Thursday, September 3, 2009

Directed Verdict Improper If Argued Prior To Plaintiff Resting Its Case

In Miami-Dade County Public Health Trust v. Acanda (3D07-3314), the Third District affirmed the trial court's denial of the defendant's motion for directed verdict and related motions. [This is the second Jackson Memorial decision released this week by the Third District, the first was discussed here.]  Jackson Memoral appealed the entry of judgment relating to the "death of a premature infant."

After the testimony of the infant's father, counsel for the plaintiff stated:
“Your Honor, we are going to rest now and start with some procedural matters that we want to take up with the Court.” The court told the jury that “the plaintiff is getting close to resting or has rested.” The attorneys then went sidebar:
Mr. Gressman [hospital counsel]: Have they officially rested?
Ms. Tejedor [Plaintiff’s counsel]: No, No.
The Court: That was the oddest resting I’ve ever seen.
Ms. Tejedor [Plaintiff’s counsel]: We need to introduce a few records and stuff.
The trial court then excused the jury for the day and the handled procedural issues.
It was then that the Trust moved for a directed verdict. The Trust argued, among other grounds, that the Plaintiff “failed to serve process in conformity with Section 768.28(7), Fla. Stat. (1990)”, by neglecting to serve process on the Department of Financial Services.
The next morning, counsel for the Plaintiff had properly served the Department of Financial Services and proffered the proof of service to the court.  "Ultimately, the jury returned a verdict for the Plaintiff, finding the Trust 100% at fault. The court denied the Trust’s motion for new trial and motion for judgment in accordance with the motion for directed verdict and entered judgment for the Plaintiff."

The Third District first noted that "The cases are legion which find that a violation of Florida Rule of Civil Procedure 1.480, 'occurs where a party moves for and obtains a directed verdict before the time that the party moved against has completed its case in chief'.”  Therefore, the motion argued by counsel for the hospital was likely premature since the plainitff had not yet rested.  However, even if the motion was not premature the court properly denied the motion for directed verdict since the issue relating to service of process was cured prior to the court's ruling.


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