By Jeffrey T. Donner, Esq.

September 8, 2026

A construction-defect case does not necessarily become simpler when most of the parties settle. The remaining dispute may require the court and jury to disentangle years of overlapping claims, defense expenses, contractual obligations, and work performed by different trades. A settlement can narrow the number of defendants without resolving the more difficult question of what the remaining defendant actually owes.

That problem was central to Craftsman Plastering and Lath, Inc. v. Rath Mor, LLC, No. 4D2025-0759 (Fla. 4th DCA Aug. 12, 2026). An owner pursuing an assigned indemnity claim against a stucco subcontractor sought $779,318.66 in the general contractor’s attorney’s fees and costs. The jury awarded $55,652. Believing the jurors had improperly divided the expenses among fourteen subcontractors, the trial court increased the award to the full amount requested. The Fourth District Court of Appeal reversed and directed entry of judgment consistent with the jury’s verdict.

The decision offers practical lessons about proving construction-indemnity damages, allocating litigation expenses, and preserving legal theories before the jury begins deliberations. It also presents a deeper question about the civil jury’s place in our legal system. If a jury has heard the evidence and determined damages, when may a judge decide that its answer is unacceptable?

The answer is more complicated than the familiar statement that a judge cannot become a “seventh juror.” Florida law gives trial judges substantial authority to scrutinize verdicts. Craftsman Plastering illustrates both the existence of that authority and the limits on its exercise.

How a Construction-Defect Lawsuit Became an Assigned Indemnity Claim

Rath Mor owned property undergoing renovation and new construction. It hired Tara Management as the general contractor. Tara subcontracted the stucco work to Craftsman and retained thirteen other subcontractors for other work on the project. Each subcontract contained an indemnification provision covering claims arising out of or caused by the subcontractor’s acts or omissions.

After discovering construction defects, Rath Mor sued Tara for breach of contract and violations of Florida’s building code. Tara brought third-party claims against Craftsman and the other subcontractors. Rath Mor, Tara, and thirteen subcontractors eventually entered into a global settlement, leaving Craftsman outside that resolution. Tara assigned its remaining claims against Craftsman to Rath Mor, which proceeded as Tara’s assignee.

The resulting trial was narrower than the original construction-defect action. The parties agreed that the jury would determine whether the assigned damages fell within Craftsman’s contractual indemnity obligation and, if so, their amount. The attorney’s fees and costs were themselves the claimed indemnity damages, rather than merely a post-trial request for prevailing-party fees in the remaining lawsuit.

That distinction framed the entire dispute. Establishing what Tara had spent litigating the construction case was not necessarily the same as establishing what Craftsman had promised to indemnify. The latter question required connecting the claimed expenses to the contractual obligation being enforced.

The Difference Between Total Litigation Expense and Recoverable Damages

Rath Mor’s principal damages witness was Mark Heinish, the supervising partner of the firm that had represented Tara. He testified that Tara had incurred $740,302.28 in attorney’s fees and $39,016.38 in taxable costs. Rath Mor sought the combined amount of $779,318.66 as damages under the assigned indemnity claim.

Cross-examination exposed a problem with treating that aggregate figure as the amount necessarily recoverable from Craftsman. Heinish acknowledged that some fees and costs related to pursuing claims against the other thirteen subcontractors. Some also concerned Tara’s counterclaim against Rath Mor. Although he characterized the other matters as relatively insignificant and attributed the vast majority of the expenses to Craftsman’s stucco work, the total had not been segregated to remove those other expenses.

The appellate court specifically noted his explanation that separating the expenses would require examining individual billing entries and could take weeks. That testimony did not establish that an allocation was impossible. It established that the work necessary to perform one had not been done.

For construction litigators, the distinction is consequential. Consider a hypothetical water-intrusion case involving stucco, windows, roofing, and waterproofing. A general contractor’s lawyer might take a deposition addressing all four trades, retain an expert whose investigation encompasses several possible causes, and prepare a motion concerning multiple subcontractors. Some work may be attributable to a particular trade, some may serve a genuinely common defense, and some may concern affirmative claims rather than defense of the owner’s lawsuit.

