1

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WILLIE LAFAYETTE, individually, and

SOUTHEASTERN FREIGHT LINES, INC.,

Appellants/Cross Appellees,

v.

SAMUEL A. MOODY, individually, RITA GENOVESE, individually, and as 

Personal Representative of the Estate of MICHAEL A. GENOVESE,

Appellees/Cross Appellants.

No. 4D18-3687

[April 14, 2021]

Appeal and cross-appeal from the Circuit Court for the Nineteenth Judicial 

Circuit, St. Lucie County; A.B. Majeed, Senior Judge; L.T. Case No. 

2013CA002467.

Sarah Lahlou-Amine of Banker Lopez Gassler P.A., Tampa, for 

appellants/cross appellees.

Elaine D. Walter, Yvette R. Lavelle, and Craig J. Shankman of Boyd Richards 

Parker Colonnelli, Miami, for appellee/cross appellant, Samuel A. Moody.

Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & LittkyRubin, LLP, West Palm Beach, and Steven G. Calamusa of Gordon & Partners, 

P.A., West Palm Beach, for appellee/cross appellant, Rita Genovese.

KLINGENSMITH, J.

Appellants Willie Lafayette and his employer Southeastern Freight Lines, Inc. 

appeal the trial court’s order granting appellee Rita Genovese, the personal 

representative of the Estate of Michael Genovese, a new trial following a jury 

verdict in appellants’ favor. Ms. Genovese and Samuel Moody, a co-defendant of 

Lafayette and Southeastern, both cross-appeal regarding issues stemming from 

that same order. We agree that the trial court committed several errors during 

the trial and post-trial proceedings for which a new trial is the only appropriate 

remedy.

In 2012, Michael Genovese was driving northbound on a two-lane highway 

that was under construction and lined with concrete barriers on both sides, 

leaving no shoulder or emergency stopping lane. Mr. Genovese was traveling 
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behind Samuel Moody’s vehicle, which was also in the northbound lane. At the 

same time, Lafayette was driving southbound in one of Southeastern’s tractortrailers. Moody’s and Lafayette’s vehicles were approaching each other at 

opposite ends of an S-curve, and according to the evidence, both cars were 

driving under the posted speed limit. At some point, Moody’s vehicle crossed 

over the centerline and into Lafayette’s lane. Neither vehicle was able to avoid 

the collision, and Moody’s vehicle “sideswiped” Lafayette’s tractor-trailer near its 

left steer axle and made another impact near the left rear of the truck. Because 

of this collision, Lafayette’s tractor-trailer jackknifed and entered the 

northbound lane where it crashed into Mr. Genovese’s car, killing Mr. Genovese.

The Estate of Mr. Genovese filed a wrongful death lawsuit against Moody, 

Lafayette, and Southeastern. Southeastern also brought a cross-claim against 

Moody for the damage incurred to its tractor-trailer from the accident. 

Trial

During jury selection, Ms. Genovese and Moody endeavored to strike potential 

jurors whom they believed might have potential biases favoring either 

Southeastern specifically or truck drivers in general. During voir dire, several 

prospective jurors were struck for cause because they either explicitly 

articulated, or it was otherwise clear, that they were biased in favor of truck 

drivers.

One prospective juror, C.W., indicated that her husband worked as a truck 

driver for over thirty years. However, unlike the other jurors who had ties to the 

trucking industry, C.W. stated that nothing about her husband’s occupation 

would cause her to favor “one side or the other.” When asked if she would like 

to serve on the jury and why, C.W. answered yes, because “everybody deserves 

to be heard.” Neither Moody nor Ms. Genovese made a cause challenge against 

C.W. However, before voir dire ended, Ms. Genovese decided to use a peremptory 

strike on her. Because C.W. was African American, and at this point was the 

only African American remaining on the prospective jury panel, appellants

requested a race-neutral reason from counsel for the peremptory strike. Ms. 

Genovese first asserted that C.W.’s husband’s significant experience as a truck 

driver was the reason for the challenge. Moody’s counsel accepted this as a raceneutral reason; counsel for appellants did not. Appellants stated that if this was 

a true concern, Ms. Genovese should have asked to strike C.W. for cause as she 

did with the other jurors who had ties to the trucking industry. In response, 

counsel for Ms. Genovese also proffered that C.W. knew another member of the 

prospective jury panel (who was not ultimately selected as a member of the 

panel). 

