Wackenhut Corp. v. Canty

This cause is before us on a petition for writ of certiorari because the decision of the District Court of Appeal, Canty v. Wackenhut, 311 So.2d 808 (Fla. 3d DCA 1975), allegedly conflicts with the decisions of this Court in Cloud v. Fallis, 110 So.2d 669 (Fla.1959) and Bennett v. Jacksonville Expressway Authority, 131 So.2d 740 (Fla.1961). We have jurisdiction. Article V, Section 3(b)(3), Florida Constitution.

On October 26, 1972 respondent made several purchases in a discount store in Miami, Florida. His shirt was worn outside his trousers in order to cover a colostomy bag, which respondent wore as the result of colostomy surgery, in which the colon is attached at the upper abdomen to an external bag which collects waste material. After completing the purchases, respondent reached the store’s exit and was approached by petitioner’s employee, a Spanish-speaking security guard, who demanded to see what respondent carried under his shirt. Respondent’s explanation was not understood because of the guard’s inability to clearly understand English, and so the guard grabbed the bag and pulled it. As a result respondent suffered a prolapse of the colon which necessitated surgical removal of part of the colon and caused additional health problems. Suit for compensatory and punitive damages followed.

At trial, petitioner’s personnel manager testified that prospective employees are required by company policy to fill out application forms in English to test their English language abilities. Apparently the procedure was not observed in this case because the guard testified he was given assistance in filling out his application since he could not read English. After training, which consisted of meetings lasting an aggregate of one hour and fifteen minutes, the guard was given a brief orientation and a guard manual. The manual was printed in English, despite the availability of Spanish manuals.

The jury returned a verdict for respondent of $50,000 compensatory and $180,000 punitive damages. Upon petitioner’s motion for a new trial the trial court entered the following order:

“THIS CAUSE came on to be heard before the Court upon the motion of the defendants for a new trial. The Court heard argument of counsel for the respective parties, both plaintiff and defendants. The Court is of the opinion that the compensatory damages awarded are adequately sustained by the evidence but that the amount of punitive damages is so grossly excessive and contrary to the evidence as to shock the conscience of the Court, and that a remititur [sic] to the verdict should be made by the plaintiff to the extent of $130,000. The Court having ordered such a remititur [sic] and the plaintiff, through his counsel, having indicated in open court, upon the. Court’s announcement of said ruling, that he would not accept the remititur [sic]; therefore, in lieu thereof, the Court will grant a new trial to the defendants on all issues as to damages, both compensatory and punitive.

“It is thereupon,

“ORDERED AND ADJUDGED that a new trial is hereby granted as to compensatory and punitive damages only upon the sole ground that the punitive damage verdict is contrary to the evidence and so grossly excessive as to shock the conscience of the Court. In all other respects the motion for new trial is denied.”

The District Court of Appeal, Third District, reversed, stating, “There being competent substantial evidence contained in the record in support of the jury’s verdict, we hereby reverse the order granting a new trial . . . Wackenhut, supra, at 810. This language created conflict with Cloud, supra, in which this Court recognized the impossibility of reconciling the two rules then being applied by Florida appellate courts when reviewing trial court orders granting motions for new trial. One rule, referred to as the substantial competent evidence rule was stated to be “that presence of ‘substantial competent evidence’ and absence' of any showing the jury had been deceived about the force and credibility of the evidence or influenced by outside considerations would demonstrate the error of granting a motion for new trial.” Id. at 671. The other rule, referred to as the broad discretion rule was stated at page 671 to be, “that when the verdict is contrary to the ‘manifest weight and probative force of the evidence and justice of the cause’ a new trial should be granted.” In order to dispel the confusion created by the two rules, the competent substantial evidence rule was rejected and the law was restated to be that it is the duty of a judge to grant a new trial when he “concludes that the verdict is against the manifest weight of the evidence,” id. at 673, or if he determines the jury has been influenced by extra-record considerations or misled by the force and credibility of the evidence.

The District Court’s decision to reverse the order for new trial because it found substantial competent evidence in the record in support of the jury’s verdict clearly conflicts with the Cloud rejection of the substantial competent evidence rule and establishment of the present rule governing appellate review of trial court orders for new trial.

