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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 22-22671-CIV-ALTONAGA/TORRES

DELIO BATISTA, et al,,

Plaintiffs,

v.

AVANT ASSURANCE INC. et al,

Defendants.

AVANT ASSURANCE’S OBJECTIONS TO THE AMENDED

REPORT AND RECOMMENDATION RECOMMENDING

DENIAL OF THE MOTION FOR NEW TRIAL OR REMITTITUR

Pursuant to Federal Rule of Civil Procedure 72(b)(2), and Local

Magistrate Rule 4(b), Defendant, Avant Assurance Inc., (“Avant”), objects

to Magistrate Judge Edwin G. Torres’ Amended Report and

Recommendation Denying Avant’s Motion for New Trial or Remittitur

(the “Recommendation”). As advised by the Recommendation, these

objections are required for purposes of preservation. 28 U.S.C. §

636(b)(1); 11th Cir. Rule 3-1.

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INTRODUCTION

Avant objects to the Recommendation for five principal reasons.

First, there is no contemporaneous objection requirement to

preserve Avant’s arguments of insufficiency of the evidence or a

speculatively reached verdict. But the Recommendation determined

otherwise. See Doc. 139 at 3 (concluding Avant “repeatedly waived” the

“sufficiency of the evidence argument” by, inter alia,“never object[ing] to

Plaintiffs’ evidence as improperly calling for speculation”).

Speculative testimony is different from a speculative verdict. With

speculative testimony, a contemporaneous objection is required to

preserve challenges to the evidentiary admissibility of the testimony.

Johnson v. 27th Ave. Caraf, Inc., 9 F.4th 1300, 1310 (11th Cir. 2021) (“We

review evidentiary rulings for an abuse of discretion, or for plain error

where a party fails to preserve its objection.”). However, to challenge a

verdict based on conclusory testimony, insufficient evidence, speculative

testimony, or speculation by the jury itself, all Avant was required to do

was file a motion for new trial or for remittitur. See, e.g., Roboserve, Ltd.

v. Tom's Foods, Inc., 940 F.2d 1441, 1444 (11th Cir. 1991) (affirming

portion of ruling in which “district judge granted Tom's motion for new

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trial because [it] concluded that the verdict was speculative and

excessive”). Avant is challenging the verdict itself, not the admissibility

of the evidence that led to it. Even if Avant never challenged the

admissibility of Plaintiffs’ speculative and conclusory testimony

regarding damages by failing to object to its admissibility, that does not

mean that Avant waived its ability to challenge the verdict as speculative

or excessive under Florida law. Accordingly, Avant objects to the

Recommendation’s erroneous analysis of preservation requirements.

To illustrate the difference, Avant notes that part of its challenge

to the sufficiency of the verdict is the absence of evidence. For example,

Avant has challenged the absence of evidence as to whether Plaintiffs

satisfied the primary requirement for entitlement to commissions: that

the putatively“sold” policies were activated and paid out. See Doc. 124

at. 2, 12, 14-16. It is impossible to object to evidence that was never

presented. All Avant could do is challenge this lack of evidence in a posttrial motion. Avant objects to the Recommendation’s conclusion that

Avant waived arguments on the speculative or excessive nature of the

verdict by failing to contemporaneously object to a lack of testimony and

evidence.

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Second, Avant was not required to move for a directed verdict to

preserve its arguments as to insufficient evidence or speculatively

reached verdict. But the Recommendation determined otherwise. See

Doc. 139 at 3 (concluding Avant “repeatedly waived” the “sufficiency of

the evidence argument” by,“twice neglect[ing] to move for relief under

Federal Rule of Civil Procedure 50, which is the appropriate vehicle for

attacking the sufficiency of the evidence”). Notably, one of the cases that

the Recommendation determined weighed against Avant actually shows

that either a directed verdict motion or a post-trial motion is sufficient to

challenge sufficiency of the evidence. Cf. First United Pentecostal Church

v. Guideone Specialty Mut. Ins. Co., 189 Fed. App’x 852, 856 (11th Cir.

2006) (“Because GuideOne failed to renew its motion or file a post-trial

motion for new trial, we are precluded from entering judgment as matter

of law in GuideOne's favor or granting it a new trial based on the

sufficiency of the evidence.” (emphasis added)).

Failure to move for a directed verdict (which is often joined with a

new trial simply for efficiency purposes) does not restrict this court’s

ability to consider a motion for new trial. In fact, there may be times when

a party is not entitled to a directed verdict, but is entitled to a new trial.

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Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So. 2d 168, 173–74 (Fla.

4th DCA 1994) (“The standard for granting a new trial is different from

that of a directed verdict and the decision of whether to grant a new trial

rests within the sound discretion of the trial court.” (citing Kilburn, 286

So. 2d at 244)); see also Deas v. PACCAR, Inc., 775 F.2d 1498, 1499 (11th

Cir. 1985) (affirming when district court “denied the motion for J.N.O.V.

and granted PACCAR's alternative motion for a new trial”). A motion for

new trial is always directed to the sound discretion of the trial court,

regardless of whether a motion for directed verdict is filed. See id.; Thor

Bear, 648 So. 2d at 173.

