Murphy v. International Robotics Systems, Inc.

• Court: Florida District Court of Appeals
• Writing for the Court: KLEIN
• Citation: Murphy v. International Robotics Systems, Inc., 710 So.2d 587 (Fla. App. 1998)
• Decision Date: 11 February 1998
• Docket Number: No. 97-0388,97-0388
• Parties: 23 Fla. L. Weekly D447 Robert MURPHY and Technology Innovations International, Inc., Appellants, v. INTERNATIONAL ROBOTICS SYSTEMS, INC. and Howard Hornsby, Appellees.

Page 587

710 So.2d 587

23 Fla. L. Weekly D447

Robert MURPHY and Technology Innovations International, Inc., Appellants, v. INTERNATIONAL ROBOTICS SYSTEMS, INC. and Howard Hornsby, Appellees.

No. 97-0388.

District Court of Appeal of Florida Fourth District.

Feb. 11, 1998.

Rehearing and Rehearing En Banc

Denied March 18, 1998.

R. Stuart Huff and Mark L. Mallios of the Law Offices of R. Stuart Huff, Coral Gables, for appellants.

David A. Jaynes, West Palm Beach, for appellees.

KLEIN, Judge.

It seems as though, in every week in which we sit, we get at least one appeal in which we are asked to reverse because of improper, but unobjected-to, closing argument of counsel. We had two such cases during the week this case was argued. We affirmed the other one without discussing the issue.

In the thirty-three years since this court was created, it has never granted a new trial in a civil case grounded solely on improper argument where there was no objection during trial. Nevertheless, we keep getting appeals in which attorneys cite decisions from the first, third and fifth districts involving this issue, and urge us to follow them. Most of these cases are affirmed without opinion. We are affirming this case as well, but writing to explain why we do not agree with the decisions of our sister courts. ¹ We do so in the hopes that a litigant considering an appeal to this court, whose best hope for reversal is unobjected-to argument of counsel, will carefully consider whether it is worth the cost.

The arguments being raised on this appeal include opposing counsel accusing the individual plaintiff of wanting to "cash in a lottery ticket in this litigation," and suggesting that if the jurors awarded appellant damages based on a "phony consultancy agreement" they would be "accessories, after the fact, to tax fraud." When we asked appellants' counsel, at oral argument, why he did not make an objection if he thought that these arguments were so egregious, he responded that it is his practice not to object because the jury might hold it against his client.

Before we explain why we do not follow the decisions of the other district courts of appeal, we must address Norman v. Gloria Farms, Inc., 668 So.2d 1016 (Fla. 4th DCA), rev. denied, 680 So.2d 422 (Fla.1996), in which a panel of this court granted a new trial because of the combination of two unrelated errors, one of which was grossly improper argument of counsel to which there was no objection. This court concluded that the argument, in combination with the fact that the foreman of the jury had discussed the case during trial with his brother who, unbeknownst to the juror, was employed by and had investigated the accident for defendant's insurer, warranted reversal for a new trial.

Prior to Norman, this court had adhered to the position which it took in Nelson v. Reliance Insurance Co., 368 So.2d 361 (Fla. 4th DCA 1978), that failure to object to improper argument was a judgment call by counsel as to how the trial was going, and was thus a deliberate tactical decision which waived the error. Following the panel decision in Norman, there was a request for this court to en banc Norman because it conflicted with Nelson; however, this court refused to en banc. Norman, 668 So.2d at 1024. The refusal of this court to en banc means that a majority of this court did not think that there was a conflict. Nelson is, accordingly, still good law in this district, and Norman should not be interpreted as a change in that law.

There are two things which make Norman unique. First, the panel in Norman was unwilling to reverse solely because of closing argument, and was very careful to point out that it was only the combination of juror misconduct and the closing argument which "substantially undermined plaintiffs' right to a fair trial, compromised the integrity of this jury trial, and thwarted substantial justice." 668 So.2d at 1020.

The other thing which makes Norman unusual is the argument itself. Plaintiff was injured while hog hunting as an invited guest on defendant's ranch. He was suing the defendant for negligence, and defense counsel argued to the jurors that if they returned a verdict for the plaintiff it would end hog hunting in Okeechobee County. As the Norman panel observed, counsel was telling the jurors "that they would in fact be personally affected by the outcome of this case," and that they should "consider the effect of a plaintiffs' verdict on their lives in Okeechobee." Id. at 1021.

