       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 25, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D17-407
                          Lower Tribunal No. 12-8626
                             ________________


                       Valerie Francis-Harbin, etc.,
                                    Appellant,

                                        vs.

                Sensormatic Electronics, LLC, etc., et al.,
                                    Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Monica Gordo,
Judge.

     Arthur J. Morburger, for appellant.

     Perez & Rodriguez, P.A., and Javier J. Rodriguez, for appellees.


Before EMAS, FERNANDEZ and LUCK, JJ.

     EMAS, J.
      INTRODUCTION

      Valerie Francis-Harbin, plaintiff below, appeals 1) the trial court’s final

judgment following a jury trial on her negligence claim; and 2) the trial court’s

postjudgment order denying her motion for new trial or for additur.      We affirm,

because the jury’s verdict is not legally inconsistent, and Francis-Harbin has failed

to provide this court with a sufficient record upon which this court can properly

review her claim that the verdict is inadequate or contrary to the manifest weight of

the evidence.

      FACTS AND BACKGROUND

      Francis-Harbin was shopping at a Walmart store when a scissor lift truck

struck her left foot, causing injury. Francis-Harbin filed suit against Walmart,

AGM Tech, Inc., Sensormatic Electronics, LLC, and ADT Security Services, Inc.,

alleging that an employee of Walmart, or alternatively, an employee of AGM Tech

(as an authorized agent of Sensormatic Electronics/ADT Security) (collectively,

Sensormatic), negligently operated the machine causing her injury. Defendants

denied liability and asserted that Francis-Harbin was negligent.

      The case proceeded to jury trial, resulting in a verdict that found Walmart

65% at fault, Francis-Harbin 20% at fault, and Sensormatic/ADT and AGM Tech

15% at fault.1 The jury awarded Francis-Harbin $14,000 in past medical expenses

1Although Walmart was on the verdict form as a Fabre defendant, see Fabre v.
Marin, 623 So. 2d 1182 (Fla. 1993), Francis-Harbin dismissed Walmart as a party
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and $96,000 for lost earnings, an amount totaling $110,000. The jury awarded

Francis-Harbin no damages for past pain and suffering, future pain and suffering,

future medical expenses and future lost earnings.           When the verdict was

announced, and before the jury was discharged, Francis-Harbin objected to the

verdict as legally inconsistent. The trial court denied the request that the jury be

reinstructed and directed to continue deliberations.

      Francis-Harbin thereafter filed a motion for new trial or in the alternative,

for additur, asserting that the verdict awarding no damages for past or future pain

and suffering was legally inconsistent with the award of $14,000 for past medical

expenses. Francis-Harbin further contended she was entitled to a new trial or to an

additur because the jury’s award of no damages for past pain and suffering was

inadequate in light of the evidence.

      In response, Sensormatic argued, inter alia, that defendants disputed at trial

(1) whether an accident ever happened; (2) whether Francis-Harbin was injured as

a result of the alleged accident or event; and (3) whether Francis-Harbin’s physical

and mental complaints were a result of the alleged accident or instead the result of

pre-existing conditions or post-accident events (e.g., diabetes, morbid obesity, a

subsequent car accident).

defendant prior to trial. Additionally, Francis-Harbin’s husband, Neville Lee, was
originally a party plaintiff to the action (asserting a claim for loss of consortium),
but voluntarily dismissed his claim prior to trial.

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         The trial court denied Francis-Harbin’s motion for new trial or additur and

entered final judgment awarding Francis-Harbin $16,500.2 This appeal follows.

         ANALYSIS

         In Allstate Ins. Co. v. Manasse, 707 So. 2d 1110, 1111 (Fla. 1998), the

Florida Supreme Court recognized that appellate courts have long applied an abuse

of discretion standard when reviewing a trial court’s ruling on a motion for new

trial:

         The judicial determination on a motion for a new trial is a
         discretionary act of the trial court:

               “When a motion for new trial is made it is directed to the
               sound, broad discretion of the trial judge, who because of
               his contact with the trial and his observation of the
               behavior of those upon whose testimony the finding of
               fact must be based is better positioned than any other one
               person fully to comprehend the processes by which the
               ultimate decision of the triers of fact, the jurors, is
               reached.” Cloud v. Fallis, 110 So. 2d 669, 673
               (Fla.1959).

