BRIAN FERNALLD v. ABB, INC., LEWIS NODDIN, and LAURA NODDIN

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BRIAN FERNALLD,
Appellant,
v.
ABB, INC., a Florida corporation,
LEWIS NODDIN, and LAURA NODDIN,
Appellees.
No. 4D19-3511
[March 10, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No. CACE-16-016854
(08).
Chris Kleppin of The Kleppin Firm, P.A., Plantation, for appellant.
Anisley Tarragona of BT Law Group, PLLC, Miami, and Pedro J. Torres-
Diaz of Jackson Lewis P.C., Miami, for appellee Laura Noddin.
KUNTZ, J.
Brian Fernalld appeals the circuit court’s order granting in part Laura
Noddin’s motion for remittitur or new trial on Fernalld’s $550,000
defamation award against Ms. Noddin. While we understand the judge
had questions about the jurors’ verdict, those questions did not allow the
judge to serve as the seventh and ultimate juror. Fernalld asked the jury
to award him hundreds of thousands of dollars on his defamation claim,
and the jury did so. The court erred when it remitted the verdict to
$100,000. We reverse the court’s order and remand with instructions to
reinstate the jury’s verdict.
Background
Fernalld filed a four-count complaint for: (I) age discrimination against
his former employer, ABB, Inc., about his termination; (II) age
discrimination against ABB for Fernalld’s terms and conditions of
employment; (III) retaliation against ABB; and (IV) defamation per se or
defamation per quod against ABB, Ms. Noddin, and her husband Lewis
Noddin.
ABB, Ms. Noddin, and Mr. Noddin, collectively filed an answer and
affirmative defenses, asserting, among other defenses, that Fernalld was
terminated for a legitimate reason. Ms. Noddin also counterclaimed
against Fernalld for civil battery.
At trial, Fernalld sought damages of $2,151,755.49 in back pay for his
unemployment from 2014 to 2018, and $1,200,000 in future pecuniary
loss. He explained that he did not have enough money to pay the bills,
lived off his retirement money, borrowed money from his children, was
forced to sell his house, and accrued credit card debt. Fernalld also
claimed he owed his daughter $40,000, his son $10,000, and the bank “a
hundred and some thousand dollars.” Fernalld testified that he suffered
emotionally too. At the lowest point, he thought that “maybe it was time
to have a car accident or something” so his wife could receive his life
insurance money. In response to a question from the jury, he testified that
he contemplated suicide because he “didn’t know what to do” about his
finances.
After the trial, the jury returned its verdict. The jury found that
Fernalld failed to prove that his employer, ABB, terminated him because
of his age. But the jury also found Fernalld proved Ms. Noddin made
defamatory statements about him that damaged his business and
reputation. The damages Fernalld sustained, the jury concluded, totaled
$550,000. Finally, the jury found that Ms. Noddin did not prove Fernalld
committed a battery on her.
Ms. Noddin moved for remittitur, arguing the $550,000 award was
“clearly indicative of prejudice, passion, or corruption on the part of the
trier of fact.” She argued the amount shocked the court’s conscience as
evidenced by the court’s post-verdict comment that the award was
“[c]ertainly not any kind of verdict [the court] would have ever guessed.”
The court held a hearing on the motion. After the hearing, the court
expressed that it did not know where the jurors got their number from and
did not know what went into their thought process—looking at the facts,
the court was “not sure how you get to 550,000.” The court found that
“[t]here seem[ed] to be a lot of inconsistencies” in the testimony, and stated
that the inconsistencies are “probably why [the jury] found in favor of
[Fernalld] on the defamation [claim] and against Ms. Noddin on the battery
[claim].”
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The court found that Fernalld’s testimony about his depression and
contemplating suicide “all pertain[ed] to him losing his job,” and noted he
never saw any health professionals for mental or physical health problems
from the defamation. Ultimately, the court “didn’t see” that Fernalld’s
emotional distress was attributable to Ms. Noddin’s allegations. The court
found:
I think it’s grossly excessive. I think it’s – it’s not reasonably
related to the damages proved and the injuries suffered. And
so I just don’t see how it’s logical. And you look at the different
factors. And so I think it’s indicative of passion by the jury,
even based on a lot of the questions that they had asked
during the trial.
Consistent with the oral ruling at the hearing, the court entered a written
order reducing the verdict to $100,000.
Analysis
“The circuit court’s determination on an issue of remittitur is reviewed
using an abuse of discretion standard.” Sch. Bd. of Broward Cty. v. Pierce
Goodwin Alexander & Linville, 137 So. 3d 1059, 1072 (Fla. 4th DCA 2014)
(citing Rowlands v. Signal Constr. Co., 549 So. 2d 1380, 1382 (Fla. 1989)).
When considering a motion for remittitur, the court must determine
whether the amount of a damages award “is excessive . . . in light of the
facts and circumstances which were presented to the trier of fact.” §
768.74(1), Fla. Stat. (2019). In determining whether an award “exceeds a
reasonable range of damages,” the circuit court must consider five factors:
(a) Whether the amount awarded is indicative of prejudice,
passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the
evidence in reaching a verdict or misconceived the merits of
the case relating to the amounts of damages recoverable;
(c) Whether the trier of fact took improper elements of
damages into account or arrived at the amount of damages by
speculation and conjecture;
(d) Whether the amount awarded bears a reasonable relation
to the amount of damages proved and the injury suffered; and
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(e) Whether the amount awarded is supported by the evidence
and is such that it could be adduced in a logical manner by
reasonable persons.
§ 768.74(5)(a)–(e), Fla. Stat. (2019).
Here, the court concluded that it “[didn’t] know what went into [the
jury’s] thought process” when it awarded $550,000 to Fernalld. The
court’s first thought when the $550,000 verdict came out was that it was
“excessive” and “somewhat punitive” because the jurors seemed to be
trying to “send a message that they didn’t like it” and that they did not
believe Ms. Noddin. The court also believed the jury’s verdict against
Fernalld on his discrimination claim was inconsistent with its verdict
against Ms. Noddin on her battery counterclaim. Finally, the court did not
believe that the evidence supported damages for the defamation claim and,
instead, determined that the evidence related to the discrimination claims.
Although the circuit court had misgivings about the evidence and the
jury’s verdict, the jury’s verdict was supported by competent substantial
evidence, and the circuit court lacked competent substantial evidence to
support its finding that the jury’s verdict violated any of the section
768.74(1) factors.
Fernalld asked for hundreds of thousands of dollars from the jury for
his defamation claim. He argued that he sustained significantly more
damages too. He presented evidence that he was depressed, suicidal, in
financial distress, and unemployed. He also presented evidence
suggesting the defamatory statement was transmitted to each of ABB’s fifty
employees and people outside the company. Consistent with the
requested amount and the jury’s interpretation of the evidence, the jury
awarded Fernalld $550,000 on his defamation claim. The court erred
when it substituted its interpretation for the plausible interpretation
accepted by the jury.
Conclusion
We reverse the court’s order granting Ms. Noddin’s motion for remittitur
and remand with directions to reinstate the jury’s verdict.
Reversed and remanded.
GERBER and FORST, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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