Torts — New trial — Appeals — Claim that trial court erred in awarding
plaintiff a new trial on past economic damages only, and should have ordered a
new trial on both liability and damages, was not preserved for appeal where
defendants opposed motion for additur or new trial only on the ground that
jury’s verdict was correct and failed to contend that they should be afforded a
new trial on liability

YVETTE M. WITHERELL AND NATALIE M. WITHERELL, Appellants, v. CHRIS LARIMER,
Appellee. 5th District. Case No. 5D13-3508. Opinion filed December 12, 2014.
Appeal from the Circuit Court for Brevard County, John D. Moxley, Jr., Judge.
Counsel: Angela C. Flowers, of Kubicki Draper, P.A., Ocala, for Appellants.
Douglas E. Polk, of A Bales P.A., St. Petersburg, for Appellee.

(WALLIS, J.) Yvette Witherell and her daughter, Natalie Witherell
(“Appellants”), appeal an order granting Chris Larimer’s (“Appellee”) motion for
new trial and argue that the trial court abused its discretion by limiting the
new trial to only past noneconomic damages. Appellants contend that because
liability in the personal injury action was hotly contested and the damages
award was legally inadequate, the new trial should address both liability and
past noneconomic damages.1 We affirm the
trial court’s order because Appellants did not preserve their argument for
appellate review.

On July 10, 2010, Natalie drove her mother’s car and struck Appellee while he
was crossing the street. During discovery and at trial, both parties vigorously
contested liability. Appellee suggested Natalie was inattentive, resulting in
her failure to recognize and avoid striking Appellee. Appellants argued that
Appellee’s use of alcohol on the night of the accident contributed to the
accident and Appellee’s resulting injuries. Both sides presented expert
testimony on Natalie’s ability to perceive Appellee and avoid injuring him.

The jury deliberated just over 2.5 hours and found each party 50% at fault.
The jury also found that Appellee sustained a permanent injury and awarded past
medical expenses totaling $88,749.84. The jury initially awarded $0 for
noneconomic damages.2 The trial judge and
counsel for both parties ultimately agreed that the $0 award for noneconomic
damages was inconsistent with a finding of permanent injury and the $88,749.84
medical-expense award. Accordingly, the trial court gave an instruction ordering
the jury to award money for the noneconomic damages. The jury subsequently
awarded $1 for noneconomic damages. The trial court dismissed the jury and
entered the final judgment.

Appellee filed a motion for additur, or in the alternative, a new trial
on past noneconomic damages. He argued that the $1 verdict for noneconomic
damages was not supported by the evidence in light of the uncontested evidence
that he suffered as a result of his injuries and the jury’s finding that
Appellee suffered a permanent injury. Appellants’ opposition to the motion for
additur or new trial argued only that the trial court should deny the motion for
additur or new trial because the jury’s verdict was correct. Noticeably absent
from Appellants’ response to the motion for additur or new trial was any request
that if the trial court were to grant a new trial, the new trial should address
both liability and past noneconomic damages.

On September 4, 2013, the trial court denied the motion for additur but
granted a new trial on past noneconomic damages. The court found the jury’s
award of $0 and then $1 for past noneconomic damages inadequate under section
768.043, Florida Statutes, because of the $88,749.84 award for past medical
expenses and the evidence of Appellee’s pain and suffering introduced at trial.
On appeal, Appellants raise the single issue that the new trial should also
address liability.

“The purpose of the rule requiring preservation of error is to apprise the
trial judge of an issue and thus provide the judge with an opportunity to
correct any error below.” Pedroza v. State, 773 So. 2d 639, 643 (Fla. 5th
DCA 2000) (citing Cooper v. State, 742 So. 2d 855 (Fla. 1st DCA 1999)).
Appellants argue for the first time on appeal that they should be afforded a new
trial as to liability. Appellants’ failure to request a new trial on liability
denied the trial court the opportunity to exercise discretion or correct this
alleged error. Accordingly, because the issue is not preserved, we affirm.

AFFIRMED. (PALMER, J., and LeBLANC, R., Associate Judge, concur.)

__________________

1At trial, Appellee conceded he was not
seeking a new trial on economic damages or future noneconomic damages.

2The noneconomic damages were listed as
past and future damages for pain and suffering, mental anguish, disability,
physical impairment, inconvenience, aggravation of disease or physical defect,
or loss of capacity for the enjoyment of life.