FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
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.
appearance for Appellee Edward Ostrowski.
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.
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. 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.
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.
jury returned its verdicts and awarded TLO $4500 for
Heartland's breach of contract; found that Heartland and
Fabre defendant 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."
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 ...