Cec Entm't, Inc. v. Zaldivar

• Decision Date: 24 April 2019
• Docket Number: No. 3D17-474,3D17-474
• Citation: 274 So.3d 433
• Parties: CEC ENTERTAINMENT, INC., etc., Appellant, v. Aurora ZALDIVAR, Appellee.
• Court: Florida District Court of Appeals

274 So.3d 433

CEC ENTERTAINMENT, INC., etc., Appellant,

v.Aurora ZALDIVAR, Appellee.

No. 3D17-474

District Court of Appeal of Florida, Third District.

Opinion filed April 24, 2019

Rehearing Denied May 24, 2019

Vernis & Bowling of Miami, P.A., Eric J. Knuth and Christopher C. Horne, Miami, for appellant.

Lopez & Best and Virginia M. Best and Johanna M. Menendez, for appellee.

Before EMAS, C.J., and SALTER¹ and FERNANDEZ, JJ.

FERNANDEZ, J.

CEC Entertainment, Inc., d/b/a Chuck E. Cheese's, Inc., appeals the trial court's order granting Aurora Zaldivar's motion for new trial. Following a review of the record, we reverse the order and remand to the trial court to reinstate the jury verdict.

This case involves the alleged injury of Zaldivar and her minor child at a Chuck E. Cheese's located in Kendall, Florida. Zaldivar filed a complaint on behalf of her son, Christopher Castellanos, a minor, and herself against CEC. Zaldivar alleged that she and Castellanos were injured at CEC's restaurant when a freestanding, unsecured booth, tipped over backward while they were attempting to exit the booth where they had been sitting. Zaldivar alleged that the injuries suffered by her and Castellanos were the result of CEC's negligence. CEC answered that the booth tipped over as a result of the minor son pushing back on the booth, lifting it off the floor.

On September 6, 2016, Zaldivar filed a motion in limine seeking to preclude evidence or mention of her employment as the legal secretary of her attorney, Gabriel Sanchez, and the Sanchez Law Group, who is representing her in this case. CEC responded that Zaldivar failed to demonstrate that the evidence was not admissible under section 90.103, Florida Statutes (2016), and asserted that the evidence was relevant in assessing Zaldivar's credibility, given that she was working for Sanchez and had been a legal assistant for a personal injury firm for nearly a decade. On September 22, 2016, the trial court granted, in part, and denied, in part, Zaldivar's motion in limine stating:

Granted, that the Defendant shall make no mention, suggestion or assertion of any collusion or fraud, between Plaintiff and her attorneys, Gabriel M. Sanchez and The Sanchez Law Group. Denied in part. Defendant can mention where she works and how long she worked for counsel for the Plaintiff. Defendant is limited to only that.

On October 17, 2016, the jury trial concluded. On the question of whether CEC's negligence was a legal cause of Zaldivar and her son's injuries, the jury rendered a verdict of no cause of action and found in favor of CEC. Zaldivar filed a motion for a new trial alleging: 1) the trial court erred in allowing testimony regarding Zaldivar's place of employment and that her employer represented her in the claim; 2) the trial court erred by allowing evidence of no other previous incidents at Chuck E. Cheese with respect to a booth tipping over; 3) CEC attacked Zaldivar and Zaldivar's attorney in its closing argument, alleging that Zaldivar participated in fraud and collusion evidenced by her employment with the firm; and 4) Zaldivar's son should not have been on the verdict form as a Fabre ² defendant, as there was no evidence to support an argument that Zaldivar was comparatively negligent. The only allegation relevant to this appeal concerns the statements made by CEC's attorney during closing arguments, where the attorney called Zaldivar a "magician" and a "manipulator," and violated the Golden Rule by placing the jury in the defendant's position. However, Zaldivar failed to voice a contemporaneous objection at trial.

Zaldivar's motion for new trial was heard on January 4, 2016. The hearing focused on the comments CEC's attorney made during closing. In its defense, CEC relied on the Florida Supreme Court's four-part test in Murphy v. International Robotic Systems, 766 So.2d 1010 (Fla. 2000), to determine fundamental error, stating:

[T]urning back to Murphy and the arguments that were raised on the issue of fundamental error. It sets forth the four part tests. I want to bring up this language because it's very important. Harmfulness in this context carries a requirement that the comments be so highly prejudicial as to gravely impair a fair consideration and determination of the case by the jury. Passing remarks of little consequence in the scope of a lengthy trial should find no sympathy -- or find little sympathy if no contemporaneous objection is voiced.

At the conclusion of the hearing, the trial court found that it had properly allowed evidence regarding Zaldivar's employment but granted a new trial based on the comments CEC's attorney made at closing:

I am finding that you committed error by personally attacking this plaintiff by calling her a magician, a manipulator, as well as the opinion you elicited or presented that is not supported by the evidence. And for that reason I grant a new trial. That's my ruling.... Submit an order, please, that just indicates the motion is granted. You've got a transcript. And if it goes up to the Third, the Third will review the transcript of this hearing as well as the closing argument.

The trial judge did not address the Murphy test nor Zaldivar's failure to voice a contemporaneous objection. No findings were made as to the issues of comparative negligence, Fabre defendants, or fraud and collusion. The trial court entered an order simply granting the motion for new trial. This appeal followed.

The standard of review of an order granting a new trial is abuse of discretion. Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla. 1999). We agree with CEC that the trial court erred in ordering a new trial without considering the full four-part test set forth in Murphy. Yet, even if the trial court properly applied Murphy, the record reflects that the comments made during closing did not rise to the level of fundamental error that would require a new trial. Had Zaldivar voiced a timely objection during CEC's closing argument, the errors could have been cured.

In Murphy, the Florida Supreme Court implemented the four-part test in order to curtail the number of new trials based on "unobjected-to closing arguments." The Supreme Court emphasized this point and summarized the test as follows:

[B]efore a complaining party may receive a new trial based on unobjected-to closing argument, the party must establish that the argument being challenged was improper, harmful, incurable, and so damaged the fairness of the trial that the public's interest in our system of justice requires a new trial.... Although we have not absolutely "closed the door" on appellate review of unpreserved challenges to closing argument, we have come as close to doing so as we believe consistent with notions of due process which deserve public trust in the judicial system.

Murphy, 766 So.2d at 1031 (emphasis added).

The first step, of the four-part analysis, is to determine if the argument is improper. To aid the trial courts in this determination, the Supreme Court provided a number of principles for the courts to consider. One such principle, taken from Bertolotti v. State, 476 So.2d 130, 134 (Fla. 1985), provides, "[C]losing argument must not be used to ‘inflame the minds and passions of the jurors so that their verdict reflects an emotional response ... rather than the logical analysis of the evidence in light of the applicable law.’ " Murphy, 766 So.2d at 1028. In Murphy, during closing argument, defense counsel accused plaintiff of using the lawsuit to...