Bosch v. Hajjar, s. 92-3575
| Decision Date | 20 July 1994 |
| Docket Number | 93-1171,Nos. 92-3575,s. 92-3575 |
| Citation | 639 So.2d 1096 |
| Parties | 19 Fla. L. Weekly D1539 Oneila BOSCH and Jose Bosch, Appellants, v. Daniel G. HAJJAR, D.D.S., Appellee. |
| Court | Florida District Court of Appeals |
Frederick C. Morello of Frederick C. Morello, P.A., Daytona Beach, for appellants.
Shelley H. Leinicke of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Lane, P.A., Fort Lauderdale, for appellee.
We affirm the trial court's denial of appellants' motion for new trial, but reverse the award of attorney's fee to appellee.
While we have considered and rejected both of appellants' arguments directed to the motion for new trial, we feel it appropriate to address here only the issue upon which appellants focused at oral argument. We agree with appellants that counsel's isolated comments at closing argument, to which no objection was made, were improper. Nevertheless, the comments, under the facts of this case, did not constitute fundamental error. See State Farm Mut. Auto. Ins. Co. v. Dauksis, 596 So.2d 1169 (Fla. 4th DCA 1992), quashed on other grounds, 623 So.2d 455 (Fla.1993).
As for the attorney's fee, when the applicable rule and statute governing offers of judgment are involved, the motion for an attorney's fee must be made within a thirty day period. At the relevant time in this case, Florida Rule of Civil Procedure 1.442(h)(1) (1991) read: 1
Upon motion made within 30 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action, the court may impose sanctions equal to reasonable attorneys fees and all reasonable costs of the litigation accruing from the date the relevant offer of judgment was made.... (footnote omitted).
Similarly, section 768.79(6), Florida Statutes (1991), read: "Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal...."
Here, the motion was filed five months after the verdict and final judgment. It was untimely, and therefore should have been denied.
This was a contested premises liability lawsuit that suffers from the same malady that in recent years has, with increasing and disturbing frequency, infected the courtrooms of this state. Appellee's closing argument contains statements that reflect the personal views of counsel and are not relevant to the issues or the facts presented to the jury during the trial. In commenting on appellant's claim for damages during closing argument, appellee's trial counsel stated:
That's why all these other figures are up there and it's not fair, it's not right, and it's not just.
... And that's why we have the president and the vice-president making all the noises they're making about--now I don't like it because I'm a lawyer. They want to do away with us. This is the reason why. Too many lawsuits on matters where there are no merit.
The statements about which the appellant now complains are contrary to the ethical standards established by the Florida Bar's Rules of Professional Conduct 4-3.4:
A lawyer shall not:
....
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.
The personal views that trial counsel felt constrained to share with the jury had no place in this case. See Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993); Davies v. Owens-Illinois, Inc., 632 So.2d 1065 (Fla. 3d DCA 1994).
In addition, trial counsel invoked the often expressed views of this nation's chief executive and vice-president, as they were in November of 1992, who favored the Executive branch being the entity, rather than a jury composed of the citizens of these United States of America, to decide which, if any cases, had merit. Had the appellant's counsel voiced a timely and proper objection to his opponent's comments, this matter would have been ripe for reversal and would have been remanded, "in a New York minute," to the trial court for a new trial.
Although compelling case law exists that mandates reversal and remand for a new trial, even absent objection, the specific statements that were uttered in the case at bar do not rise to the level of being so outrageous as to warrant reversal without a proper and timely objection having been made. A proper and timely objection would have afforded the trial judge an opportunity to give a curative instruction and remove the prejudice created by appellee's trial counsel.
It may be instructive to the trial bar to understand this court's growing frustration and quickly diminishing level of tolerance with the type and quality...
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...which has "with increasing and disturbing frequency, infected the courtrooms of this state." Bosch v. Hajjar, 639 So.2d 1096, 1097 (Fla. 4th DCA 1994) (Alvarez, Assoc. J., concurring). Judge Klein expressed his exasperation that, no matter how often appellate opinions address the subject, "......
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...such fees is waived unless there is a basis for relief under Florida Rules of Civil Procedure rule 1.090(b)(2)."); Bosch v. Hajjar, 639 So.2d 1096, 1097 (Fla. 4th DCA 1994). In Gulliver Academy, the supreme court affirmed the principle that the thirty (30) day time limitation contained in s......
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Olbek v. Kraut, 94-494
...frustration and quickly diminishing level of tolerance with the type and quality of final arguments in jury cases. Bosch v. Hajjar, 639 So.2d 1096, 1097 (Fla. 4th DCA 1994) (Alvarez, A.J., concurring specially). The number of recent opinions on this issue (and reversals on this basis) is si......
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Bodek v. Gulliver Academy, Inc., 95-38
...below was untimely, we reverse the trial court's order granting Gulliver's motion for attorney's fees and costs. See Bosch v. Hajjar, 639 So.2d 1096 (Fla. 4th DCA 1994). Since the above issue is dispositive, we do not address the remaining point raised by the Reversed. ...
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Avoiding pitfalls in closing arguments.
...closings for impropriety. See, e.g., Murphy v. International Robotic Sys., 766 So. 2d 1010, 1028 (Fla. 2000); Bosch v. Hajjar, 639 So. 2d 1096, 1097-98 (Fla. 4th D.C.A. 1994) (Alvarez, J., (3) For a helpful further overview of these principles, see generally Robert S. Warren et al., Final A......