf, Inc. v. Clarke, 439 So.2d 296 (Fla. 3d DCA 1983). In Clarke, the court affirmed an order granting a new trial, but found an abuse of discretion in allowing a new trial on all issues where the evidence on whether a golf cart accident caused the plaintiff's subsequent heart attack was in dispute. "A trial court's discretion in this area is clearly not unbridled, and a trial judge is not authorized to act as a 'seventh juror', or to substitute his judgment for that of the jury on disputed questions of fact." Id. at 298.
Here, the plaintiff's request for damages for closed-head injuries was directly contradicted by the evidence. In short, there was a disputed question of fact, which lies within the province of the jury. However, there was no dispute that the plaintiff had sustained some injury. Therefore, the trial court correctly determined that the verdict was against the manifest weight of the evidence, but should have limited the new trial to damages for orthopedic and soft tissue injuries.
We reverse and remand the case to the trial court for entry of an order limiting the new trial consistent with this opinion.
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