Gregory v. Seaboard System R.R., Inc.

• Decision Date: 29 January 1986
• Docket Number: Nos. 84-1968,84-2457,s. 84-1968
• Parties: 11 Fla. L. Weekly 311 James GREGORY and Sherry Gregory, his wife, Appellants/Cross-Appellees, v. SEABOARD SYSTEM RAILROAD, INC., Appellee/Cross-Appellant, and Tampa Electric Company, Appellee.
• Court: Florida District Court of Appeals

Page 35

484 So.2d 35

11 Fla. L. Weekly 311

James GREGORY and Sherry Gregory, his wife, Appellants/Cross-Appellees, v. SEABOARD SYSTEM RAILROAD, INC., Appellee/Cross-Appellant, and Tampa Electric Company, Appellee.

Nos. 84-1968, 84-2457.

District Court of Appeal of Florida,

Second District.

Jan. 29, 1986.

Rehearing Denied March 7, 1986.

Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., and Beckham, McAliley & Schulz, P.A., Miami, for appellants/cross-appellees.

Peter J. Grilli of Allen, Dell, Frank & Trinkle, Tampa, and Dabney L. Conner of Boswell, Boswell & Conner, Bartow, and Robert P. Smith, Jr., of Hopping, Boyd, Green & Sams, Tallahassee, for appellee/cross-appellant Seaboard System R.R., Inc.

Julian Clarkson and Michael L. Rosen of Holland & Knight, Tallahassee, for appellee Tampa Elec. Co.

SCHEB, Acting Chief Judge.

Appellants James and Sherry Gregory, plaintiffs below, seek reversal of the trial court's order granting defendant Seaboard System Railroad a new trial on all issues between the Gregorys and Seaboard. The Gregorys' only contention is that the trial court abused its discretion in granting the new trial on the ground that their counsel's closing argument to the jury contained numerous improprieties.

Seaboard cross-appeals the trial court's denial of its motion for new trial in the Gregorys' suit against defendant Tampa Electric Company (TECO). Seaboard asserts that the issues between the Gregorys and TECO were closely related by facts and trial strategy to the issues between the Gregorys and Seaboard. Therefore, it contends that the suits against TECO and Seaboard must be retried together.

We find merit to the Gregorys' contention and reverse the order granting Seaboard a new trial. We find no merit to Seaboard's cross-appeal and affirm the trial judge's denial of Seaboard's motion for new trial concerning the issues between the Gregorys and TECO.

The facts giving rise to the Gregorys' action involved an injury Mr. Gregory sustained as an employee of Seaboard. While he was measuring vertical clearances of overhead pipes and TECO's electrical transmission lines which crossed Seaboard's main line tracks, electricity in a transmission line jumped to a pole to which a steel measuring tape was attached. The electricity traveled down the tape to the ground. Mr. Gregory, who was kneeling on the ground holding the tape, received an electrical shock of unknown voltage. He was not electrocuted, but the shock resulted in serious injuries which required extensive treatment. These injuries, he claimed, resulted in his permanent disability.

Mr. Gregory, individually, sued Seaboard under the Federal Employer's Liability Act, 45 U.S.C.A. § 51 (1972). He alleged Seaboard was negligent in, among other things, failing to provide him with safe tools and equipment. Both Mr. and Mrs. Gregory sued TECO for negligence. Among other things, they alleged TECO constructed its power lines too close to the railroad tracks and failed to abide by the applicable safety codes in maintaining and repairing these lines. In another count they sued TECO as third party beneficiaries based on TECO's alleged breach of its contract with Seaboard. A jury trial was held on the Gregorys' claims against Seaboard and TECO.

The jury heard evidence concerning Mr. Gregory's duties and responsibilities in measuring the pipes and electrical lines, as well as evidence concerning TECO's contract with Seaboard. The parties presented considerable evidence concerning Mr. Gregory's injuries. Mr. Gregory offered expert testimony on the extent of his economic losses. Following presentation of the evidence, the trial court denied Seaboard's motion for directed verdict.

Twice during the closing argument by the Gregorys' counsel Seaboard moved for a mistrial outside the jury's presence. Both times Seaboard contended that the Gregorys' counsel improperly expressed his personal opinion in commenting on the evidence. The trial judge denied both motions.

During rebuttal by the Gregorys' counsel, Seaboard's attorney requested that both counsel be allowed to approach the bench. The following colloquy then took place:

[GREGORYS' COUNSEL]: May I finish my Final Argument? This is the third time he's done it. It's terribly impolite. He has no basis and he can take it up outside after the jury retires, Your Honor.

