FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-4293
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RICHARD FANNIN,
Appellant,
v.
ACE HUNTER,
Appellee.
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On appeal from the Circuit Court for Duval County.
Adrian G. Soud, Judge.
September 22, 2021
B.L. THOMAS, J.
Appellee sought damages under section 767.01, Florida
Statutes (2017), alleging Appellant’s dog, a nine-year-old
Weimaraner named Finley, caused him both physical and
neurological injuries. Appellee and his wife agreed to watch Finley
for a few days. They had watched Finley and other friends’ dogs in
the past without issue. Appellee and his wife also owned two young
dogs at the time: a German Shepard and a Golden Retriever.
At trial, Appellee and his wife testified that one night while
they were watching Finley, Appellee took Finley to the back yard.
Appellee turned his back to Finley and began walking to the house.
Appellee alleged that Finley then ran behind him and knocked him
down, rendering him immediately unconscious. But because his
back was turned, Appellee did not see Finley run toward him. After
Appellee regained consciousness, he made his way to the back door
of his house and alerted his wife that he had fallen.
There was conflicting testimony and evidence regarding
details of the incident. Both Appellee and his wife testified that
Finley was the only dog outside at the time of the incident, that
their dogs were in their crates at the time of the incident, and that
they did not allow their dogs to go outside with Finley if the dogs
were not on a leash. But Appellant’s wife testified that Appellee
informed her the incident occurred when he let the “dogs” outside.
And Appellee’s medical report indicated that one of Appellee’s dogs
caused the injury.
There was also conflicting testimony regarding what
happened the day following the incident. Appellee and his wife
testified that Appellee’s wife sent Finley from the back yard
“unescorted” to Appellant’s wife. But Appellant’s wife testified that
Appellee brought Finley to her on a leash. Appellant’s wife also
testified that she observed Appellee trying to prevent at least three
dogs from escaping from behind the gate. This contradicted
Appellee’s and his wife’s testimony that their dogs were not
allowed outside with Finley while Finley was not on his leash.
The jury rendered a verdict for Appellant, finding that Finley
was not the legal cause of Appellee’s alleged injuries. Appellee then
moved to set aside the jury verdict for entry of a directed verdict or
for a new trial. The trial court granted the motion for directed
verdict and ordered a new trial on the issue of damages. We
reverse.
A. Directed Verdict
We review a trial court’s grant of a motion for directed verdict
de novo. Rosa v. Dep’t of Child. & Fams.,
915 So. 2d 210, 211 (Fla.
1st DCA 2005).
The trial court must consider motions for directed verdict with
“extreme caution, because the granting thereof amounts to a
holding that the non-moving party’s case is devoid of probative
evidence.” Houghton v. Bond,
680 So. 2d 514, 522 (Fla. 1st DCA
1996) (citation omitted). “A motion for directed verdict should not
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be granted unless the trial court, after viewing the evidence in the
light most favorable to the non-moving party, determines that no
reasonable jury could render a verdict for the non-moving party.”
Id. The trial court must consider the evidence in its entirety in
determining whether a reasonable jury could render a verdict for
the non-moving party. Dep’t of Child. & Fams. v. A.L.,
307 So. 3d
978, 982 (Fla. 1st DCA 2020). But the trial court is forbidden from
weighing the evidence or assessing the witnesses’ credibility itself,
“and must deny a directed verdict ‘if the evidence is conflicting or
if different conclusions and inferences can be drawn from it.’”
Duclos v. Richardson,
113 So. 3d 1001, 1004 (Fla. 1st DCA 2013)
(quoting Moisan v. Frank K. Kriz, Jr., M.D., P.A.,
531 So. 2d 398,
399 (Fla. 2d DCA 1988)).
Under section 767.01, dog owners are strictly liable “for any
damage done by their dogs to a person.” § 767.01, Fla. Stat. (2017).
A plaintiff need only show the dog acted in “an affirmative or
aggressive” manner. See Jones v. Utica Mut. Ins. Co.,
463 So. 2d
1153, 1157 (Fla. 1985). Therefore, a directed verdict can only be
sustained on appeal if there was no evidence rebutting the fact that
Finley caused the incident. Cf. Bozarth v. Barreto,
399 So. 2d 370,
370 (Fla. 3d DCA 1981) (per curiam) (affirming judgment entered
for defendant where there was “sufficient evidence in the record
for the jury to conclude, as it did, that the plaintiff[’]s injuries were
not proximately caused by any aggressive or affirmative act
directed against said plaintiff by the defendant’s dog”); see also
English v. Seachord,
243 So. 2d 193, 195 (Fla. 4th DCA 1971)
(holding that the trial court did not err in refusing “to grant a
directed verdict in favor of plaintiff, because disputed issues of fact
existed as to [whether defendant’s dog was the] actual and
proximate cause” of plaintiff’s injuries).
