Scott Herman v. Gary Ewers

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SCOTT HERMAN and CRAIG COOPER, directly and derivatively on

behalf of OXYLIFE RESPIRATORY SERVICES, LLC,

Appellants/Cross-Appellees,

v.

GARY EWERS, GERRI McGIGHAN-LUKENS, and OXYLIFE

RESPIRATORY SERVICES, LLC,

Appellees/Cross-Appellants.

Nos. 4D2024-0940, 4D2024-1057, and 4D2024-1167

[December 17, 2025]

Appeal and cross-appeal from the Circuit Court for the Seventeenth

Judicial Circuit, Broward County; Jack B. Tuter, Jr., Judge; L.T. Case No.

CACE17-012896.

Elaine D. Walter and Elliot B. Kula of Kula & Associates, P.A., Miami

(limited appearance for oral argument), Daniel M. Samson of Samson

Appellate Law, Miami, and Ryan M. Clancy and Alec W. Smith of Ainsworth

& Clancy, PLLC, Miami, for appellants/cross-appellees.

Joseph T. Eagleton of Brannock Berman & Seider, Tampa (limited

appearance for oral argument), Virgil W. Wright, III of Cameron, Hodges,

Coleman, LaPointe & Wright, P.A., Ocala, and David A. Fifner of Cameron,

Hodges, Coleman, LaPointe & Wright, P.A., Orlando, for appellees/cross-

appellants.

GROSS, J.

This case arises from a transaction between experienced

businesspersons. The plaintiffs below appeal (1) a final judgment

awarding them $418,574.07, less than they sought in the litigation, on

their claim for breach of the employment agreements, and (2) an order

granting the defendants a judgment notwithstanding the verdict (“JNOV”)

as to a different claim on which the jury had awarded the plaintiffs $2.75

million. The defendants cross-appeal the final judgment.

We affirm the final judgment on the claim for breach of the employment

agreements, but we reverse the judgment notwithstanding the verdict for

the reasons stated below.

Background—The Employment Agreement and Letter of

Intent

Defendant OxyLife Respiratory Services, LLC (“OxyLife”) is a licensed

provider of home medical equipment subject to various state and federal

regulations. On August 1, 2015, plaintiffs Craig Cooper and Scott Herman

entered into identical employment agreements with OxyLife. The two

agreements provided that the plaintiffs would receive no salary but instead

would be compensated through profit-share distributions and potential

ownership interests. The employment agreements also provided that, in

determining profit-share distributions, “sales shall be calculated from

cash received from the payors and patients.”

The employment agreements contemplated that the plaintiffs would

operate a Consignment Nebulizer Program (“CNP”) as a distinct business

unit within OxyLife. Both agreements included a survival clause with

respect to profit-share distributions: “[Each plaintiff’s] profit share

distribution payments shall survive his employment with OxyLife

regardless of circumstance and reason for his departure, whether

termination from OxyLife is voluntary, involuntary, for cause or without

cause.”

The employment agreements provided in Section 6 that the “CNP shall

be owned by three parties immediately without a vesting period”—

specifically, 33.34% to OxyLife and 33.33% to each of the plaintiffs.

Section 6 also included a survival clause stating that each plaintiff’s

“ownership interest in CNP shall survive his employment with OxyLife

regardless of circumstance and reason for his departure, whether

termination from OxyLife is voluntary, involuntary, for cause or without

cause.” Section 6C stated that the parties “shall make best efforts to form

a subsidiary . . . and apply as a Florida home medical equipment provider

by December 31, 2015.” Section 6C further provided: “Should subsidiary

not be formed, above ownership interests shall remain for CNP within

OxyLife Respiratory Services, LLC until such time when the subsidiary is

created.”

Although CNP was profitable, OxyLife faced financial troubles in May

2016.

