Hagan v. Sun Bank of Mid-Florida, N.A.

• Decision Date: 19 January 1996
• Docket Number: MID-FLORID,No. 94-03803,N,94-03803
• Citation: 666 So.2d 580
• Parties: 21 Fla. L. Weekly D212 Ruth HAGAN, Appellant, v. SUN BANK OFA., Appellee.
• Court: Florida District Court of Appeals

Page 580

666 So.2d 580

21 Fla. L. Weekly D212

Ruth HAGAN, Appellant, v. SUN BANK OF MID-FLORIDA, N.A., Appellee.

No. 94-03803.

District Court of Appeal of Florida Second District.

Jan. 19, 1996.

Lawrence J. Robinson, of Robinson & Robinson, Sarasota, for appellant.

Elinor E. Erben, of Brown, Clark & Walters, and Gregory W. Hootman, of Gregory W. Hootman, P.A., Sarasota, for appellee.

ALTENBERND, Judge.

Ruth Hagan appeals an order granting a new trial in her personal injury action against Sun Bank of Mid-Florida, N.A. (Sun Bank). Following a favorable jury verdict for Ms. Hagan, the trial court granted Sun Bank's motion for new trial because it concluded that Ms. Hagan's attorney's closing argument, "in its totality," was so "inflammatory and prejudicial as to preclude the jury's rational consideration of the case." The trial court did not identify the objectionable arguments. We have reviewed the entire closing argument and have found no preserved or fundamental error warranting a new trial. Wasden v. Seaboard Coast Line R.R., 474 So.2d 825 (Fla. 2d DCA 1985), review denied, 484 So.2d 9 (Fla.1986). Accordingly, we reverse and remand for entry of judgment on the jury's verdict.

I. THE FACTS

At the time of this accident, Ms. Hagan, a widow in her late sixties, lived in Arcadia, Florida. She suffered from congenital talipes, i.e., club foot. She did not drive a car, but she was able to walk wherever she needed to go. On July 31, 1992, she tripped and fell on an uneven crack in the sidewalk in front of the Sun Bank. The bank had examined the crack earlier in 1992 and had decided that it was not sufficiently displaced to warrant repair.

As a result of her fall, Ms. Hagan broke her hip and is now permanently disabled. She must use either a walker or a wheelchair. She presented evidence of $18,239.38 in past medical bills and an estimate that nursing home care would cost up to $3,000.00 per month for the rest of her 15- to 18-year life expectancy.

During the plaintiff's closing argument, defense counsel made eight objections, seven of which were sustained. Five of the sustained objections related to several remarks that Sun Bank now claims were prejudicial. On appeal, Sun Bank also points out other comments by Ms. Hagan's counsel to which it did not object or otherwise bring to the trial court's attention during the trial. Sun Bank's attorney did not request a mistrial during the argument, at the close of the arguments, or prior to deliberations.

Following closing arguments, the jury returned a verdict in favor of Ms. Hagan. The jury determined that she was not comparatively negligent and awarded damages totalling $563,239.38. It awarded the precise amount Ms. Hagan requested for past medical bills, reduced future damages over a fifteen-year period, and filled out the complex interrogatory verdict form in a facially correct manner.

Only after the jury returned its verdict for Ms. Hagan did Sun Bank's counsel move for a new trial, claiming that the closing argument had been prejudicial. The trial court's order granting this motion recited the applicable legal conclusion for fundamental error in a closing argument, but did not refer to the portions of the record supporting that conclusion. This presents Sun Bank with a disadvantage on appeal because this court in Wasden stated that a trial court's order should identify both the improper arguments of counsel and the actions of the jury resulting from those arguments. 474 So.2d at 830.

II. FUNDAMENTAL ERROR IN CLOSING ARGUMENT: POSSIBLE SOURCES OF CONFUSION

Judge Campbell astutely observed in Wasden: "In reviewing this case, we have about come full circle in regard to our standard of review. In doing so, the rules become intertwined and entangled." Id. Since Wasden, this court has permitted new trials based on fundamental error in closing arguments in only exceptional cases. A review of the precedent from other districts suggests that the same rules are being applied in other districts to compel a greater number of new trials on unpreserved error. See Martino v. Metropolitan Dade County, 655 So.2d 151 (Fla. 3d DCA 1995); Sacred Heart Hosp. of Pensacola v. Stone, 650 So.2d 676 (Fla. 1st DCA), review denied, 659 So.2d 1089 (Fla.1995). Confusion, if not conflict, exists concerning the tests that trial courts should apply in granting or denying a new trial based on preserved or fundamental error in closing argument and the standards of review that appellate courts should apply when a trial court's decision is appealed.

