BORDEN, INC., A NEW JERSEY CORPORATION, APPELLANT,
v.
EDDIE LEE YOUNG AND DEBORAH YOUNG, HIS WIFE, APPELLEES
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Borden, Inc. appealed a substantial jury verdict in a personal injury case, arguing the judgment was tainted by egregious misconduct during plaintiffs' counsel's closing argument. The court reversed the judgment and ordered a new trial, holding that opposing counsel's assertions of facts not in evidence that denigrated the corporate defendant constituted fundamental error requiring reversal regardless of any failure to timely object.
The judgment must be reversed and a new trial ordered. The plaintiffs' counsel's false assertions about the defendant's conduct constituted fundamental error so prejudicial that it could not be cured by objection or retraction, regardless of whether the defendant timely objected. Courts must not passively ratify verdicts resulting from such serious professional misconduct, even when both parties participated in the misconduct.
[1] An attorney's argument that is so prejudicial as to be incapable of cure by rebuke or retraction constitutes fundamental error that needs no objection to preserve.
[2] A party that participates in unprofessional conduct during a trial should not be heard to complain that the opposing party did not adhere to the rules.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“it is no longer — if it ever was — acceptable for the judiciary to act simply as a fight promoter, who supplies an arena in which parties may fight it out on unseemly terms of their own choosing, and then, on the ground that the loser has asked for what he received, obediently raise the hand of the one who emerges victorious.”
Establishes the court's rejection of the passive approach to judicial oversight of attorney misconduct; courts must not ratify verdicts resulting from serious professional violations.
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Join FLexlaw to unlock all legal intelligenceThis was the third trial of the action; the first trial resulted in a verdict for the defendant, which was set aside and a new trial granted to plaint…
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SCHWARTZ, Chief Judge.
The defendant-appellant’s primary contention is that the very substantial adverse jury verdict and judgment in this personal injury case1 was fatally infected by the egregiousness of plaintiffs’ counsel’s final argument. It is indeed clear that the lawyers for both sides, particularly Richard Reynolds for the plaintiffs, and John G. Poole, Jr. for the defendant, engaged in a disgraceful display of unprofessional conduct 2 which was much more appropriate to a prize fight or, more accurately, to a gladiatorial contest than to a search for truth in the halls of justice. Ironically, it is this common participation in the misconduct which lies at the heart of the plaintiffs’ arguments for affirmance. Thus, they suggest (a) that a party like the defendant which participates in an alley fight3 should not be heard to complain that his opponent did not adhere to the Marquis of Queens-berry rules, and (b) that reversal is not justified because, as an aspect of the mutual combat engaged in below, the defendant did not timely object to the now alleged improprieties. See Nelson v. Reliance Insurance Co., 368 So. 2d 361 (Fla. 4th DCA 1978). Because we cannot agree that a judgment rendered under these circumstances may be permitted to stand, we do not accept this position.
Approaching the issue on the basis of established principles of review, we conclude that the worst features of Reynolds’ argument4 — which asserted his personal knowledge of nefarious activities supposedly engaged in by the large corporate defendant which were not only not in evidence but did not in fact exist — plumbed such depths of impropriety5 that the argument (a) cannot be deemed to have been in fair response to the tactics or statements of the defense, which, while certainly impermissible, did not go nearly so far; and (b) was so prejudicial as to be incapable of cure by rebuke or retraction; it thus constituted fundamental error which needed no objection to preserve. Tampa Transit Lines, Inc. v. Corbin, 62 So. 2d 10 (Fla.1952); Seaboard Air Line R. Co. v. Strickland, 88 So. 2d 519 (Fla.1956); Carlton v. Johns, 194 So. 2d 670 (Fla. 4th DCA 1967).
Perhaps more important is the broader jurisprudential issue which is raised by cases like this. In our view, it is no longer — if it ever was — acceptable for the judiciary to act simply as a fight promoter, who supplies an arena in which parties may fight it out on unseemly terms of their own choosing, and then, on the ground that the loser has asked for what he received, obediently raise the hand of the one who emerges victorious.6 We demean ourselves and the system of justice we serve when we permit this to occur. In Schreier v. Parker, 415 So. 2d 794, 795 (Fla. 3d DCA 1982), we gave notice that “[ajrguments in derogation of Fla.Bar Code Prof.Resp. EC 7-24, DR 7-106(C)(3), (4) will not be condoned in this court, nor should they be condoned by the trial court, even absent objection. Hillson v. Deeson, 383 So. 2d 732 (Fla. 3d DCA 1980).” [e.o.]7 We hereby make that promise good and inform the plaintiffs — as we likely would have the defendant if it had won — and those in all future such cases that we will not supinely ratify the result of a trial like the present one. The judgment below is reversed for a new and, it is to be hoped, acceptable trial.
Reversed.
. We have previously considered this case in Borden, Inc. v. Young, 418 So. 2d 1016 (Fla. 3d DCA 1982), in which the award of a new trial to the plaintiffs after a verdict for the defendant was affirmed. That trial ended in a hung jury. Thus, the instant case involves the third trial of this action. It is regrettable indeed that still a fourth one is now required.
. By the transmission of a copy of this opinion to the Florida Bar, we call its attention, pursuant to Integration Rule 11.14(9), to the likelihood that the conduct of these lawyers in the trial below of Case no. 77-28310, Dade County Circuit Court, was in violation of DR 7-106(C)(1),(3),(4),(6), Code of Professional Responsibility.
. Among other things, Poole was rightly held in contempt and fined by the trial court for repeatedly disobeying its orders concerning his conduct before the jury.