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In July 2016, the plaintiffs entered into a “Letter of Intent” (also “Letter”)

with OxyLife’s owners, defendants Gary Ewers and Gerri McGighan-

Lukens, which outlined terms for the plaintiffs to acquire a 50% ownership

interest in OxyLife. The Letter established a “Trigger Date” for ownership

vesting, defined as the first day of the month following three consecutive

months during which the company achieved all of the following: (a) positive

cash flows; (b) “current with suppliers (determination based on individual

supplier payment terms)”; and (c) current with all existing liabilities.

The Plaintiffs’ Ouster

Cooper testified that the CNP business had been profitable from around

August 2015 to May 2017. Similarly, Ewers conceded at trial that the

plaintiffs made OxyLife more profitable from 2016 through mid-2017.

When asked if the company made “significant strides” under the plaintiffs’

leadership, Ewers acknowledged that “we made improvement.” After being

confronted with his deposition testimony, Ewers reluctantly acknowledged

that “if I said significant back then, I guess I -- I would qualify it as

significant now.”

Cooper also testified that OxyLife achieved cash flow positivity, became

current with suppliers, and was current with liabilities. Cooper believed

that the plaintiffs had complied or substantially complied with the Letter

of Intent’s three “Trigger Date” requirements.

Nonetheless, the plaintiffs contended that on the eve of the self-

executing “Trigger Date” when they were set to vest their 50% ownership

in OxyLife, the defendants wrongfully repudiated the employment

agreements and Letter of Intent.

Around June 2017, the defendants changed the plaintiffs’ passwords

and prevented them from accessing OxyLife’s computer systems.

According to Cooper, OxyLife’s financial books had been “manipulated in

a way to show that CNP was unprofitable,” even though “it had been

profitable for the prior 18 months.”

The plaintiffs were ultimately terminated in November 2017. The

plaintiffs’ accountant testified that the defendants owed the plaintiffs

$418,574.07 for unpaid monies related to the CNP from May 2017 through

November 2017.

The plaintiffs filed multiple complaints, culminating in a fourth

amended complaint in which they asserted fourteen claims, including

breach of the employment agreements, breach of the Letter of Intent,

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wrongful repudiation, specific performance, negligent misrepresentation,

equitable accounting, quantum meruit, constructive trust, and breach of

fiduciary duty.

The defendants brought a counterclaim asserting breach of a

noncompete, breach of a confidentiality agreement, and failure to return

property.

Order Determining that the Plaintiffs were Employees

The plaintiffs filed an Amended Motion for Final Determination of

Consignment Nebulizer Program Status and Ownership, seeking a ruling

that the CNP operated as a partnership and that the plaintiffs each had a

1/3 ownership interest.

Following a non-jury evidentiary hearing, the trial court denied the

plaintiffs’ motion in July 2020, ruling that the plaintiffs were employees of

OxyLife and that no partnership existed. The court found that the

employment agreements were the best evidence of the parties’ intent. The

court ruled that any contributions made by the plaintiffs with respect to

the CNP were in their capacity as employees of OxyLife. Relying on Section

6 of the employment agreements, the court reasoned that the viability of

the plaintiffs’ ownership interest in the CNP was predicated on the parties

using their best efforts to form a subsidiary and applying for a Florida

home medical license. The court noted that the plaintiffs “did not obtain

this license to operate the CNP.” The court further reasoned that “the CNP

constitutes an association whose formation is governed by statute” and

thus “the CNP is not a partnership.”

Summary Judgment Proceedings and Related Orders

The plaintiffs moved for partial summary judgment, arguing that the

survival clauses in their employment agreements entitled them to ongoing

profit distributions even after termination and that OxyLife materially

breached the contract as a matter of law by ceasing payments around June

2017.

The defendants filed a motion and a renewed motion for summary

judgment on the Letter of Intent, arguing that the plaintiffs failed to meet

the “Trigger Date” conditions of the Letter because the evidence showed

that OxyLife had not been current with suppliers or all existing liabilities

for three consecutive months.

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The trial court granted in part and denied in part the parties’ motions

for summary judgment.