In Bennett v. Jacksonville Expressway Authority, supra, the Cloud rule was liberalized when applied to appellate courts reviewing new trial orders in eminent domain proceedings. The value of two tracts of land was at issue in the trial. Just compensation had been asserted to be $40,300 and $72,750 in the declaration of taking and had been valued at $47,755 and $74,210 by a court-appointed appraiser. Given an opportunity to amend its declaration of taking the State again represented full compensation for the first tract to be $40,300. Full compensation for the second tract was recomputed to be $70,850, slightly less than the value asserted in the original declaration. Despite the relatively consistent valuations asserted once by court-appointed appraiser and twice by the State, an appraiser, called as a State witness at trial, valued the tracts at the considerably lower figures of $27,700 and $51,500. The landowners’ expert witness valued the property at $64,-300 and $129,620, creating a respective range of values from $27,700 to $64,300 and from $51,500 to $129,620 for the consideration of the jury. The jury returned verdicts of $30,116 and $57,790. Although the verdicts were within the ranges presented by the evidence, and although the trial was free from error, the judge ordered a new trial because his conscience was shocked by the low verdicts. The District Court reversed, concluding that the trial judge’s judicial conscience had been shocked unjustifiably. This Court granted certiorari because of conflict between the District Court decision and Cloud and quashed the decision below. Although the order for new trial did not recite that the verdict was' against the manifest weight of the evidence, in which case Cloud would have held it the trial court’s duty to grant a new trial, it did recite that the judge was “shocked” by the outcome. As a result, this Court felt the trial judge was

“. . . conscience-bound to do exactly what he did, namely, grant a new trial. After all the owners’ properties were being taken from them for public use and this cannot be done except full compensation is forthcoming under the fundamental safeguard found in both the State and Federal Constitutions, a protection the judge was duty-bound to secure to them.” 131 So.2d at 742.

At first glance it would seem that the order for new trial in this case should be able to withstand appellate review since it is predicated on the same basis as the Bennett order for new trial: shock to the judicial conscience. In turn it would seem that the District Court’s decision to reverse in this case would conflict with Bennett. However, the two cases are distinguishable for two reasons. First, the issues at the respective trials were vastly dissimilar. In this case the trial court, sitting in a personal injury suit, was not duty-bound to secure the plaintiff’s constitutional right to just compensation for the taking of his property as was the trial court in the Bennett eminent domain proceeding. Second, and most crucially from a perspective of appellate duty of review, the respective orders, apart from noting judicial shock, are entirely different. In this case, the order granting new trial offered no explanation of what triggered the trial court’s judicial shock at the size of the verdict. On the contrary, the Bennett order offered as an explanation for the trial court’s shock at the low verdict a detailed analysis of the evidence before the jury:

“In his order the learned circuit judge, . referred to the original appraisals on,the bases of which the deposits had been made and on the strength of one of which the sum of $60,000 had been paid to one of the owners, a sum considerably in excess of the amount awarded by the jury. He recalled that upon amendment of the declaration there had been no appreciable change in the figures. In parallel columns he set out the appraisals of petitioners, the testimony of petitioner’s and owner’s experts, and the verdicts which demonstrated the disparities among the estimates presented by the parties^ and those accepted by the jury.

******

“Plainly, then, the trial judge felt that he could not condone the condemning authority’s making representations as to values, taking owners’ properties away— and beyond recovery — making no effort in the amended declaration to correct any errors as to values that had been discovered, and introducing in the trial testimony creating the material disparities.” 131 So.2d at 742.

In addition, the order in this case does not point to the record for support of the trial court’s determination that $50,000 of the $180,000 punitive damage award was proper but the excess was not. In requiring the entry of a remittitur to correct an excessive verdict the rule is that the amount of the excess must clearly appear from the record. De La Vallina v. De La Vallina, 90 Fla. 905, 107 So. 339 (Fla.1926). By comparison, in Bennett, the order of the trial court pointed to evidence in the record to support the additur offered the defendant as an alternative to a new trial.

“[In] his order [the judge] announced that the verdicts would fall unless by additur the amounts stated in them were raised to the exact amounts named in the original declaration and substantially repeated in the amended declaration.” 131 So.2d at 742.

The deficiency of the order in this case is serious. By requiring a remittitur without an explanation founded in the record and then, once the remittitur is rejected, by ordering a new trial without stating reasons capable of demonstration in the record or beyond the record (such as influences which aroused the passion and prejudice of the jury), the trial court left the District Court of Appeal to grasp at straws when it reviewed the order.

Certainly a trial court is in a better position than an appellate court to pass on the ultimate correctness of a jury’s verdict. Pyms v. Meranda, 98 So.2d 341, 343 (Fla.1957), but superior vantage point does not give a trial judge unbridled discretion to order a new trial. Consequently, to facilitate intelligent appellate review of such orders the reasons which produced the need for the new trial must be set forth in the order. Stewart Bonded Warehouse Inc. v. Bevis, 294 So.2d 315, 317 (Fla.1974).

