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Warning: No Second Chances to Prove Damages in the Third DCA

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Last week, Florida’s Third District Court of Appeal—sitting en banc—clarified that it does not believe in second chances when parties fail to prove damages at a first trial.  Perhaps this shouldn’t come as a surprise: the decision, Levy v. Ben-Shmuel, 3D17-2355, 2018 WL 4608779 (Fla. 3d DCA Sept. 26, 2018), brings the court in line with the general rule accepted by each of the other district courts of appeal.  But, thanks to two 1974 Third District decisions, there was uncertainty as to whether the law was the same in South Florida.  Those decisions seemingly endorsed a minority view that the proper remedy for a party’s failure to sufficiently prove damages at trial was to remand a case for a new trial on damages. 

The uncertainty is no more.  The Third District sua sponte went en banc to quell any confusion, receding from its earlier decisions.  The law now is clear:

“where [a] court determines, on appeal from a properly preserved claim, that a party failed to meet its burden of establishing the correct measure of damages at trial, that party is not entitled on remand to a new trial on damages, unless that party’s failure to meet its burden was the result of judicial error.”

The Third District also provided a helpful practice pointer for litigators attempting to preserve sufficiency-of-proof issues regarding damages.  Highlighting the different preservation requirements that apply depending on whether a case is tried to a jury or to a judge, the appellate court explained: 

  1. Non-jury trials: no preservation requirement.  The sufficiency of the evidence to support a judgment may be raised on appeal regardless of whether the party raising the sufficiency question did so in the trial court.

  2. Jury trials: specific steps must be taken to preserve any sufficiency-of-evidence  issue. The party challenging the sufficiency of the evidence must move for directed verdict based on that deficiency. 

In light of the Third District’s decision, there’s no longer any wiggle room in Florida when it comes to remedying a failure of proof on damages.  If you fail to prove this vital aspect of your case, you’re out of luck—no more second chances—unless your lack of evidence was due to the trial judge’s error. 

You may read the opinion here.

Brian C. Tackenberg