Tanya Darlene Chappell and Secure Investments Realty & Management Corp., Appellants,
Olivia Clark, Appellee. Tanya Darlene Chappell and Secure Investments Realty & Management Corp., Appellants/Cross-Appellees,
Olivia Clark, Appellee/Cross-Appellant.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Alachua County. Toby S.
Charles W. Hall and DeeAnn J. McLemore of Banker Lopez
Gassler, P.A., St. Petersburg; Ezequiel Lugo of Banker Lopez
Gassler, P.A., Tampa; Jamie L. White and Michael S. Donsky of
Dell Salter, P.A., Gainesville, for
Wasson and Annabel C. Majewski of Wasson & Associates,
Chartered, Miami, and Howard G. Butler of Butler Law Group,
Jacksonville, for Appellee/Cross-Appellant.
negligently, Tanya Chappell rear-ended Olivia Clark's
vehicle, and Clark sued Chappell and her employer, Secure
Investments Realty and Management Corp. (Appellants),
alleging that the crash caused her physical injuries.
Following trial, final judgment was entered in Clark's
favor. We affirm on all three issues Appellants
raise[*] and write to explain our reasoning with
regard to the permanency issue.
trial, there was little dispute that Clark had permanent
injuries. However, some expert testimony was presented
indicating that some of Clark's injuries may have existed
prior to the crash or were otherwise unrelated to the crash.
the presentation of evidence, Clark moved for directed
verdict on the issue of the permanency of her injuries,
citing Wald v. Grainger, 64 So.3d 1201, 1205 (Fla.
2011) ("[W]hen medical evidence on permanence is
undisputed, unimpeached, or not otherwise subject to question
based on the other evidence presented at trial, the jury is
not free to simply ignore or arbitrarily reject that evidence
and render a verdict in conflict with it."). Appellants
opposed the motion for directed verdict, contending that
"the jury could disregard the testimony of the doctors,
the experts in this case, and find that Ms. Clark has not
suffered a permanent injury." Because the jury could not
ignore undisputed expert testimony without a reason, see
id., the trial court correctly rejected this argument.
appeal, Appellants argue that the trial court erred in
granting directed verdict on permanency because causation was
disputed. In Wald, undisputed evidence showed that
the plaintiff's thigh injury was caused by the car crash
and was permanent. Id. at 1204. The trial court
granted directed verdict on the issue of permanency and the
supreme court ultimately agreed, stating that "where the
evidence of injury and causation is such that no reasonable
inference could support a jury verdict for the defendant, it
is not improper to direct a verdict on the permanency issue
for the plaintiff." Id. The supreme court
stated that a jury may only reject expert testimony if it has
a reasonable basis to do so, such as "evidence that
disputes the injury claim." Id. at 1205-06.
Unlike in Wald, Appellants argue, causation was at
issue here and thus "the injury claim" was
disputed, precluding directed verdict on permanency. Cf.
Duclos v. Richardson, 113 So.3d 1001, 1003-04 (Fla. 1st
DCA 2013) (holding that defense expert's opinions-that
the plaintiff's permanent injury was caused by arthritis
and that the injury caused by the car crash was not
permanent-precluded directed verdict on permanency despite
the opinions of three plaintiff's experts to the
contrary). Clark asserts that this argument conflates the
issues of causation and permanency and, while there was some
evidence disputing the "injury claim" on the basis
of causation, there was no evidence that disputed permanency.
Clark argues that Wald supports her argument, 64
So.3d at 1205 ("the jury is not free to simply ignore or
arbitrarily reject that evidence"), and Duclos
is distinguishable, 113 So.3d at 1003 (the expert testified
that "the neck injury caused by the accident was
unnecessary for us to decide whether directed verdict as to
permanency is appropriate when causation is disputed because
Appellants did not raise that argument below. See Adkison
v. Morey, 239 So.3d 205, 207 (Fla. 1st DCA 2018)
("It is not our function 'to entertain for the first
time on appeal, issues which the complaining party could
have, and should have, but did not, present to the trial
court.'" (quoting Fla. Emergency Physicians-
Kang & Assocs., M.D., P.A. v. Parker, 800 So.2d 631,
636 (Fla. 5th DCA 2001))). Appellants only opposed directed
verdict on the basis that "the jury could disregard the
testimony of the doctors, the experts in this case[.]"
The supreme court rejected this argument in Wald,
and the trial court did not err in rejecting it below. For
this reason, regardless of whether Appellants'
argument-that evidence relating to causation created a jury
question as to permanency―is correct, we affirm the
trial court's ruling on this issue.
and Jay, JJ., concur.