Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MICHAEL J. VALENTY, ) ) Appellant, ) ) v. ) Case No. 2D18-4002 ) WILSON SARAIVA, ) ) Appellee. ) ) Opinion filed March 11, 2020. Appeal from the Circuit Court for Hillsborough County; Paul L. Huey, Judge. Warren B. Kwavnick of Cooney, Trybus, Kwavnick, Peets, PLC, Fort Lauderdale, for Appellant. K. Mitch Espat of MattLaw, Tampa, for Appellee. SALARIO, Judge. A car driven by Michael Valenty collided with a motorcycle ridden by Wilson Saraiva. Mr. Saraiva sued Mr. Valenty for negligence, and the jury returned a verdict in favor of Mr. Valenty. Mr. Saraiva moved for a new trial, which the trial court granted on the basis that the jury's verdict was against the manifest weight of the evidence. In reaching that conclusion, the trial court incorrectly reasoned that Mr. Valenty's fault in the accident was undisputed. We reverse. Mr. Saraiva and Mr. Valenty were both traveling eastbound on Linebaugh Avenue in Tampa in the morning of March 26, 2018. Mr. Saraiva was riding his motorcycle in the left lane, while Mr. Valenty was driving his car in the right lane about a quarter of a mile ahead. Mr. Valenty slowed for a red light, which turned green before he had to come to a complete stop. Mr. Saraiva maintained his speed, and when their respective vehicles passed through the intersection, they were not far apart. Mr. Valenty changed lanes from the right lane to the left lane. As he did so, the rear left side of his car collided with the front right side of Mr. Saraiva's motorcycle. Mr. Valenty did not see Mr. Saraiva's motorcycle at any time prior to the accident. Mr. Saraiva sued Mr. Valenty for negligence seeking damages for injuries he sustained in the accident. The case proceeded to a jury trial. At the trial, the issues of liability and damages were both litigated. As to liability, the litigation was over whether Mr. Valenty was negligent. On damages, the litigation was over the extent to which Mr. Saraiva suffered all the damages he claimed and the extent to which those damages were the result of a preexisting injury from a previous motorcycle accident. The evidence about the circumstances leading up to the accident came through the testimony of Mr. Saraiva, the testimony of an accident reconstruction expert he retained, and the testimony of Mr. Valenty. Mr. Saraiva's story was straightforward. He testified that he was riding his motorcycle at a consistent speed of five miles per hour below the speed limit alongside Mr. Valenty's car. According to Mr. Saraiva, Mr. -2- Valenty's car unexpectedly moved into the left lane. Mr. Saraiva tried to swerve left to avoid it but was unable to get out of the way in time and was struck by Mr. Valenty's car. Mr. Valenty's explanation of what happened was somewhat more elaborate. He testified that he was driving behind a slow-moving vehicle in the right lane of Linebaugh Avenue and, at the same time, that there was a white SUV not too far behind him in the left lane. Mr. Valenty wanted to pass the slow-moving vehicle in front of him. He checked his rear-view mirror and looked over his left shoulder and saw that the white SUV was too close for him to change lanes and pass courteously. Mr. Valenty turned on his blinker and sped up a little to make room to pass. He checked his rear-view mirror and looked over his shoulder again, and this time the SUV was far enough behind him for him to pass. He did not see any other vehicles. He was traveling at forty-five miles per hour, which was the speed limit on Linebaugh Avenue. He began changing lanes, and after he got a third of the way into the left lane, he heard brakes screeching. A couple of seconds later, he felt Mr. Saraiva's motorcycle run into his car. Mr. Valenty argued that because he checked twice and did not see the motorcycle either time, Mr. Saraiva must have been behind the white SUV just before Mr. Valenty started changing lanes. Mr. Valenty asserted that Mr. Saraiva must have tried to speed around the white SUV and get back into the left lane at the same time Mr. Valenty was changing lanes and that it was this unsafe maneuver that caused the accident. Mr. Saraiva's accident reconstruction expert opined that Mr. Saraiva was driving safely and that Mr. Valenty changed into the left lane without seeing Mr. Saraiva, thereby causing the