THE COURT: All right. I will reserve the right.

[SEABOARD'S COUNSEL]: Would that apply prospectively?

THE COURT: Yes.

Thereafter the Gregorys' counsel resumed his rebuttal argument.

After the conclusion of closing arguments Seaboard renewed its motion for mistrial on the grounds that the Gregorys' counsel had expressed his personal opinion and had conducted his final argument in an emotional and inflammatory manner. The judge again denied the motion.

The jury returned a verdict exonerating TECO. It found Seaboard 70% negligent and Mr. Gregory 30% negligent. It awarded Mr. Gregory $980,000 in damages but made no award to Mrs. Gregory. The trial judge then entered judgment for $686,000 plus costs against Seaboard and entered judgment in favor of TECO.

After entry of judgment, Seaboard renewed its motion for directed verdict and also moved for a new trial against the Gregorys on all issues. In this motion Seaboard alleged several grounds, including its contention that the closing argument by counsel for the Gregorys was laced with numerous improprieties. In support of the motion, Seaboard also listed a number of other comments made by the Gregorys' counsel to which it had not objected at trial.

The judge again denied the motion for directed verdict holding that he still believed that the evidence presented to the jury was sufficient and that he was correct in allowing the case to be decided by the jury. However, the judge granted Seaboard's motion for new trial on all issues between it and the Gregorys because he found that the closing argument of the Gregorys' counsel was improper. He listed twenty-eight improper statements. Seaboard had only referred to six of them in its mistrial motions at trial. The judge said:

The court has enumerated excerpts from Plaintiffs' argument and individually these statements might to some extent be explained away, but when said argument is read in its entirety it is apparent that counsel's remarks reveal a pattern of misconduct so persuasive and so complete as to leave any doubt that Defendant Railroad was denied a fair trial on all the issues.

Thereupon, the Court finds:

1. That the Plaintiffs' counsel stated his personal opinions and made representations of certain matters as being "facts" and commented on the justness of the case in violation of the Code of Professional Responsibility and contrary to proper conduct during a trial, which said comments were clearly calculated to prejudice the Defendant, SEABOARD.

2. Plaintiffs' counsel sought to influence the jurors in favor of his clients by appealing to their passions and prejudices.

Seaboard also moved for a new trial as to the Gregorys' claim against TECO which the court denied. This timely appeal by the Gregorys and cross-appeal by Seaboard ensued.

We first address the granting of a new trial as to Seaboard. Generally, a timely objection to any prejudicial remark by counsel is necessary for the granting of a new trial. Tyus v. Apalachicola Northern Railroad, 130 So.2d 580, 587 (Fla.1961); Wasden v. Seaboard Coast Line Railroad, 474 So.2d 825, 829 (Fla. 2d DCA 1985). Although a trial judge should intervene to prohibit counsel's improper comment even when opposing counsel does not object, the duty of counsel to object is not alleviated. Wasden, 474 So.2d at 831. See also Honda Motor Co. v. Marcus, 440 So.2d 373, 376 n. 1 (Fla. 3d DCA 1983), petition for review dismissed, 447 So.2d 886 (Fla.1984); Hillson v. Deeson, 383 So.2d 732 (Fla. 3d DCA 1980).

There are two exceptions to the timely objection rule. First, a new trial may be ordered absent a timely objection if the error is so fundamental as to extinguish a party's right to a fair trial. Sears Roebuck & Co. v. Jackson, 433 So.2d 1319, 1322 (Fla. 3d DCA 1983). See also Wasden, 474 So.2d at 829. Second, a new trial may be granted "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." Tyus, 130 So.2d at 587 (citing Seaboard Air Line Railroad v. Strickland, 88 So.2d 519, 523 (Fla.1956) ). See also Wasden, 474 So.2d at 829.

Here, twenty-two of the statements cited by the trial judge were neither objected to nor mentioned in the motions for mistrial. We think it significant that Seaboard's counsel first objected to most of these statements in its written motion for new trial. Equally significant, we believe, is the fact the trial judge did not perceive them as improper until he later read the transcript of the closing argument. These two points are particularly noteworthy since the trial judge appeared to have based his decision on the second exception, i.e., the jury acted from prejudice or passion due to counsel's improper argument. As this court recently observed, "Where the great majority of improprieties have been identified by opposing counsel or the judge only after close scrutiny of the written transcript of proceedings, it is less likely that there was in fact such a pervasive prejudicial effect." Wasden, 474 So.2d at 831. Of course, the jury was never provided a written transcript of the closing arguments before rendering its verdict.

Furthermore, it is difficult to classify these twenty-two...