The proper treatment of those expenses depends on the contract and the evidence. The difficulty of allocating them does not, by itself, establish that one subcontractor is responsible for all of them. Conversely, the presence of multiple subcontractors does not establish that every common expense must be divided equally.

The problem in Craftsman Plastering was not simply that fourteen subcontractors had worked on the project. It was that the damages request included expenses associated with other claims, while the jury was being asked to determine expenses attributable to claims arising from Craftsman’s work. That left a disputed evidentiary question about the amount recoverable under the particular indemnity obligation.

Why the Absence of a Competing Damages Calculation Was Not Decisive

Rath Mor argued that its damages evidence was unrefuted because Craftsman had not presented evidence establishing a different dollar amount. The Fourth DCA rejected that characterization. Cross-examination had exposed components of the total that were not shown to fall within Craftsman’s obligation. The damages evidence therefore was disputed even though Craftsman had not supplied an alternative calculation.

This is an important distinction between proving that an expenditure occurred and proving that the defendant owes it. A witness may accurately identify the total amount billed in a lawsuit while failing to establish that every included charge is recoverable against the particular defendant at trial.

The Fourth DCA also emphasized that Rath Mor, not Craftsman, bore the burden of proving damages. Craftsman did not acquire an affirmative obligation to perform Rath Mor’s allocation merely because Rath Mor had introduced invoices and a witness familiar with them.

The practical lesson is not that a defendant should invariably forgo its own damages analysis. A competing calculation may provide the jury with a persuasive alternative and reduce uncertainty. The point is that such evidence is not always necessary to contest the plaintiff’s number. Cross-examination may expose a material deficiency in the claimed amount without establishing precisely what the correct amount should be.

Nor does the decision give juries permission to select arbitrary figures. The jury remained bound by the evidence and instructions. What the court rejected was the proposition that Rath Mor’s aggregate number became mandatory merely because Craftsman had not introduced a different one.

The Trial Judge’s Theory About the Jury’s Arithmetic

The jury found an indemnity agreement and awarded $55,652 for legal fees and costs incurred defending claims arising out of or caused by Craftsman’s work. Rath Mor sought additur or, alternatively, a new trial on damages, arguing that the verdict represented approximately one-fourteenth of the overall expenses.

The numerical relationship gave the trial judge a plausible theory about what had happened during deliberations. With fourteen subcontractors involved in the original litigation, perhaps the jurors had simply divided the total by fourteen. The judge expressed that belief but also acknowledged its evidentiary weakness, stating, “[W]e’re all speculating—I’m speculating obviously.”

The trial court nevertheless granted additur to increase the award to $779,318.66, with a new damages trial to follow if Craftsman rejected the adjustment. A final judgment for the increased amount was subsequently entered.

The Fourth DCA did not hold that the judge’s arithmetic theory was inconceivable. It held that the decision to displace this verdict rested on speculation, while the record contained a genuine dispute about the recoverable expenses. The distinction matters. A suspicious numerical relationship may prompt scrutiny, but it does not resolve whether the verdict can be sustained under the evidence, instructions, and issues actually presented.

Additur Requires More Than Disagreement With the Verdict

The Fourth DCA analyzed the motion under section 768.74, Florida Statutes. That statute provides for judicial review of excessive or inadequate damages and identifies several considerations. They include prejudice or corruption, disregard of the evidence, misunderstanding of recoverable damages, reliance on improper elements or speculation, and the relationship between the award and the proof. The court also considers whether reasonable persons could logically derive the award from the evidence.

Those criteria reach beyond obvious misconduct. They require an assessment of the evidentiary basis for the verdict, not merely an investigation into whether jurors behaved improperly.

