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TLO South Farms, Inc. v. Heartland Farms, Inc.

Florida Court of Appeals, Second District

September 20, 2019

TLO SOUTH FARMS, INC., a Florida corporation, Appellant,
HEARTLAND FARMS, INC., a Florida corporation; RONALD MOYE, individually; and EDWARD OSTROWSKI, individually, Appellees.


          Appeal from the Circuit Court for DeSoto County; Don T. Hall, Judge.

          Timothy W. Weber and Paul M. Crochet of Weber, Crabb & Wein, P.A., St. Petersburg, for Appellant.

          Michael D. Martin of Martin Law Office, Lakeland; and William K. Crispin of Crispin Law, Gainesville, for Appellees Heartland Farms, Inc., and Ronald Moye.

          No appearance for Appellee Edward Ostrowski.


         On this appeal of a final judgment, TLO South Farms, Inc., challenges the trial court's grant of Heartland Farms, Inc., and Ronald Moye's (collectively, "the defendants") posttrial motion to set aside the jury's verdict against Moye on Count V of the Third Amended complaint, which alleged a cause of action under the Florida Deceptive and Unfair Trade Practices Act, sections 501.201-501.213, Florida Statutes (2016) (FDUTPA). TLO also challenges the court's alternative grant of the defendants' motion for a new trial. We agree with TLO that the court erred in granting the motion to set aside the verdict based on an argument that the defendants had not raised in their previous motion for a directed verdict. We also agree that the court erred in its alternative granting of a new trial.


         TLO and its president, Edward Ostrowski, a beekeeper, brought an action against Heartland and its president, Moye, alleging breach of contract, negligence, and violations of FDUTPA arising out of an agreement for TLO to provide Heartland with pollination services for its crops.[1] The complaint alleged, among other things, that Heartland and/or Moye had failed to pay $4500 due on the contract and also had destroyed the bee colonies that TLO had placed throughout Heartland's farmland by spraying them with toxic pesticides in a manner inconsistent with their labeling. Specifically as to the FDUTPA claim set forth in Count V, TLO alleged:

48. MOYE's actions of spraying toxic pesticides without the consent of or notice to Plaintiff, the avoidance of pay[ing] a bee moving fee, and its spraying of toxic pesticides in violation of state and federal labeling requirement laws are unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices that were done in the conduct of trade and commerce. These acts were done with the knowledge and consent of MOYE or pursuant to the custom, policy[, ] or practice established by MOYE.
49. As a result of the acts of MOYE, Plaintiffs have suffered a loss and continue to suffer losses.

         During trial, the defendants moved for directed verdicts. With respect to the FDUTPA count, they argued that (1) absent any consumer transaction between TLO and Moye, TLO lacked standing to bring an action under FDUTPA; (2) a FDUTPA claim cannot be based solely on a breach of contract; and (3) TLO had failed to prove causation. TLO responded to those arguments, and, in reply, the defendants reiterated that this case implicated only a breach of contract and argued further that there had been no transaction between Ostrowski and Moye. The trial court reserved ruling.

         The jury returned its verdicts and awarded TLO $4500 for Heartland's breach of contract; found that Heartland and Fabre defendant[2] Randy Padgett had contributed 35% and that TLO had contributed 30% to the negligence that had resulted in $67, 500 in damages to TLO's bee colonies; and awarded TLO $72, 000 for Moye's unfair and deceptive trade practices under FDUTPA. After the jury was discharged, the defendants renewed their motion for a directed verdict on Count V, asserting that they were "just renew[ing] [their] arguments" and "also focusing on the trade practices." After the trial court denied the renewed motion, counsel for the defendants argued that if the negligence and FDUTPA verdicts were inconsistent, "one of [them] is going to have to go and I would think it would be the FDUTPA."

         The defendants timely moved to set aside the verdict or for a new trial on the FDUTPA count. In the motion, they argued that the evidence had failed to establish that they (and, more specifically, Moye) had engaged in any deceptive act or unfair practice, that the verdict had been improperly based on sympathy for TLO and Ostrowski, and that the jury had improperly determined the damages on ...

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