RODNEY ONEAL MACKEY, II, Plaintiff, v. MICHAEL PORTA, Defendant. Circuit Court, 2nd Judicial Circuit in and for Gadsden County. Case No. 2024 CA 000242. May 28, 2025. David Frank, Judge. Counsel: Tyler B. Everett, Morgan & Morgan, P.A., Tallahassee, for Plaintiff. Craig A. Dennis and Shannon Duggar, Tallahassee, for Defendant.ORDER DENYING PLAINTIFF’SAMENDED MOTION FOR NEW TRIAL
This cause came before this Court on Plaintiff’s Amended Motion for New Trial, and the Court having considered the amended motion and the court file, Defendant’s response, all supplemental filings, heard argument of counsel, reviewed the trial transcript and authorities presented, and being otherwise fully advised in the premises, finds and concludes as follows.I. Findings of FactA. Introduction and Procedural History
On April 9, 2024, Plaintiff filed a one-count complaint against Defendant for negligence pertaining to a motor vehicle accident that occurred on November 7, 2023.
Jury selection was March 14, 2025. The trial was March 17-18, 2025.
Somewhat surprisingly, the only evidence offered on liability was in-court testimony from the two drivers — the plaintiff and the defendant. The jury heard hours of their testimony giving slightly different versions of how the collision occurred, or at least different aspects and perspective.
Plaintiff testified that he was driving at a normal speed in the left lane of a two-lane roadway when Defendant’s vehicle, which was in the right lane even with Plaintiff’s vehicle and driving at the same normal or low speed, abruptly turned into Plaintiff’s vehicle, causing the collision. Plaintiff described the sideswipe with the obvious implication that the defendant did not use reasonable care in changing lanes.
Defendant vigorously disputed the allegation that he operated his motor vehicle negligently. Among other things, he asserted that the crash was caused by Plaintiff because of the location of damage to the vehicles, along with the inferred high rate of speed Plaintiff must have been traveling (defendant looked for oncoming cars in his side mirror before initiating the lane change and saw no vehicles), and the possibility of Plaintiff driving for an extended period of time in a blind spot when he should have known better. See Trial Tr. 192:13-21, 194:24-25, 195:1-4.
Following closing statements, the jury deliberated for roughly forty-five (45) minutes before presenting its sole written question to the Court, stating: “We don’t see any information on cause of accident. So no way of determining fault.” Trial Tr. 288:23-289:1.
In response to the jury question, the Court proposed, and the lawyers agreed, to give the following: “You have all the exhibits and have heard all the testimony to complete the verdict form.” Trial Tr. 293:16-18.1
Within approximately five minutes after the Court answered the jury question, the jury returned with a defense verdict by answering “no” to the first question — whether there was negligence on the part of the defendant.
Plaintiff filed a Motion for New Trial on March 28, 2025. The Court entered a Final Judgement in favor of Defendant on April 3, 2025. Plaintiff filed his Amended Motion for New Trial on April 23, 2025. The hearing on the motion was held on May 2, 2025.B. Jury Instructions on the Law
All prospective jurors were asked by Plaintiff’s counsel whether they would give oral testimony evidence the same weight as tangible documents evidence. All prospective jurors, including all of those chosen for the jury, expressly agreed that they would give oral testimony the same weight as tangible documents when considering the evidence presented by the parties. The Court then read instructions to the empaneled jury regarding what constitutes evidence.
Florida Standard Jury Instructions (Civil) 202.2 and 601.1 were included in the jury instructions the Court read to the jury. Both instructions address what constitutes evidence and the weighing of evidence and make it abundantly clear that in-court testimony is evidence that must be considered by the jury.C. The Motion in Limine Matter
Prior to trial, Plaintiff moved in limine to limit the Defendant’s testimony regarding the speed of Plaintiff’s vehicle due to Defendant testifying at deposition that he had not seen Plaintiff’s vehicle until impact, and the lack of any other factual basis. The Court granted the motion and ordered, “During trial, there shall be no testimony, suggestion, or inference by Defendant or Defendant’s counsel as to the speed of Plaintiff’s vehicle.”
Before the direct examination of the Defendant at trial began, and with more context after hearing the actual evidence presented up to that point, the motion in limine issue was revisited outside the presence of the jury. The discussion resulted in a stipulation that modified the order as follows:
THE COURT: How about this? How about the witness can say, yes, based on the impact and everything, the car must have — had to be going fast. But that on cross, the correct answer would be, but you can’t know that he was going over a certain speed limit?
MR EVERETT: Yeah I’d like to — I my concession is we’ll allow that if we can sav, and you don’t have any information that would lead you to believe that he was going at un impermissible speed or speeding?
THE COURT: What about that?
MR DENNIS: That’s agreeable, Your Honor.
Trial Tr. 169:18-170:5.