Appellee’s theory of the case was that Finley “ran into the
back of him causing his legs to be knocked out from under him,
causing him to land on concrete on his head and right side
resulting in three broken ribs, a fractured elbow and a head
injury.” Appellee testified that Finley was the only dog outside in
the back yard at the time of his fall and the only dog that could
have caused him injury.
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But the record contains evidence that conflicts with Appellee’s
version of events. The medical record of the doctor who saw
Appellee the day after the alleged accident included a notation that
Appellee presented with “bilateral elbow pain after his dog hit him
resulting in a fall.” There were discrepancies in the testimony as
to the number of dogs at Appellee’s house at the time of the
incident, and the witnesses provided contradictory testimony to
whether Appellee had let the “dogs [plural] out into the yard.”
Thus, whether Finley—or some other dog—caused injury to
Appellee was very much in question.
The trial court ignored this conflicting testimony in granting
the motion for directed verdict. The trial court found that Appellee
and his wife both testified that there were only three dogs at their
residence and that their dogs were not let outside at the same time
as Finley; that Appellee’s wife consistently identified Finley as the
only dog outside at the time of the incident; that Appellant’s wife’s
testimony that Appellee told her he let the “dogs” out did not rebut
Appellee’s testimony; that the medical records stating it was one
of Appellee’s dogs that caused of the injury was “not reliable
evidence;” that Appellee’s wife brought Finley out to Appellant’s
wife on a leash; and that Appellant’s wife’s testimony regarding
the number of dogs in Appellee’s back yard the morning after the
incident was irrelevant to the issue of which dog caused Appellee’s
injury the night before. The jury, however, could have drawn
different conclusions and inferences than the trial court. And, in
fact, they did.
The jury not only had to assess how Appellee was injured, but
also whether Appellee was injured. Evidence presented at trial
called into doubt whether Appellee sustained the injuries he
alleged. Appellee claimed that he suffered a head injury from the
encounter with Finley, but Appellee did not report a head injury of
any kind when he saw the doctor the day after the incident.
Rather, it was not until six months later that Appellee first
reported that he lost consciousness after the alleged incident. And
after the alleged fall, Appellee refused to go to the emergency room
or call 911 even though his wife begged him to do so. But in her
pre-trial deposition, Appellee’s wife denied any discussion about
the 911 call. Appellee and his wife also claimed that after the
incident they drove around “for an hour” looking for a hospital or
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urgent care facility to seek treatment but could not find any local
hospitals—even after using “Siri” and despite living in
Jacksonville for more than a decade.
Finally, the jury also had to assess Appellee’s credibility with
respect to his recollection of events, which the trial court was
forbidden from doing in ruling on a motion for directed verdict. See
Duclos,
113 So. 3d at 1004. The jury instructions specifically stated
that in evaluating a witness’s credibility the jury could consider
“the ability of the witness to remember the matters about which
the witness testified; and the reasonableness of the testimony of
the witness, considered in the light of all the evidence in the case
and the light of your own experience and common sense.” Fla. Std.