Relatedly, the Recommendation conflates two different kinds of

“discretion” that are relevant here. Specifically, the Recommendation

conflates the appellate standard of review (for an abuse of discretion)

with the trial court’s broad discretion to grant a motion for new trial. See

Doc. 139 at 4-5. To be clear, the cases cited in the Recommendation do

not hold that the failure to move for a directed verdict limits in any way

this court’s discretion to decide a motion for new trial.

Third, Avant did not seek new trial or remittitur by arguing that

Plaintiffs’ testimony as to damage calculation was not credible. To the

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contrary, Avant argued that—taking Plaintiffs’ damages testimony at

face-value—the testimony was speculative, evidentiarily unfounded, and

unsupportive of the verdict. See Doc. 124 at (arguing that “at least two

Plaintiffs simply conceded that their damages calculations were

approximations”). And yet, the Recommendation was partially premised

on the rejection of a credibility argument that Avant never raised. See

Doc. 139 at 8 (“Third, the jury obviously found Plaintiffs’ testimony

credible and Mr. Cortes’ contrary testimony was deemed less credible.”);

see also Doc. 139 at 12 (“The jury could set aside the Defendant’s version

and accept the Plaintiff’s testimony as to the range of sums that should

have been due.”). Credible or not, Plaintiffs’ damages testimony suffered

evidentiary gaps and admitted weaknesses (like estimation, unfounded

conclusions, and guesswork) that required the jury to speculate to reach

its verdict. Avant objects to its motion being denied on the basis of an

argument not raised.

Fourth, there was no “range” or otherwise discernable “basis for

calculating the amounts that Plaintiffs requested as damages—only

lump amounts. Doc. 139 at 12. Without having been presented a “range

of damages,” Doc. 139 at 11, the jury was presented with what amounted

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to speculative, evidentiarily unsupported testimony as to damages—i.e.,

insufficient evidence. See Instant One Media, Inc. v. EzFauxDecor, LLC,

22-11374, 2023 WL 2422196, at *2 (11th Cir. Mar. 9, 2023) (“Conclusory

testimony about the estimated amount of profits and generic comments

on her calculation process do not provide a sufficient ‘basis of

computation’ for a jury to determine actual damages under the Lanham

Act.”).

As argued in the motion for new trial, if the Plaintiffs wished to give

the jury the means to calculate damages, they were required to show for

each individual policy (1) its commission price, (2) that the commission

was owed (because the policy ended up being activated), and (3) that the

commission was not paid. For the bonuses, the Plaintiffs were required

to show the policies they“sold” ended up being activated—and thus owed

commissions—in sufficient quantities to entitle them to bonuses. This

evidence was not presented. Instead, the Plaintiffs admitted that they

did not keep track of which policies were actually activated (i.e. whether

commissions were actually owed) and admitted that they estimated their

owed commissions.

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This case is not like AM Grand Court Lakes LLC v. Rockhill Ins.

Co., 68 F.4th 1354, 1362 (11th Cir. 2023). The plaintiffs expert witnesses

in that case provided the jury with a method of calculating rebuild costs—

a range of price per square foot to rebuild buildings, based on their

experience; the square footages of buildings; and pictures of the damage

to determine the extent of rebuild necessary. Id. That permitted the jury

to select a price per square foot based on the quality of the building, to

determine a square footage amount that required rebuild, then to

calculate an amount of damages. Id. That is precisely what did not

happen here—the jury was not given dollar values that they could assign

to specific completed sales, to help them calculate a total. Instead, they

were simply given “estimates” of total amounts owed, without any

supporting model or backing data. This is insufficient. See, e.g., Shumate

& Co., Inc. v. Nat'l Ass'n of Sec. Dealers, Inc., 509 F.2d 147, 153 (5th Cir.

1975) (reversing when “[t]he only evidence [the plaintiff] presented

regarding his damages at trial was his own testimony, unsupported by

any relevant data”); Instant One Media, Inc. v. EzFauxDecor, LLC, 22-

11374, 2023 WL 2422196, at *2 (11th Cir. Mar. 9, 2023).

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Fifth, the Recommendation erroneously relies upon First United,

189 Fed. App’x. at 856, to recommend ruling against Avant on the basis

of waiver. See Doc. 139 at 13. But the appellant in First United waived

arguments by failing to either move for directed verdict or file a motion

for new trial. Id. at 855. In this case, Avant did file a motion for new trial.

Therefore, under not only does First United not support the

determination of waiver in the Recommendation, it affirmatively

demonstrates Avant’s preservation of the issues—as argued above.

CONCLUSION

Defendant, Avant Assurance, Inc., respectfully objects to the

Amended Report and Recommendation recommending denial of its

Motion for New Trial or Remittitur.

Respectfully submitted,

/s/ Samuel Alexander

Samuel Alexander

Fla Bar No. 1007757

Alexander Appellate Law P.A.

120 S Woodland Blvd Suite 200

DeLand, Florida 32720

(689) 259-5010

samuel@alexanderappeals.com

Counsel for Defendant

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 14, 2023, I electronically

filed the foregoing with the Clerk of the Court by using the CM/ECF

system, which will send a notice of electronic filing to all counsel of record.

/s/ Samuel Alexander

Samuel Alexander

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