The confusion seems to arise from four sources. First, the case law tends to intermingle the tests applied by the trial court in granting or denying a motion for new trial with the standards of review applied by the appellate court. Because these tests are similar, it is important to distinguish carefully between the two concepts.

Second, the case law tends to discuss the rules relating to new trial because of fundamental error in closing argument without considering the rules governing preserved error in closing argument. As a result, rules that should be substantially different tend to blur together.

Third, there is a temptation for both trial courts and appellate courts to use the remedy of new trial as a tool to punish misconduct of an attorney, as an officer of the court, without disclosing whether the misconduct resulted in harmful error. ¹ We recognize that trial judges have a responsibility to assure that officers of the court comply with certain minimum professional standards. But if the trial court employs the remedy of new trial merely to enforce the lawyer's professional standards, the parties lose the verdict of their chosen jury. This court does not treat an error in a closing argument as a structural or per se error. Whatever the appropriate test in the trial court or standard of review in the appellate court, the movant must establish that the closing argument was harmful before either court can override the jury and grant a new trial. Sec. 59.041 Fla.Stat. (1993). Trial judges have other available measures to ensure that attorneys comply with their professional responsibilities.

Fourth, the confusion stems in part from a failure to accept the narrowness of fundamental error. If a trial court grants a motion for new trial on the basis of unpreserved error, then such error must be "fundamental," that is, it must go to the "foundation of the case" or to the "merits of the cause of action," or "extinguish a party's right to a fair trial." Wasden, 474 So.2d at 831; Sears Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983). See also Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970) (cautioning courts to use this difficult doctrine "very guardedly"). It is not accurate to state that a party has a "right" to a posttrial remedy in a civil case for fundamental error. Although fundamental error is extraordinarily difficult to define, the doctrine functions to preserve the public's confidence in the judicial system. Relief is granted for a fundamental error not because the party has preserved a right to relief from a harmful error, but because the public's confidence in our system of justice would be seriously weakened if the courts failed to give relief as a matter of grace for certain, very limited and serious mistakes.

III. THE TRIAL COURT'S DECISION TO GRANT A NEW TRIAL BECAUSE OF AN ERROR IN CLOSING ARGUMENT

When a party files a motion for new trial pursuant to Florida Rule of Civil Procedure 1.530, the trial judge is asked to veto a unanimous jury verdict. The grounds for a new trial are limitless and frequently depend upon factors that may not be obvious in an appellate record. Accordingly, the trial judge is usually given discretion in this field. The specific factors to employ in making this discretionary decision are not always well explained in the case law. Ultimately, the party moving for new trial must convince the trial judge that it is "reasonably clear that substantial rights have been violated to the extent that a fair trial was not had." North Dade Imported Motors v. Brundage Motors, 221 So.2d 170, 176 (Fla. 1st DCA 1969).

A. Improper Remarks of Counsel as a Basis for New Trial

When the Error is Preserved.

To preserve an opponent's improper comment for review, an objection must be raised when the remark is made. If the objection is sustained, then a motion for mistrial must also be made before the jury retires to deliberate. Failure to both object and then make a motion for mistrial waives the issue for appellate review. Wasden, 474 So.2d 825; Eichelkraut v. Kash N' Karry Food Stores, 644 So.2d 90 (Fla. 2d DCA 1994). While this rule may occasionally seem harsh, it exists because both the trial judge and the appellate court find it difficult, if not impossible, to determine whether the failure to move for a mistrial in a timely manner was a tactical decision or an oversight. See, e.g., Nelson v. Reliance Ins. Co., 368 So.2d 361, 362 (Fla. 4th DCA 1978) (trial tactics in closing argument cannot be corrected simply because they backfire).

If the issue has been properly preserved, the legal standard for trial courts to use in deciding motions for new trial based upon counsel's improper argument is whether the comment was highly prejudicial and inflammatory. "Counsel are accorded a wide latitude in making arguments to the jury, and unless their remarks are highly prejudicial and inflammatory, counsel's statements made to the jury during closing arguments will not serve as a basis for reversing a judgment." Metropolitan Dade County v. Dillon, 305 So.2d 36, 40 (Fla. 3d DCA 1974) (citations omitted). See also Venning v. Roe, 616 So.2d 604 (Fla. 2d DCA 1993) (reversing denial of new trial where counsel's remarks were "highly prejudicial"); Davidoff v. Segert, 551 So.2d 1274 (Fla. 4th DCA 1989) (affirming new trial where counsel's remarks "affected jury's ability to judge evidence fairly"); Erie Ins. Co. v. Bushy,...