During his direct examination, defense counsel did not question Defendant about the specifics of Plaintiff’s speed and otherwise met all terms of the stipulation.
On cross-examination, however, plaintiff’s counsel asked Defendant the following:
Q. All right. I want to be sure that I’m also clear. You have no information, and you’re not suggesting in any way that Mr. Mackey was speeding at the time of this crash, right?
A. I never saw that. No, sir
Q. But that’s a correct statement, isn’t it?
A. Well, to me, my impact, and — and what 1 felt and where I saw the vehicles, and the way he spun around to me, I felt that he was.
Trial Transcript 192:13-2.1.
At first, Defendant attempted to answer the question as agreed, stating he did not have information to conclude that Plaintiff was “speeding.” However, when plaintiff’s counsel chose to pursue the matter, Defendant was clearly confused by the follow up question which was different than what was discussed during the stipulation, and he struggled with his answer. He attempted to draw a fine line between the more technical and precise “speeding” while trying to preserve his conclusion that Plaintiff was “going fast.”
The Court immediately allowed plaintiff’s counsel to ask Defendant additional questions that clarified defendant did not see Plaintiff’s vehicle before the crash, did not have technical evidence Plaintiff was speeding, and was not telling the jury that Plaintiff was “speeding.” Trial Tr. 196:20-197:7, 198:4-6.II. Plaintiff’s Argument
The Plaintiff challenges the jury verdict by arguing the verdict is against the manifest weight of the evidence, the jury was deceived as to the force and credibility of the evidence, and Defendant violated a stipulation agreed to at trial which prejudiced Plaintiff.
Essentially, Plaintiff asserts that the evidence on liability — the verbal testimony of the two parties — was so terribly one-sided in favor of the plaintiff, that a jury should not be permitted to return a verdict for the defendant. He argues that, because the jury did not apportion any percentage of fault to the defendant, the jury must have been confused about the law; they must not have understood that verbal in-court testimony is evidence they must consider.
Plaintiff also contends that Defendant’s violation of an evidentiary stipulation further contributed to the erroneous verdict.III. Conclusions of LawIn deciding whether or not to grant a new trial, the trial judgeshould not sit as a seventh juror, thereby substitutinghis or her resolution of the factual issues for that of the jury.Emmons v. Akers, 187 So.3d 900, 902 (Fla. 1st DCA 2016)[41 Fla. L. Weekly D591a], quotingPoole v. Veterans Auto Sales & Leasing Co., Inc.,668 So.2d 189, 191 (Fla.1996) [21 Fla. L. Weekly S69a]A. Whether the Verdict Was Against theManifest Weight of the Evidence
“A jury’s verdict is generally not against the manifest weight of the evidence if the record shows conflicting testimony from two or more witnesses. For a verdict to be against the manifest weight of the evidence to warrant a new trial, the evidence must be clear, obvious, and indisputable; where there is conflicting evidence, the weight to be given that evidence is within the province of the jury.” City of Gainesville v. Rodgers, 377 So.3d 626, 631 (Fla. 1st DCA 2023) [48 Fla. L. Weekly D2257a] (internal quotations and citations omitted).
Importantly, apportionment is the domain of the jury. “. . .[T]he very purpose of a comparative fault determination is to allow a jury to apportion fault as it sees fit between negligent parties whose negligence was part of the legal and proximate cause of any loss or injury. . . .” Whitney v. R.J. Reynolds Tobacco Co., 157 So.3d 309, 313 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D2537a] (internal quotations and citations omitted). It was “within the province of the jury” to find that the negligence of the Plaintiffs was the “sole proximate cause of the injuries.” Cabrera v. Wal-Mart Stores E., LP, 314 So.3d 570, 572 FN1 (Fla. 3d DCA 2020) [45 Fla. L. Weekly D2812a] (citation omitted).
Here, there was conflicting evidence on the issue of fault for the accident. Plaintiff of course disagrees with the jury’s apportionment of fault. But considering the strength and credibility of the drivers’ testimony, this Court cannot conclude that Defendant’s fault was indisputable.B. Whether the Jury Was Deceived as tothe Force and Credibility of Evidence
Plaintiff contends that the jury question demonstrably confirmed that the jurors were deceived as to the force and credibility of the evidence on liability.
Since plaintiff does not suggest that any attorney, or the Court, actively “deceived” the jury by misstating the applicable law or otherwise, the only logical contention would be that, despite this, the jurors just did not understand the law governing evidence and/or liability.
