40 Fla. L. Weekly D402a
not abuse discretion by granting new trial after jury verdict for defendant
based upon finding that defendant had destroyed evidence, that defendant had
violated court orders, that defendant had engaged in material, willful discovery
violations to prejudice of plaintiffs, and that two jurors had engaged in
misconduct by failing to disclose litigation history that was relevant and
material to jury service; and based, further, upon finding that verdict was
against manifest weight of evidence
CATINELLA and EILEEN CATINELLA, Appellees. 2nd District. Case No. 2D13-1295.
Opinion filed February 11, 2015. Appeal from the Circuit Court for Polk County;
J. Dale Durrance, Judge. Counsel: Lamar D. Oxford of Dean, Ringers, Morgan &
Lawton, P.A., Orlando, for Appellant. Douglas H. Stein and Stephanie Martinez of
Seipp, Flick & Hosley, LLP, Miami, for Appellees.
3, 2014, is withdrawn, and the attached corrected opinion is issued in its
place. No further motions for rehearing will be entertained.
Company when he suffered injuries from a trip and fall. Mr. Catinella and his
wife filed suit, alleging that Meadowbrook had knowledge of and failed to warn
Mr. Catinella of an unsafe condition at its facility, specifically a
malfunctioning dock leveler. After the jury returned a verdict in favor of
Meadowbrook, the Catinellas moved for a new trial. Meadowbrook appeals from the
order that granted the Catinellas’ motion.
verdict on the ground that it is contrary to the manifest weight of the
evidence.” Harlan Bakeries, Inc. v. Snow, 884 So. 2d 336, 339 (Fla. 2d
DCA 2004). Additionally, this court has further held that an order granting a
motion for new trial is subject to a heightened abuse of discretion standard:
We review a circuit court’s order granting a motion for a new trial
for abuse of discretion. Moreover, it takes a stronger showing of error in order
to reverse an order granting a new trial than an order denying a new trial. Thus
we begin with the presumption that the trial court properly exercised its
discretion, and we will not disturb the trial court’s ruling absent a clear
abuse of that discretion.
omitted), review denied, 119 So. 3d 443 (Fla. 2013). More specifically,
this court has held that “[t]he standard of review we must apply to an order
granting a new trial is whether reasonable persons could differ as to the
propriety of the trial judge’s action. If they could, then the order is
reasonable and not an abuse of the judge’s discretion.” K-Mart Corp. v.
Collins, 707 So. 2d 753, 755 (Fla. 2d DCA 1998) (citation omitted).
believed warranted a new trial. The court found that during the course of the
case Meadowbrook had destroyed evidence, requiring the court to give the jury an
adverse inference instruction; had materially violated a variety of court
orders; and had engaged in systematic material, willful discovery violations to
the prejudice of the Catinellas. The court also found that two jurors had
engaged in misconduct by failing to disclose litigation history that was
relevant and material to jury service. In concluding that a new trial was
warranted the court explained:
Based on the totality of circumstances outlined in this Order and
the Court’s own direct observation of the facts, parties, and witnesses, [the
court] finds a new trial is warranted. The Court finds the jury verdict in this
case is clearly contrary to the manifest weight of the evidence. The Court bases
this on the presumption instruction on spoliation and the scarcity of credible
evidence that the leveler in question was not broken. Thus, no reasonable jury
could have found that the leveler was in working order. The evidence showed the
Plaintiff tripped over something that was sticking up at the end of the dock
leveler. This is supported by the testimony of Sabrina Graham as well as the
fall shown in the video. Defendant was on notice of the defective nature of the
leveler and was specifically placed on notice when Quincy Hayward had the
Plaintiff perform the two-man operation of the leveler. Finally, the manifest
weight of the evidence showed Plaintiff’s [injuries were] caused by Defendant’s
discretion by concluding that the circumstances detailed in its order warranted
a new trial. Although Meadowbrook argues that the trial court’s observations are
unsupported by the record, after thoroughly reviewing the record on appeal,
including the transcript of the trial, we cannot agree that under these
circumstances the trial court abused its discretion. Accordingly, we affirm.
* * *