BARBARA MCCARTHY AND JOHN MCCARTHY, HUSBAND AND WIFE, APPELLANTS,
v.
DAVID ZDENEK AND DARLENE ZDENEK, D/B/A TRAIL ACE HARDWARE, APPELLEES
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In this personal injury appeal, the Florida District Court of Appeal affirmed a jury verdict for defendants, rejecting the plaintiffs' argument that cumulative trial errors regarding evidence of their litigiousness denied them a fair trial. The court found the trial was not unfair despite admission of arguably irrelevant evidence about the plaintiffs' conduct.
The court affirmed the jury verdict and found no abuse of discretion in denying the motion for a new trial. Although the evidence was irrelevant and the issue of litigiousness was not properly part of the case, the cumulative effect of the disputed evidence did not render the trial unfair or deprive the plaintiffs of a fair consideration of the merits.
[1] A motion for rehearing filed by appellants will be denied when the court has previously affirmed the judgment without opinion and the motion does not present a basis for…
[2] A trial judge does not abuse discretion by denying a motion for a new trial when the cumulative effect of irrelevant evidence did not gravely impair the jury's considerat…
Previewing 2 of 4 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“the alleged litigiousness of the appellants was certainly not an issue, and thus the foregoing evidence was entirely irrelevant to the case”
Establishes that the evidence was irrelevant as a matter of law, but the court proceeded to find no trial unfairness despite this.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBarbara McCarthy was injured in a fall. Her husband John McCarthy made a statement to David Zdenek (one of the defendants) to "better see his lawyer."…
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PER CURIAM.
Following our affirmance in this case without opinion, 502 So. 2d 428, we received a letter from the appellants which we treat as a pro se motion for rehearing. We deny the motion, but with the following brief statement of the reasons for our affirmance in this case.
The appellants, the plaintiffs in an action for personal injuries, appealed from a final judgment entered upon a jury verdict in favor of the defendants. We found no abuse of discretion by the trial judge in denying the appellants’ motion for a new trial. In that motion, and as their sole issue on appeal, the appellants argued that the cumulative effect of questioning which revealed John McCarthy’s statement made after his wife’s fall that David Zdenek had “better see his lawyer,” testimony as to the date upon which the appellants retained their attorneys, and a question put by the defense to the appellants’ treating physician “Dr. Janick, in your opinion, do you think this court hearing is a farce?” had the cumulative effect of gravely impairing a calm and dispassionate consideration of the evidence and the merits of the case by the jury. While we agree that the alleged litigiousness of the appellants was certainly not an issue, and thus the foregoing evidence was entirely irrelevant to the case, we concluded after reviewing the record that the issue of litigiousness was not, as the appellants argued, a feature of the case.
Therefore, we did not believe that the trial was unfair to the appellants and that the appellants were entitled to a new trial on that basis.
In sum, this case does not come within the proscription against the issue of litigiousness as expressed, for example, in Zabner v. Howard Johnson’s, Inc., 227 So. 2d 543 (Fla. 4th DCA 1969).
DANAHY, C.J., and SCHEB and SCHOONOVER, JJ., concur.
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Citator
Cited By
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Colvin v. Williams, 564 So. 2d 1249 (Fla. 4th DCA 1990)…why it is given, and its medical significance. The witness responded that permanent impairment ratings have no medical significance, but were used for litigation purposes. Such testimony never became the feature of the trial. See McCarthy v. Zdenek, 508 So. 2d 408 (Fla. 2d DCA 1987). The case relied upon by the majority, Zabner v. Howard Johnson’s Inc. of Florida, 227 So. 2d 543 (Fla. 4th DCA 1969), concerned prior litigation for unrelated injuries and commercial claims, but recognized that: a plaintiff m…
Authorities Cited
- Zabner v. Howard Johnson's Inc. of Fla., 227 So. 2d 543 (Fla. 4th DCA 1969)