               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                          IN THE DISTRICT COURT OF APPEAL
                                          OF FLORIDA
                                          SECOND DISTRICT

TLO SOUTH FARMS, INC., a                  )
Florida corporation,                      )
                                          )
              Appellant,                  )
                                          )
v.                                        )      Case No. 2D18-1639
                                          )
HEARTLAND FARMS, INC., a                  )
Florida corporation; RONALD               )
MOYE, individually; and EDWARD            )
OSTROWSKI, individually,                  )
                                          )
              Appellees.                  )
                                          )

Opinion filed September 20, 2019.

Appeal from the Circuit Court for
DeSoto County; Don T. Hall, Judge.

Timothy W. Weber and Paul M.
Crochet of Weber, Crabb & Wein,
P.A., St. Petersburg, for Appellant.

Michael D. Martin of Martin Law Office,
Lakeland; and William K. Crispin of
Crispin Law, Gainesville, for Appellees
Heartland Farms, Inc., and Ronald Moye.

No appearance for Appellee Edward
Ostrowski.


ROTHSTEIN-YOUAKIM, Judge.

              On this appeal of a final judgment, TLO South Farms, Inc., challenges the

trial court's grant of Heartland Farms, Inc., and Ronald Moye's (collectively, "the
defendants") posttrial motion to set aside the jury's verdict against Moye on Count V of

the Third Amended complaint, which alleged a cause of action under the Florida

Deceptive and Unfair Trade Practices Act, sections 501.201-501.213, Florida Statutes

(2016) (FDUTPA). TLO also challenges the court's alternative grant of the defendants'

motion for a new trial. We agree with TLO that the court erred in granting the motion to

set aside the verdict based on an argument that the defendants had not raised in their

previous motion for a directed verdict. We also agree that the court erred in its

alternative granting of a new trial.

                                       Background

              TLO and its president, Edward Ostrowski, a beekeeper, brought an action

against Heartland and its president, Moye, alleging breach of contract, negligence, and

violations of FDUTPA arising out of an agreement for TLO to provide Heartland with

pollination services for its crops.1 The complaint alleged, among other things, that

Heartland and/or Moye had failed to pay $4500 due on the contract and also had

destroyed the bee colonies that TLO had placed throughout Heartland's farmland by

spraying them with toxic pesticides in a manner inconsistent with their labeling.

Specifically as to the FDUTPA claim set forth in Count V, TLO alleged:

                     48.     MOYE's actions of spraying toxic pesticides
              without the consent of or notice to Plaintiff, the avoidance of
              pay[ing] a bee moving fee, and its spraying of toxic
              pesticides in violation of state and federal labeling
              requirement laws are unfair methods of competition,
              unconscionable acts or practices, and unfair or deceptive
              acts or practices that were done in the conduct of trade and
              commerce. These acts were done with the knowledge and



              1The defendants do not challenge the jury's verdicts on the breach-of-
contract and negligence claims.


                                            -2-
             consent of MOYE or pursuant to the custom, policy[,] or
             practice established by MOYE.

                    49.    As a result of the acts of MOYE, Plaintiffs have
             suffered a loss and continue to suffer losses.

             During trial, the defendants moved for directed verdicts. With respect to

the FDUTPA count, they argued that (1) absent any consumer transaction between TLO

and Moye, TLO lacked standing to bring an action under FDUTPA; (2) a FDUTPA claim

cannot be based solely on a breach of contract; and (3) TLO had failed to prove

causation. TLO responded to those arguments, and, in reply, the defendants reiterated

that this case implicated only a breach of contract and argued further that there had

been no transaction between Ostrowski and Moye. The trial court reserved ruling.

             The jury returned its verdicts and awarded TLO $4500 for Heartland's

breach of contract; found that Heartland and Fabre defendant2 Randy Padgett had

contributed 35% and that TLO had contributed 30% to the negligence that had resulted

in $67,500 in damages to TLO's bee colonies; and awarded TLO $72,000 for Moye's

unfair and deceptive trade practices under FDUTPA. After the jury was discharged, the

defendants renewed their motion for a directed verdict on Count V, asserting that they

were "just renew[ing] [their] arguments" and "also focusing on the trade practices." After

the trial court denied the renewed motion, counsel for the defendants argued that if the

negligence and FDUTPA verdicts were inconsistent, "one of [them] is going to have to

go and I would think it would be the FDUTPA."




             2See  Fabre v. Marin, 623 So. 2d 1182, 1185 (Fla. 1993) (holding that
apportionment of comparative fault is not limited to parties in a lawsuit), receded from
on other grounds in Wells. v. Tallahassee Mem'l Reg'l Med. Ctr., 659 So. 2d 249, 254
(Fla. 1995).


                                           -3-
              The defendants timely moved to set aside the verdict or for a new trial on

the FDUTPA count. In the motion, they argued that the evidence had failed to establish

that they (and, more specifically, Moye) had engaged in any deceptive act or unfair

practice, that the verdict had been improperly based on sympathy for TLO and

Ostrowski, and that the jury had improperly determined the damages on that count by

simply adding up the damages that it had awarded on the breach-of-contract and

negligence counts.

