Fravel v. Haughey

Decision Date18 February 1999
Docket NumberNo. 97-2718.,97-2718.
Citation727 So.2d 1033
PartiesWilliam K. FRAVEL, D.M.D., et al., Appellants, v. Alan HAUGHEY, et al., Appellees.
CourtFlorida District Court of Appeals

Shelley H. Leinicke of Wicker, Smith, Tutan, O'Hara, McCoy, Graham, & Ford, P.A., Ft. Lauderdale, for Appellants.

Christopher M. Larmoyeux of Montgomery & Larmoyeux, West Palm Beach, and Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for Appellees.

EN BANC

ANTOON, J.

Alan and Joan Haughey (plaintiffs) sued William K. Fravel, D.M.D., and William K. Fravel, D.M.D., P.A. (Dr. Fravel), alleging that their daughter Emily was injured as a result of Dr. Fravel's negligent orthodontic treatment. The plaintiffs claimed Dr. Fravel negligently failed to diagnose and treat a degenerative condition in Emily's jaw known as idiopathic condyle resorption, and that this negligence resulted in permanent injury to Emily. The jury returned a verdict against Dr. Fravel and a judgment was entered accordingly. This court has sua sponte elected to consider this case en banc. See Fla. R.App. P. 9.331(a). We affirm the jury's finding of liability but remand this matter for reconsideration because the record evidence does not support the jury's award of future medical expenses.

Dr. Fravel first argues that he is entitled to receive a new trial because the trial court erred in refusing to allow his attorney to cross-examine the plaintiffs' expert using an authoritative medical text. Dr. Fravel attempted to cross-examine the expert by using an article from the Journal of Clinical Orthodontics. The plaintiffs objected, arguing that Dr. Fravel had failed to establish the proper predicate since the expert indicated that he was unfamiliar with the article. Dr. Fravel asked the trial court to take judicial notice that the article was authoritative or to allow him to "lay a foundation by other testimony." The trial court incorrectly ruled that Dr. Fravel could use the article for cross-examination only if the expert was familiar with it.

The trial court has the discretion to find a writing authoritative despite an expert's failure to recognize the writing or the author. See § 90.706, Fla. Stat. (1995). In such situations, the trial court must give the party proffering the article an opportunity to establish that the writing is authoritative through the testimony of other witnesses. See Chesterton v. Fisher, 655 So.2d 170, 171 (Fla. 3d DCA 1995)

. However, in this case the substance of the article was not made known to the trial court. Neither the article nor testimony establishing the predicate of authoritativeness was proffered by Dr. Fravel. By failing to make such a proffer, Dr. Fravel waived his right to appellate review of the trial court's error. See § 90.104(1)(b), Fla. Stat. (1995).

Dr. Fravel next argues that the trial court erred in denying his motion for new trial. The motion was based on the claim that the plaintiffs' attorney had made improper comments during his closing argument including comments requesting the jury to act as the conscience of the community and accusing Dr. Fravel, his attorney, and his witnesses of committing perjury. Dr. Fravel maintained that this improper argument constituted fundamental error and thus was a valid basis for new trial. We agree that the statements made by the plaintiffs' attorney during closing argument were improper and inflammatory, but conclude that the trial court properly determined that the comments did not constitute fundamental error.

Just like with any other trial error, lawyers have a duty to object to improper comments made during closing arguments, and the failure to raise a contemporaneous objection constitutes waiver. We recognize that this court has previously held that civil judgments may be reversed on appeal based on improper argument, even in the absence of a contemporaneous objection, when the improper comments are so extensive that they deprive a party of receiving a fair trial. See e.g., Schubert v. Allstate Ins. Co., 603 So.2d 554 (Fla. 5th DCA),

rev. dismissed, 606 So.2d 1164 (Fla.1992). In doing so we have probably been more generous than other districts in determining that improper arguments can constitute fundamental error in the hope that reversals would curb bad practice. However, judging by the frequency with which this issue continues to be raised, at least in our court, these rulings have not seemed to have had the intended effect of discouraging such conduct. In fact, a case could be made that these rulings have encouraged lawyers to allow improper argument to be submitted to the jury without objection.1 Unfortunately, calculating lawyers may choose to remain silent when confronted with improper argument in hopes that, if the verdict is unfavorable to their client, relief might be available in the appellate court based upon review of the improper argument. This paradox was poignantly observed by Judge Griffin in her dissent in Walt Disney World Co. v. Blalock, 640 So.2d 1156, 1159 (Fla. 5th DCA),

rev. dismissed, 649 So.2d 232 (Fla.1994):

[A] party who does not object to counsel's comments in closing should not be allowed to complain of those comments on appeal. It is anomalous that the more objectionable the comment, the less the incentive to object.

Appellate courts should not assist in the execution of such tactics.