The appellate standard also gives the trial judge meaningful latitude. Craftsman Plastering, citing Kocik v. Rodriguez, 327 So. 3d 318, 321 (Fla. 4th DCA 2021), acknowledged that substantial, competent evidence supporting a verdict does not necessarily establish an abuse of discretion in granting additur. At the same time, a judge may not replace the jury’s resolution of disputed factual issues with the judge’s preferred resolution.

That combination is more demanding than a categorical slogan. The existence of some supporting evidence does not automatically immunize a verdict from review, but judicial disagreement does not automatically justify changing it.

In this case, the claimed damages were not an undisputed sum that the jury was legally compelled to award. The cross-examination, instructions, verdict form, and closing argument all mattered. Taken together, they defeated the premise that the full $779,318.66 was the only permissible outcome.

The Instructions, Verdict Form, and Closing Argument Defined the Dispute

The verdict form asked how much Tara had spent defending claims brought by Rath Mor that arose out of or were caused by Craftsman’s construction work. The instructions similarly directed the jury to award damages established by the greater weight of the evidence. Rath Mor did not object to the instructions or verdict form.

Those submissions did not tell the jury to award all of Tara’s litigation expenses upon finding an indemnity obligation. They required the jury to determine the amount connected to the specified claims.

Rath Mor’s closing argument reinforced that approach. Counsel urged the jury not to discount the requested damages but acknowledged that it could do so to account for the counterclaim and claims involving other subcontractors. The Fourth DCA held that Rath Mor thereby waived the later argument that the jury had to award the entire amount.

The court relied on Aliff v. Steven Weiss, M.D., P.A., 396 So. 3d 574, 577 (Fla. 4th DCA 2024), which likewise rejected an additur where the unobjected-to instructions and verdict form had allowed the jury to determine damages rather than directing a particular calculation. A party cannot readily fault jurors for exercising discretion the case was submitted to them to exercise.

Rath Mor also argued after trial that Craftsman’s obligation was joint and several rather than divisible. But the jury had received no joint-and-several-liability instruction, and the theory first appeared in the additur motion. The Fourth DCA further noted that Rath Mor had not adequately developed its appellate argument concerning a duty to defend or explained responsibility for expenses associated with claims involving the other subcontractors.

The decision therefore should not be overstated as a universal rule requiring every construction-indemnity claim to be allocated in a particular way. Its reasoning was tied to this contract, this evidentiary record, and this presentation of the case. The procedural failure was attempting to obtain a materially different treatment of the damages after the jury had returned its answer.

The Constitutional Question: Why Can Judges Disturb Jury Verdicts at All?

Beneath the allocation dispute lies a legitimate constitutional question. If a party has a right to a jury trial, why may a judge decide that the jury reached the wrong result? A meaningful jury right must accommodate at least some decisions that a judge considers mistaken or unpersuasive. Otherwise, the jury risks becoming an advisory body whose conclusions matter only when the judge agrees.

The applicable constitutional source must be identified correctly. Florida’s article I, section 22 provides that “[t]he right of trial by jury shall be secure to all and remain inviolate.” The Seventh Amendment protects civil jury trials in federal proceedings and provides that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” The Seventh Amendment does not itself govern a Florida state-court jury trial because its civil-jury guarantee has not been incorporated against the states. See Minneapolis & St. Louis Railroad Co. v. Bombolis, 241 U.S. 211 (1916).

The historical justification for judicial supervision is that the jury right developed within a system that already permitted courts to order new trials and decide questions of legal sufficiency. The constitutional arrangement preserved the jury as factfinder without making every verdict immune from correction.

Federal law nevertheless reveals how serious the constitutional problem can become when the judge actually changes the jury’s damages determination. In Dimick v. Schiedt, 293 U.S. 474 (1935), the United States Supreme Court held that additur violated the Seventh Amendment in federal court.

The asymmetry is notable because federal courts permit remittitur. Under the traditional explanation, a remittitur removes an excessive portion from an amount the jury actually awarded. The reduced amount can therefore be conceptualized as contained within the verdict the jury already returned. An additur works in the opposite direction. The judge inserts damages the jury never found.

