This past week, the Third District Court of Appeal once again admonished practitioners and judges for their penchant for proposed orders.

The  reproach came in Moriarty v. Murton Roofing Corp., Nos. 3D11-1632 & 3D10-3176 (Fla. 3d DCA April 24, 2013), where the Third  reversed a directed verdict, again underscoring just how difficult it is to uphold a DV on appeal.  This particular DV was worth $2 million (the amount the jury awarded against Moriarty in its verdict).

The Third reversed the DV partly because:

[T]he trial court entered Moriarity’s proposed ten-page order verbatim. This fact alone does not compel reversal, given that Escadote had an adequate opportunity to present its own proposed order and to voice objections to Moriarity’s version. Cf. Perlow v. Berg-Perlow, 875 So. 2d 383 (Fla. 2004) (holding verbatim adoption of proposed final judgment was reversible error where trial court failed to give opposing party opportunity to object or to submit his own proposed final judgment). Nevertheless, Florida courts have been critical of such a practice.

For the Third, this proposed order appeared too inaccurate:

Perhaps the most significant inconsistency between the ten-page order and the court’s rulings at trial involved one of the theories of recovery. In its order, the trial court found that appellant had not pled a claim for diminution of value. At trial, however, when appellees objected to evidence being presented on this theory, and argued for its exclusion on the basis that this was a “new claim” which had not been pled, the trial court overruled the objection:

COURT: Well, they always pled diminished value. I made that ruling the first day. They pled it, so you’re on notice that they’re trying to get it. You know what the law is. You’re the one that brought it all up to me about how you get diminished value only if it’s permanently damaged, but if it’s not permanently damaged, commercial waste, you only get the cost to repair.
So you’ve known all along they were going to diminished value, and they are going to have to prove it was not repairable . . . .

To be sure, the Third emphasized that it was reversing Moriarty's DV mostly due to its de novo review "of the entire record," but the inaccurate proposed order may have served to tip the balance towards reversal (considering the Third devoted essentially an entire page of the 4 page opinion to its scolding footnote on the proposed order).

For that reason, when drafting their proposed orders, cautious trial attorneys would do well to hew religiously to the oral pronouncements made during trial - no matter how unfavorable - in order to better protect their directed verdicts and proposed orders on appeal.  As the Third's opinion demonstrates, playing it too fast and loose when drafting could potentially result in multi-million dollar exposure for your clients.