. The following is only an example:
What you decide today is going to determine on not only whether Eddie and Debbie are monetarily taken care of because, sure, that’s part of the deal. There’s no question about it. He’s right, we’re asking for money. That’s why we’re here; no doubt about that but, you known, you’re here for something else. He’s here because he wants to get his dignity back. You are going to say, Borden, you know with all your resources and all of your assets and everything that you got — you have tried to destroy this family, you have put resources behind him in cases that are slightly unreal. They have done things that you can’t possibly imagine and Eddie is supposed to be able to go in and counteract this type of resources. It's absolutely and totally impossible. They say, but don’t hold it against us. Don’t hold it against Elsie.
Well, I got to tell you something. Elsie isn’t the sweet little cow you see on the milk can. Obviously, Elsie is a great big corporation and they are there to do one thing, lay it off on somebody else to take care of this man and this lady for the rest of their lives, lay it off on anybody you can lay it off to. Well, fair — lay it off anyplace but don’t lay it off on us because we just don’t want to hear about it and that is not right and that is not prop-er_[e.s.]
. See Kendall Skating Centers, Inc. v. Martin, 448 So. 2d. 1137 (Fla. 3d DCA 1984); Russell, Inc. v. Trento, 445 So. 2d 390 (Fla. 3d DCA 1984); Schreier v. Parker, 415 So. 2d 794 (Fla. 3d DCA 1982); Seshadri v. Morales, 412 So. 2d 39 (Fla. 3d DCA 1982); Wright & Ford Millworks, Inc. v. Long 412 So. 2d 892 (Fla. 5th DCA 1982); Erie Ins. Co. v. Bushy, 394 So. 2d 228 (Fla. 5th DCA 1981); Martin v. State Farm Mutual Automobile Ins. Co., 392 So. 2d 11 (Fla. 5th DCA 1980).
. Indeed, this attitude does not elevate us even to the level of the boxing and Roman games parallels which have often been invoked (including by this opinion) on this question. Even a boxing referee may stop a bout and rule it “no contest” when both fighters commit flagrant violations of the rules; even Nero had the power to spare a defeated gladiator on whom the mob had turned thumbs down.
In Nelson, supra, the court, drawing upon yet another analogy, stated that judges should not be expected to act as “school teachers, continually correcting argument or comment unobjected to by opposing counsel." 368 So. 2d at 362. We respectfully suggest that the proper performance of our duties as judges may indeed require something more than letting the children settle their playground disputes among themselves.
. See also Eastern Steamship Lines, Inc. v. Martial, 380 So. 2d 1070 (Fla. 3d DCA 1980) (Schwartz, J., specially concurring), cert. denied, 388 So. 2d 1115 (Fla.1980); Metropolitan Dade County v. Dillon, 305 So. 2d 36 (Fla. 3d DCA 1974) (Barkdull, C.J., dissenting), cert. denied, 317 So. 2d 442 (Fla.1975).
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Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000)…concurring specially), Judge Cobb succinctly summarized the focus of the competing policy concerns regarding this subject when he stated: The basic conflict is exemplified by the clash between the opinion of Judge Schwartz in Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985), rev. denied, 488 So. 2d 832 (Fla.1986), and that of Judge Klein in Murphy, and derives from a difference in focus: the former is primarily concerned with correcting rep [*1026] rehensible attorney misconduct during closing argume…1 / 2
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Hagan v. SUN Bank OF Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996)…justness of cause, even though defendant objected to only one comment, where cumulative effect of comments was prejudicial, pervaded entire trial, and constituted fundamental error), review denied, 659 So. 2d 1089 (Fla. 1995); Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985) (reversing judgment and remanding for new trial where plaintiff’s counsel asserted personal knowledge of “nefarious activities supposedly engaged in by the corporate defendant” based on facts not in evidence where such comments we…
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Walt Disney World Co. v. Blalock, 640 So. 2d 1156 (Fla. 5th DCA 1994)…for both plaintiffs and defendants, especially in trials involving personal injuries, are arising as points on appeal with alarming and increasing frequency.” The problem was addressed by the Third District in their opinion in Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985), rev. denied, 488 So. 2d 832 (Fla.1986). We agree with that opinion that “it is no longer — if it ever was — acceptable for the judiciary to act simply as a fight promoter, who supplies an arena in which parties may fight it out o…
Previewing 3 of 62 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (17 total)
- Seaboard AIR Line R.R. Co. v. Strickland, 88 So. 2d 519 (Fla. 1956)
- Metro. Dade Cnty. v. Dillon, 305 So. 2d 36 (Fla. 3d DCA 1974)
- Maynard Nelson and Myrtle Nelson v. Reliance Ins. Co., 368 So. 2d 361 (Fla. 4th DCA 1978)
- Schreier v. Parker, 415 So. 2d 794 (Fla. 3d DCA 1982)
- Erie Ins. Co. & Margaret Borman v. Bushy, 394 So. 2d 228 (Fla. 5th DCA 1981)
- E. S.S. Lines, Inc. v. Lamy Martial, 380 So. 2d 1070 (Fla. 3d DCA 1980)
- Carlton v. Johns, 194 So. 2d 670 (Fla. 4th DCA 1967)
- Tampa Transit Lines, Inc. v. Corbin, 62 So. 2d 10 (Fla. 1952)
- Yost v. Cong. Int'l Dev. Corp., 383 So. 2d 732 (Fla. 3d DCA 1980)
- Russell, Inc. v. Trento, 445 So. 2d 390 (Fla. 3d DCA 1984)