The court denied the plaintiffs’ motion for summary judgment “as to

whether there was a material breach.” The court found that a valid

contract existed but, based on its July 2020 order, concluded that the

plaintiffs were employees under the employment agreements. The court

disagreed with the plaintiffs’ position that, even as “employees,” they were

entitled to be paid their share of proceeds from the employment

agreements even after their employment had been terminated. The court

reasoned: “First, their only entitlement is to ‘wages’ as employees of the

company. When they decided to leave the company, they were no longer

entitled to employee wages.” The court further noted: “Any notion they

could be paid wages would seem to violate the rule against perpetuities.”

The court then quoted an excerpt of the statutory rule against perpetuities,

emphasizing the words “personal property” in the rule. The court went on

to conclude that the plaintiffs’ damages would be “limited to those

damages they may have been entitled to while they were employees of the

company.”

As for the defendants’ motion for summary judgment related to the

“Trigger Date,” the court denied the motion because it contained “factual

disputes not conducive to summary judgment.”

The plaintiffs moved for partial reconsideration as to the trial court’s

determination that the plaintiffs receiving wages after their termination

“would seem to violate the rule against perpetuities.”

The trial court’s denial of the motion for reconsideration backed away

from the earlier mention of the rule against perpetuities. The court

clarified that “[t]he Court did not make a ruling that the rule against

perpetuities was violated, only that it would seem to violate the rule.”

(emphasis and comma added). The court elaborated: “What the Court did

rule for the last time is the plaintiffs were employees -- wage earners -- and

any notion they could continue to be paid wages after they terminated their

employment is baseless.”

The trial court later entered an Order on Plaintiffs’ Most Recent Motion

Regarding Damages, finding that “the Plaintiffs are employees and as such

are entitled to employee wages from the time they were employed until the

time they left the company,” but “are NOT entitled to ownership benefits

post-employment such as profit sharing or other compensation reserved

for owners of a company.” The court noted that it was the plaintiffs who,

“years ago,” had asked the court to determine whether they were owners

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or employees—an issue the court decided “after a lengthy evidentiary

hearing.” Therefore, the court ruled that the motion would be “yet again

DENIED” and that “no such proof will be permitted at trial.”

The Trial

After excessive motion practice, the case proceeded to a jury trial in

January 2024 on two claims: (1) breach of the employment agreements

and (2) breach of the Letter of Intent.

Plaintiff Cooper, who became OxyLife’s CEO after the Letter of Intent

was executed, testified about the Durable Medical Equipment (DME)

industry, including barriers to entry and valuation practices. Cooper

explained that a DME license would cost at least “a couple hundred

thousand dollars” and that DME companies typically sold for two times

annual revenue. Cooper testified that he was familiar with OxyLife’s

financials, including profit and loss statements, payroll, and inventory.

Between 2015 and 2017, Cooper explained, OxyLife had annual sales

ranging from $3.5 million to $5 million. Cooper also testified that OxyLife’s

annual revenue was approximately $4.2 million in 2017.

Defendant Ewers, co-owner of OxyLife, testified that he purchased the

company for $3.5 million in 2008 and that it was still worth $3.5 million

in 2016. He acknowledged that the plaintiffs made OxyLife more profitable

between mid-2016 and June 2017.

The defendants moved for directed verdict at the close of the plaintiffs’

case on the claim for breach of the Letter of Intent, but the trial court took

the matter under advisement.

During the plaintiffs’ initial closing argument, the plaintiffs’ attorney

did not discuss valuation methodology or present a detailed damages

analysis. In rebuttal closing, the plaintiffs’ counsel accurately mentioned

that Ewers had testified that he bought OxyLife for $3.5 million, but the

plaintiffs’ counsel mistakenly stated that Ewers had testified that the

company was worth at least $3.5 million “today.” The plaintiffs’ counsel

later suggested that the jury could award $1.75 million for breach of the

Letter of Intent, representing half of a $3.5 million valuation of OxyLife.