The trial court denied Ms. Genovese’s peremptory strike, ruling that she 

“failed to meet the race neutral test as enunciated in the Neil/Batson cases.”1

1 State v. Neil, 457 So. 2d 481 (Fla. 1984); Batson v. Kentucky, 476 U.S. 79 (1986).
3

C.W. was selected as a member of the jury panel, and Ms. Genovese noted her 

objection to that selection on the record. 

The day after the jury was selected, counsel for Ms. Genovese revisited the 

issue regarding juror C.W. by noting that the reasons provided for striking her, 

namely C.W.’s husband’s experience as a truck driver, were genuine. Counsel

also stated that C.W.’s perceived eagerness to serve on the jury was another 

reason to support a peremptory strike because it suggested that she wanted to 

defend the honor of her husband’s profession. Finally, Ms. Genovese informed

the trial court that it did not make a finding that either of the two reasons she 

initially offered for the peremptory challenge were not genuine. In response, 

appellants repeated their argument that Ms. Genovese should have used a cause 

challenge on C.W. if she wished to strike her due to her ties to the trucking 

industry. When Moody’s counsel was asked to respond, he voiced his agreement 

with Ms. Genovese’s request for a peremptory strike of C.W. because C.W. was 

“susceptible to being influenced” by her marriage to a truck driver. Moody’s 

counsel agreed that this was a genuine and race-neutral reason.

Despite the proffered explanation from counsel, the trial court nonetheless 

stood by its original ruling denying Ms. Genovese’s peremptory strike. The trial 

court noted that Neil, Batson, and Melbourne2 discussed the “reasonableness”

and “genuineness” associated with the use of a peremptory strike. It stated that

those cases required courts to place particular emphasis on the “genuineness” 

of the reasons stated for the challenge. The trial court then stated for the record 

that it did not believe that Ms. Genovese’s reason for striking C.W. was race 

neutral; thus, it did not believe that the reason given for the strike was genuine. 

In so ruling, the trial court appeared to focus considerably on the racial makeup of the jury—C.W. was the only African American left on the panel—as well as

a minority group’s right to serve on a jury.

During the trial, the attorneys and numerous witnesses recounted the details 

of the fatal car accident. Both sides emphasized aspects of the testimony given 

by both Lafayette and Moody as they were the ones involved in the accident.

Lafayette testified he was very familiar with this stretch of the highway 

because he drove it every day on his package delivery route. On the day of the 

accident, Lafayette said he had been talking on his cell phone with the aid of a 

hands-free device but had ended the call before entering the construction zone.

He first saw Moody’s vehicle when it was 600 feet away from him. At that time, 

there was no indication that Moody’s vehicle would enter his lane. After this, 

Lafayette checked his mirrors to ensure that he was maintaining his lane in the 

construction area. The next time Lafayette saw Moody’s vehicle, it was twelve to 

fifteen feet in front of his truck and suddenly crossing into his lane. Lafayette 

also said that he saw Moody leaning over. Lafayette testified that he tried to take 

2 Melbourne v. State, 679 So. 2d 759 (Fla. 1996).
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action to avoid the accident, but he was unable to. The impact of the collision 

with Moody’s car knocked his hands off the steering wheel and caused him to 

lose control of the truck.

Ms. Genovese called witnesses to support her claim that Lafayette was 

inattentive when the accident occurred. One witness testified that Lafayette did 

not need to check his mirrors and should have kept his eyes on the road, 

particularly because he was travelling in a construction zone. Therefore, Ms. 

Genovese theorized that if Lafayette had kept his eyes on the road from the time 

he saw Moody’s vehicle 600 feet away (which she noted was the approximate 

length of two football fields), instead of checking his mirrors and talking on his 

cell phone, he would have had enough time to react to Moody’s lane shift and 

avoid the crash. Additionally, Ms. Genovese argued that the impact of Moody’s 

and Lafayette’s vehicles was insufficient to throw Lafayette’s hands off the 

steering wheel as Lafayette claimed.