That distinction has doctrinal and historical support, but it is not philosophically airtight. From the litigant’s perspective, both procedures involve a judge determining that the jury’s damages assessment was wrong and identifying a different amount that the judge considers legally acceptable.

Justice Stone’s dissent in Dimick attacked precisely that distinction. In his view, if a court could condition denial of a new trial upon a plaintiff’s acceptance of a remittitur, there was no compelling constitutional reason it could not similarly condition denial of a new trial upon a defendant’s acceptance of an additur. Under that theory, neither procedure finally displaced the jury because the adversely affected party could reject the adjustment and obtain another jury trial.

Florida has taken essentially the more symmetrical approach. Florida permits both additur and remittitur.

The principal constitutional safeguard is that the judge’s proposed damages figure is not supposed to become binding over the objection of the adversely affected party. If the adjustment is rejected, damages are returned to a jury.

The Florida Supreme Court relied heavily on that feature in Adams v. Wright, 403 So. 2d 391 (Fla. 1981). In rejecting a constitutional challenge to Florida’s then-existing statutory additur and remittitur procedure, the Court reasoned that the adversely affected party need not accept the judge’s determination and instead may obtain another jury determination of damages.

The Florida Supreme Court later emphasized the same principle in Waste Management, Inc. v. Mora, 940 So. 2d 1105 (Fla. 2006). The judge’s proposed additur or remittitur does not simply become the final damages award if the party entitled to object refuses to accept it.

That is the doctrinal reconciliation.

It does not eliminate the philosophical tension.

A party that has already spent years litigating and substantial sums trying a case theoretically may reject the judge’s proposed number and ask another jury to decide damages. As a practical matter, that choice may require another trial, additional expert expenses, more attorney time, further delay, and another exposure to litigation risk. The availability of a second jury preserves the formal constitutional structure, but the first jury’s decision has nevertheless been displaced.

Florida courts themselves have recognized the difficulty. In Veterans Auto Sales & Leasing Co. v. Poole, 649 So. 2d 264 (Fla. 5th DCA 1994), the Fifth DCA questioned whether section 768.74 could constitutionally permit a trial judge to displace a damages verdict that was reasonably supported by the evidence in the absence of trial error or jury misconduct. The Florida Supreme Court ultimately did not decide the certified constitutional question. In Poole v. Veterans Auto Sales & Leasing Co., 668 So. 2d 189 (Fla. 1996), it resolved the dispute on narrower grounds while reiterating that the trial judge may not simply substitute the judge’s own resolution of disputed factual issues for the jury’s.

Summary judgment and judgment notwithstanding the verdict present a related but analytically different issue. Their constitutional justification is that the judge is determining legal sufficiency rather than choosing between competing factual versions of events.

Under Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), summary judgment asks whether the evidence presents a genuine issue that a reasonable jury could resolve for the nonmoving party. The judge is not authorized to decide credibility, weigh competing testimony, or choose among genuinely disputed factual accounts. The historical justification for judgment notwithstanding the verdict likewise rests on the judiciary’s ability to reserve and decide questions of legal sufficiency. See Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654 (1935).

The distinction is real, but it contains its own tension. Someone must decide whether the evidence is sufficient for a reasonable jury to act upon, and that someone is a judge. Thus, even summary judgment gives the judiciary authority to determine whether a claimed factual dispute qualifies for jury resolution in the first place.

The tension becomes still more apparent with a motion for new trial based on the manifest weight of the evidence. That procedure cannot honestly be described as merely an inquiry into legal sufficiency. In Smith v. Brown, 525 So. 2d 868 (Fla. 1988), the Florida Supreme Court explained that a judge considering such a motion evaluates the credibility of witnesses and the weight of the evidence. That is a substantially more intrusive form of judicial review than the standard governing summary judgment or directed verdict.

Likewise, Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999), recognizes the broad discretion afforded a trial judge considering whether a verdict is against the manifest weight of the evidence. The mere existence of evidence supporting the verdict does not necessarily establish that granting a new trial was an abuse of discretion.