         Francis-Harbin’s principal contention is that the verdict is legally

inconsistent because it awarded damages for past medical expenses while awarding

no damages for past or future pain and suffering. Alternatively, Francis-Harbin

argues that the verdict was inadequate or was contrary to the manifest weight of



2 The final judgment amount of $16,500 was based upon the total award
($110,000) multiplied by the percentage of negligence attributed by the jury to
Sensormatic (15%).
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the evidence, requiring additur or a new trial on damages. We find neither of

Francis-Harbin’s arguments persuasive or supported by the record.

      The Verdict is Not Legally Inconsistent

      We first dispense with Harbin’s claim that the verdict was legally

inconsistent. A legally inconsistent verdict is one which contains two or more

findings which, as a matter of law, cannot co-exist. See, e.g., Avakian v. Burger

King Corp., 719 So. 2d 342 (Fla. 4th DCA 1998); Deklyen v. Truckers World,

Inc., 867 So. 2d 1264 (Fla. 5th DCA 2004). Perhaps the simplest example of a

legally inconsistent verdict occurs where a jury in a negligence case answers “No”

to the first question on the verdict form: “Was there negligence on the part of

defendant which was a legal cause of damage to plaintiff?” but nevertheless

completes the remainder of the verdict form and awards damages to the plaintiff.

      Regardless of the nature, quality or weight of the evidence presented at trial,

the determinations in the example above cannot co-exist.          Because only the

empaneled jury can correct such a verdict, a party wishing to contest a legally

inconsistent verdict must raise the issue with the trial court before the jury is

discharged, and the failure to do so results in a waiver. Coba v. Tricam Indus.,

Inc., 164 So. 3d 637 (Fla. 2015); J.T.A. Factors, Inc. v. Philcon Svcs., Inc., 820 So.

2d 367 (Fla. 3d DCA 2002).3 Where the issue has been timely raised, the jury

3By contrast, a party objecting to a verdict as “inadequate” may preserve the issue
by filing a post-trial motion for new trial, rather than making a contemporaneous
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(following appropriate reinstruction by the trial court) resumes its deliberations to

return a legally consistent verdict.

      Frances-Harbin asserts that the verdict in this case is “legally inconsistent”

because it awarded damages for past medical expenses while awarding no damages

for past or future pain and suffering. However, such a verdict is not inconsistent

as a matter of law. Instead its “validity”—or more accurately, its adequacy—is

dependent on the nature, quality and weight of the evidence presented at trial. A

jury may return such a verdict if the testimony and other evidence presented at trial

could support such a determination by the jury.4 In fact, this court and others have

objection upon the return of the verdict and prior to discharge of the jury. Ellender
v. Bricker, 967 So. 2d 1088 (Fla. 2d DCA 2007); Progressive Select Ins. Co., Inc.
v. Lorenzo, 49 So. 3d 272 (Fla. 4th DCA 2010).
4 Frances-Harbin asserts that our decision in Pickel v. Rosen, 214 So. 2d 730 (Fla.

3d DCA 1968) compels the conclusion that the verdict is legally inconsistent. We
do not agree. In Pickel, the court reversed for a new trial on damages under the
following circumstances: the “uncontradicted evidence” established that plaintiff
suffered a compensable injury; the “uncontroverted evidence” established that, as a
result, plaintiff experienced pain and suffering; the jury awarded medical expenses
in the exact amount sought by plaintiff, while awarding zero damages for pain and
suffering. Id. at 731. While the opinion does say that “[u]nder the circumstances,
the award of zero dollars was inconsistent with the award of the exact medical
expenses to the plaintiff,” id., the opinion also describes the verdict as “grossly
inadequate.” Id. A full reading of the opinion indicates that the court’s reference to
the award as “inconsistent” is more colloquial than anything else. See DiMare v.
Robertson, 758 So. 2d 1193 (Fla. 3d DCA 2000). Moreover, nowhere does Pickel
conclude that the verdict was legally inconsistent. Indeed, the court’s holding is
premised not upon any legal inconsistency, but upon the grossly inadequate nature
of a zero-damages verdict in light of the uncontroverted nature of the evidence
establishing the existence of an injury, and resulting pain and suffering, caused by
defendant’s negligence. Pickel is a prototypical example of an inadequate, rather
than a legally inconsistent, verdict.
                                          6
upheld verdicts mirroring the one returned in the instant case. See, e.g., Somoza v.

