specuLationcannotsupportaMotionforadditur
Construction law Section
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The Fourth District first held the appeal was properly before it. Neither § 768.74( 4), Florida Statutes, nor Florida Rule of Civil Procedure 1.530( h)( 3), treats silence as acceptance of an additur; the written-election requirement applies only to a party electing a new trial on damages. A party seeking reinstatement of the verdict may simply appeal, which the court treats as a rejection of the additur. The tradeoff: that party waives its right to a new damages trial if the appeal fails.
On the merits, the court found the trial judge abused his discretion for two reasons. First, the“ divide-by-14” theory was pure speculation, as the judge himself acknowledged; a court may override a verdict only where undisputed evidence compels a different number, not by substituting its own factual guess for the jury’ s. Second, the damages evidence was not undisputed— cross-examination showed the requested total folded in fees unrelated to the stucco work, meaning the jury reasonably could have arrived at $ 55,652 from the
evidence and instructions given, especially since the owner bore the burden of proof.
The Fourth District reversed the additur and remanded for entry of judgment on the jury’ s original verdict, reaffirming that trial courts cannot rescue a damages award on a motion for additur simply by guessing at the jury’ s math. n
Author: Jacob Phelps – Hill Ward Henderson
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