Moody testified that he could not recall whether he crossed the center of the 

road and into Lafayette’s lane. He stated that he was knocked unconscious after 

the accident and did not remember. Moody’s expert confirmed, however, that 

Moody’s vehicle crossed into Lafayette’s lane before crashing into the tractor 

trailer.

The trial court then allowed Ms. Genovese to introduce evidence of Lafayette’s 

driving history with Southeastern to the jury. This evidence included fourteen 

documented work incidents. Though some of these incidents involved Lafayette’s 

operation of a tractor-trailer, i.e., backing into a parked car, several others were 

for non-trucking infractions such as clocking into work early or forgetting to sign 

after making a delivery.

After the conclusion of a three-week trial, the jury returned a verdict for Ms. 

Genovese, finding Moody 100% responsible for the accident and awarding her 

the economic and non-economic damages she sought. The jury found no liability 

for either Southeastern or Lafayette. The jury also returned a verdict for 

Southeastern on its cross-claim and awarded it the total amount it sought for 

the damage to its tractor trailer.

Post-trial motions

Shortly after the verdict, Ms. Genovese and Moody both moved for a new trial. 

Additionally, Moody made an alternative motion for a judgment notwithstanding 

the verdict regarding Southeastern’s cross-claim. The trial court granted both 

Ms. Genovese’s and Moody’s motions for a new trial.

In its order granting Ms. Genovese’s motion, the trial court listed two reasons 

for its ruling: (1) its finding that the verdict was against the manifest weight of 

the evidence and (2) its error in denying her peremptory challenge to juror C.W. 
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As to the first reason, the trial court stated that to find the jury’s verdict against 

the manifest weight of the evidence, it had to determine whether a “reasonable 

person” would have concluded that the evidence “supported a finding of some 

negligence, however small” on the part of appellants. Although the trial court 

acknowledged that both parties presented evidence to support their competing 

claims, it made the following findings, which it labeled “undisputed”:

(a) That Mr. LAFAYETTE had a driving record that should have caused a 

loud alarm to his employers, that sooner or later tragedy would be 

inevitable;

(b) That sufficient facts were presented that would raise a genuine and 

good faith issue about the attentiveness and alertness on the part of Mr. 

LAFAYETTE on this date at this time and in these circumstances in the 

mind of a reasonable person;

(c) That Mr. LAFAYETTE was demonstrating inattentiveness in a 

construction zone that demanded heightened attentiveness;

(d) That Mr. LAFAYETTE admitted to losing sight of Mr. Genovese for a 

distance of approximately two football fields immediately preceding the 

deadly crash; and

(e) That in the final analysis, it was Mr. LAFAYETTE who crossed outside 

of his lane and struck and killed Mr. Genovese.

Based on these “undisputed findings,” the trial court opined the jury’s finding of 

zero liability against appellants was against the manifest weight of the evidence 

and a new trial was warranted to cure that error.

Then, as to the second reason, the trial court reviewed its ruling denying Ms. 

Genovese’s peremptory challenge to juror C.W. The trial court admitted that at 

the time appellants demanded a race-neutral reason for the peremptory strike, 

it placed emphasis on the juror’s right to remain on the jury and appellants’ right 

to have her on the jury because she was, in the court’s words, “a minority.” As 

such, the trial court said it only evaluated the tone, mood, and manner of the 

juror’s responses in finding that she could be fair and impartial. However, the

trial court admitted that this was not the proper standard and instead, it should 

have evaluated whether Ms. Genovese’s reason for striking the juror was 

“genuine” and not race-based. The trial court also opined that in addition to its 

error in legal analysis, the verdict could have been tainted because of C.W.’s long 

marriage to a truck driver such that the decision reached by juror C.W. could 

have been “made outside of record evidence.”