This issue is closely related to the issue of juror interviews. When it comes to the revered right of trial by jury, there are some things we cannot control nor investigate. We must simply accept. The Fourth District recently explained it:
As our supreme court explained in McAllister Hotel, Inc. v. Porte, 123 So. 2d 339, 344 (Fla. 1959), “the law does not permit a juror to avoid his [or her] verdict for any reason which essentially inheres in the verdict itself,” such as misunderstanding or confusion in following the instructions of the trial court. Thus, the trial court could not consider the testimony from the jury foreperson indicating her belief that the verdict did not reflect the jury’s intent because some of the jurors may have misunderstood the trial court’s instructions when they answered the questions on the verdict form. As a matter of law, any misunderstanding or confusion jurors may have had in arriving at their collective verdict is inherent in the jury’s internal deliberative process, which cannot be challenged after the jury has rendered its verdict.
Blue Water Coast Services, LLC v. Maize, 385 So.3d 150, 153 (Fla. 4th DCA 2024) [49 Fla. L. Weekly D856a].
Plaintiff assumes the jurors misunderstood the law. However, it is at least as likely, if not more likely, that, after applying the correct law that was provided to them, the jurors concluded the plaintiff simply had not met his burden to prove negligence by the greater weight of the evidence. This Court declines the invitation to speculate that the jurors in this case misunderstood the law.
Indeed, if simply assuming a jury did not understand the (properly conveyed) law were ground for new trial, every case would be retried, with no end in sight.C. The Motion in Limine / Stipulation Issue
As a threshold matter, the exact statement Plaintiff challenges is not a clear violation of the stipulation. “Feeling” like a car is going fast, even if the word used is speeding, is different from claiming to have a foundation to firmly conclude that the Plaintiff was driving over a specific speed limit.
Even if we assume it was a violation, not every violation of an order in limine results in a new trial:
By our decision, we do not mean to suggest that every violation of an order granting a motion in limine should result in a mistrial. See Leyva v. Samess, 732 So. 2d 1118, 1121 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D533b] (“Not every violation of a pretrial order in limine should automatically result in a new trial.”). What mandates our decision here is the combination of the four compelling factors which we have described above. This combination has caused an error “so prejudicial as to vitiate the entire trial, such that a mistrial is necessary to ensure that the defendant receives a fair trial.”
Nebergall v. State, 293 So.3d 517, 535-36 (Fla. 4th DCA 2020) [45 Fla. L. Weekly D85d].
The comments must have been, “. . .so prejudicial as to vitiate the entire trial. . . .” Universal Ins. Co. of N. Am. v. Sunset 102 Office Park Condo. Ass’n, Inc., 388 So.3d 181, 186-87 (Fla. 3d DCA 2023) [48 Fla. L. Weekly D2329a]; See also Olsen v. Philip Morris USA, Inc ., 343 So.3d 172, 174 (Fla. 3d DCA 2022) [47 Fla. L. Weekly D1582a] (The trial court should grant a new trial only if the comments were so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial.)
The subject statement by the Defendant does not rise to this level.
Even if the Court were to believe that the statement constitutes a violation of the stipulation, and also believe that it rises to the level of prejudice that warrants a new trial, a new trial would not be granted based on the invited-error doctrine.
Defendant’s statements were in response to plaintiff’s counsel’s specific questions. A party may not invite error and then seek to benefit from it. Sanchez v. State, 81 So. 3d 604, 608 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D562a]; Norton v. State, 709 So.2d 87, 94 (Fla.1997) [23 Fla. L. Weekly S12a]; Buggs v. State, 640 So.2d 90 (Fla. 1st DCA 1994) (holding that arresting officer’s objectionable comment during cross-examination was invited error because the objectionable comment was in response to defense counsel’s question).
Finally, Plaintiff argues that it is not just the alleged violation of the stipulation that warrants a new trial, but the cumulative effect of all alleged errors.
“Although preserved and unpreserved error may be considered in a cumulative error analysis, where the alleged errors urged for consideration in a cumulative error analysis are individually either procedurally barred or without merit, the claim of cumulative error also necessarily fails.” State Farm Mut. Auto. Ins. Co. v. Medina, 300 So.3d 177, 184 (Fla. 4th DCA 2020) [45 Fla. L. Weekly D1597a] (internal quotations and citation omitted).
To the extent Plaintiff is suggesting that the jury would never have been presented with the idea that Plaintiff may have been speeding at the time of impact, that idea did not depend on the alleged violation; it was conveyed several other ways.
A direct quote from Medina applies to the present case: “Here, having concluded that the comments were either proper, invited by Plaintiff’s counsel, or not so prejudicial so as to warrant a new trial, it cannot be said that the cumulative effect of the comments denied Plaintiff a fair and impartial trial.” Id.
Accordingly, it is ORDERED and ADJUDGED that the motion is DENIED.
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1The Court was somewhat perturbed by the juror, who turned out to be the foreperson, making faces and hurrying back to the jury room when told the answer to the jury question and excused to resume deliberations. Hearing Tr. 47:9-24. However, that behavior by itself did not rise to the level of, or significantly contribute to, a new trial issue.