Goutis v. Express Transport, Inc., Div. of F.V. Miranda, Inc.

• Decision Date: 03 September 1997
• Docket Number: No. 95-1927,95-1927
• Citation: 699 So.2d 757
• Parties: 22 Fla. L. Weekly D2081 Ouriana GOUTIS, Individually and as Personal Representative of the Estate of Andreas Goutis, Deceased, and Vassiliki Goutis, Appellants, v. EXPRESS TRANSPORT, INC., a DIVISION OF F.V. MIRANDA, INC., and Pablo Luis Lewis, Appellees.
• Court: Florida District Court of Appeals

Page 757

699 So.2d 757

22 Fla. L. Weekly D2081

Ouriana GOUTIS, Individually and as Personal Representative of the Estate of Andreas Goutis, Deceased, and Vassiliki Goutis, Appellants, v. EXPRESS TRANSPORT, INC., a DIVISION OF F.V. MIRANDA, INC., and Pablo Luis Lewis, Appellees.

No. 95-1927.

District Court of Appeal of Florida,

Fourth District.

Sept. 3, 1997.

Rehearing and Rehearing

En Banc Denied Oct. 17, 1997.

Donald T. Norton and Daniel D. Dykema of Cohen and Cohen, P.A., Hollywood, and Elliot H. Scherker and Alison Marie Igoe of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, for appellants.

Frank R. Gramling of Fertig & Gramling, Fort Lauderdale, for appellees.

WARNER, Judge.

The appellants/plaintiffs below obtained a jury verdict of nearly 1.8 million dollars (less reduction for comparative negligence) in a wrongful death case. The appellees moved for a new trial which the court granted, determining that prejudicial comments in jury selection, opening statement, and closing argument necessitated a new trial. We reverse, holding that the statements complained of were either not objected to or were not error.

This case arises from the death of Andreas Goutis in a fatal accident on I-95 in Broward County. On the date of his death, Goutis was driving his truck north on I-95 when he hit a tractor-trailer owned by Express Transport that was parked in the middle lane of the highway. There were multiple disputes as to the cause of the accident. The plaintiffs presented testimony of eyewitnesses that the truck did not have its hazard flashers on or warning triangles on the road when the accident occurred. The plaintiffs further contended that there were defective conditions in the brake line on the truck caused by improper maintenance, whereas the appellees claimed that the brake line separated because of a sharp object piercing the brake line which prevented the driver from moving the truck off of the highway. The appellees also presented testimony that the driver had utilized his hazard flashers. The trial court granted a new trial based on a number of allegedly improper comments made by the plaintiffs' counsel, determining that the errors in each segment individually required a new trial. The standard for reviewing an order granting a new trial is one of abuse of discretion, unless the ruling is grounded on a question of law, in which case the discretion in granting a new trial is drastically reduced. State Farm Mut. Auto. Ins. Co. v. Gage, 611 So.2d 39, 40 (Fla. 4th DCA 1992). In dealing with the grant of a new trial based on improper comment in closing argument, the second district has succinctly established the rule regarding the distinction between preserved error and unpreserved error:

As a general rule, a court's decision to grant a new trial based on preserved error is of "such firmness" that it should not be disturbed in the absence of a clear showing that its broad discretion has been abused. Cloud v. Fallis, 110 So.2d 669, 672-73 (Fla.1959).... While much of the case law discussing this standard concerns new trials that were granted because the verdicts were contrary to the manifest weight of the evidence, this broad discretion standard also applies for other trial errors, including preserved error in an opponent's closing argument.

On the other hand, if a trial court grants a motion for new trial based on unpreserved error, then such error must be both pervasively prejudicial and fundamental. As explained in Wasden [v. Seaboard Coast Line R.R., 474 So.2d 825 (Fla. 2d DCA 1985) ], on the issue of the pervasive, prejudicial nature of the error, the trial court receives the benefit of the broad discretion standard. On the issue of the fundamental nature of the error, the trial court is not accorded this broad discretion. Whether the error is fundamental is reviewed on appeal as a question of law. Wasden. Accordingly, an order granting a new trial on this basis will be affirmed "only if the error is, as a matter of law, fundamental."

Hagan v. Sun Bank of Mid-Florida, N.A., 666 So.2d 580, 587 (Fla. 2d DCA 1996) (footnote and some citations omitted). Thus, the trial court's discretion in granting a new trial is limited if the error is a question of law, and it is even more limited if it is based on unpreserved error which must amount to a fundamental error to warrant a new trial. Id. With these principles in mind, we address the trial court's rulings on the comments.