In the trial court’s order granting Moody’s motion for a new trial, it simply 

referred to its order granting Ms. Genovese’s motion for a new trial. However, 

the trial court’s order granted, in part, Moody’s motion for judgment 
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notwithstanding the verdict on Southeastern’s cross-claim for damages to its 

truck. The trial court ruled that Moody should not be liable for the entire amount 

of damages sustained to Southeastern’s tractor-trailer ($41,961.83) just because 

the truck was totaled after he hit it. According to the trial court, since the 

evidence showed that Moody ran into the left side of Lafayette’s truck and 

damaged two wheels and two tires, Moody should only be liable for that limited 

amount of damage. It ordered Southeastern to provide an affidavit delineating 

that amount of damages so that it could determine how much Moody was liable 

for. Southeastern provided the requested affidavit over objection while noting

that it was solely an estimate because the damages were very interrelated and it 

was not possible to delineate the damage to specific auto parts. A final judgment 

was entered for the amount stated in the affidavit.

This appeal followed.

Granting new trial based on denial of peremptory challenge

Appellate courts typically review orders granting a new trial for an abuse of 

discretion. See Fla. Power & Light Co. v. Hayes, 122 So. 3d 408, 412 (Fla. 4th 

DCA 2013). However, this discretion decreases “the closer an issue comes to 

being purely legal in nature.” See Costa v. Aberle, 96 So. 3d 959, 962–63 (Fla. 

4th DCA 2012). This court explained why in Ford v. Robinson, 403 So. 2d 1379, 

1382 (Fla. 4th DCA 1981):

The trial judge who must decide whether to grant a new trial on the 

proffered ground that some reversible error of law occurred at some 

point during the trial need only ask ... if there was error and if so 

whether the error was substantially prejudicial. In that instance, 

the judge is required to sit in essence as an appellate judge. If [the 

judge] concludes that reversible error has been committed, the judge 

is obliged to grant a new trial on the same basis that an appellate 

court would do so. The power of appellate review over the trial 

judge’s resolution of such alleged errors is quite broad, the appellate 

court being on an “equal footing” with the trial court.

In this case, one of the reasons listed by the trial court for its grant of a new 

trial was its conclusion that it improperly applied the standard in the relevant 

case law when denying Ms. Genovese’s peremptory challenge. Because this 

conclusion is legal in nature, this court’s standard of review is de novo. See 

Costa, 96 So. 3d at 962–63.

“[T]o strike the appropriate balance between a party’s right to exercise 

peremptory challenges and the attempt to eliminate invidious discrimination in 

juror selection,” see Hayes v. State, 94 So. 3d 452, 460–61 (Fla. 2012), receded 

from on other grounds, State v. Johnson, 295 So. 3d 710 (Fla. 2020), the Florida 
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Supreme Court laid out the following test in Melbourne for trial courts to use 

when dealing with a race-based objection to a peremptory challenge:

A party objecting to the other side’s use of a peremptory challenge 

on racial grounds must: a) make a timely objection on that basis, b) 

show that the venireperson is a member of a distinct racial group, 

and c) request that the court ask the striking party its reason for the 

strike. If these initial requirements are met (step 1), the court must 

ask the proponent of the strike to explain the reason for the strike. 

At this point, the burden of production shifts to the proponent of the 

strike to come forward with a race-neutral explanation (step 2). If 

the explanation is facially race-neutral and the court believes that, 

given all the circumstances surrounding the strike, the explanation 

is not a pretext, the strike will be sustained (step 3). The court’s 

focus in step 3 is not on the reasonableness of the explanation but 

rather its genuineness. Throughout this process, the burden of 

persuasion never leaves the opponent of the strike to prove 

purposeful racial discrimination.

Melbourne, 679 So. 2d at 764 (footnotes omitted).

Of particular importance is the third step of this inquiry, in which “[a] trial 

court must analyze [the] subjective issue [of] whether a proffered explanation for 

a challenge is a pretext.” Young v. State, 744 So. 2d 1077, 1082 (Fla. 4th DCA 

1999). In other words, the trial court must determine whether the proffered 

explanation is “genuine[]” or whether it “conceals an intent to discriminate based 

on race.” See id. To make this determination, “the trial court must consider all 

relevant circumstances surrounding the strike.” See Hayes v. State, 94 So. 3d 

at 462. “Relevant circumstances may include––but are not limited to––the 

following: the racial make–up of the venire; prior strikes exercised against the 

same racial group; a strike based on a reason equally applicable to an 

unchallenged juror; or singling the juror out for special treatment.” Melbourne, 

679 So. 2d at 764 n.8.

The record shows that the trial court properly followed the first two steps of 

the Melbourne test. Under step one, appellants timely objected to Ms. Genovese’s 

challenge, noted that the potential juror was an African American, and requested 

that the trial court ask Ms. Genovese the reason for her strike. See id. at 764. 