Allstate Indem. Co., 929 So. 2d 702 (Fla. 3d DCA 2006) (holding that a verdict

awarding only medical expenses does not require a new trial as a matter of law

where there is a dispute as to whether the injuries suffered resulted from the

accident); Beauvais v. Edell, 760 So. 2d 262 (Fla. 4th DCA 2000) (holding that,

where there is a dispute as to whether the injuries resulted from the subject

accident, a motion for new trial or additur, upon a verdict awarding damages for

past medical expenses but no damages for past pain and suffering, is left to the

broad discretion of the trial court).

      In Allstate Indem. Co. v. Clark, 736 So. 2d 1 (Fla. 2d DCA 1998), our sister

court upheld a verdict in which the jury awarded damages for past medical

expenses, but awarded no damages for future medical expenses, or for past or

future pain and suffering. In affirming, the Second District noted:

      Though a jury finds a plaintiff entitled to medical expenses in a given
      cause, it is free to simultaneously conclude that the plaintiff has
      suffered no compensable damages for pain and suffering or other
      intangibles, if there is evidence to support that conclusion. Thus, a
      verdict which fails to award pain and suffering damages, despite
      awarding medical expenses for injuries arising out of an accident, is
      neither inconsistent nor inadequate unless the evidence of intangible
      damages is entirely uncontroverted.

Id. at 2 (additional citations omitted).

      In the instant case, the trial court correctly determined that the jury’s verdict

was not legally inconsistent.
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      The Record Fails to Establish That the Verdict is Inadequate or
      Contrary to the Manifest Weight of the Evidence

      Alternatively, Frances-Harbin argues that the trial court erred in denying her

motion for additur or new trial because the verdict was inadequate or contrary to

the manifest weight of the evidence. However, in seeking review of the trial

court’s denial of a motion for new trial based upon inadequacy of a verdict, or a

verdict contrary to the manifest weight of the evidence, appellant has an

affirmative duty to provide an adequate record for consideration of these issues.

See Fla. R. App. P. 9.200(e); Applegate v. Barnett Bank of Tallahassee, 377 So. 2d

1150 (Fla. 1979); Seal Products v. Mansfield, 705 So. 2d 973 (Fla. 3d DCA 1998).

      The trial court’s assessment of whether the verdict is contrary to the

manifest weight of all the evidence cannot be made in a vacuum, but must be made

upon consideration of the evidence presented at the trial. See, e.g., Smith v.

Brown, 525 So. 2d 868, 870 (Fla. 1988) (in deciding to “grant a new trial if the

manifest weight of the evidence is contrary to the verdict,” the “trial judge must

necessarily consider the credibility of the witnesses along with the weight of all of

the other evidence.”) Similarly, and as discussed earlier, a trial court’s assessment

of whether an award of no damages for past or future pain and suffering renders

the verdict inadequate requires the trial record to evaluate, for example, whether

and the extent to which these damages were disputed or undisputed. The record

on appeal must be sufficient to permit this court to provide meaningful review
                                         8
while according the trial court the broad discretion and presumption of correctness

that attaches to its determinations. See Manasse, 707 So. 2d at 1111.

      In the instant case, Francis-Harbin failed to provide a record of the trial

proceedings, including witness testimony, jury instructions or arguments of

counsel. Instead, she relies solely on the exhibits admitted into evidence during

the presentation of her case. Upon this record we cannot conclude that the trial

court abused its discretion in determining that the verdict was neither inadequate

nor contrary to the manifest weight of the evidence.

      Affirmed.




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