accident. He did not, however, opine that Mr. Valenty was -3- negligent. Rather, when asked during direct examination whether Mr. Valenty was driving safely, he opined that Mr. Valenty's "intention appeared to be safe, but . . . he failed to recognize the motorcycle." And during cross-examination, he testified that motorists often encounter difficulties in seeing motorcycles that they do not encounter in seeing cars, especially at night. He explained that because motorcycles have only one headlight and typically do not drive in the center of a lane (to avoid oil deposited there), it is possible for a driver looking in a rear view mirror to believe he or she is seeing a car with two headlights when really there is a motorcycle with one headlight aligned in front of one of the headlights of a car that is traveling behind it. The expert further acknowledged that Mr. Valenty's theory that Mr. Saraiva made a fast and unsafe passing maneuver around the white SUV was possible given the evidence. The expert believed that it was highly unlikely that theory was how the accident happened, however, because (1) it would have been difficult for Mr. Saraiva to speed around the SUV and be back in the left lane near Mr. Valenty at the time the collision occurred and (2) the position in which Mr. Saraiva's motorcycle fell after hitting Mr. Valenty's car made the theory less likely. At the close of the evidence, Mr. Saraiva made a motion for a directed verdict solely on the issue of causation—not on whether Mr. Valenty was negligent— which the trial court denied. The case was then submitted to the jury. With respect to Mr. Valenty's alleged liability to Mr. Saraiva, the jury was presented with a standard interrogatory that asked it to determine whether there was "negligence on the part of Defendant Michael J. Valenty, which was a legal cause of damage to Wilson Saraiva." See In re Standard Jury Instructions in Civil Cases—Report No. 12-01, 130 So. 3d 596, -4- 629 (Fla. 2013). The jury answered that question in the negative, thus resolving the case in Mr. Valenty's favor. Mr. Saraiva filed a motion for a new trial in which he argued that improper and inflammatory comments by defense counsel during closing arguments prejudiced him and that the trial court should have granted a directed verdict on causation. At a hearing on the motion, the trial court sua sponte considered whether the jury's verdict was against the manifest weight of the evidence, explaining that "it just never entered my mind when I was sitting there waiting for that jury to come back that I was going to hear" a defense verdict. The trial court stated that "it is certainly as surprising a verdict as I think I've ever gotten" because "I mean, the guy pulled over in his lane, hit him, hit him in the blind side of his car," it was "dark," and Mr. Valenty "admitted he was speeding up to get in front of a slow driver in front of him." The trial court later entered a written order granting a new trial on grounds that the verdict "was against the manifest weight of the evidence" because "it was undisputed that Mr. Valenty caused the accident by crossing into Mr. Saraiva's lane of traffic." Although the order is phrased in terms of causation, given the trial court's comments at the hearing, we take it to mean that the trial court concluded that Mr. Valenty's liability for the accident was undisputed. Indeed, had the trial court meant only that causation was undisputed, it could not have ordered a new trial because it would have remained possible that the jury decided the case adversely to Mr. Saraiva on the basis that Mr. Valenty was not negligent even if causation had been undisputed. See Meyers v. Shontz, 251 So. 3d 992, 1002 (Fla. 2d DCA 2018) (citing Hernandez v. Gonzalez, 124 So. 3d 988, 990 (Fla. 4th DCA 2013)). -5- In this timely appeal, Mr. Valenty argues that the trial court erred in granting a new trial because his fault in the accident, contrary to the trial court's reasoning, was not undisputed.1 Our review is for abuse of discretion. Moore v. Gillett, 96 So. 3d 933, 938 (Fla. 2d DCA 2012). In applying that deferential standard to the facts here, we are mindful that "it takes a stronger showing of error in order to reverse an order granting a new trial than an order denying a new trial." Id. (quoting Harris v. Grunow, 71 So. 