When asked, and in accordance with step two, Ms. Genovese explained that she 

sought to strike C.W. because of her marriage to a truck driver. See id.

However, the trial court erred in applying the Melbourne test at step three, 

specifically in its analysis of the genuineness of Ms. Genovese’s stated reason for 

challenging C.W. See id. The stated reason—C.W.’s potential bias—was clearly 

race neutral. See Busby v. State, 894 So. 2d 88, 99 (Fla. 2004) (stating that a 

juror may be excluded from a jury for concerns of “impartiality”). Yet, the trial 
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court inexplicably found that Ms. Genovese failed to meet the “race-neutral” test 

enunciated in Melbourne and its state and federal predecessors. This was 

tantamount to a finding that Ms. Genovese’s stated reason for exercising a 

challenge on C.W. was pretextual with nothing in the record to substantiate that 

finding. See Young, 744 So. 2d at 1082. As stated in Melbourne, “peremptories 

are presumed to be exercised in a nondiscriminatory manner.” See 679 So. 2d 

at 764; see also Hayes v. State, 94 So. 3d at 464 (same). 

Furthermore, under the Melbourne test, it was the appellants and not the 

appellees who had the burden to prove “purposeful racial discrimination.” See

679 So. 2d at 764. Instead of recognizing the fallacy in appellants’ argument 

and holding them to their burden, the trial court shifted that burden to Ms. 

Genovese and forced her to come up with other reasons for striking the juror. 

When it found those reasons to be unpersuasive, it improperly denied her 

challenge.

The trial court noted the applicable case law when making its ruling but chose 

to evaluate only one of the circumstances Melbourne states is relevant to the

genuineness analysis—the racial make-up of the entire jury panel. See id. at 

764 n.8. What the trial court failed to do was to (1) recognize the presumption

that Ms. Genovese was exercising her preemptory challenge in a 

nondiscriminatory manner and (2) hold appellants to their burden of proving 

purposeful discrimination. See id. at 764. If the trial court had done both things, 

as required by Melbourne, it would have allowed Ms. Genovese to properly 

exercise her peremptory strike at the outset.

Appellants’ only corroboration for a claim of purposeful racial discrimination 

was that juror C.W., as the sole African American juror left on the panel, had a 

right as a member of a “minority group” to serve on the jury. This court and 

others have repeatedly opined that this fact alone is insufficient to override a 

genuine race-neutral or gender-neutral challenge. While the court is permitted 

to evaluate the racial make-up of the jury panel as part of its analysis, see id. at 

764 n.8., it cannot place undue weight on this fact, which is what the trial court 

did when making its ruling. See Hayes v. State, 94 So. 3d at 456 (trial court 

improperly used a juror’s right to serve on a jury as a justification to deny a 

peremptory challenge).

Only after the trial did the court acknowledge its earlier error and grant 

appellees’ motion for new trial. Given the fact that no new or relevant 

information about juror C.W. came to light during the trial (again, the court was 

well-aware of her husband’s occupation from the outset) and that no new or 

additional legal arguments were submitted to the court, it is unclear what caused 

the court to have this eleventh-hour epiphany. Unfortunately for the parties, 

this about-face occurred after three weeks of trial and a jury verdict. 
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Nonetheless, we must affirm the trial court’s decision to grant a new trial based 

on its improper denial of Ms. Genovese’s peremptory challenge. 

Granting new trial because the verdict was against the manifest weight of 

the evidence

Although the error regarding the denial of Ms. Genovese’s peremptory 

challenge is sufficient to affirm the order granting a new trial, we also review the 

concurrent reason given for the order. Here, the trial court also concluded that 

a new trial was warranted because the verdict in favor of Southeastern and 

Lafayette was against the manifest weight of the evidence. We review such orders

for an abuse of discretion. See Brown v. Estate of Stuckey, 749 So. 2d 490, 497–

98 (Fla. 1999).

