LAUREN FRANK ANDERSON, MISENER MARINE CONSTRUCTION COMPANY AND INTERNATIONAL INSURANCE COMPANY, APPELLANTS,
v.
DONALD E. WATSON, APPELLEE
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In this personal injury case arising from an automobile accident, the Florida District Court of Appeal reversed the trial court's grant of a new trial. The trial court had granted a new trial based on cumulative improper comments by defendants' counsel regarding the plaintiff's DUI conviction, a Mary Carter agreement, and witness credibility, but the appellate court found these comments did not meet the threshold for reversible error.
The appellate court held that the comments of defense counsel did not meet the stringent requirements for reversible error when no objection was made at trial. Comments must be either so fundamental as to deprive a party of a fair trial or so extensive in cumulative effect as to pervade the trial and gravely impair jury consideration, neither of which was established here.
[1] A new trial may be granted based on improper comments by counsel only if the comments were so fundamental as to deprive a party of a fair trial or their cumulative effect…
[2] Failure to object to comments made by opposing counsel during trial is considered an intentional trial tactic, and mistakes arising from such tactics will not typically b…
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Join FLexlaw to unlock all legal intelligence“the cumulative effect of some improper comments of defendants' counsel during trial and in final argument concerning the plaintiff's earlier DUI conviction, the so-called "MARY CARTER" agreement, and their personal opinions as to the creditability of witnesses, combined with judicial error of the court to preclude a fair trial for the plaintiff.”
States the trial court's basis for granting a new trial
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Join FLexlaw to unlock all legal intelligenceThis personal injury case arose out of an automobile accident. The trial lasted five days and resulted in a jury verdict. Defendants' counsel made var…
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PER CURIAM.
We reverse the trial court’s order granting a new trial in this personal injury case which arose out of an automobile accident.
The trial court’s basis for granting a new trial was that “the cumulative effect of some improper comments of defendants’ counsel during trial and in final argument concerning the plaintiff’s earlier DUI conviction, the so-called “MARY CARTER” agreement, and their personal opinions as •to the creditability of witnesses, combined with judicial error of the court to preclude a fair trial for the plaintiff.” It is clear, especially from the lack of reference in the order to any particular error of the trial court at trial and from the arguments on appeal, that the trial court’s central concern was with the comments of defendants’ counsel.
Because there was no objection by plaintiff’s counsel to any of the comments, errors in permitting the comments to stand must have met one of twcj requirements in order to justify a new trial. They must have been so fundamental as to have deprived the plaintiff of a fair trial or their collective import must have been so extensive as to pervade the trial and gravely impair a calm and dispassionate consideration of the evidence and the merits by the jury. Gregory v. Seaboard System R.R., Inc., 484 So. 2d 35, 38 (Fla. 2d DCA 1986); Wasden v. Seaboard Coast Line R.R., 474 So. 2d 825, 829 (Fla. 2d DCA 1985).
After careful consideration in light of the principles expressed in Gregory and Was-den, we conclude that the comments of defense counsel with which the trial court in this case was concerned met neither of those requirements. No useful purpose would be served by our embarking here upon a lengthy factual and legal analysis of the comments in the context of the entire five day trial, as the briefs of the parties have done. Any such analysis would do little more than return again and again to the controlling principles which have already been well-expressed in Gregory and Wasden. The following remarks of Judge Letts in Nelson v. Reliance Insurance Co., 368 So. 2d 361, 362 (Fla. 4th DCA 1978), as quoted in Wasden, 474 So. 2d at 832, are pertinent:
We view, with some skepticism, appellant’s ... cries that comment by opposing counsel below deprived him of a fair and impartial trial, when not so much as an objection was deemed necessary upon the occasion of the supposedly fatal utterances. We must assume that silence from experienced counsel is a judgment play predicated on his or her concept of how the trial is going. As such the failure to object constitutes intentional trial tactics, mistakes of which are not to be corrected on appeal simply because they backfire, save in the most rare of circumstances....
Reversed and remanded for proceedings consistent herewith.
SCHEB, A.C.J., and LEHAN and PARKER, JJ., concur.
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Hagan v. SUN Bank OF Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996)…versing order granting new trial on basis of counsel’s comments during closing argument and noting that trial court’s order did not find verdict was against manifest weight of evidence), review denied, 492 So. 2d 1334 (Fla.1986); Anderson v. Watson, 559 So. 2d 654 (Fla. 2d DCA 1990). Upon further consideration, it appears more accurate to state that the two exceptions described in Wasden are one exception that requires a two-step analysis of the factors derived from Tyus and Akin. First, the trial court must…1 / 2
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Manhardt v. Shameem Tamton, M.D., Susan W. Short Pediatrics, P.A., 832 So. 2d 129 (Fla. 2d DCA 2002)…processes of a fair consideration and determination of the cause by the jury.’ ” Murphy v. Murphy, 622 So. 2d 99, 102 (Fla. 2d DCA 1993) (quoting Seaboard Air Line R.R. Co. v. Strickland, 88 So. 2d 519, 523 (Fla.1956)); see also Anderson v. Watson, 559 So. 2d 654 (Fla. 2d DCA 1990). Therefore, based on the foregoing, we conclude the trial court abused its discretion in failing to grant Ms. Manhardt a new trial. The totality of all errors and improprieties, including those not discussed herein, was pervasive…
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Cordoba v. Derick and Dianna Rodriguez, 939 So. 2d 319 (Fla. 4th DCA 2006)…error which deprives a party of a fair trial or an error which objection or a curative instruction could not correct; such error gravely impairs the dispassionate and calm consideration of the evidence and merits by the jury. See Anderson v. Watson, 559 So. 2d 654 (Fla. 2d DCA 1990). Whether an error is fundamental is reviewed on appeal as a question of law. See Goutis v. Express Transp., Inc., 699 So. 2d 757, 759 (Fla. 4th DCA 1997), rev. dismissed, 705 So. 2d 901 (Fla.1998), disapproved on other grounds, Mu…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- B.G. Wasden v. Seaboard Coast Line R.R. Co., 474 So. 2d 825 (Fla. 2d DCA 1985)
- Maynard Nelson and Myrtle Nelson v. Reliance Ins. Co., 368 So. 2d 361 (Fla. 4th DCA 1978)
- Gregory v. Seaboard Sys. R.R., Inc., 484 So. 2d 35 (Fla. 2d DCA 1986)