Equally puzzling is the fact that under current case law from this court, an attorney who fails to make a timely objection to improper argument waives the issue for purposes of appeal if he fails to timely move for mistrial; see e.g., Ed Ricke and Sons, Inc. v. Green, etc., 468 So.2d 908, 910 (Fla.1985)

; however, he may argue for the first time on appeal that the unobjected to, improper argument justifies reversal. See Blalock, 640 So.2d at 1159.

The Florida Supreme Court has defined what constitutes fundamental error in the context of final argument. In Tyus v. Apalachicola Northern Railroad Company, 130 So.2d 580, 587 (Fla.1961),2 citing to its earlier opinion in Seaboard Air Line Railroad Co. v. Strickland, 88 So.2d 519 (Fla.1956), the Florida Supreme Court ruled:

[W]e are committed to the rule that in the ordinary case, unless timely objection to counsel's prejudicial remarks is made, the appellate court will not reverse on review. This rule is subject to the exception that if the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury, a new trial should be awarded regardless of the want of objection.

(emphasis in original). It is probably fair to say that careful application of this standard will almost always result in a finding that no fundamental error occurred.

The difficulty in meeting the Tyus standard for reversal was noted in Murphy v. International Robotics Systems, Inc., 710 So.2d 587, 590 (Fla. 4th DCA),rev. granted, 722 So.2d 193 (Fla.1998). The fourth district explained that it had never granted a new trial solely on the ground of unobjected to, improper closing arguments and gave notice that it would not likely do so in the future. Id. at 587. Writing for the court, Judge Klein stated that the court had "all but close[d] the door on allowing this issue to be raised for the first time on appeal." Id. at 590.3 Adding an historical perspective on this issue, Judge Klein noted that our supreme court has not granted a new trial solely on the basis of unobjected to, improper argument since 1956 in Seaboard Air Line Railroad Co.,88 So.2d at 519, and that the second district has not done so in forty years. Murphy, 710 So.2d at 589. Interestingly, his research revealed that, other than the first, third, and fifth district courts of appeal in this state, no other court in this country allows improper argument to be raised for the first time on appeal in civil cases. Id. at 591.

Our reluctance to reverse on the ground of unobjected to, improper argument is not to be viewed as condoning the bad practice of law. Instead, our application of the principle of waiver simply requires trial counsel to fulfill the obligation to raise timely objections when rules governing argument are violated. When argument descends to the level of ethical violations, there are other ways to address the transgression than reversal of a jury verdict. See R. Regulating Fla. Bar 4-3.4(c), 4-3.4(e), and 4-3.5(a). In fact, if the argument submitted by adverse counsel violates the Rules Regulating the Florida Bar, an attorney has the obligation to report the violation to The Florida Bar. See R. Regulating Fla. Bar 4-8.3(a). Judges also have the duty to take appropriate action when they observe counsel engage in ethical violations. See Code of Jud. Conduct, Canon 3D(2). In considering this issue, we find it troubling that trial judges are reluctant to curb the abuse perpetrated by trial counsel in the area of improper comments made during closing arguments. As Judge Schwartz noted in Borden, Inc. v. Young, 479 So.2d 850, 851 (Fla. 3d DCA 1985), rev. denied, 488 So.2d 832 (Fla.1986):

[I]t is no longer—if it ever was—acceptable for the judiciary to act simply as a fight promoter, who supplies an arena in which parties may fight it out on unseemly terms of their own choosing, and then, on the ground that the loser has asked for what he received, obediently raise the hand of the one who emerges victorious.

Although Judge Schwartz was referring to Florida's appellate judges, trial judges possess the same duty to maintain order and decorum in judicial proceedings. See Fla. Code Jud. Conduct, Canon 3B(3). If the conduct of counsel violates the Rules Regulating the Florida Bar, judges have the obligation under Canon 3D(2) of the Code of Judicial Conduct to address such behavior by taking appropriate action. Although the code does not specify what the term "appropriate action" entails, at least in...

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13 cases
  • Murphy v. International Robotic Systems, Inc.
    • United States
    • Florida Supreme Court
    • August 17, 2000
    ...any other trial error, lawyers have a duty to object to improper comments made during closing arguments." Fravel v. Haughey, 727 So.2d 1033, 1034 (Fla. 5th DCA 1999) (en banc). In Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453, 457 n. 1 (3d Cir.1982), vacated on other grounds, 462 U.......
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    ...International Robotics Sys., Inc., 710 So.2d 587, 587 (Fla. 4th DCA), review granted, 722 So.2d 193 (Fla.1998). See Fravel v. Haughey, 727 So.2d 1033 (Fla. 5th DCA 1999). The majority's reasoning on this ground does not support reversal. Accordingly, I would affirm the order. 1 Although the......
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    • Florida District Court of Appeals
    • December 15, 2000
    ...and a new trial based on decisions of this court and other District Courts of Appeal decided prior to Murphy. See Fravel v. Haughey, 727 So.2d 1033 (Fla. 5th DCA 1999); Hagan v. Sun Bank of Mid-Florida, N.A., 666 So.2d 580 (Fla. 2d DCA 1996)4; see also We affirm the judgment of commitment. ......
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