This Court has struggled with the question of what reasons contained in an order for new trial will suffice to enable it to withstand appellate review. Cohen v. Margoa, 309 So.2d 539 (Fla.1975). But, by and large, beginning with Cloud and continuing through recent decisions of this Court, a consistent standard has emerged. Cloud stated at page 673:

“When the judge, who must be presumed to have drawn on his talents, his knowledge and his experience to keep the search for the truth in a proper channel, concludes that the verdict is against the manifest weight of the evidence, it is his duty to grant a new trial, and he should always do that if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record.”

The meaning of this statement was refined in Hodge v. Jacksonville Terminal Co., 234 So.2d 645 (Fla.1970), where this Court reviewed a District Court decision which, on the authority of Cloud, had affirmed an order for new trial that offered no reason for the necessity of a new trial other than that the verdict was contrary to the evidence. Finding the decision to conflict with Nunberg v. Brodsky, 224 So.2d 727 (Fla. 3d DCA 1969), this Court quoted with approval the following from Nunberg:

“The second ground of the order, that the verdict was not ‘consistent’ with the evidence, was insufficient upon which to grant a new trial. The trial court did not find or conclude that the verdicts were against the manifest weight of the evidence, for which, had he so concluded, a new trial properly could have been granted, as held in Cloud v. Fallis, Fla.1959, 110 So.2d 669, 673. See also Florida East Coast R. Co. v. Hayes, 66 Fla. 589, 64 So. 274, 276; Burnett v. Soule, 78 Fla. 507, 83 So. 461, 462; Greiper v. Coburn, 139 Fla. 293, 190 So. 902, 904; Hart v. Held, 149 Fla. 33, 5 So.2d 878, 882; Grand Assembly, etc. v. New Amsterdam Casualty Co., Fla.App.1958, 102 So.2d 842, 846. Those cases reiterate the rule that where the evidence on the issues made is in conflict, and the verdict found thereon is not manifestly against the weight of the evidence, the court will not interfere and set aside the verdict of the jury.” Hodge, supra, at 646, 647.

This Court went on to say:

“. . . Setting aside a jury verdict on this ground requires more than a cursory disposition of a ground of a Motion for New Trial that ‘the verdict is contrary to the evidence.’ There should be an independent determination by the trial judge that ‘the jury was influenced by considerations outside the record’. . . . ” Id. at 647.

* * * * * *

“The reliance by the district court on our decision in Cloud v. Fallis to support its decision affirming the order granting the new trial because the verdict was ‘contrary to the evidence’ is misplaced. The motion for new trial did not allege and the trial judge did not find that the verdict was against ‘the manifest weight of the evidence’ which is the rule announced in Cloud v. Fallis, supra.” Id. at 648.

Cloud and Hodge together were applied to the problem of when remittitur or, in the alternative, a new trial may be ordered by a judge (the problem presented in this case) in Laskey v. Smith, 239 So.2d 13 (1970). This Court there concluded at page 14:

“A jury’s determination of damage is reviewable by the trial judge on precisely the same principles as govern his superintendence of determinations of liability. Mr. Justice Drew stated them clearly in Hodge v. Jacksonville Terminal Company, Fla., 234 So.2d 645, opinion filed April 22, 1970. The record must affirmatively show the impropriety of the verdict or there must be an independent determination by the trial judge that the jury was influenced by considerations outside the record.

“In other words, the trial judge does not sit as a seventh juror with veto power. His setting aside a verdict must be supported by the record, as in Cloud v. Fallis, Fla.1959, 110 So.2d 669, or by findings reasonably amenable to judicial review. Not every verdict which raises a judicial eyebrow should shock the judicial conscience.

“In its movement toward constancy of principle, the law must permit a reasonable latitude for inconstancy of result in the performance of juries. The trial judge’s review of that performance is likewise sustainable within a broad range provided that the record or findings of influence outside it support his determination. . . ”

Although an order for new trial need not incant language to the effect that the verdict is against the manifest weight of the evidence or was influenced by considerations outside the record, the order must give reasons which will support one of these two conclusions so that it will be susceptible of appellate review. See Thompson v. Williams, 253 So.2d 897 (Fla. 3d DCA 1971). Orders granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused.