A. "GOLDEN RULE" ARGUMENT DURING VOIR DIRE

During voir dire, appellants' counsel learned that a female juror, Mrs. Gizzi, and her husband had a family business repairing mobile homes. The Goutises also ran a family restaurant together prior to Andreas' death. In questioning, appellants' counsel asked the juror about the business:

Mr. Dykema: Okay. If he did become disabled and couldn't do the repairs, what would you do with the business or what would you do with it?

Appellees' counsel objected that it was a hypothetical question, which objection the court sustained and told counsel he could rephrase the question. Mr. Dykema then asked, "Could you conduct this business as an ongoing enterprise without your husband?" Appellees' counsel then objected that counsel was "trying the case" and at side bar objected that the question was in the nature of a golden rule argument. After argument, the court agreed, sustained the objection, and denied the motion for mistrial. It should be noted that at this point in the trial, the jury did not know anything about the facts of the case other than that the Goutis' were suing because of an accident which killed Andreas.

In its order granting a new trial, the court found that the question was, in effect, a golden rule argument, calculated to encourage the jurors to place themselves in the plaintiffs' emotional and financial shoes; that it tainted the entire panel; and therefore a mistrial was appropriate. The court did not mention that it had denied the mistrial when the comment was made.

We disagree that the question to the juror was a golden rule type argument. While " '[a] golden rule argument suggests to jurors that they put themselves in the shoes of one of the parties, and is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence,' " Simmonds v. Lowery, 563 So.2d 183, 184 (Fla. 4th DCA 1990) (citation omitted), " '[t]o be impermissible, the argument must strike at that sensitive area of financial responsibility and hypothetically request the jury to consider how much they would wish to receive in a similar situation.' " Id. (citation omitted); accord Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992). The questioning of the juror did not ask the juror "how much" the juror would want to receive if placed in the plaintiffs' position. Indeed, the juror would have to speculate that Andreas was involved in a family business which couldn't run without him, since none of the facts were known at that point of voir dire. In addition, as the attorney pointed out to the judge, the juror could have responded that she was in charge of the business, and that it would run very well even if her husband was disabled. The question did not ask the juror to identify with Mrs. Goutis' personal circumstances. It asked what the juror's own personal circumstances were, which is the very reason for voir dire--to know whether something in the juror's personal experience is relevant to the issues to be tried in the case.

Even if this were a golden rule argument, in Cleveland Clinic Florida v. Wilson, 685 So.2d 15 (Fla. 4th DCA 1996), we receded from previous case law which applied a per se reversal test to such comments. Instead, we held that the harmless error test would apply. In ruling on the motion, the court relied on the pre-Cleveland Clinic case law. The court thus erred in determining that this comment necessitated a new trial. Moreover, we hold that the comment could not in any circumstance be deemed to be "highly prejudicial." Indeed, the trial court persuaded the plaintiffs' counsel to ask the juror whether the fact that she and her husband had a family business would pose a hardship if she sat as a juror. This was done with the intent of defraying any prejudicial effect of the questioning.

B. IMPROPER COMMENT DURING OPENING STATEMENT

In its order granting a new trial, the court listed five improper comments in opening statement which it stated merited a new trial. We discuss each in turn.

"Andreas was a pillar of the community. He was well liked and revered by customers, fellow church members and he was revered and loved by his family." Defense counsel objected that arguing that Andreas was a "pillar of the community" was prejudicial in a wrongful death case; the objection was sustained, although the court noted that it was a close question. In granting a new trial, the trial court stated that the comment was not supported by evidence introduced at trial and was an "unctuous tribute to character of the Plaintiff," proscribed in Walt Disney World Co. v. Blalock, 640 So.2d 1156 (Fla. 5th DCA), rev. dismissed, 649 So.2d 232 (Fla.1994). Further, it was in violation of the Rules of Professional Conduct of the Florida Bar, Rule 4-3.4(e), as a comment neither supported by the evidence nor relevant.

The only part of the comment for which objection was properly preserved was that Mr. Goutis was a pillar of the community. Blalock, cited by the court in support of its findings in the order granting a new trial, is distinguishable from this case, as Blalock involved a thumb injury to a child on a Disney World ride, not a wrongful death suit where the loss of companionship of the husband and father was relevant in establishing damages to the claimants. See, e.g., § 768.21, Fla. Stat. (1995). The decedent's position in the community may be relevant to the spouse or children's loss of...