              The trial court granted the defendants' motion to set aside the verdict

based on its conclusion that "there was no evidence upon which the jury could find that

Moye had engaged in unconscionable acts or practices and unfair or deceptive acts or

practices in the conduct of his trade or commerce." In the alternative, the court

concluded that "the case law also supports conditionally granting the Motion for New

Trial if the order on Motion for Judgment in Accordance with the Motion for Directed

Verdict is reversed on appeal."

              TLO moved for reconsideration, arguing, among other things, that in their

trial motion for a directed verdict, the defendants had not challenged the evidence

establishing that Moye had engaged in unconscionable, unfair, or deceptive acts; that

the trial court could not set aside the verdict based on an argument that had not

previously been raised in the motion for a directed verdict; that the court had failed to

articulate a basis for its alternative granting of a new trial; and that the record, in fact,

did not support the granting of a new trial. The trial court did not rule on the motion for

reconsideration but instead entered the final judgment. This appeal followed.




                                              -4-
                                        Analysis

1.    The Defendants' Motion for Judgment in Accordance with the Motion for a
Directed Verdict

              Pursuant to Florida Rule of Civil Procedure 1.480(b), "Within 15 days after

the return of a verdict, a party who has timely moved for a directed verdict may serve a

motion to set aside the verdict . . . and to enter judgment in accordance with the motion

for a directed verdict" (emphasis added).3 As TLO correctly argues, "[A] party cannot

seek judgment in accordance with a previously-made motion for directed verdict unless

that party has actually asserted the grounds raised in the motion for directed verdict

made at the conclusion of the evidence in the case." See Houghton v. Bond, 680 So.

2d 514, 522 (Fla. 1st DCA) (citing Allstate Ins. Co. v. Gonzalez, 619 So. 2d 318 (Fla. 3d

DCA 1993)), rev. denied, 682 So. 2d 1099 (Fla. 1996).

              Indeed, the trial court apparently recognized as much because in granting

the defendants' motion to set aside the verdict, the court stated that the motion

"reasserts earlier arguments for directed verdicts made at the end of TLO's case and at

the close of the evidence." As noted above, the court granted the defendants' motion

based upon its finding that "there was no evidence upon which the jury could find that

Moye had engaged in unconscionable acts or practices and unfair or deceptive acts or

practices in the conduct of his trade or commerce."

              With the advantage of having the trial transcript before us, however, we

agree with TLO that the defendants did not challenge at trial the evidence establishing



              3Such  a motion has historically been, and commonly still is, referred to as
a motion for judgment notwithstanding the verdict (JNOV), although that term has fallen
out of favor in some circles. See Fire & Cas. Ins. Co. of Conn. v. Sealey, 810 So. 2d
988, 991 & n.2 (Fla. 1st DCA 2002).


                                           -5-
that the defendants, and particularly Moye, had engaged in unconscionable acts or

deceptive practices. A claim for damages under FDUTPA has three elements: (1) a

deceptive act or unfair practice; (2) causation; and (3) actual damages. Rollins, Inc. v.

Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006). The defendants raised a number of

challenges to the FDUTPA count in their motion and renewed motion for direct verdict,

but to the extent that they challenged the sufficiency of the evidence on those elements,

those challenges were directed squarely to the second element—causation.

Accordingly, the trial court erred in granting the defendants' motion to set aside the

verdict and entering judgment in Moye's favor on the FDUTPA count based on their

newly raised posttrial challenge to the evidence on the first element. See Houghton,

680 So. 2d at 522; Fla. R. Civ. P. 1.480(b).

2.     The Defendant's Alternative Motion for a New Trial

              Pursuant to rule 1.480(c), "A motion for a new trial may be joined with [a

motion under rule 1.480(b)] or a new trial may be requested in the alternative." Thus, a

trial court may—as the trial court did here—conditionally order a new trial in case the

appellate court reverses its entry of judgment in accordance with the motion for directed

verdict. See Keene Bros. Trucking, Inc. v. Pennell, 614 So. 2d 1083, 1084-85 (Fla.

1993) ("[T]o promote judicial economy, trial judges may properly decide motions [for

JNOV and for a new trial] in the alternative" . . . [and] 'may grant one and alternatively

grant the other on the express condition that the latter only becomes effective if the

former is reversed on appeal.' " (quoting Frazier v. Seaboard Sys. R.R., 508 So. 2d 345,

346 (Fla. 1987))). Generally, we review for an abuse of discretion a trial court's order

granting a new trial. Meyers v. Shontz, 251 So. 3d 992, 1000 (Fla. 2d DCA 2018). "If




                                            -6-
the trial court's order is based on an error of law, however, we do not afford it that kind

of deference because the trial court's ability to consider and resolve legal issues is not

superior to our own." Id. (citing Van v. Schmidt, 122 So. 3d 243, 258 (Fla. 2013)).