During deliberations, the jury submitted a written question: “What is

the value of the company OxyLife in 2024?” The trial court expressed

frustration, noting that the relevant valuation date was 2017—the year the

plaintiffs were ousted—and that the value of the company in 2024 was an

improper measure of damages. The court declined the plaintiffs’

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suggestion that the jury should be told to “focus on the value in 2017.”

The court noted that if the jury came up with “a value of OxyLife in 2024,

I will take the verdict away.”

After further discussion with counsel, the trial court responded to the

jury’s question with a written note stating, “I am unable to answer this

question.” The defendants then renewed their motion for directed verdict

on the claim for breach of the Letter of Intent.

Verdict

The jury returned a verdict in favor of the plaintiffs on both claims. The

jury awarded the plaintiffs $418,574.07 for breach of the employment

agreements for the May-November 2017 period. The jury also awarded the

plaintiffs $2.75 million for breach of the Letter of Intent, apparently valuing

OxyLife at double that amount.

Post-Trial Proceedings

The plaintiffs moved for a new trial on the claim for breach of the

employment agreements, arguing that the jury should have been permitted

to consider post-termination profit distributions in determining damages.

The defendants moved for judgment notwithstanding the verdict

(JNOV) and for a new trial, arguing in relevant part that the plaintiffs had

failed to present competent evidence of damages for breach of the Letter of

Intent. The defendants asserted that the plaintiffs had “failed to present

expert testimony regarding company valuation” or “any evidence regarding

the company value in 2017.”

The trial court denied the plaintiffs’ motion for new trial on the claim

for breach of the employment agreements, but the court ordered further

briefing on whether the jury’s $2.75 million damages award for breach of

the Letter of Intent was supported by the evidence.

Final Order, Final Judgment, and Denial of Rehearing

The trial court entered a Final Order Denying Plaintiffs’ Motion for New

Trial and Granting in Part and Denying in Part Defendants’ Motion for

Judgment Notwithstanding the Verdict.

The court ruled that the plaintiffs’ claims for damages relating to the

Letter of Intent “were not supported by competent substantial evidence”

because the plaintiffs “failed to establish competent evidence of the value

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of the business on the date they claim the breach occurred”—namely, the

2017 ouster date.

The court found that the plaintiffs had failed to present expert

testimony regarding the company’s valuation or any evidence of its value

in 2017. Citing section 607.1301 et seq., Florida Statutes, the court stated

that the “valuation of a business requires expert testimony.” Additionally,

the court concluded that Cooper’s and Ewers’s “opinions were not

competent evidence for the jury to consider,” relying upon Fidelity

Warranty Services, Inc. v. Firstate Insurance Holdings, Inc., 74 So. 3d 506

(Fla. 4th DCA 2011).

The court granted the defendants’ motion for JNOV as to breach of the

Letter of Intent but denied the parties’ other post-trial motions. The court

entered a final judgment awarding the plaintiffs $418,574.07 against

OxyLife, consistent with the jury’s verdict on the claim for breach of the

employment agreements.

The Trial Court Properly Denied the Plaintiffs’ Motion

for New Trial for Breach of the Employment Agreements

On appeal, the plaintiffs argue that the trial court erred by applying the

rule against perpetuities to employment contracts that provided for vested

payments even after the plaintiffs left the company.

We reject that argument because the trial court expressly denied that

the rule against perpetuities was a basis for its ruling. The court stated

that its decision was grounded solely on the determination that employees

cannot receive wages post-employment.

The plaintiffs’ initial brief raises no challenge to the trial court’s 2020

ruling that they were employees. Point I of the plaintiffs’ initial brief

focuses almost exclusively on the rule against perpetuities. Importantly,

the initial brief makes only a cursory argument that the trial court

“effectively wrote the Survivorship Clause out of the contract” by ruling

that they “could not be paid anything” post-employment, which they

contend “is contrary to established law.” Such a superficial, conclusory

argument on this point was insufficient to present this issue for appellate

review.