The Florida Supreme Court has stated that a trial court can and should grant 

a new trial if the manifest weight of the evidence is contrary to the verdict. See 

Smith v. Brown, 525 So. 2d 868, 870 (Fla. 1988). This occurs when, for example,

“the jury has been deceived as to the force and credibility of the evidence or has 

been influenced by considerations outside the record.” Brown, 749 So. 2d at 

497 (quoting Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959)).

When reviewing the trial court’s grant of a new trial based on the manifest 

weight of the evidence, “an appellate court must recognize the broad 

discretionary authority of the trial judge and apply the reasonableness test to 

determine whether the trial judge committed an abuse of discretion.” See id. at 

497–98. Thus, if “reasonable persons could differ as to the propriety of the action 

taken by the trial court, there can be no finding of an abuse of discretion.” See 

id. at 498. “The fact that there may be substantial, competent evidence in the 

record to support the jury’s verdict does not necessarily demonstrate that the 

trial judge abused his or her discretion in granting a new trial.” See id.

That said, it is the jury’s duty to evaluate the credibility of a witness, and the 

trial court should refrain from acting as an additional juror. See Smith, 525 So. 

2d at 870; Fernalld v. ABB, Inc., 46 Fla. L. Weekly D542a (Fla. 4th DCA Mar. 10, 

2021). After reviewing the trial court’s order listing the reasons why the manifest 

weight afforded the appellees a new trial, it is clear that the trial court not only 

re-weighed the evidence, but also acted as a seventh juror in doing so. See 

Midtown Enters., Inc. v. Local Contractors, Inc., 785 So. 2d 578, 582 (Fla. 3d DCA 

2001) (holding that the trial court erred in granting new trial where the order 

showed that the reasons for its ruling were solely the credibility of the witnesses 

and the weight of the evidence). The record shows that each one of the five 

findings that the trial court labeled as “undisputed” and relied upon for its order

was either disputed by the parties at trial with competent substantial evidence, 

conclusory in nature, or simply inaccurate. 
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An examination of the purported findings of fact contained within the order, 

which the trial court claims to be “undisputed,” reveals these findings were based 

solely on the trial judge’s “perception” of the manifest weight of the evidence and 

indeed were all disputed in some form at trial. See Phar-Mor of Fla., Inc. v.

Steuernagel, 550 So. 2d 548, 550 (Fla. 2d DCA 1989). In Steuernagel, the Second 

District reversed a similar order because the trial court made no findings that 

the jury was improperly influenced by considerations outside of the record. See 

id. Here, the only finding the trial court made regarding the jury being influenced 

by considerations outside of the record related to its ruling on Ms. Genovese’s 

peremptory strike. See Brown, 749 So. 2d at 497 (stating that the court should 

grant a motion for new trial when the jury has been influenced by considerations 

outside of the record).

Therefore, the “undisputed” nature of the five enumerated facts listed by the 

trial court is belied by the trial record. And because those facts do not support

the trial court’s determination that the jury verdict was against the manifest 

weight of the evidence, we quash that basis for the order granting a new trial.

Admission of Lafayette’s driving record

We review the admission of evidence under an abuse of discretion standard. 

See Yang v. Sebastian Lakes Condo. Ass’n, 123 So. 3d 617, 620 (Fla. 4th DCA 

2013).

Here, the trial court permitted the jury to hear evidence related to Lafayette’s 

driving history. This too was error. Not only was this evidence unduly prejudicial

under the facts of this case, see Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla. 

2d DCA 1977), but the citations bore no similarity to the circumstances at issue 

and had no relevance to the issue in the case, that is, Lafayette’s alleged 

negligence at the time of the accident. See Wainer v. Banquero, 713 So. 2d 1104, 

1105–06 (Fla. 4th DCA 1998).

This error was compounded when in its order for new trial, the trial court 

listed as an “undisputed” finding of fact “[t]hat Mr. LAFAYETTE had a driving 

record that should have caused a loud alarm to his employers, that sooner or 

later tragedy would be inevitable.” In fact, there was no evidence that the 

administrative citations he received, including his citation for backing into a 

parked car, were an indicator of his competence while driving on the open road. 

