MARTIN SAXON AND BARBARA SAXON, APPELLANTS,
v.
ROBERT CHACON, APPELLEE
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Martin and Barbara Saxon appealed a new trial order granted to plaintiff Robert Chacon in a negligence case arising from a traffic accident. The trial court granted a new trial based on erroneous admission of evidence regarding the plaintiff's homosexuality and AIDS, but the appellate court reversed because the plaintiff's counsel had expressly refused to move for a mistrial when the trial court invited him to do so.
The appellate court reversed the new trial order. Although the trial court's admission of the evidence was erroneous, the plaintiff's counsel's express refusal to move for a mistrial when the trial court offered to grant one precluded recovery based on that error. Counsel cannot gamble on a jury verdict and then seek a new trial belatedly based on evidentiary error after losing.
[1] A party who refuses to move for a mistrial when offered the opportunity by the trial court cannot later seek a new trial based on the same grounds.
[2] Evidence of a party's homosexuality is generally inadmissible in a negligence action arising from a traffic accident.
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The trial court's express invitation to plaintiff's counsel to move for a mistrial, demonstrating the court's willingness to grant such relief.
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PER CURIAM.
This is an appeal by the defendants Martin and Barbara Saxon from a new trial order entered below in favor of the plaintiff Robert Chacon after the jury returned a defense verdict in a negligence action arising from a traffic accident. The basis for the new trial order was the trial court’s conclusion that it had erroneously admitted at trial certain evidence, over objection, tending to establish (a) the plaintiff’s homosexuality, and (b) the AIDS medical epidemic in the country.
We would ordinarily affirm the trial court's new trial order based on this evidentiary error, see Roby v. Kingsley, 492 So. 2d 789, 792 (Fla. 1st DCA 1986), except for the fact that counsel for plaintiff expressly refused to move for a mistrial based on said error after the trial court invited him to do so, indicating that it was favorably inclined to granting such a motion. The trial court expressed its misgivings toward the end of the trial concerning its admission of the above evidence and told plaintiff’s counsel, “If you want a mistrial, I’ll consider granting one”; plaintiff’s counsel replied, “No sir. I am not moving for a mistrial at this time.” Obviously, counsel for plaintiff wanted to take his chances with the jury on the state of the evidence adduced below; having gambled and lost when the jury returned an adverse verdict, he cannot now be heard to ask belatedly for a new trial based on the erroneous admission of the above evidence. Sears Roebuck & Co. v. Jackson, 433 So. 2d 1319 (Fla. 3d DCA 1983); Nadler v. Home Ins. Co., 339 So. 2d 280 (Fla. 3d DCA 1976).
The new trial order under review is reversed and the cause is remanded to the trial court with directions to enter judgment for the defendants based on the jury verdict returned below.
REVERSED AND REMANDED.
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Hernandez v. Gonzalez, 124 So. 3d 988 (Fla. 4th DCA 2013)…es claims to the jury in toto. That this strategy failed neither requires nor permits this court to grant a new trial. See, e.g., E.I. Du Pont De Nemours & Co. v. Native Hammock Nursery, Inc., 698 So. 2d 267, 273 (Fla. 3d DCA 1997); Saxon v. Chacon, 539 So. 2d 11, 12 (Fla. 3d DCA 1989); Diaz v. Rodriguez, 384 So. 2d 906 (Fla. 3d DCA 1980). As stated in Saxon: Obviously, counsel for plaintiff [who had refused to move for a mistrial] wanted to take his chances with the jury on the state of the evidence adduce…
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MCI Express, Inc. v. Ford Motor Co. & Ford Motor Credit Co., 832 So. 2d 795 (Fla. 3d DCA 2002)…a request that the court reserve ruling, MCI merely stated that if the court were inclined to grant the mistrial and would not agree to reserve ruling then it would not move for a mistrial. Ford analogizes this situation to that in Saxon v. Chacon, 539 So. 2d 11 (Fla. 3d DCA 1989), claiming that MCI wanted to take its chances with the jury and could [*799] not thereafter move for a mistrial. In Saxon, however, the trial court expressly asked plaintiffs counsel if he wanted to move for a mistrial, indicating…
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Kmart Corp. & O'Gorman Long, Inc. v. Hayes, 707 So. 2d 957 (Fla. 3d DCA 1998)…man & Wakefield v. Comreal Miami, Inc., 683 So. 2d 208 (Fla. 3d DCA 1996). Granting a new trial under circumstances where a party did not properly preserve the issue is an abuse of discretion. See Jackson, 433 So. 2d at 1322; Saxon v. [*958] Chacon, 539 So. 2d 11, 12 (Fla. 3d DCA 1989). In our view, Hayes failed to preserve for review the issue of the defendants’ alleged use of false testimony. Hayes’s counsel did not raise a timely objection or an appropriate in-trial motion when confronted with Neg-ron’s c…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sears Roebuck & Co. v. Arlee Jackson and Mugge Rivers, 433 So. 2d 1319 (Fla. 3d DCA 1983)
- Nadler v. Home Ins. Co., 339 So. 2d 280 (Fla. 3d DCA 1976)
- Roby v. Kingsley, 492 So. 2d 789 (Fla. 1st DCA 1986)