1 

### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

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, Appellee s /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 appellant s /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 & Littky

Rubin, LLP, West Palm Beach, and Steven G. Calamusa of Gordon & Partners, P.A., West Palm Beach, for appellee /cross appellant , Rita Genovese.

K LINGENSMITH
, 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

t h e 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 shoulde r or emergency stopping lane. Mr. Genovese was traveling2 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 tractor

trailers. Moody’s and Lafayette’s vehicles were approaching each other at opposite ends of an S

- curve , and according to the evidence, b oth 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 abl e 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. B ecause of this collision, Lafayette’s tractor

- trailer jackknifed and entered the

nort hbound 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 who m they believed might have potential biases favoring either

Southeastern specifically or truck drivers in gen eral. During voir dire, s everal prospective jurors were struck for cause because they either explicitly articulated, or it was otherwise clear

, that they were bias ed in favor of truck

drivers

.

One p rospective juror , C.W., indicated that her husband worke d 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 s erve 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, a ppellants 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 race

neutral 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 not ing that the reasons prov ided 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 eithe r of the two reasons she initially offered for the peremptory challenge were not genuine. In response,

a ppellants 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 truck ing 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 agre ed 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 Melbou r ne 2 discussed the “ reasonableness ”

and “ genuineness ” associated with the use of a peremptory strike

. It stat ed that those cases required courts to place particular emphasis on the “ genuineness ” of the reasons stated for the challenge

. The trial court then st ated 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 considerabl y on the racia l make

up of the jury

— C.W. was the only African American left on the panel

— a s 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 e mphasi zed 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 dr ove 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 f irst 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).4 action to avoid the acci dent, but he was unable to. T he 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 theor ized 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 Lafay ette claimed.

Moody testified that he could not recall whether he crossed the center of the road and into Lafayette’s lane

. He stat ed 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. Gen o v e se to introduce evidence of Lafayette’s driving history with Southeastern to the jury

. T h is 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 sig n after making a delivery

.

After the conclu sion of a three

- week trial , the jury returned a verdict for Ms.

Genovese

, finding Moody 100% responsible for the accident and award ing her

the economic and non

- economic damages she sought. The jury found no liab ility

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 a nd Moody both moved for a new trial. Additionally, Moody m ade 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.5 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 smal l” on the part of a ppellants. 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.

LAFAY ETTE 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. LAFAYET T E 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 “u ndisputed findings,” the trial court opined the jury’s finding of zero liability against a ppellants 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 it s ruling denying Ms. Genovese’s peremptory challenge to juror C.W. T he trial court admitted that a t
the time a ppellants demanded a race

- neutral reason for the peremptory strike, it placed emphasis on the juror’s right to remain on the jury and a ppellants’ 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 al so 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 c ourt’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 judgment6 notwithstanding the verdict on Southeaster n’s cross

- claim for damages to its

truck. The trial court ruled that Moody should not be liable for the entire amount
of damage s 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 affid avit delineating

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

for. Southeastern provided the requested affidavit over objection while not ing that it was solely an estimate because the damages were very interrelated and it

wa s 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. 3 d 959, 962

– 63 (Fla. 4th DCA 2012)

. This c ourt 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 den ying 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 ground s , State v. Johnson , 295 So. 3d 710 (Fla. 2020), the Florida7 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 per emptory 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 requ irements 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 th e 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 t he 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.

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

the Melbourne test. Under step one, a ppellants 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 as ked, 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. Th e stated reason

— C.W.’s potential bias

— was clearly

race neutral. See Busby v. State , 894 So. 2d 88, 9 9 (Fla. 2004) (stating that a juror may be excluded from a jury for concerns of “impartiality”). Yet, the trial8 court inexplicably found that Ms. Genovese failed to meet the “race

- neutral” test

enunciated in Melbourne and its state and federal predecessors. This wa s

tantamount to a finding that Ms. Genovese’s s tated 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. A s 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 4 64 (same).

F urthermore, u nder the Melbourne test

, it was the a ppellants and not the appellees who had the burden to prove “purposeful racial discrimination.” See
679 So. 2d at 764. I nstead of recognizing the fallacy in a ppellants’ 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 Melbo urne 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 presum ption that Ms. Genovese was exercising her preemptory challenge in a nondiscriminatory manner and (2) hold a ppellants to their burden of proving purposeful discrimination. See id. at 764. If the trial court had done both things, as required by Melbourne , it w ould 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 th is 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

, s ee 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 4 56 ( trial court improperly us ed 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. Gi ven 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 ou tset) and that no new or additional legal arguments were submitted to the court, it is unclear what caused

the court to have th is eleventh

- hour epiphany

. Unfortunately for the parties,

this about

- face occurred after three weeks of trial and a jury verdict.9 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 mani fest 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, t he trial court also conclud ed 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, 49 7

– 9 8 (Fla. 1 999).

T he 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 discr etion.” 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 evid ence 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, i t 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 r e viewing the trial court’s order listing the reasons why the manifest weight affor ded the appellee s 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 tria l court labeled as “undisputed” and relied upon for its order

w as either disputed by the parties at trial with competent substantial evidence, conclusory in nature, or simply inaccurate

.10 An examination of t he purported findings of fact contained within the order, which the trial court claims to be “undisputed,” reveals these findings we re 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 n ew 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

. A nd because those facts do not support
the trial court’s determination that the jury verdict was against the manifest weight of th e evidence , we quash that basis for t he 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 ci tations bore no similarity to the circumstances at issue

and ha d 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 i n 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, w ere a n 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 bas i s for its decision regarding new trial

. See Wainer , 713

So. 2d at 1105

. Because this is an issue that may re surface in a future proceeding , w e reverse the trial court’s ruling to admit this evidence and preclude

its use on retrial

.11 Granting a j udgment n otwithstanding the v erdict on Southeastern’s cross

claim 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 tractor

trailer. Moody moved for a directed verdict arguing that he should not be liable for the total amount of damages Southeastern sought . H e 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 indic ated 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 tractor

trailer 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 Co urt 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)

. Howe ver, 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 the se motions may only be simultaneously granted by a trial court on the “express co ndition ” 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 a ppellants ( as the non

moving 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 conclu sion (the evidence that Lafayette was distracted and could have evaded accident), a ppellants did present evidence that Moody was clearly at fault and that there was nothing Lafayette could have done to prevent12 the accident that caused extensive damage to t he truck

. In light of th is 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)

.

T he trial court’s grant of Ms. Genovese’s and Moody’s motion s 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 t he issue of Southeastern’s damages on i t s cross

- claim should be

decided up on 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, 61 0 (Fla. 4th DCA 2017) ( stating that a trial court, when ruling on a motion to add a p unitive 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.

C IKLIN and C ONNER
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.