In Lynn v. City of Fort Lauderdale, 81 So. 2d 511, 513 (Fla. 1955), the

Florida Supreme Court held that an appellant’s duty to establish reversible

error is not discharged “by merely posing a question with an accompanying

assertion that it was improperly answered in the court below and then

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dumping the matter into the lap of the appellate court for decision.” The

“duty rests upon the appealing party to make error clearly appear.” Id.;

accord Congress Park Office Condos II LLC v. First-Citizens Bank & Tr. Co.,

105 So. 3d 602, 610 (Fla. 4th DCA 2013) (quoting Lynn); Spanakos v.

Hawk Sys. Inc., 362 So. 3d 226, 245 (Fla. 4th DCA 2023) (same).

For the first time in their reply brief, the plaintiffs raise a litany of new

challenges to the trial court’s rulings regarding the survival clause and

their ownership status. But under Florida law, “[a]n issue not raised in

an initial brief is deemed abandoned and may not be raised for the first

time in a reply brief.” Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011)

(citation omitted). Therefore, the plaintiffs waived any challenges to the

trial court’s rulings raised for the first time in their reply brief. 1

We affirm the judgment on the claim involving breach of the

employment agreements. We have considered the defendants’ argument

of cumulative error on the cross-appeal but find no reversible error.

The Trial Court Erred in Granting the Judgment

Notwithstanding the Verdict Because There was

Substantial Competent Evidence to Support a Proper

Valuation of OxyLife

We agree with the plaintiffs’ argument that the trial court erred in

granting a JNOV because the defendant owner’s own testimony provided

competent, substantial evidence of damages.

A JNOV is reviewed de novo. Citizens Prop. Ins. Corp. v. Hernandez,

360 So. 3d 737, 740 (Fla. 4th DCA 2023). We “must view all of the evidence

in a light most favorable to the non-movant, and, in the face of evidence

which is at odds or contradictory, all conflicts must be resolved in favor of

the party against whom the motion has been made.” Collins v. Sch. Bd. of

Broward Cnty., 471 So. 2d 560, 563 (Fla. 4th DCA 1985). “Only where

there is no evidence upon which a jury could properly rely, in finding for

the plaintiff, should a directed verdict be granted.” Id. The authority to

enter a directed verdict “must be exercised with great caution” because it

encroaches upon a litigant’s right to a jury trial. Marcano v. Puhalovich,

362 So. 2d 439, 441 (Fla. 4th DCA 1978).

Discussion

1 Although Ms. Walter appeared on behalf of the plaintiffs at oral argument, she

did not participate in the plaintiffs’ briefing for this court.

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“Damages for a breach of contract should be measured as of the date

of the breach[,]” Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037,

1040 (Fla. 1982), but this “is not an inflexible principle[.]” Lindon v. Dalton

Hotel Corp., 49 So. 3d 299, 306 (Fla. 5th DCA 2010).

As a general rule, “an owner of property is qualified as such to testify

to the value of his property[.]” Mercury Marine Div. of Brunswick Corp. v.

Boat Town U.S.A., Inc., 444 So. 2d 88, 90 (Fla. 4th DCA 1984). Such

testimony is generally permitted even when the owner is “not qualified as

an expert.” Salvage & Surplus, Inc. v. Weintraub, 131 So. 2d 515, 516 (Fla.

3d DCA 1961). Likewise, if a corporate officer “is qualified by virtue of his

experience, his management of the affairs of the corporation and his

knowledge of relevant value he is also a competent witness as to value.”

Mercury Marine, 444 So. 2d at 90.

