Little v. Davis
| Decision Date | 14 December 2018 |
| Docket Number | No. 1D17-4469,1D17-4469 |
| Citation | 260 So.3d 1139 |
| Parties | Marion LITTLE, Appellant, v. Joann DAVIS, Appellee. |
| Court | Florida District Court of Appeals |
Rhonda B. Boggess and Amanda L. Ingersoll of Taylor, Day, Grimm & Boyd, Jacksonville, for Appellant.
James G. Biggart, II, of Morgan & Morgan, Tallahassee, for Appellee.
Rowe, J.Joann Davis was stopped at a stop sign when the vehicle she was driving was rear-ended by a car driven by Marion Little. Both parties agreed that Little's car was traveling less than five miles per hour before it made contact with the bumper of Davis's car. Initially, Davis did not complain of any injuries. But nine days after the accident, Davis asserted that she had pain in her left arm. Eight months later, she filed suit alleging that she sustained permanent injuries in the accident. The case proceeded to trial, and the jury returned a verdict in favor of Davis, but found that she did not sustain any permanent injury. The jury awarded no damages for pain and suffering. Davis moved for a new trial on grounds that a single question posed by defense counsel to Davis under cross-examination was so prejudicial it warranted a new trial. The trial court granted the motion. Because the record does not support the trial court's ruling, we reverse.
Facts
Liability was not at issue in this case. Little admitted that she caused the accident, but she disputed that Davis sustained permanent injury during the low-speed collision. Further, the parties argued over whether any of the injuries Davis alleged were caused by the accident or were instead related to a pre-existing condition. Evidence of causation was in conflict.
On the one hand, Davis presented the testimony of two physicians, including a neurological surgeon who opined that the injuries to Davis's left arm were caused by the accident.
On the other hand, Little presented the testimony of a biomechanics engineer, who testified that the mechanics of the collision made it "physically impossible" for Davis to develop the injuries she alleged as a result of the accident. Further, a doctor who performed a comprehensive medical examination of Davis testified that Davis's pain complaints could not be explained on any kind of anatomic basis. He also opined that she exhibited conduct consistent with malingering. During defense counsel's cross-examination of Davis, the jury heard evidence regarding Davis's twenty years' worth of medical records related to Davis's prior complaints and car accidents. Davis testified that she could not recall the prior accidents or complaints and that she had never specifically complained of pain in her left arm. Defense counsel then inquired:
The jury returned a verdict in favor of Davis, finding that Little caused the accident. The jurors further found that Davis sustained an injury in the low-speed collision and awarded Davis damages in the amount of her past medical bills. However, the jury found that Davis did not sustain a permanent injury "within a reasonable degree of medical probability." Finding no permanent injury, the jury did not award Davis any damages for past or future pain and suffering.
Davis moved for a new trial on damages. She argued that the jury's verdict finding no permanency was contrary to the manifest weight of the evidence presented at trial. At the hearing on the motion, Davis asserted that the jury was misled by defense counsel's cross-examination questions regarding her boyfriend William McNealy and misperceived the weight of the evidence. She argued that defense counsel's conduct was so prejudicial and incurable that it warranted a new trial. The court expressed its dissatisfaction in defense counsel for inquiring about Davis's boyfriend. The court explained on the record the reasons it found defense counsel's line of questioning to be prejudicial:
The written order granting a new trial indicated that the trial court's ruling was "based upon the introduction of certain hearsay evidence during the cross-examination of [Davis], which the Court [found] was unduly prejudicial to the [Davis] and deprived her of a fair trial." This appeal follows.
Analysis
We "begin with the presumption that the trial court properly exercised its discretion, and [ ] will not disturb the trial court's ruling absent a clear abuse of that discretion." Allstate Ins. Co. v. Manasse , 707 So.2d 1110, 1111 (Fla. 1998). The trial court's "decision to grant a new trial is given even greater deference than a court's decision to deny a new trial." Sullivan v. Kanarek , 79 So.3d 900, 903 (Fla. 2d DCA 2012). This is because the trial court "had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record." Johns-Manville Sales Corp. v. Janssens , 463 So.2d 242 (Fla. 1st DCA 1984). But, despite this deference to the trial court, the order granting a new trial must be supported by the record. Moore v. Gillett , 96 So.3d 933, 938 (Fla. 2d DCA 2012). Here, the record does not support the trial court's order.
The parties agree that the alleged error in this case was not properly preserved. "[W]hen a party objects to instances of attorney misconduct during trial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court's review of a motion for a new trial." Companioni v. City of Tampa , 51 So.3d 452, 456 (Fla. 2010). Here, although Davis's counsel objected to defense counsel's question regarding McNealy, and the trial court sustained it, Davis's counsel never sought a curative instruction and did not move for mistrial. Thus, our review is for fundamental error. Id. at 454 (citing Ed Ricke & Sons, Inc. v. Green , 468 So.2d 908, 910 (Fla. 1985) ).
In Murphy v. International Robotic Sys., Inc. , 766 So.2d 1010 (Fla. 2000), the Florida Supreme Court set forth a four-part test that trial courts must apply when determining whether a new trial should be granted based on unpreserved error in closing argument. Id. To prevail on a motion for new trial under Murphy , the movant must establish that the challenged argument was (1) improper, (2) harmful, (3) incurable, and (4) so damaging to the fairness of...
To continue reading
Request your trial
-
R&W Rental Props., LLC v. Warnick
...level of perniciousness at which a new trial is required to maintain public confidence in our system of justice." Little v. Davis , 260 So. 3d 1139, 1145 (Fla. 1st DCA 2018) (holding trial court abused its discretion in granting new trial where isolated cross-examination question did not un......
-
Orange Cnty. v. Ferguson
...attorney misconduct without first applying the Murphy test. See R & W Rental Props. , 277 So. 3d at 1101 ; Little v. Davis , 260 So. 3d 1139, 1145 (Fla. 1st DCA 2018).In Murphy , the Florida Supreme Court held "that before a complaining party may receive a new trial based on unobjected-to c......