This type of argument has been held to constitute fundamental error in criminal cases. See, e.g., Grant v. State, 194 So.2d 612, 613 (Fla.1967), in which the prosecutor argued that if the jurors did not impose the death penalty, defendant could "get out and come back and kill somebody else, maybe you." As improper as the panel thought the argument was in Norman, however, the panel was still unwilling to reverse solely because of it.

It is not that we condone improper or unethical argument. See, e.g., Bellsouth Human Resources Admin., Inc. v. Colatarci, 641 So.2d 427 (Fla. 4th DCA 1994). Rather it is that we do not think improper, but unobjected-to, closing argument in a civil case is something which is so fundamental that there should be an exception to the rule requiring an objection. As our supreme court explained in Castor v. State, 365 So.2d 701 (Fla.1978):

The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.

The contemporaneous objection rule is well established in Florida in regard to argument of counsel. There must be an objection at the time the remarks are made. Tyus v. Apalachicola Northern R.R. Co., 130 So.2d 580 (Fla.1961). If the court sustains the objection there must be a motion for mistrial in order to preserve the issue on appeal. Roundtree v. State, 362 So.2d 1347 (Fla.1978). The objection must be made at the time of the improper remarks; however, the motion for mistrial can be made later, at the close of argument, in order to give counsel time to think about whether to seek a mistrial. Ed Ricke & Sons, Inc. v. Green, 468 So.2d 908 (Fla.1985).

Prior to 1985, the reluctance of counsel to move for mistrial, because of the delay and expense which result from the granting of the motion, was understandable. In 1985, however, the Florida Supreme Court, in Ed Ricke eliminated this problem. The court held that the trial court can withhold ruling on a timely motion for mistrial until after the jury has a returned a verdict. The trial court does not, accordingly, have to rule right when the motion is made, as it did before Ed Ricke. Now those who are on the receiving end of improper argument can have their cake and eat it, too.

Although the Florida Supreme Court has reversed for a new trial based on unobjected-to closing argument, the last time it did so in a civil case was in 1956. Seaboard Air Line R.R. v. Strickland, 88 So.2d 519 (Fla.1956). The last time it addressed the issue in a civil case was in 1961, in Tyus. That case is significant because, although the first district had reversed a plaintiff's verdict in a wrongful death action because of unobjected-to argument, the Florida Supreme Court quashed that decision, holding that there should have been an objection. The arguments made by plaintiff's counsel in Tyus, which are set forth in the dissent, are as bad as, if not worse, than the arguments in cases which are now being reversed.

Plaintiff's counsel in Tyus argued that railroad cases all follow a similar pattern, in which the railroad is investigating to exonerate itself before the plaintiff is even buried. He argued that the railroad had hired not only two of the most brilliant Tallahassee lawyers, but an ex-senator as well, its philosophy being a million dollars for defense, but not a penny for compromise. Noting that there was only a rusty sign at the crossing at the time of the accident, he told the jury that the railroad had since installed blinkers, a fact which was not in evidence. If the corporation had spent the money on the blinkers before the accident, he argued, another human being's life would not have been snuffed out in pursuit of the almighty dollar. Counsel concluded by asking the jury to "give consideration to the rights and privileges of the citizens of Liberty County with reference to ... a negligent murder." 130 So.2d at 591-93 (O'Connell, J., dissenting).

Tyus was the last time the Florida Supreme Court wrote on unobjected-to argument in a civil case. The contemporaneous objection rule outweighed, in the court's view, the possible injustice resulting from the closing argument. As the court emphasized, the trial judge "who was in the milieu of the court room throughout the trial," was in "a much better position" than an appellate court, to determine if the argument was so prejudicial as to require a new trial. 130 So.2d at 588.

There is an exception to the contemporaneous objection rule, for errors which are deemed fundamental and which can thus be raised for the first time on appeal. Years after the Florida Supreme Court last reversed a civil case for a new trial based on unobjected-to closing argument (Strickland in 1956), the court defined fundamental error as "error which goes to the foundation of the case, or goes to the merits of the cause of action," which appellate courts should apply "very guardedly." Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970). In Sanford the court held that the unconstitutionality of a statute under which attorney's fees were awarded was not fundamental error which could be raised for the first time on appeal. The error argued in Sanford...