Our decision in Fidelity Warranty represents an exception to Mercury

Marine’s general rule. In Fidelity Warranty, we held that an owner’s

testimony as to the value of his business was speculative and crossed into

expert opinion. 74 So. 3d at 511–13. Although we recognized the rule

that an owner may ordinarily testify to the value of his property, we

explained that the testimony at issue was “more than just that of an

‘owner’ testifying to the value of his property” because he relied on

“specialized knowledge regarding the proper mathematical formula” that

“should be used to calculate the market value of a niche insurance agency

in Puerto Rico.” Id. at 512. Specifically, the owner testified that “the

‘market value’ of an insurance agency is determined by multiplying the

previous year’s gross commissions by a multiplier somewhere between one

and three.” Id. at 510. The owner then “annualized” the previous six

months of commissions and applied a multiplier of three to arrive at an

estimated value of around $6.5 million, justifying the higher multiplier on

the ground that the business was a “niche” agency. Id. at 510–11.

On appeal, we concluded that, even if the owner’s testimony had been

properly disclosed, it should have been excluded because it was “based on

speculation and conjecture.” Id. at 513. The owner’s testimony was “the

very essence of expert testimony,” this court reasoned, because he “was

testifying not to just having knowledge of the value of his own property,

but also to having specialized knowledge of the insurance agency market

in Puerto Rico acquired through his experience in the industry.” Id. at

512. We also noted that the owner’s testimony suffered from another

defect: “Although [the owner] claimed to be using the previous year’s

commissions rather than future profits to value the company, the previous

year’s commissions in [the owner’s] calculation were being used as a

predictor of future profit.” Id. at 514 n.6. We explained: “It is as

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inappropriate to use purely speculative forecasts of future revenue to

determine the market value of a business as it is to use such speculative

forecasts in determining lost future profits.” Id. at 514–15 (quoting Susan

Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 921 So. 2d 43, 46 (Fla. 3d DCA

2006)). Thus, we concluded that the trial court erred by allowing the

owner’s market-value testimony and by denying a motion for a directed

verdict due to the business’s “failure to prove any damages.” Id. at 515.

In this case, unlike the situation in Fidelity Warranty, defendant

Ewers’s admissions provided competent, substantial evidence that OxyLife

was worth at least $3.5 million in 2017. While plaintiff Cooper’s testimony

did not constitute competent, substantial evidence of OxyLife’s value in

2017, Ewers’s testimony was legally sufficient evidence of the correct

measure of damages.

First, the trial court correctly rejected Cooper’s testimony regarding the

value of OxyLife, applying Fidelity Warranty. While Florida law permits

corporate officers and owners to testify as to value based on personal

knowledge of the business, Cooper’s testimony crossed the line from

permissible lay testimony of a corporate officer into impermissible expert

opinion because it relied upon “specialized knowledge regarding the proper

mathematical formula” that “should be used to calculate the market value”

of a DME company. Cooper’s valuation methodology of applying a

standard 2x multiplier to annual revenue is materially indistinguishable

from the testimony condemned in Fidelity Warranty, where the owner used

a 3x multiplier on gross annualized commissions to value a niche

insurance agency. Fidelity Warranty cannot be distinguished based on the

supposed “complexity” of the formula in that case.

Here, similar to the owner in Fidelity Warranty, Cooper was relying

upon specialized knowledge of the DME market acquired through his

experience in the industry. In other words, Cooper offered testimony that

was not merely based on his management of OxyLife, but rather was based

on a specialized valuation formula in the industry, thereby venturing

beyond the scope of permissible lay opinion. Absent a showing that Cooper

was an expert, his testimony regarding the typical 2x revenue multiplier

for valuing DME companies was impermissible speculation.

On the other hand, Ewers’s testimony falls squarely within the general

rule that a business owner may testify to the value of his company. Ewers

testified that he purchased OxyLife for $3.5 million in 2008 and that the

company retained that value in 2016. Ewers’s testimony that OxyLife was

still worth $3.5 million in 2016 was significant, as the evidence also

showed that OxyLife was facing financial difficulties that year. Although

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Ewers did not directly opine as to the value of OxyLife in 2017, he

acknowledged that the company’s profitability had improved by mid-2017

and that the company had made “significant strides” under the plaintiffs’

leadership. Thus, a jury could reasonably infer from Ewers’s testimony

that, if the company was worth $3.5 million in 2016 when it was facing

financial difficulties, then it was worth at least that much after the

plaintiffs had made significant strides in improving its financial

performance in 2017.

