The two-issue rule and itemized verdicts: walking the tightrope.

AuthorGunn, Tracy Raffles
PositionFlorida law

Harmless error: bane to appellants, boon to appellees, and a powerful doctrinal tool of the appellate courts.

Not that there's anything wrong with that. After all, appellate courts review judgments and orders. If, notwithstanding any perceived errors in the proceedings, the judgment or order under review is correct--that is, if the error in process did not yield an error in result--the appellate court is simply doing its job in ignoring even obvious errors, as long as they did not culminate in an erroneous judgment. Although harmless error can take a variety of forms, error is harmful (and therefore, at least in civil cases, reversible) only if "it is reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed."[1]

So what happens in the following situation? The plaintiff brings a two-count complaint, alleging, say, 1) false imprisonment and 2) malicious prosecution. The jury is erroneously instructed on the false imprisonment claim, but correctly instructed on the malicious prosecution claim. The jurty returns a verdict for the plaintiff, but does not specify the basis for its verdict. Assuming the appellate court agrees that the false imprisonment instruction was erroneous, the court should reverse, right?

Wrong. Although the appellant has arguably demonstrated harmful error (by showing that had the jury been properly instructed on the false imprisonment claim, they "may" have returned a verdict in favor of defendant), the appellate court should nevertheless affirm.

Why? The so-called two-issue rule: "[W]here there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury."[2]

The Florida Supreme Court first adopted the two-issue rule in Colonial Stores, Inc. v. Scarbrough, 355 So. 2d 1181, 1186 (Fla. 1977) (citing out-of-state cases).[3] The court reasoned that if an appellant can point to error affecting fewer than all the issues submitted to the jury, but cannot completely negate the possibility that the jury based its verdict on the remaining, error-free issues, then "the appellant is unable to establish that he has been prejudiced."[4] In other words, the appellant cannot demonstrate harmful error.

Since Colonial Stores, Florida courts have refined the jurisprudence surrounding the two-issue rule. For example, in the 1987 decision of First Interstate Development v. Ablanedo, 511 So. 2d 536 (Fla. 1987), the Florida Supreme Court held that the rule does not apply when the "two issues" are two theories of liability with two different measures of damages.[5] Instead, the court said, "[t]his rule applies to those actions that can be brought on two theories of liability, but where a single basis of damages applies."[6]

Until recently, this statement in Ablanedo raised, appropriately enough, at least two issues about the two-issue rule. The first centered around application of the rule to defense verdicts. In both Colonial Stores[7] and Ablanedo,[8] the rule had been invoked by plaintiffs defending verdicts in their favor. In Charlemagne v. Francis, 700 So. 2d 157 (Fla. 4th DCA 1997), the Fourth District Court of Appeal held that the rule could not be invoked by a successful defendant to argue that error in an instruction on a statutory defense was harmless.[9] The court relied expressly on Ablanedo's statement that the rule applies to cases involving "two theories of liability."[10] Since Charlemagne involved only one theory of liability (common-law negligence), the rule simply did not apply.[11] The Third District reached a different conclusion, and, without reference to Ablanedo, held that the two-issue rule also applied to cases involving two or more defenses.[12]

Similarly, Ablanedo raised questions about the applicability of the rule where the "two issues" are two or more elements of a single cause of action. Shortly before Ablanedo was decided, the Third District held that error in failure to give a requested jury instruction on causation did not warrant reversal, because the failure to give the instruction did not affect the other elements of the plaintiff's cause of action.[13] Since, the court reasoned, the jury's general verdict in favor of the defendant "may be interpreted either as a finding of no negligence or as a finding of no legal cause, the plaintiffs have failed to show, as they must ..., that the refusal to give this causation...

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