Our civil justice system therefore does not actually treat a jury verdict as untouchable merely because some evidence supports it. Different mechanisms permit different degrees of judicial supervision. Summary judgment and directed verdict police legal sufficiency before a verdict. Judgment notwithstanding the verdict performs a related function afterward. A new-trial motion permits broader review of the weight of the evidence. Remittitur and additur address damages that the court concludes fall outside permissible limits, subject to procedural protections preserving access to another jury.

These doctrines are traditionally reconciled with the constitutional jury right by emphasizing the historically shared allocation of responsibility between judge and jury. The jury decides disputed facts, but the judiciary determines whether the dispute is legally sufficient for jury consideration, supervises trials for legal error, and possesses limited authority to prevent verdicts that cannot stand under the applicable standards.

That answer is doctrinally established. It is also less absolute than the language that the jury right shall “remain inviolate” might initially suggest.

The real constitutional boundary is therefore not that judges may never evaluate a jury’s work. They plainly may. The boundary is supposed to prevent legitimate judicial supervision from becoming substitution of the judge’s factual judgment for that of the jury merely because the judge would have reached a different result.

That is precisely why Craftsman Plastering presents such a useful example. The trial judge may have been correct about what happened inside the jury room. The jurors may have divided the total damages among fourteen subcontractors. But perhaps they did not. The trial judge did not know. He acknowledged that he was speculating.

Meanwhile, the actual evidentiary record gave the jury legitimate reasons to reject the entire $779,318.66 figure. The witness acknowledged that the aggregate amount contained work concerning other subcontractors and Tara’s counterclaim. The jury instructions and verdict form permitted the jury to determine the amount attributable to Craftsman’s work. Rath Mor itself told the jury it could discount the requested amount.

Once those circumstances existed, speculation about the jury’s arithmetic could not substitute for a legally sufficient basis to displace its factual determination.

The constitutional right to jury trial does not mean that juries are infallible. Indeed, accepting a jury system necessarily means accepting the possibility that juries sometimes will make decisions that judges, lawyers, or appellate courts consider mistaken. If every merely questionable verdict could be replaced whenever the trial judge believed another result was better supported by the evidence, the distinction between a jury verdict and an advisory recommendation would become difficult to maintain.

Florida law therefore gives judges significant authority over verdicts, but that authority requires limiting principles. Craftsman Plastering is an example of an appellate court enforcing one of them.

A Separate Procedural Warning About Rejecting Additur

The decision also addresses an important post-trial choice. The trial court gave Craftsman fifteen days to accept or reject the additur. Craftsman instead filed a notice of appeal challenging it, and Rath Mor argued that the failure to file a written rejection barred appellate relief.

The Fourth DCA distinguished electing a new damages trial under Florida Rule of Civil Procedure 1.530(h)(3) from appealing to obtain reinstatement of the original verdict. It treated Craftsman’s notice of appeal as a rejection of the additur. But the court attached a significant consequence. A party choosing that route without the prescribed election waives the rule-based right to a new damages trial if the appeal fails.

That holding should not be read as making the fifteen-day election unimportant. It identifies a consequential difference between seeking another trial and challenging the judicial alteration of the first trial’s result. Counsel must evaluate those options deliberately rather than assume an appeal preserves every alternative remedy.

What the Decision Means for Florida Construction-Defect Litigation

The most useful application of Craftsman Plastering begins before trial. An indemnity claimant should identify the expenses sought, the contractual language making them recoverable, and the evidence connecting the two. An opposing party should examine whether the claimed total combines covered defense expenses with work involving other trades, affirmative claims, or different contractual obligations.

Contemporaneous billing practices can make that analysis more reliable. Where feasible, entries should distinguish defense work from affirmative litigation and identify the relevant claims or scopes of work. When an expense serves several purposes, the evidence should explain that relationship rather than merely label the entire litigation intertwined. These are practical responses to the proof problem the opinion exposes, not a claim that the court imposed a universal billing format.

