Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-70 _____________________________ ROY STRICKLAND and KATHRYN STRICKLAND, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Robert M. Dees, Judge. April 30, 2021 OSTERHAUS, J. Roy and Kathryn Strickland appeal a final judgment following a jury trial in which they sought damages for Mr. Strickland’s injuries sustained in two automobile accidents. They argue that summary judgment should have been granted to them on the issues of liability and comparative negligence and that there was insufficient evidence to put the comparative negligence issue before the jury. We affirm. I. Mr. Strickland’s car was hit from behind in two separate rear- end collisions within a two-week period. In both instances, Mr. Strickland was driving. He and his wife sued their automobile insurer State Farm to recover damages. They alleged that the two other drivers were negligent in rear-ending Mr. Strickland’s car. State Farm denied liability and asserted comparative negligence and failure to mitigate damages as affirmative defenses. After conducting depositions of the two rear drivers, the Stricklands moved for summary judgment on the issues of liability and comparative negligence. State Farm opposed summary judgment arguing that both accidents involved Mr. Strickland’s vehicle starting to move forward then stopping abruptly, raising the possibility of negligence on Mr. Strickland’s part. The trial court denied the Stricklands’ motion for summary judgment after a hearing. Before trial, the parties entered into a joint stipulation in which State Farm admitted that the two rear drivers had driven their vehicles negligently. But State Farm asserted that Mr. Strickland also had a hand in causing the accidents and failed to mitigate his damages. The jury ultimately returned a verdict finding negligence on the part of all parties – the rear drivers as well as Mr. Strickland. The jury apportioned 40% negligence to one of the rear drivers, 25% to the other rear driver, and 35% to Mr. Strickland. Mr. Strickland was awarded $15,761 in past medical expenses but no other damages. The jury also found that Mr. Strickland had not sustained a permanent injury caused by either rear driver’s negligence. Appellants moved for a new trial arguing the trial court erroneously denied their motion for summary judgment and that there was insufficient evidence to support the mitigation of damages issue. The motion was denied after a hearing. The court entered final judgment, and this timely appeal followed. II. The Stricklands first argue that the trial court erred by not granting summary judgment in their favor on the issues of liability and Mr. Strickland’s comparative negligence in causing the 2 accidents. We need not reach the merits of this issue because it became moot once it proceeded to a jury trial. At trial, the Stricklands did not move for a directed verdict on the issue of liability nor did they oppose the submission of the comparative negligence issue to the jury. The jury then resolved these issues by apportioning negligence among the two rear drivers and Mr. Strickland. In circumstances like this one, we have guidance from our decision in Lacombe v. Deutsche Bank Nat’l Tr. Co., 149 So. 3d 152 (Fla. 1st DCA 2014). Lacombe involved a challenge to a trial court’s denial of a summary judgment motion, which the court held to be moot because the issue involved fact-oriented issues and had gone to trial. See id. at 156. The Fourth District reached the same conclusion in another case, characterizing its ruling this way: After verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case. Stated differently, where a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at the trial authorizes the verdict (judgment) on that issue, any error in overruling the motion for summary judgment is harmless. Sunrise Lakes Condo. Apts. Phase III, Inc. 5 v. Frank, 73 So. 3d 901, 901–02 (Fla. 4th DCA 2011) (quoting Certain Underwriters at Lloyd’s of London v. Rucker Constr., Inc., 648 S.E.2d 170, 172 (Ga. Ct. App. 2007)). Here, too, because fact-laden comparative negligence issues involving the collisions were tried before a jury, and evidence authorizes the jury’s verdict, any error in the trial court’s denial of the Stricklands’ summary judgment motion is moot. The Stricklands next argue that the evidence was insufficient to allow the jury to apportion negligence to Mr. Strickland for failing to mitigate his business losses as well as his pain (because he rejected physical therapy). We agree with State Farm that this issue is not preserved. The Stricklands’ argument here, as in their new trial argument below, is that there was insufficient evidence 3 upon which the jury could apportion negligence on the part of Mr. Strickland for failing to mitigate his damages. But the Stricklands did not move for a directed verdict on this issue at the close of the evidence at trial. Therefore, the issue is waived. See Nordyne, Inc. v. Fla. Mobile Home Supply, Inc., 625 So. 2d 1283, 1285 (Fla. 1st DCA 1993) (concluding that appellant failed to preserve a sufficiency of the evidence argument by not seeking a directed verdict at the close of the evidence); Guadagno v. Lifemark Hosps. of Fla., Inc., 972 So. 2d 214, 219 (Fla. 3d DCA 2007) (“Florida law recognizes that a party waives the issue of legal sufficiency of the evidence by failing to move for a directed verdict on that issue at time of trial.” (first citing Prime Motor Inns, Inc. v. Waltman, 480 So. 2d 88, 90 (Fla. 1985) (“[O]ne who submits his cause to the trier of fact without first moving for directed verdict at the end of all evidence has waived the right to make that motion.”); then citing Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So. 2d 412, 418 (Fla. 4th DCA 1980))). Moreover, the jury didn’t award damages to Mr. Strickland for past wage losses, loss of future earnings, or noneconomic damages. So even if the trial court improperly allowed these mitigation factors to enter the comparative negligence equation, the result appears to have been harmless. The jury’s apportionment of 35% negligence to Mr. Strickland can be readily attributed to the evidence that he helped cause the rear- end collisions by driving forward then suddenly stopping his vehicle. III. The final judgment is AFFIRMED. MAKAR and WINOKUR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 4 John Hatfield and Kate Hatfield of Hatfield & Hatfield, P.A., Jacksonville, for Appellants. Rhonda B. Boggess of Marks Gray, P.A., Jacksonville, for Appellee. 5