Jury Instr. (Civ.) 601.2(a). The evidence presented at trial raised a
question for the jury as to the nature and extent of Appellee’s
alleged memory loss. First, Appellee testified that Finley ran into
him from behind knocking him down. But Appellee’s
psychotherapist testified that Appellee informed him that Finley
jumped on him knocking him down. Second, when questioned
about how he could answer questions with his memory issues,
Appellee testified that problems with his memory do not arise
unless there are multiple people talking. But Appellee’s wife
recounted a story in which Appellee’s memory failed him during a
private conversation. The trial court, however, summarily found
that Appellee’s memory issues and brain injury were “insufficient
to support the jury[’s] verdict” because Appellee never changed his
testimony with respect to Finley’s identification. A reasonable jury
could have drawn a different conclusion or inference of Appellee’s
credibility or recollection of events based on this testimony and
their instructions. Duclos,
113 So. 3d at 1004.
The trial court also erred when it found that Appellee’s
testimony about how his alleged fall occurred was
“uncontroverted” and that it found Appellee’s testimony “to be
credible and his version of events plausible.” At the same time, the
trial court found testimony by Appellant’s wife to be “insufficient
to provide the jury any basis upon which to base its decision as to
the identity of the dog that impacted Plaintiff and caused his fall
and resulting injuries.” The trial court’s focus on “the identity of
the dog” ignores that the jury could have entirely rejected
Appellee’s version of events and found that there was no encounter
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with any dog. See Jordan v. Brown,
855 So. 2d 231, 234 (Fla. 1st
DCA 2003) (holding that the jury’s verdict was not against the
manifest weight of the evidence where plaintiff’s injury claim
turned largely on her testimony and the defendant dog owners
introduced considerable testimony and evidence to impeach the
plaintiff’s testimony regarding the alleged injury). The trial court
also weighed the evidence in granting Appellee’s motion for
directed verdict when it noted, Appellee’s treating physician’s “own
testimony and acknowledgement at trial that the notes may not be
accurate is alone enough to eviscerate any probative value of the
written medical record as to the identity of the dog that caused
[Appellee’s] injuries.” * Thus, we hold the trial court erred in
granting Appellee’s motion for a directed verdict
In sum, whether Appellee had been injured in an incident
involving Finley (or any dog) and the extent of his injuries were
hotly contested issues at trial. Appellee’s case turned on his
testimony. Appellants introduced testimony showing
inconsistencies in Appellee’s version of events. Thus, the “jury was
entitled to judge [Appellee’s] credibility and accept or reject [his]
testimony on all issues.”
Id. Viewing the evidence in its entirety, a
reasonable jury could conclude that Finley was not the cause of
Appellee’s alleged injuries. A.L., 307 So. 3d at 982.
* Appellee’s treating physician testified that this section of the
medical report was a “rough approximation” rather than a “word-
by-word statement[] provided by the patient,” and discouraged the
jury from relying on it as a document establishing the nature of
the incident. But he also testified that he did not have personal
knowledge of how the incident occurred and that his scribe took
this portion of the report outside of his presence. The jury
instructions stated that in evaluating witness credibility the jury
was permitted to consider “the means and opportunity the witness
had to know the facts about which the witness testified.” Fla. Std.
Jury Instr. (Civ.) 601.2(a). A reasonable jury could have accorded
less weight to the physician’s statement regarding the accuracy of
the medical report given his lack of personal knowledge.
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B. New Trial
A court may grant a new trial “on all or a part of the issues”
before it, including damages. Fla. R. Civ. P. 1.530(a); see, e.g.,
Taylor v. Ganas,
443 So. 2d 251, 253 (Fla. 1st DCA 1983). But the
trial court cannot simultaneously grant a new trial and a directed
verdict. Frazier v. Seaboard Sys. R.R., Inc.,
508 So. 2d 345, 346
(Fla. 1987) (holding that orders granting a new trial and a directed
verdict “are mutually inconsistent and may not be granted
simultaneously.”). “At most, the trial court 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.”
Id. (emphasis added). If an order granting a new trial on certain
issues fails to state the reasons for which it was granted with
“sufficient clarity,” then “it must be reversed as to [those] issues.”
Taylor,
443 So. 2d at 253; see also Fla. R. Civ. 1.530(f) (“All orders
granting a new trial shall specify the specific grounds” for which
they are made.).
Here, the trial court’s order expressly granted a new trial with
respect to damages, not as an alternative to the directed verdict on
the issue of liability. Thus, our reading of the order leads us to
conclude that the trial court meant to grant a new trial on damages
only if the directed verdict on liability was upheld. Cf. Frazier,
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So. 2d at 346. Because we hold that the trial court erred in granting
directed verdict, the order granting a new trial must be reversed.
Accordingly, we reverse the trial court’s order granting
Appellee’s motion for a directed verdict and a new trial to
determine damages. We direct the trial court to reinstate the jury’s
verdict and enter judgment in accordance with that verdict.
REVERSED.
ROWE, C.J., and M.K. THOMAS, J., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Rhonda B. Boggess, Marks Gray, P.A., Jacksonville, for Appellant.
Michael J. Korn, Korn & Zehmer, P.A., Jacksonville; Joshua A.
Woolsey and Nicholas W. Morcom, Woolsey Morcom, PLLC, Ponte
Vedra, for Appellee.
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