              In this case, the trial court based its alternative granting of the defendants'

motion for a new trial on the following grounds: (1) "that TLO's assertion they were not

adequately informed that a variety of pesticides would have been used by Heartland

Farms is unfounded" because "the parties signed separate independent contracts

stating that they had discussed issues relating to total pesticides at each and every step

in the relationship between parties"; (2) that "the witnesses testified in the trial that

Moye['s] farming operations were consistent in the same method and manner as all

other farmers in central Florida"; and (3) that the jury had also found each of the parties

and Padgett, the Fabre defendant, negligent and, therefore, responsible for the injury to

the bees.4 In conclusion, the court stated that it could not find "any support in the record

that the jury could possibly find any practices unconscionable and deceptive." The trial

court, therefore, apparently granted the alternative relief of a new trial on the FDUTPA

count based on its determinations that the verdict was (1) contrary to the manifest

weight of the evidence and (2) inconsistent with the verdict on the negligence count.5




              4By order dated May 7, 2019, we relinquished jurisdiction for the trial court
to enter an amended order explaining the specific grounds for its alternative granting of
a new trial. See Fla. R. Civ. P. 1.530(f). The trial court rendered its amended order on
May 16, 2019.
              5We  pause here to note that neither the parties' arguments nor the trial
court's reasons require us to address the threshold question of whether FDUTPA is
intended to apply to a fact pattern such as the one presented here, and we do not do
so.


                                             -7-
              As to the latter determination, because the defendants failed to object to

assertedly inconsistent verdicts on the FDUTPA and negligence counts before the jury

was discharged, they waived any such challenge. See Coba v. Tricam Indus., Inc., 164

So. 3d 637, 643-44 (Fla. 2015) (explaining that although "[a]n objection to the

inadequacy or excessiveness of a verdict can be raised in a motion for a new trial

without requiring a party to object prior to the jury's discharge[,] . . . a party must object

to an inconsistent jury verdict before the jury is discharged" (citations omitted)).

Moreover, in their motion for new trial, the defendants explicitly "[did] not dispute the

Jury's Verdict . . . sounding in Negligence." The appropriate remedy for inconsistent

verdicts, however, is to permit a jury—not the parties or the court—to determine which

verdict should stand; remand for a new trial on only the FDUTPA count would

improperly usurp the role of the jury, as it would effectively presume the validity of the

negligence verdict and demand a finding of no liability on the FDUTPA count. The trial

court, therefore, could not grant Moye a new trial on the FDUTPA count based on an

inconsistency between the two verdicts.

              As to the former determination, "A trial court may order a new trial when

the jury's verdict is against the manifest weight of the evidence." Meyers, 251 So. 3d at

999 (citing Meadowbrook Meat Co. v. Catinella, 196 So. 3d 373, 373 (Fla. 2d DCA

2015)). But "[a]lthough a trial judge enjoys broad discretion to grant a new trial under

the manifest weight ground, that discretion is neither absolute nor unreviewable." Id.

(citing Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309, 1314 (Fla. 1986)). "A

jury verdict is contrary to the manifest weight of the evidence only when the evidence is




                                             -8-
'clear, obvious, and indisputable.' " Jones v. Stevenson, 598 So. 2d 219, 220 (Fla. 5th

DCA 1992) (citation omitted).

              First, the record does not support the trial court's statement that "the

parties signed separate independent contracts stating that they had discussed issues

relating to total pesticides at each and every step in the relationship between parties."

The parties' contracts stated, in pertinent part, only that "THE GROWER AGREES: . . .

To use no toxic pesticides in the crop during the rental period except with the consent of

the beekeeper, and to warn the beekeeper if neighbors use toxic sprays." Moreover,

that Moye contractually agreed to obtain TLO's consent before using toxic pesticides

plainly is not contrary to evidence that he did not, in fact, subsequently do so.

              Furthermore, although, as the trial court noted, "the witnesses testified in

the trial that Moye['s] farming operations were consistent in the same method and

manner as all other farmers in central Florida," that testimony only goes so far. This

case came down to whether Moye harmed TLO's business by spraying toxic pesticides

in violation of their spray label, resulting in the poisoning of TLO's bees, and then lying

to TLO about it. Testimony regarding Moye's and/or Heartland's general farming

operations is not contrary to evidence supporting a finding that in this particular

instance, Moye did exactly that.

              Neither of the trial court's reasons, therefore, supports a conclusion that

the jury's verdict was contrary to any of the evidence, let alone to the manifest weight of

it. Nor does either support the court's ultimate conclusion that the record is devoid of

evidence supporting the jury's finding that Moye's practices in this instance were




                                            -9-
"unconscionable and deceptive." Accordingly, the trial court abused its discretion in

alternatively granting the defendants' motion for a new trial.

              The judgment, therefore, is reversed, and we remand for reinstatement of

the jury's verdict on Count V and for entry of an amended judgment so reflecting.

              Reversed; remanded with directions.


NORTHCUTT and SILBERMAN, JJ., Concur.




                                           - 10 -