The same discipline should inform settlement strategy. An assignment may leave the assignee pursuing a claim shaped by another party’s litigation decisions and records. Before assigning a value to that claim, counsel should examine how the surviving obligation will be proved and what the existing records actually establish. In Craftsman Plastering, the settlement left Rath Mor pursuing Tara’s indemnity rights, but it did not eliminate the dispute over which litigation expenses fell within Craftsman’s obligation.

Trial preparation must then carry the legal theory through to the instructions and verdict form. A contention that a subcontractor owes an indivisible defense obligation should be developed and presented before deliberations. A theory requiring the jury to identify expenses attributable to specified work should be supported with evidence enabling that task. Neither approach is improved by leaving the governing question unclear and attempting to resolve it through a post-verdict motion.

The decision also reinforces the importance of cross-examination in damages cases. A construction defendant need not necessarily prove a competing damages number merely to defeat the proposition that the claimant’s number is conclusively established. If the claimant’s own witness concedes that the calculation includes potentially nonrecoverable items and cannot identify their amount, the jury may have a legitimate basis to reject the aggregate demand.

At the same time, defense counsel should resist treating Craftsman Plastering as an invitation to offer the jury an arbitrary alternative. A defendant that can present a principled allocation usually should consider doing so. The case merely confirms that the burden of proving recoverable damages remains where it belongs.

The opinion likewise demonstrates the importance of identifying the legal character of an indemnification obligation before trial. Construction contracts can contain materially different duties to indemnify, defend, reimburse fees, or protect against particular categories of loss. Whether expenses must be allocated, whether common defense costs are recoverable, and whether one subcontractor may bear responsibility for an indivisible obligation all depend on contractual language and the applicable law. The fact that several subcontractors participated in a project does not itself answer those questions.

That is why sophisticated construction-defect litigation requires more than proof that defective work existed and money was spent. Liability must be connected to scope. Scope must be connected to the contractual obligation. The contractual obligation must be connected to the damages being claimed. And the evidence presented to the jury must permit it to make the factual findings required by the legal theory counsel has chosen.

Craftsman Plastering also demonstrates that trial strategy cannot be separated from appellate strategy. Jury instructions, verdict forms, closing arguments, and objections define what the jury was authorized to decide. A legal theory not properly presented before the verdict may be difficult to resurrect afterward simply because the jury’s answer proved unfavorable.

The Fourth DCA did not hold that all construction-defense expenses must be divided among trades, that joint and several indemnity obligations cannot exist, or that every unexpectedly low damages award must survive judicial review. It held that this additur could not stand on this evidentiary record and after the case had been presented to this jury in this manner.

That narrower holding carries a broader lesson.

The civil jury is not sovereign and unreviewable. Trial judges possess substantial authority to supervise verdicts, and Florida law expressly authorizes additur and remittitur in appropriate cases. But judicial supervision must remain something different from deciding that the judge prefers another factual result.

The jury in Craftsman Plastering heard evidence that the claimed $779,318.66 included expenses associated with litigation beyond Craftsman’s stucco work. It was instructed to determine the amount attributable to the claims arising from Craftsman’s work. Rath Mor told the jurors that they could discount the requested amount. They did so and returned a verdict of $55,652.

The trial judge believed he understood why.

He may even have been right.

But believing that one understands the jury’s reasoning is not the same as proving that the verdict lacked a legally permissible basis.

The Fourth DCA’s decision ultimately protects two principles that matter in construction litigation and civil trials generally. A claimant must prove the damages that the particular defendant is legally obligated to pay, and a jury’s resolution of disputed facts cannot be displaced merely because a judge believes the jury probably reasoned differently than the judge would have.

That is not a declaration that juries always get it right. A constitutional jury system necessarily assumes that sometimes they will not.

It is instead a recognition that if trial by jury is to mean anything, there must remain some category of decisions that belong to the jury even when the judge would have decided them differently.