Tremblay v. Santa Rosa County, 96-1958

• Decision Date: 28 February 1997
• Docket Number: No. 96-1958,96-1958
• Citation: 688 So.2d 985
• Parties: 22 Fla. L. Weekly D568 Lawrence TREMBLAY and Marge Tremblay, Appellants, v. SANTA ROSA COUNTY, a local government, its Board of County Commissioners; Rick Casey; Byrd Mapoles, Santa Rosa County Commissioner; Lydia Ezell, Santa Rosa County Commissioner; and Bill Lundin, Santa Rosa County Commissioner, Appellees.
• Court: Florida District Court of Appeals

Page 985

688 So.2d 985

22 Fla. L. Weekly D568

Lawrence TREMBLAY and Marge Tremblay, Appellants, v. SANTA ROSA COUNTY, a local government, its Board of County Commissioners; Rick Casey; Byrd Mapoles, Santa Rosa County Commissioner; Lydia Ezell, Santa Rosa County Commissioner; and Bill Lundin, Santa Rosa County Commissioner, Appellees.

No. 96-1958.

District Court of Appeal of Florida,

First District.

Feb. 28, 1997.

Lisa S. Minshew, Pensacola, for appellants.

Rick Casey, appellee, pro se.

WOLF, Judge.

Appellants, Lawrence Tremblay and Marge Tremblay, appeal from a nonfinal order granting defendants' motion for a new trial after a jury verdict in a nuisance action. The issues raised by this appeal are (1) whether the trial court erred by granting a new trial based on alleged golden-rule arguments made by appellants' attorney where appellee did not object to the comments, and (2) whether the trial court erred in denying appellants' motion for directed verdict despite a quasi judicial finding that appellees were guilty of illegal land use. We find no error as to either issue. The trial court could properly find that comments of plaintiffs' counsel during closing were so "pervasive, inflammatory and prejudicial as to preclude the jury's rational consideration of the case"; therefore, the trial court did not err in granting a new trial even though the comments were not objected to. As to the second issue, we find that the quasi judicial decision concerning the conditional use permit dealt with somewhat different issues than those raised in the complaint; therefore, the trial court correctly ruled that appellants were not entitled to a directed verdict based on administrative res judicata. We affirm as to the second issue without further comment.

Appellants were the plaintiffs in the trial court and are homeowners of a single-family residential property in Milton, Florida. Their home is within 500 feet of an alleged sod transfer and pine straw baling operation which is owned and operated by appellee, Rick Casey.

Appellants filed an action in circuit court and alleged in one count of the second-amended complaint that appellee Casey, by willfully and maliciously continuing to operate a sod transfer facility and pine straw baling operation, has violated the Santa Rosa County Land Development Code. The appellants further alleged in another count that as a result of the illegal use of the property, appellee Casey has created a nuisance which has damaged the Tremblays' quiet enjoyment of their property and thereby caused appellants to suffer severe emotional distress. A jury trial was held as to these counts. During closing argument, appellants' counsel made a number of remarks which were the basis for the trial court granting a new trial, although the pro se defendant did not object at the time the remarks were made. Among those remarks are the following:

When you're in the jury room I ask you to flip through Mrs. Tremblay's diary, which she took from her calendar at the beginning and then continued on to put it in there day after day. Just flip through a few days, a few months, and try to put yourself into her shoes and see what it's like living in their house. I think when you review that you'll see that it's not something that you would want for yourselves, for your children, for your grandparents, actually for anybody except your worst enemy.

....

I think you should really think about this because-think about whether this is something that you would want in your backyard.

Would you want hay--pine straw bales that can produce up to eight Norwegian rats in each bale? Would you want piles and piles of those behind your house? Would you want to come out to your house and come out to the pool and pull out rats in the morning?

Would you want to be concerned that the first worker over there, the first trucker over there who threw a cigarette into that pile of pine straw with sap on it that went up in flames, you would want to have to worry every day whether or not your house was going to burn down?

Would you want to worry about all these trailers that we've shown you in the photos that are packed full of compressed bale pine straw, would you want to worry about if it was a really sunny day and there was a combustion in the middle of that, like Mr. Rogers has told you he's seen happened, would you want to worry about that?

Would you want to worry about tires that are piled up and have standing water that can produce thousands of mosquitoes in twenty-four hours, all kind of other vermin and flying--flies and other things that I don't think I want in my backyard? But the Tremblays have to. Mr. Casey's made that happen to them. His operation is there and it's producing all those kinds of things.

....

I also ask you to really consider the Tremblays and consider if you would like to live in this type of situation and how you would feel about it. Or if your parents were living next to an operation like this, how you would feel about it, or your children or grandchildren, and really think about that. And remember that Mr. Casey has, as he testified, owned, you know eight or more other or leased other properties.

This court must determine what is the standard for granting a new trial based upon a golden-rule violation which was not objected to. In Hagan v. Sun Bank of Mid-Florida, 666 So.2d 580 (Fla. 2d DCA 1996), the second district held that to grant a new trial based on improper remarks of opposing counsel when the error is not preserved, the trial court must determine (1) that the error was so...