         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D17-0854
                  _____________________________

TANYA DARLENE CHAPPELL and
SECURE INVESTMENTS REALTY &
MANAGEMENT CORP.,

    Appellants,

    v.

OLIVIA CLARK,

    Appellee.

                  _____________________________

                          No. 1D17-1806
                  _____________________________


TANYA DARLENE CHAPPELL and
SECURE INVESTMENTS REALTY &
MANAGEMENT CORP.,

    Appellants/Cross-Appellees,

    v.

OLIVIA CLARK,

    Appellee/Cross-Appellant.


                  _____________________________
On appeal from the Circuit Court for Alachua County.
Toby S. Monaco, Judge.

                            July 15, 2019


WINOKUR, J.

     Driving negligently, Tanya Chappell rear-ended Olivia
Clark’s vehicle, and Clark sued Chappell and her employer, Secure
Investments Realty and Management Corp. (Appellants), alleging
that the crash caused her physical injuries. Following trial, final
judgment was entered in Clark’s favor. We affirm on all three
issues Appellants raise * and write to explain our reasoning with
regard to the permanency issue.

     During trial, there was little dispute that Clark had
permanent injuries. However, some expert testimony was
presented indicating that some of Clark’s injuries may have
existed prior to the crash or were otherwise unrelated to the crash.

     Following the presentation of evidence, Clark moved for
directed verdict on the issue of the permanency of her injuries,
citing Wald v. Grainger, 64 So. 3d 1201, 1205 (Fla. 2011) (“[W]hen
medical evidence on permanence is undisputed, unimpeached, or
not otherwise subject to question based on the other evidence
presented at trial, the jury is not free to simply ignore or arbitrarily
reject that evidence and render a verdict in conflict with it.”).
Appellants opposed the motion for directed verdict, contending
that “the jury could disregard the testimony of the doctors, the
experts in this case, and find that Ms. Clark has not suffered a
permanent injury.” Because the jury could not ignore undisputed
expert testimony without a reason, see id., the trial court correctly
rejected this argument.

    On appeal, Appellants argue that the trial court erred in
granting directed verdict on permanency because causation was

    * We also affirm with regard to the cross-appeal issues Clark
raises.

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disputed. In Wald, undisputed evidence showed that the plaintiff’s
thigh injury was caused by the car crash and was permanent. Id.
at 1204. The trial court granted directed verdict on the issue of
permanency and the supreme court ultimately agreed, stating that
“where the evidence of injury and causation is such that no
reasonable inference could support a jury verdict for the
defendant, it is not improper to direct a verdict on the permanency
issue for the plaintiff.” Id. The supreme court stated that a jury
may only reject expert testimony if it has a reasonable basis to do
so, such as “evidence that disputes the injury claim.” Id. at 1205-
06. Unlike in Wald, Appellants argue, causation was at issue here
and thus “the injury claim” was disputed, precluding directed
verdict on permanency. Cf. Duclos v. Richardson, 113 So. 3d 1001,
1003-04 (Fla. 1st DCA 2013) (holding that defense expert’s
opinions—that the plaintiff’s permanent injury was caused by
arthritis and that the injury caused by the car crash was not
permanent—precluded directed verdict on permanency despite the
opinions of three plaintiff’s experts to the contrary). Clark asserts
that this argument conflates the issues of causation and
permanency and, while there was some evidence disputing the
“injury claim” on the basis of causation, there was no evidence that
disputed permanency. Clark argues that Wald supports her
argument, 64 So. 3d at 1205 (“the jury is not free to simply ignore
or arbitrarily reject that evidence”), and Duclos is distinguishable,
113 So. 3d at 1003 (the expert testified that “the neck injury caused
by the accident was temporary”).

     It is unnecessary for us to decide whether directed verdict as
to permanency is appropriate when causation is disputed because
Appellants did not raise that argument below. See Adkison v.
Morey, 239 So. 3d 205, 207 (Fla. 1st DCA 2018) (“It is not our
function ‘to entertain for the first time on appeal, issues which the
complaining party could have, and should have, but did not,
present to the trial court.’” (quoting Fla. Emergency Physicians–
Kang & Assocs., M.D., P.A. v. Parker, 800 So. 2d 631, 636 (Fla. 5th
DCA 2001))). Appellants only opposed directed verdict on the basis
that “the jury could disregard the testimony of the doctors, the
experts in this case[.]” The supreme court rejected this argument
in Wald, and the trial court did not err in rejecting it below. For
this reason, regardless of whether Appellants’ argument—that
evidence relating to causation created a jury question as to

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permanency―is correct, we affirm the trial court’s ruling on this
issue.

    AFFIRMED.

MAKAR and JAY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Charles W. Hall and DeeAnn J. McLemore of Banker Lopez
Gassler, P.A., St. Petersburg; Ezequiel Lugo of Banker Lopez
Gassler, P.A., Tampa; Jamie L. White and Michael S. Donsky of
Dell Salter, P.A., Gainesville, for Appellants/Cross-Appellees.

Roy D. Wasson and Annabel C. Majewski of Wasson & Associates,
Chartered, Miami, and Howard G. Butler of Butler Law Group,
Jacksonville, for Appellee/Cross-Appellant.




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