Unlike Cooper’s testimony, Ewers did not apply a mathematical

multiplier or rely on a specialized valuation methodology. Instead, he

offered an informed assessment of OxyLife’s value in his capacity as a co-

owner, consistent with the long-standing principle that an owner of

property is qualified to testify to the property’s value. Ewers’s opinion was

based in large part on the amount he actually spent to purchase OxyLife

in a free market transaction. Thus, Ewers’s admissions constituted

competent, substantial evidence and would have been sufficient to support

a jury finding that OxyLife’s value was at least $3.5 million in 2017. For

that reason, at the close of the evidence, sufficient evidence of damages

existed to withstand the motion for directed verdict on damages and

present the breach of the Letter of Intent claim to the jury.

The trial court’s reliance upon section 607.1301, et seq., Florida

Statutes, was misplaced. As the plaintiffs argue, nothing in the statutes

governing shareholder appraisal rights precludes officers and owners from

testifying as to value in other types of commercial litigation.

“[C]ourts have drawn a distinction between cases in which the plaintiff

submitted some evidence of damages and cases where there has been a

complete failure of proof on the issue.” Evans v. HSBC Bank, USA, Nat’l

Ass’n, 223 So. 3d 1059, 1063 (Fla. 2d DCA 2017). This was not a case

where the plaintiffs failed to meet their burden of establishing the correct

measure of damages, thereby precluding a “second bite at the apple.” See,

e.g., Bandklayder Dev., LLC v. Sabga, 406 So. 3d 265, 270 (Fla. 3d DCA

2025); Morton’s of Chicago, Inc. v. Lira, 48 So. 3d 76, 80 (Fla. 1st DCA

2010).

Rather, this was a case where the jury awarded damages exceeding the

amount proven by competent, substantial evidence, so the appropriate

remedy would have been to grant a remittitur or a new trial on damages.

In Great American Insurance Co. of N.Y. v. Suarez, 146 So. 644, 648 (Fla.

1932), the Florida Supreme Court observed:

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In cases where some legal liability is shown by the record

brought here on writ of error, but it is plainly apparent from

that same record that under no circumstances could the court

justifiably under the law uphold the amount of damages

allowed by the jury in that particular case . . . the practice

here is in general to affirm the judgment as to the liability

shown, and permit a voluntary remittitur by the prevailing

party to purge the judgment of obviously excessive damages[.]

(third emphasis added); see also Love Realty Corp. v. O’Brien, 162 So. 2d

532, 533 (Fla. 2d DCA 1964) (holding that remittitur was the appropriate

remedy where the jury awarded $2,000 but the uncontroverted testimony

established that the plaintiff was owed $800).

While the trial court erred in granting a JNOV insofar as Ewers’s

testimony provided competent, substantial evidence of OxyLife’s value in

2017, the full amount of the verdict cannot be upheld. The jury awarded

$2.75 million, implying a total company value of $5.5 million, but the only

competent evidence of value was Ewers’s testimony that OxyLife was still

worth $3.5 million in 2016, coupled with his acknowledgment that

OxyLife’s profitability had improved in 2017. Although Ewers’s testimony

supports the conclusion that the company was worth at least $3.5 million

in 2017, the record lacks any competent evidence supporting the jury’s

implied valuation of $5.5 million.

For these reasons, we reverse the entry of the JNOV and remand to the

circuit court with directions to remit the verdict on Count II to $1.75

million; if any party objects to the remittitur, the court shall conduct a new

trial on damages for that count.

Affirmed in part, reversed in part, and remanded for further proceedings.

FORST and SHEPHERD, JJ., concur.

* * *

Not final until disposition of timely-filed motion for rehearing.

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