Sears Roebuck & Co. v. Jackson

• Decision Date: 05 July 1983
• Docket Number: No. 82-1548,82-1548
• Citation: 433 So.2d 1319
• Court: Florida District Court of Appeals
• Parties: SEARS ROEBUCK & COMPANY, an Illinois corporation, Allstate Insurance Company, an Illinois corporation, Lonnie M. Perry, individually and as agent of Sears Roebuck & Company, an Illinois corporation, Stan Conger, individually and as agent for Sears Roebuck & Company, an Illinois corporation, Appellants, v. Arlee JACKSON and Mugge Rivers, Appellees.

Page 1319

433 So.2d 1319

SEARS ROEBUCK & COMPANY, an Illinois corporation, Allstate Insurance Company, an Illinois corporation, Lonnie M. Perry individually and as agent of Sears Roebuck & Company, an Illinois corporation, Stan Conger, individually and as agent for Sears Roebuck & Company, an Illinois corporation, Appellants, v. Arlee JACKSON and Mugge Rivers, Appellees.

No. 82-1548.

District Court of Appeal of Florida Third District.

July 5, 1983.

Adams, Ward, Hunter, Angones & Adams and Steven Kent Hunter, Miami, for appellants.

George E. Gelb, Henry T. Courtney and David M. Verizzo, Miami, for appellees.

Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

The trial court granted a new trial to the plaintiffs-appellees on the ground that defense counsel made improper remarks in two instances during the trial, the effect of which, in the trial court's view, "could not be erased by the instructions to the jury." ¹ The first of the remarks came in defense counsel's opening statement:

"Well, suffice it to say that three and a half years later a mysterious witness appeared in [the] case, and they asked Judge Klein to let that witness testify, and Judge Klein ruled that they couldn't and [they] took a voluntary dismissal of this case." ²

The plaintiffs made no objection whatsoever to defense counsel's statement. Later, during the presentation of the defendants' case and in the presence of the jury, defense counsel asked the court to take judicial notice of the fact that the plaintiffs had taken a voluntary dismissal and to advise the jury of the judicially-noticed fact. The court, on its own initiative, responded:

"that has absolutely no bearing on this case and, members of the jury, disregard what he just said. Scratch it. Ignore it.

It's completely irrelevant and immaterial to what we're here for."

The plaintiffs, apparently satisfied with the court's intervention and instruction, did not move for a mistrial. No other or further reference to this subject was made in the trial.

While we agree with the trial court that commenting on the plaintiffs having taken a voluntary dismissal was irrelevant to the issues in the case, we do not agree that such remarks were "of such character that neither rebuke nor retraction may entirely destroy their sinister influence...." Baggett v. Davis, 124 Fla. 701, 717, 169 So. 372, 379 (1936) (quoting Akin v. State, 86 Fla. 564, 573, 98 So. 609, 612 (1923)), or, otherwise stated, so inflammatory as to extinguish the plaintiffs' right to a fair trial and to therefore constitute fundamental error. That being so, these remarks cannot be the basis for a new trial, absent, at least, a timely objection to the first remark, Bishop v. Watson, 367 So.2d 1073 (Fla. 3d DCA 1979), and a timely motion for mistrial directed to the second remark, see Cameron v. Sconiers, 393 So.2d 11 (Fla. 5th DCA 1980). See Seaboard Coast Line Railroad Company v. Burdi, 427 So.2d 1048 (Fla. 3d DCA 1983) (order granting new trial based on assertedly improper jury instruction and argument reversed where no objection made at trial and where instruction and argument proper in any event); Rose's Stores, Incorporated v. Mason, 338 So.2d 1323 (Fla. 4th DCA 1976) (order granting new trial based on assertedly improper jury instruction reversed where no objection to instruction made at trial); Gordon v. St. Mary's Hospital, Inc., 305 So.2d 234 (Fla. 4th DCA 1974) (same). See also Berger v. Nathan, 66 So.2d 278 (Fla.1953) (no error in denying new trial where objection raised for first time in motion for new trial); Miller v. Pace, 71 Fla. 274, 71 So. 276 (1916) (same); Omer Corporation v. Duke, 211 So.2d 48 (Fla. 3d DCA 1968) (same); Park v. Belford Trucking Co., 165 So.2d 819 (Fla. 3d DCA 1964), cert. dismissed, 174 So.2d 398 (Fla.1965) (same). Cf. Murray-Ohio Manufacturing Company v. Patterson, 385 So.2d 1035 (Fla. 5th DCA 1980) (mistrial motion directed to rebuttal portion of plaintiff's final argument made after jury retired to deliberate does not preserve for appeal issue of improper argument where argument not so inflammatory as to constitute fundamental error); Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980) (offer of proof and showing of admissibility made for first time at motion for new trial does not preserve for appeal issue that proof improperly rejected; "The very purpose of preserving error below by affording the trial court a chance to consider the particular issue is specifically to obviate a new trial." Id. at 907).

We are well aware of cases which contain language indicating that a new trial may be properly predicated on an error which is raised for the first time in the motion for new trial. A close examination of these cases reveals, however, that the "error" complained of was either one which could not have been brought to the trial court's attention any sooner than in the motion for new trial, see, e.g., Shank v. Fassoulas, 304 So.2d 469 (Fla. 3d DCA 1974), or one which was arguably fundamental, obviating the necessity for preservation, see, e.g., Easton v. Bradford, 390 So.2d 1202 (Fla. 2d DCA 1980), rev. dismissed, 399 So.2d 1141 (Fla.1981); Southwestern Insurance Co. v. Stanton, 390 So.2d 417 (Fla. 3d DCA 1980); Bickford v. Wall, 371 So.2d 172 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 764 (Fla.1980). Thus, in Shank v. Fassoulas, the jury found the defendant negligent, but awarded no damages to the six-year-old plaintiff who was struck by the defendant's car. The plaintiff's motion for new trial asserted that the damages were inadequate. The trial court concluded not merely that a zero award to the plaintiff was inadequate, but that the failure to award the plaintiff any damages was also inconsistent with a $1,500 verdict for the plaintiff's father. On appeal, the defendant contended that the plaintiff's failure to object to the inconsistent verdict prior to the discharge of the jury waived his right to a new trial on that ground. As this court pointed out in Shank:

"We note that in their motion for a new trial the basic legal grounds urged by the plaintiffs was that the verdict was 'inadequate.' It was the court's conclusion that the verdict also was 'inconsistent.' To urge in a motion for a new trial that a verdict either was inadequate or excessive is certainly not an unusual ground for a new trial. The mere fact that the court on its own initiative [See, RCP 1.530(d) ] employs the word 'inconsistent' should not be sufficient to trigger a waiver against the plaintiffs." 304 So.2d at 471 n. 1.

While it is true that in Shank this court stated that the authority of the trial judge to grant a motion for a new trial in the exercise of his sound discretion is not diminished by the movant's failure to object in a timely manner, this statement must be considered as pure dictum in light of the fact that the ground for the motion for new trial could not have been asserted any sooner than in the motion and was thus properly preserved.

In Bickford v. Wall, 371 So.2d 172, we repeated the dictum of Shank, notwithstanding that, as the Bickford opinion itself recites, plaintiff's counsel timely called to the trial court's attention its failure to give the subject jury instruction. But that aside, the instruction omitted in...