3d 186, 188 (Fla. 3d DCA 2011)); see also Grant v. Williams, 190 So. 2d 23, 26 (Fla. 2d DCA 1966) (describing "the old rule that a stronger showing is required to upset an order granting than an order denying a motion for new trial"). The deference the law grants a trial court granting a motion for new trial based on the manifest weight of the evidence does not, however, grant it a license to operate "as a super-juror by disregarding a jury's verdict simply because the judge would have rendered a different one had it been the judge's choice to make." Meyers, 251 So. 3d at 999 (citing Brown v. Estate of Stuckey, 749 So. 2d 490, 495 (Fla. 1999); Phar-Mor of Fla., Inc. v. Steuernagel, 550 So. 2d 548, 550 (Fla. 2d DCA 1989)). Rather, the trial court's role is to assess the totality of the evidence presented at trial and intervene only when that evidence is manifestly weighted to the movant's side. See Meyers, 251 So. 3d at 1000; Phar-Mor, 550 So. 2d at 550. And if it decides to grant a new trial on that basis, the trial court must state its reasons with specificity in a written 1Mr. Valenty has not raised any appellate issue concerning the trial court's decision to address the "manifest weight of the evidence" ground for a new trial on its own initiative even though Mr. Saraiva had not sought a new trial on that basis. We thus express no opinion on that question. See I.R.C. v. State, 968 So. 2d 583, 588 (Fla. 2d DCA 2007) ("[A] reviewing court [will] ordinarily reverse only on the basis of the specific arguments presented by the appellant."). -6- order so that its decision can be effectively reviewed on appeal. See Fla. R. Civ. P. 1.530(f) (requiring an order granting a new trial to "specify the specific grounds therefor"); Prime Motor Inns, Inc. v. Waltman, 480 So. 2d 88, 89-90 (Fla. 1985). It follows from those premises, then, that the reasons the trial court gives for granting a new trial must actually be supported by the trial record. See Hashmi–Alikhan v. Staples, 241 So. 3d 264, 268 (Fla. 5th DCA 2018) ("[I]t is well-settled that a trial court abuses its discretion when its reasons for granting a new trial are not supported by the record." (citing Wackenhut Corp. v. Canty, 359 So. 2d 430, 435-36 (Fla. 1978))). The trial court's reason for finding the verdict against the manifest weight of the evidence in this case—that it was undisputed that Mr. Valenty was liable for the accident—is not supported by the trial record. It is, of course, entirely true that Mr. Valenty's decision to change lanes was a cause of the accident in the sense that the accident would not have happened had he never changed lanes. But that fact alone says nothing—or at least says nothing much—about whether Mr. Valenty's conduct in changing lanes was negligent, which is a question the jury was legally required to answer yes to in order to hold Mr. Valenty liable. See Meyers, 251 So. 3d at 1002 ("For a defendant to be liable on a negligence claim, of course, there must be both negligence and causation."). The jury here was correctly instructed that in order to find that Mr. Valenty was negligent, it had to find that in changing lanes he either did something that a reasonably careful person would not have done, or he failed to do something that a reasonably careful person would have done in similar circumstances. See Fla. Std. Jury Instr. (Civil) 401.4. The undisputed fact that Mr. Valenty's lane change resulted in a collision with Mr. Saraiva's motorcycle does not by itself make it -7- undisputed that Mr. Valenty's lane change entailed a failure to exercise reasonable care.2 See Marcano v. Puhalovich, 362 So. 2d 439, 441 (Fla. 4th DCA 1978) ("Plaintiff's entitlement to recovery depends upon the existence of negligence by the defendant in the operation of his automobile. The mere occurrence of an accident does not give rise to an inference of negligence . . . ."); see also Meyer v. Torrey, 452 So. 2d 672, 673 (Fla. 2d DCA 1984) ("It is still fundamental, of course, that the mere occurrence of an accident does not give rise to an inference of negligence . . . ."). Whether Mr. Valenty failed to exercise reasonable care plainly was disputed. It is entirely permissible to change lanes from the right to the left lane to pass a slower driver, even when it is dark out. See, e.g., § 316.083(1), Fla. Stat. (2017) (governing