Wednesday, May 6, 2009

Trial Court Order Denying Directed Verdict Reversed by Fourth DCA

In Meruelo v. The Mark Andrew of the Palm Beaches Ltd. (4D07-4983), the Fourth DCA reversed the circuit court's denial of defendant's motion for directed verdict.

Two days before a scheduled bankruptcy sale, the appellant purchased property for thirty million with an additional five million dollars if certain conditions were met.

The Mark Andrew filed a complaint against the Buyers for non-payment of the five million dollar bonus under the addendum. In Count II of the complaint, The Mark Andrew alleged that the Buyers had breached the implied duty of good faith and fair dealing by failing to seek approval of a site plan in excess of 600,000 square feet of air-conditioned saleable space.

After a trial:
The jury returned a verdict in favor of The Mark Andrew as to Count II and awarded five million dollars in damages, in accordance with the bonus clause in the addendum.
The Buyers argue that the trial court erred in denying their motion for a directed verdict because the addendum does not impose any duty on them to seek approval to build more than 600,000 square feet of air conditioned saleable space.
The standard on directed verdict:
A trial court should grant a motion for directed verdict when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ about the existence of a material fact and the movant is entitled to judgment as a matter of law. Dep’t of Children & Family Servs. v. Amora, 944 So. 2d 431, 435 (Fla. 4th DCA 2006).
The specific issue:
The implied covenant of good faith and fair dealing applies to every contract. Ins. Concepts & Design, Inc. v. Healthplan Servs., 785 So. 2d 1232, 1234 (Fla. 4th DCA 2001). The covenant of good faith “must relate to the performance of an express term of the contract and is not an abstract and independent term of a contract which may be asserted as a source of breach when all other terms have been performed pursuant to the contract requirements.”...Because the addendum did not expressly impose on the Buyers a duty to seek approval for a 600,000 square foot building, there can be no implied duty to act in good faith in seeking such approval.


We disagree with The Mark Andrew’s contention that this issue was not preserved for review because the Buyers failed to renew the motion for directed verdict at the close of all the evidence. When a motion for a directed verdict is made at the close of the plaintiff’s case and denied, it must be renewed at the close of all the evidence to preserve it for appellate review. Keyes Co. v. Shea, 372 So. 2d 493, 494 (Fla. 4th DCA 1979). If the trial court reserves ruling on the motion, the defendant must renew the motion at the close of all the evidence. 6551 Collins Ave. Corp. v. Millen, 104 So. 2d 337 (Fla. 1958). The only exception is where “the insufficiency of the evidence constitutes plain error apparent on the face of the record which if not noticed will result in a manifest miscarriage of justice.” City of Pompano Beach v.
, 129 So. 2d 144, 147 (Fla. 2d DCA 1961); see also Country Manors Ass’n v. Master Antenna Sys., Inc., 534 So. 2d 1187, 1191 (Fla. 4th DCA 1988), Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So. 2d 412, 418 (Fla. 4th DCA 1980), Pickard v. Mar. Holdings Corp., 161 So. 2d 239 (Fla. 3d DCA 1964). This case falls within the exception because the plain language of the addendum shows that the Buyers had no duty to seek approval to build more than 600,000 square feet of air-conditioned saleable space. A manifest miscarriage of justice would result if they were held to have breached a duty that does not exist.


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