Since the order for new trial is deficient because it does not contain reference to the record in support of its conclusion that re-mittitur of the punitive damage award is necessary to cure the excessiveness of the punitive damage verdict (its basis for requiring new trial), we have made an independent review of the record in search of support of that conclusion. We find none.

When claims for punitive damages are made, the respective provinces of the court and jury are well defined. The court is to decide at the close of evidence whether there is a legal basis for recovery of punitive damages shown by any interpretation of the evidence favorable to the plaintiff. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 222 (Fla.1936). A legal basis for punitive damages exists where torts are committed in an outrageous manner or with fraud, malice, wantonness or oppression. Id. at 221. Once the court permits the issue of punitive damages to go to the jury, the jury has the discretion whether or not to award punitive damages and the amount which should be awarded. Punitive damages “are peculiarly left to the discretion of the jury as the degree of punishment to be inflicted must always be dependent on the circumstances of each case, as well as upon the demonstrated degree of malice, wantonness, oppression, or outrage found by the jury from the evidence.” (emphasis supplied) Id.

Since the degree of punishment to be inflicted on the defendant is peculiarly within the province of the jury, courts will hold punitive damages excessive only in unusual circumstances. Florida East Coast Railway Co. v. Morgan, 213 So.2d 632 (Fla. 3d DCA 1968). The court below recognized three situations where courts in this State have determined that the amount of a verdict for punitive damages is excessive:

“First, where the punitive damages awarded bears no relation to the amount the defendant is able to pay and results in economic castigation. Maiborne v. Kuntz, Fla.1952, 56 So.2d 720; Hutchinson v. Lott, Fla.App.1959, 110 So.2d 442. Second, where the tort committed is lacking the degree of maliciousness and/or outrageous disregard for the plaintiff’s rights required to sustain the amount of the verdict. Hutchinson v. Lott, supra; Zippy Mart, Inc. v. Mercer, Fla.App.1970, 244 So.2d 522. Third and last, where the amount of punitive damages fixed by the jury bears no reasonable relation to the compensatory damages awarded and which is excessively out of relation to compensatory damages. Air Line Employees Association International v. Turner, Fla.App.1974, 291 So.2d 670; Lan-Chile Airlines, Inc. v. Rodriguez, Fla.App. 1974, 296 So.2d 498.” Wackenhut, supra, at 809.

An unusual circumstance which demands a new trial on the issue of punitive damages also might occur as in Castlewood Int’l. Corp. v. LaFleur, 322 So.2d 520 (1976), when the judge himself injected prejudicial error by charging the jury as to the legal definition of “gross negligence,” although this was not an element of the case.

It is clear to us that the trial judge in this case ignored the role of the jury because none of the foregoing unusual circumstances appear in the record. The award (2% of a net worth of 9.2 million dollars) is not economic castigation of Wackenhut. There was a legal basis for punitive damages being assessed, else the issue should not have been permitted by the judge to go before the jury. Likewise the trial court obviously concluded there was a legal basis for punitive damages by permitting $50,000 of the award to stand. As to the requirement that punitive damages bear a reasonable relationship to the compensatory damages, the trial court implicitly recognized such requirement in its order granting the new trial. Although it found the compensatory damages to be supported by the evidence a new trial on both compensatory and punitive damages was ordered when the remittitur was declined. Notwithstanding the application of such a condition by several District Court of Appeal decisions, e. g., Turner and Rodriguez, supra, this requirement has been repudiated recently by this Court in Lassitter v. Intern. Union of Op. Engin., 349 So.2d 622 (Fla.1976). For the reasons expressed in Lassitter, it is not required that punitive damages must bear some reasonable relationship to the actual damages awarded by the jury and the trial court erred in implicitly applying such a standard.

Since no basis appears in the record which would lead to the conclusion that the punitive damage award is excessive, the District Court was correct in reversing the trial court’s order for new trial even though the District Court articulated an erroneous standard for review.

Accordingly, we reaffirm the Cloud rule as this Court has applied it in Laskey to orders for new trial which are entered as alternatives to remittiturs. Before such an alternative order may be entered either the record must affirmatively show the impropriety of the verdict or there must be an independent determination that the jury was influenced by considerations outside the record. The trial judge in this case acted as a seventh juror with veto power. The province of the jury ought not be invaded by a judge because he raises a judicial eyebrow at its verdict.

The writ of certiorari is discharged.

It is so ordered.

BOYD, ENGLAND, HATCHETT and KARL, JJ., concur.

OVERTON, C. J., dissents with an opinion, with which SMITH, District Court Judge, concurs.

SMITH, District Court Judge, dissents with an opinion.