Thus, evidence of Lafayette’s driving history should not have been in front of the 

jury and the trial court not only erred by allowing the history into evidence, but 

also by using it as a basis for its decision regarding new trial. See Wainer, 713 

So. 2d at 1105. Because this is an issue that may resurface in a future 

proceeding, we reverse the trial court’s ruling to admit this evidence and preclude 

its use on retrial. 
11

Granting a judgment notwithstanding the verdict on Southeastern’s crossclaim for damages

The standard of review for a motion for judgment notwithstanding the verdict 

is de novo. See Prewitt Enters., LLC v. Tommy Constantine Racing, LLC, 185 So. 

3d 566, 569 (Fla. 4th DCA 2016).

Southeastern sought $41,961.83 from Moody for the damages to its tractortrailer. Moody moved for a directed verdict arguing that he should not be liable 

for the total amount of damages Southeastern sought. He claimed that Lafayette 

was also at fault for the accident. Contrary to his assertion, the jury found 

Moody fully liable and awarded Southeastern all the damages it sought from 

Moody. 

Thereafter, Moody filed a motion for judgment notwithstanding the verdict or 

alternatively a motion for a new trial on Southeastern’s damages claim. Despite 

the nature of Moody’s request, the trial court only indicated that it was granting 

the motion in part and denying the motion in part. In the order, the trial court 

ruled that Moody was only liable for the damage to the left side of the tractortrailer where Moody’s vehicle collided with it. However, the nature, and effect, of 

this ruling is inconsistent with other rulings given the fact that (1) Moody also 

requested a new trial and (2) the trial court also granted Ms. Genovese and 

Moody a new trial on Ms. Genovese’s wrongful death claim.

The Florida Supreme Court has held that “a new-trial order and order for 

[judgment notwithstanding the verdict] are mutually inconsistent and may not 

be granted simultaneously.” Keene Bros. Trucking, Inc. v. Pennell, 614 So. 2d 

1083, 1084 (Fla. 1993) (citations omitted). However, the Court noted that “to 

promote judicial economy, trial judges may properly decide motions on those 

issues in the alternative.” Id.

But the Court also stated that these motions may only be simultaneously 

granted by a trial court on the “express condition” that the order granting the 

judgment notwithstanding the verdict only becomes effective if the order granting 

a new trial is reversed on appeal. See id. (quoting Frazier v. Seaboard Sys. R.R., 

508 So. 2d 345, 346 (Fla. 1987)). That did not happen here.

Additionally, when viewing the evidence, and the reasonable inferences that 

may be drawn from it, in the light most favorable to appellants (as the nonmoving party), there is support for the jury’s verdict. See Melgen v. Suarez, 951 

So. 2d 916, 917–18 (Fla. 3d DCA 2007). The jury determined that Moody was 

fully responsible for the accident and found that he was liable for the full amount 

of damages sought by Southeastern. Although Moody and Genovese presented 

evidence to refute this conclusion (the evidence that Lafayette was distracted and 

could have evaded accident), appellants did present evidence that Moody was 

clearly at fault and that there was nothing Lafayette could have done to prevent 
12

the accident that caused extensive damage to the truck. In light of this

conflicting evidence, the trial court erred in granting Moody’s motion for 

judgment notwithstanding the verdict, even partially. See id.; Johnson v. 

Swerdzwski, 935 So. 2d 57, 60–61 (Fla. 1st DCA 2006).

The trial court’s grant of Ms. Genovese’s and Moody’s motions for new trial 

on the wrongful death claim because of the trial court’s error in jury selection

“effectively ‘disposed’ of” Moody’s motion for judgment notwithstanding the 

verdict. See Frazier, 508 So. 2d at 346. For this reason, we quash the trial 

court’s order on Moody’s motion for judgment notwithstanding the verdict and 

find that the issue of Southeastern’s damages on its cross-claim should be 

decided upon retrial. 

We affirm the other issues raised by the parties on appeal, including the trial 

court’s denial of Genovese’s motion to amend to add a count for punitive 

damages. See Bistline v. Rogers, 215 So. 3d 607, 610 (Fla. 4th DCA 2017) 

(stating that a trial court, when ruling on a motion to add a punitive damages 

claim, should not simply “accept[] the allegations in a complaint or motion to 

amend as true”).

Affirmed in part, reversed in part, and remanded. 

CIKLIN and CONNER, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.