CITY OF TAMPA, APPELLANT,
v.
RAMIRO COMPANIONI, JR., APPELLEE
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The City of Tampa appeals a judgment for the plaintiff Ramiro Companioni, Jr., challenging the trial court's denial of its motion for a new trial based on opposing counsel's misconduct. The appellate court reverses, holding that the trial court applied the wrong legal standard when evaluating whether counsel's conduct warranted a new trial.
A motion for mistrial is not a prerequisite to moving for a new trial, and when counsel's misconduct has been objected to at trial and deprives a party of a fair trial, the trial court may grant a new trial without considering the fundamental error standard. The trial court applies the correct standard by determining simply whether the misconduct deprived the party of a fair trial.
[1] A motion for a mistrial is not a prerequisite to moving for a new trial based on attorney misconduct.
[2] A trial court may grant a new trial when attorney misconduct deprives a party of a fair trial, even if no motion for a mistrial was made during trial and the error was no…
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Join FLexlaw to unlock all legal intelligence“a motion for mistrial is not a prerequisite to moving for a new trial”
Establishes the core holding that distinguishes between the prerequisites for preserving issues on appeal versus the requirements for moving for a new trial.
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Join FLexlaw to unlock all legal intelligenceRamiro Companioni, Jr. was injured when his motorcycle struck the rear of a truck owned by the City of Tampa. At trial, opposing counsel engaged in pe…
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The City of Tampa appeals a final judgment entered in favor of Rammo Compa-nioni, Jr., in an action for injuries he sustained when his motorcycle struck the rear of a truck owned by the City. The City challenges the trial court’s denial of its motion for a new trial and its motion for remittitur. The motion for new tidal asserted in part that opposing counsel had engaged in misconduct throughout the trial, the cumulative effect of which was to deprive the City of a fair trial. Although the trial court found that “the cumulative conduct of Plaintiffs counsel was so pervasive and prejudicial that the City of Tampa’s right to a fair trial was impaired,” it denied the City’s motion, reasoning that the City had not moved for a mistrial and the misconduct was not so extreme that “it would undermine the public’s confidence in the judicial system.” This was the wrong standai'd under which to evaluate the City’s motion.
*599The standard articulated by the trial court applies when a party raises an error for the first time in a motion for a new trial, thus requiring the trial court to determine whether the error was fundamental. See, e.g., Hasegawa v. Anderson, 742 So.2d 504, 506 (Fla. 2d DCA 1999). Here, the trial court did not need to consider the issue of fundamental error because throughout the trial the City objected to opposing counsel’s conduct. The trial court apparently concluded that the City’s objections were not preserved for the purposes of its motion for a new trial because the City had not moved for a mistrial after the trial court sustained its objections. Although a party whose objection is sustained must move for a mistrial in order to preserve the issue for appellate review, a motion for mistrial is not a prerequisite to moving for a new trial. Robinson v. State, 989 So.2d 747, 750 (Fla. 2d DCA 2008) (stating that the absence of a motion for mistrial did not preclude the trial court from addressing an issue raised in a motion for a new trial); Nigro v. Brady, 781 So.2d 54, 56 (Fla. 4th DCA 1999) (“[T]he preservation rule which applies to raising issues on appeal does not apply to motions for new trial.”). As explained in Nigro, a trial court generally has broad discretion to set aside a jury verdict and grant a new trial. Id. When counsel’s misconduct deprives a party of a fair trial and that conduct has been objected to, the trial court may order a new trial even though there was no motion for a mistrial and the error was not fundamental. Id. at 55 (“The trial judge ... had the discretion to grant a new trial, even though there was no motion for mistrial during trial and this was not fundamental error.”).
Here, the trial court erroneously concluded that the City had not preserved its objections to opposing counsel’s misconduct. Consequently, it applied the wrong standard when it evaluated the City’s motion for a new trial. Under the correct standard, the trial court would not need to consider whether counsel’s conduct was so egregious that failure to grant a new trial would undermine the public’s confidence in the justice system. Rather, it only needed to consider whether opposing counsel’s misconduct deprived the City of a fair trial. Having found that it did, the trial court should have granted the City’s motion. Accordingly, we reverse and remand for a new trial.
Reversed and remanded.
DAVIS and SILBERMAN,1 JJ., Concur.
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Companioni v. City OF Tampa, 51 So. 3d 452 (Fla. 2010)…POLSTON, J. This case is before the Court for review of the decision of the Second District Court of Appeal in City of Tampa v. Companioni, 26 So. 3d 598 (Fla. 2d DCA 2009), which is in express and direct conflict with the decisions of the Third District Court of Appeal in State v. Benton, 662 So. 2d 1364 (Fla. 3d DCA 1995), and Sears Roebuck & Co. v. Jackson, 433 So. 2d 1319 (Fla. 3d DCA 1983), and…
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Sullivan v. Mark David Kanarek, M.D., & Nadal Pediatrics, P.A., 79 So. 3d 900 (Fla. 2d DCA 2012)…Healthcorp Ltd. Partnership v. Cascio, 725 So. 2d 1190, 1193-94 (Fla. 2d DCA 1998). In reaching the ground for reversal in Sullivan, we treated the issue as properly [*903] preserved, relying on this court’s decision in City of Tampa v. Companioni, 26 So. 3d 598, 599 (Fla. 2d DCA 2009), which has since been quashed by the supreme court. See Companioni, 51 So. 3d 452. In its Companioni decision, the supreme court held that “when a party objects to instances of attorney misconduct during trial, and the object…
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Sullivan v. Mark David Kanarek, M.D., & Nadal Pediatrics, P.A., 34 So. 3d 808 (Fla. 2d DCA 2010)…as objected to errors at trial, it is not necessary for that party to move for a mistrial during the course of the trial in order to preserve the issue for purposes of a motion for new trial filed in the trial court. See City of Tampa v. Companioni, 26 So. 3d 598, 599 (Fla. 2d DCA 2009), review granted, 23 So. 3d 711 (Fla.2010); Robinson v. State, 989 So. 2d 747, 750 (Fla. 2d DCA 2008); Nigro v. Brady, 731 So. 2d 54, 56 (Fla. 4th DCA 1999).…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nigro v. Brady, 731 So. 2d 54 (Fla. 4th DCA 1999)
- Hasegawa v. Anderson, 742 So. 2d 504 (Fla. 2d DCA 1999)
- Robinson v. State, 989 So. 2d 747 (Fla. 2d DCA 2008)
- Copeland v. Patrick A. Baratta, LLC, 989 So. 2d 747 (Fla. 4th DCA 2008)