JOHN W. ROHRBACK, APPELLANT,
v.
MAXWELL DAUER, ET AL., APPELLEES
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In this civil appeal, Rohrback challenged the trial court's denial of his motion for new trial based on alleged improprieties in opposing counsel's final argument, as well as other evidentiary and instructional errors. The appellate court largely affirmed the trial court's judgment but reversed on the issue of prejudgment interest on quantum meruit recovery.
The trial court did not abuse its discretion in denying the motion for new trial because the opposing counsel's remarks, while potentially improper, were not egregious enough to interfere with essential justice. The jury instruction issue was not preserved for appeal, and the contention that consideration was required was without merit. The restriction on cross-examination was properly upheld. However, the trial court erred by refusing to award prejudgment interest on the quantum meruit recovery.
[1] Improper closing argument remarks do not require a new trial if they are not so egregious as to interfere with the essential justice of the result.
[2] A trial court's ruling on motions for mistrial, reserved pending a verdict and a motion for new trial, is reviewed for abuse of discretion.
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Join FLexlaw to unlock all legal intelligence“even improper argument will not require a new trial if the remarks are not so egregious as to interfere with the essential justice of the result”
Establishes the standard for evaluating improper final argument and whether it warrants a new trial.
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Join FLexlaw to unlock all legal intelligenceRohrback sought recovery on a quantum meruit claim against the Dauers. During trial, opposing counsel made statements during final argument that Rohrb…
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PER CURIAM.
The appellant Rohrback’s primary point on appeal concerns various improprieties in the opposing lawyer’s final argument to the jury. At the time the statements were made, Rohrback’s counsel made successive motions for mistrial. Although the trial court indicated that it would or might grant the motions at that time, it was prevailed upon by the appellant to await the verdict and reserve ruling on the motions pending a possible motion for new trial. See Ed Ricke and Sons, Inc. v. Green, 468 So. 2d 908 (Fla.1985). After the jury returned a mixed verdict, which Rohr-back considered unfavorable, the trial court then denied the motion. We have carefully considered the contents of the final argument in the light of the evidence and verdict, see Clark v. Yellow Cab Co., 195 So. 2d 39 (Fla. 3d DCA 1967), and find no abuse of discretion in this ruling. In so doing, we follow those cases which hold that even improper argument will not require a new trial if the remarks are not so egregious as to interfere with the essential justice of the result. See Brumage v. Plummer, 502 So. 2d 966 (Fla. 3d DCA 1987), pet. for review denied, 513 So. 2d 1062 (Fla.1987); Metropolitan Dade County v. Dillon, 305 So. 2d 36 (Fla. 3d DCA 1974), cert. denied, 317 So. 2d 442 (Fla. 1975). Compare, e.g., Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985), pet. for review denied, 488 So. 2d 832 (Fla.1986).
We turn briefly to Rohrback’s other points. With respect to the jury instructions concerning the effect of an assignment he allegedly made of the property interest in question here, we find that the issue was not properly preserved, Gonzalez v. Leon, 511 So. 2d 606 (Fla. 3d DCA 1987), pet. for review denied, 523 So. 2d 577 (Fla. 1988), and that the contention that consideration was required is without substantive merit. See Chase Fed. Sav. and Loan Ass’n v. Schreiber, 479 So. 2d 90 (Fla.1985) (deed needs no consideration), cert. denied, 476 U.S. 1160, 106 S.Ct. 2282, 90 L.Ed.2d 723 (1986).
The claim that Rohrback was improperly restricted from an attempt to cross-examine an important witness for the appellees on the ground of his generalized alcohol and drug addiction is similarly in correct. See Edwards v. State, 530 So. 2d 936 (Fla. 4th DCA 1988).1
There is error, however, in the trial judge’s refusal to award prejudgment interest on the plaintiffs quantum meruit recovery. See Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985); Jockey Club, Inc. v. Bleemer, Levine & Assocs. Architects and Designers, Inc., 413 So. 2d 433 (Fla. 3d DCA 1982). Accordingly, after remand, the trial court is directed to add to the judgment in Rohr-back’s favor a sum for prejudgment interest from the date the payment for his services was due.
Affirmed in part, reversed in part.2
. The appellant's other substantive positions have been mooted by these determinations.
. The appellees’ single point on cross-appeal is not well taken. See Gulf Heating and Refrigeration Co. v. Iowa Mut. Ins. Co., 193 So. 2d 4 (Fla.1966).
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United Auto. Ins. Co. v. Palm Chiropractic Ctr., Inc., 51 So. 3d 506 (Fla. 4th DCA 2010)…rd to the claim for which payment was tendered. See Eder v. Yvette B. Gervey Interiors, Inc., 407 So. 2d 312 (Fla. 4th DCA 1981); Ennia Gen. Ins. Co., Ltd. v. Auld, 506 So. 2d 62 (Fla. 4th DCA 1987); see also Mortell v. Keith, Mack, Lewis & Allison, 528 So. 2d 1362 (Fla. 3d DCA 1988). At the time the check was tendered in this case, there were sessions for which United Auto was not offering to pay. The check and the cover letter clearly indicated the insurer’s position that no further payments would be made. T…
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ST. Mary's Hosp., Inc. v. Schocoff, 725 So. 2d 454 (Fla. 4th DCA 1999)…summary judgment for the insurer, citing as authority Ennia Gen. Ins. Co., Ltd. v. Auld, 506 So. 2d 62 (Fla. 4th DCA [*456] 1987); Eder v. Yvette B. Gervey Interiors, Inc., 407 So. 2d 312 (Fla. 4th DCA 1981); Mortell v. Keith, Mack, Lewis & Allison, 528 So. 2d 1362 (Fla. 3d DCA 1988); Yelen v. Cindy’s, Inc., 386 So. 2d 1234 (Fla. 3d DCA 1980); and Pino v. Lopez, 361 So. 2d 192 (Fla. 3d DCA 1978). We disagree. The facts in this case are distinguishable in a very significant particular from each of the cases on…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- Argonaut Ins. Co. v. MAY Plumbing Co., 474 So. 2d 212 (Fla. 1985)
- Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985)
- ED Ricke & Sons, Inc. v. Green, 468 So. 2d 908 (Fla. 1985)
- Metro. Dade Cnty. v. Dillon, 305 So. 2d 36 (Fla. 3d DCA 1974)
- Chase Fed. Sav. & Loan Ass'n v. Schreiber, 479 So. 2d 90 (Fla. 1985)
- Gulf Heating & Refrigeration Co., Inc. v. Iowa Mut. Ins. Co., 193 So. 2d 4 (Fla. 1966)
- Gonzalez v. Leon, 511 So. 2d 606 (Fla. 3d DCA 1987)
- Jockey Club, Inc. v. Bleemer, 413 So. 2d 433 (Fla. 3d DCA 1982)
- Grimes v. Louisville & Nashville R.R. Co., 476 U.S. 1160 (U.S. 1986)
- Clark v. Yellow CAB Co. OF Miami, 195 So. 2d 39 (Fla. 3d DCA 1967)