RENE LOYOLA, M.D., APPELLANT/CROSS-APPELLEE,
v.
METISSIA RICKS, W. EDWARD WENGLER, M.D., TREASURE COAST SURGICAL GROUP, P.A., AND HCA HEALTH SERVICES OF FLORIDA, INC., D/B/A COLUMBIA MEDICAL CENTER OF PORT ST. LUCIE, APPELLEES/CROSS-APPELLANTS

Fla. 4th DCA | 2000-12-20
No. 4D00-221
GUNTHER, POLEN and STEVENSON, JJ„ concur.
777 So. 2d 423 Florida District Court of Appeal, Fourth District (2000) Negative Treatment
Cited by 7 cases

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Holding

The trial court abused its discretion by reserving ruling on a motion for mistrial and subsequently granting a new trial based on a defense attorney's opening statement comment that did not violate the statute prohibiting mention of prior settlements or dismissals.


Headnotes

[1] A trial court has discretion to reserve ruling on a motion for a mistrial, but this discretion must be exercised in accordance with precepts of judicial economy.

[2] Reserving ruling on a motion for mistrial when the trial is already underway and involves numerous witnesses may not serve the interests of judicial economy.

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Facts & Procedural History

Plaintiff sued doctors and a hospital for nerve damage, settling with some defendants before trial. During opening statements, the defense attorney al…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The Appellant/Cross-Appellee, Dr. Rene Loyola (“Loyola”), appeals and the Appel-lee/Cross-Appellant, Metissia Ricks (“Plaintiff’), cross appeals an order granting the Plaintiffs motion for new trial. We affirm the cross-appeal, but we write to discuss two issues on appeal that'require reversal.

The Plaintiff sued various doctors and the hospital after developing compartment syndrome, which resulted in nerve damage after a shunt was placed in her forearm for dialysis purposes. Before trial, the Plaintiff settled with Dr. Wengler and the hospital. They were dismissed from the suit, and the case proceeded to trial against Loyola.

During opening statements, Loyola’s attorney commented to the jury as follows:

Now, as Mr. Vieth pointed out, Dr. Loyola is not the only health care provider that you will be hearing about. That is, I gather you’ve gleaned, from what I’ve said up to this point, there’s going to be testimony that the nurses should have done things differently, that Dr. Wen-gler should have done things differently, before it ever reached the point of ... of being contracted with permanent nerve damage. It just never should have happened.

It will not be something that you need to consider as to why they aren’t in this courtroom, although'you might want to ask yourself that question. I assure you, though, that this Miss Ricks and her attorney aren’t going to tell you why they aren’t here.

(emphasis added.) In response to the underlined portion of the defense’s opening statement, the Plaintiff moved for a mistrial, but asked the trial court to reserve ruling on the motion. The trial court agreed to reserve ruling, and the case proceeded for five more days at which time the jury reached a verdict in favor of Loyola. The Plaintiff moved for a new trial based, in part, on the defense’s comment to the jury during opening state ments regarding prior settlements. The trial court granted the motion based solely on that ground.

On appeal, Loyola argues the trial court abused its discretion by reserving ruling on the motion for mistrial, because the notions of judicial economy required an immediate ruling. In addition, Loyola contends that the trial court abused its discretion in granting a new trial, because there was no mention of a settlement, pri-or defendants, or a prior lawsuit. We agree.

A trial court has discretion to reserve ruling on motions for a mistrial. See Ed Ricke & Sons, Inc. v. Green, 468 So. 2d 908, 910 (Fla.1985). “However, this discretion must be exercised in accordance with precepts of judicial economy.... The power of a trial court judge to reserve ruling on a motion for a mistrial will nots only conserve judicial resources but may also operate to prohibit a wrongdoer from profiting from his intentional misconduct.” Id.

In the present case, the trial was scheduled to take five days. The trial actually took six days, in which approximately fifteen witnesses were presented. The motion for mistrial was made the very first day of trial prior to any witnesses testifying. We conclude that the interests of judicial economy were not served by a reservation of ruling based on these circumstances. As such, we hold the trial court abused its discretion by reserving ruling on the Plaintiffs motion for mistrial and subsequently granting the motion for new trial.

With regard to the order granting a new trial, a trial court has broad discretion in determining a motion for new trial. Frei v. Alger, 655 So. 2d 1215, 1216 (Fla. 4th DCA 1995). However, “a stronger showing of abuse of discretion is required to overturn an order granting a new trial than is required to overturn an order denying a new trial.” Id.

Section 768.041(3), Florida Statutes, provides that releases, covenants not to sue, and dismissals of defendants by order of the court “shall not be made known to the jury.” § 768.041(3), Fla.Stat. (2000). In the present case, the defense counsel’s comment during opening statements did not reference any of the prohibited categories. No reference was made to a prior lawsuit, prior defendants, or a settlement. In addition, the jury was unaware that Dr. Wengler and the hospital were originally in the lawsuit, and therefore, they would not have necessarily thought the comment referenced a settlement. Moreover, even if the comment was error, we would find it to be harmless. The comment was isolated and never mentioned again by the defense. See generally Melara v. Cicione, 712 So. 2d 429, 431 (Fla. 3d DCA 1998); Sayad v. Alley, 508 So. 2d 485, 486 (Fla. 3d DCA 1987).

Although a stronger showing of abuse of discretion is required to overturn the grant of a new trial, we conclude that such a showing has been made here. Accordingly, we reverse and remand for the trial court to reinstate the jury’s verdict and enter judgment in favor of Loyola.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

GUNTHER, POLEN and STEVENSON, JJ„ concur.


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Citator

Cited By

  • Millar Elevator Serv. Co. v. McGOWAN, 819 So. 2d 145 (Fla. 2d DCA 2002)
    …n for mistrial was made after the jury returned an unfavorable verdict. The Third District held that “BIV was not entitled to wait to see how the trial came out and then, upon being unsuccessful, move for a mistrial.” Id. at 352. In Loyola v. Ricks, 777 So. 2d 423 (Fla. 4th DCA 2000), the trial court reserved ruling on a motion for mistrial made on the first day of trial before any testimony was presented. The trial court granted the motion for mistrial after the six-day trial was completed. The Fourth Distri…
  • Janice L. Vucinich, M.D. v. Ross, 893 So. 2d 690 (Fla. 5th DCA 2005)
    …why they aren’t in this courtroom, although you might want to ask yourself that question. I assure you, though, that this Miss Ricks and her attorney aren’t going to tell you why they aren’t here. Ricks, 822 So. 2d at 504 (quoting Loyola v. Ricks, 777 So. 2d 423, 424 (Fla. 4th DCA 2000) (emphasis in Ricks) ). The court disagreed with the district court that the “empty chair” comment was an insufficient basis on which to order a new trial. The supreme court stated: [*693] Even though it was Loyola’s defense…
  • Price v. State, 838 So. 2d 587 (Fla. 3d DCA 2003)
    …the maximum term of years for life felonies committed after October 1, 1983, was forty (40) years. The trial court denied the motion, and Price appealed. This court affirmed in part, reversed in part, and remanded for resentencing. Price v. State, 777 So. 2d 423, 423 (Fla. 3d DCA 2001). Specifically, we found that: the defendant’s sentences for kidnaping under counts five, seven, nine, eleven, and thirteen were incorrectly classified as first degree felonies. Kidnaping with a weapon is classified as a life…

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