the overtaking and passing of a vehicle). Mr. Valenty testified that before changing lanes he looked in his mirror and looked over his shoulder. After determining that he could not change lanes courteously with regard to the SUV behind him, he turned on his blinker, moved forward and checked in his mirror and over his shoulder again before attempting to change lanes. Mr. Saraiva's own expert opined that Mr. Valenty's intentions were safe, and although the expert had ample opportunity to do so, he did not opine that Mr. Valenty failed to use reasonable care when he changed lanes. He also identified circumstances under which a driver could change lanes without seeing a motorcycle despite his or her best efforts to change lanes safely. And he 2Mr. Saraiva has never argued and the trial court has never concluded that the doctrine of res ipsa loquitur applies on the facts here. See Clark v. Polk County, 753 So. 2d 138, 143 (Fla. 2d DCA 2000) ("Outside the relatively rare circumstances implicating the principle of res ipsa loquitor [sic], it is well-settled that the mere occurrence of a mishap does not prove that the mishap resulted from tortious conduct."). -8- opined that Mr. Valenty's theory that Mr. Saraiva caused the accident by speeding around the white SUV was possible under the evidence presented. If the jury credited Mr. Valenty's testimony, it would have been entirely reasonable for it to determine that he was not careless and answer the interrogatory asking it whether there was negligence on the part of Mr. Valenty that was a legal cause of loss to Mr. Saraiva in the negative. Although the jury in this case was not so instructed, we recognize that a driver behaves negligently when he or she suddenly changes lanes, unless that sudden lane change is made necessary by a sudden emergency. See, e.g., Holmes v. Surfus, 194 So. 2d 283, 284 (Fla. 2d DCA 1967). But here, in Mr. Valenty's telling, his change of lanes was deliberate and obvious in coming. If the jury believed Mr. Valenty about his actions when he made the change of lanes, it could have concluded that the lane change was not sudden and that Mr. Valenty was not negligent. Cf. Dep't of Highway Safety & Motor Vehicles v. Saleme, 963 So. 2d 969, 972 (Fla. 3d DCA 2007) (affirming directed verdict in favor of defense where, among other things, there was no evidence that the lane change was sudden and the driver testified "that when he pulled onto the roadway, there had been a break in the traffic, he turned to his left to make sure that no other traffic was coming, and he continued to look to his left as he crossed into the middle and then into the left lane"). Thus, the trial court abused its discretion because its reason for granting a new trial is not supported by the record. Contrary to what the trial court concluded, the issue of Mr. Valenty's negligence was in dispute and the record here makes it impossible to say that the evidence is manifestly weighted in either direction. We might -9- reach a different conclusion had the trial court, in finding the evidence manifestly weighted toward Mr. Saraiva, been concerned about some issue with respect to Mr. Valenty's credibility. See Van v. Schmidt, 122 So. 3d 243, 253-54 (Fla. 2013) (discussing the role of witness credibility in a trial court's assessment of a motion for new trial based on the manifest weight of the evidence). But the trial court did not base its new trial decision on that kind of issue; it reasoned only that Mr. Valenty's liability was undisputed. That reasoning is unsupported by the trial evidence. Accordingly, we reverse the trial court's order granting a new trial. We remand with instructions for the trial court to reinstate the jury's verdict. See TLO S. Farms, Inc. v. Heartland Farms, Inc., 282 So. 3d 145, 150 (Fla. 2d DCA 2019) (remanding for reinstatement of the jury verdict where the trial court's reasons for granting a new trial did not support a conclusion that the verdict was contrary to the manifest weight of the evidence); Phar-Mor, 550 So. 2d at 550-51 (remanding for reinstatement of the jury verdict where the trial evidence on liability was in conflict and the new trial order "made no findings or reference to the credibility of witnesses"). Reversed and remanded with instructions. CASANUEVA and LaROSE, JJ., Concur. - 10 -