RICHARD A. NEWTON, AS ADMINISTRATOR OF THE ESTATE OF PATRICIA W. NEWTON, DECEASED, APPELLANT,
v.
SOUTH FLORIDA BAPTIST HOSPITAL AND PAUL K. PERRY, M.D., APPELLEES
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Richard Newton appealed a judgment in a wrongful death case arising from his wife Patricia's death, asserting four issues including improper closing argument remarks by hospital counsel. The court affirmed the judgment, holding that Newton waived his objection to the closing remarks by failing to seek clarification of the trial court's ruling and by failing to move for a mistrial.
The court held that Newton waived his objection through two independent grounds: (1) by failing to request clarification of the trial court's ambiguous ruling on his objection, and (2) by failing to move for a mistrial after the trial court sustained his objection. The court affirmed the judgment against Newton on all four issues raised.
[1] A party waives an objection by failing to secure a clear ruling from the trial court.
[2] A party waives an objection to an ambiguous ruling by failing to seek clarification from the trial court.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If a trial court finds a comment improper and sustains a party's contemporaneous objection, the party must move for mistrial if he wishes to preserve his objection.”
Establishes the requirement that when an objection is sustained, a mistrial motion must follow to preserve the issue for appeal.
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Join FLexlaw to unlock all legal intelligencePatricia W. Newton died, and her husband Richard Newton, as administrator of her estate, brought a wrongful death claim against South Florida Baptist …
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RYDER, Acting Chief Judge.
Richard A. Newton attacks the judgment entered in favor of South Florida Baptist Hospital and Paul K. Perry, M.D. on Newton’s claim for the wrongful death of his wife, Patricia. Newton raises four issues for our consideration. We hold that none of the alleged errors warrants reversal, and we therefore affirm.
Although affirming, we believe that one of Newton’s points on appeal merits discussion. He asserts that a new trial should have been granted because counsel for the Hospital made personal and allegedly prejudicial remarks about the death of his father-in-law during his closing argument. Newton objected to the remarks and the trial court responded:
Ladies and gentlemen, as I indicated, this is final argument. What the attorneys say is not evidence. It’s meant to persuade you. You will consider in light of that.
Newton did not object further, although the Hospital’s counsel continued to discuss his father-in-law’s death, nor did Newton move for a mistrial.
We are troubled by the Hospital’s remarks. Improper statements in closing argument can provide grounds for a new trial. Martin v. State Farm Mut. Auto. Ins. Co., 392 So. 2d 11 (Fla. 5th DCA1980). The Hospital, however, contends that Newton’s failure to request a mistrial constitutes a waiver of his objection.
Whether a party is required to seek a mistrial in this situation turns on whether the trial court sustained or overruled the objection. If a trial court finds a comment improper and sustains a party’s contemporaneous objection, the party must move for mistrial if he wishes to preserve his objection. Ed Ricke and Sons, Inc. v. Green, 468 So. 2d 908 (Fla.1985); Simpson v. State, 418 So. 2d 984 (Fla. 1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983). If a contemporaneous objection is overruled, however, there is no reason for a party to seek a mistrial. In overruling the objection, the trial court has determined that the comment was not improper. Once the court makes that determination, there is no basis for the court to grant a mistrial, even if a party were to request one. When an objection is overruled, it is preserved for appeal without the necessity of moving for a mistrial. Simpson, 418 So. 2d at 986; Goff v. 392208 Ontario Ltd., 539 So. 2d 1158 (Fla. 3d DCA1989).
Newton argues that the trial court overruled his objection. The Hospital and Dr. Perry take the position that the objection was sustained and that the court’s remarks were a curative instruction. As these conflicting positions demonstrate, the trial court’s statement was somewhat ambiguous. At the outset, we note that Newton should have asked the trial court to clarify its ruling. A party’s “[fjailure to secure a ruling on an objection waives it_” Schreidell v. Shoter, 500 So. 2d 228 (Fla. 3d DCA1986), review denied, 511 So. 2d 299 (Fla.1987). We are aware that the Fourth District does not require a litigant to seek clarification of an ambiguous ruling in order to preserve the objection on appeal, Colvin v. Williams, 564 So. 2d 1249 (Fla. 4th DCA1990), but we agree with Schreidell. Newton waived his objection by failing to obtain a clear ruling on his objection.
Moreover, after reviewing the record, we agree with the Hospital and Dr. Perry that the trial court sustained Newton’s objection. Newton’s failure to move for a mistrial is an additional waiver of his argument concerning the Hospital’s closing remarks. Simpson.
Affirmed.
FRANK and PARKER, JJ., concur.
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Carratelli v. State, 832 So. 2d 850 (Fla. 4th DCA 2002)…he end of his own case, arguing that the evidence was insufficient to support conviction, failed to preserve this issue for appeal because the court merely reserved a ruling on these motions but never made a ruling); Newton v. S. Fla. Baptist Hosp., 614 So. 2d 1195, 1196 (Fla. 2d DCA 1993) (failure to obtain clear ruling from trial court waives for appellate review issue of whether comment in closing argument was improper); Schreidell v. Shoter, 500 So. 2d 228, 233 (Fla. 3d DCA 1986) (finding waiver where part…
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William K. Fravel, D.M.D. v. Haughey, 727 So. 2d 1033 (Fla. 5th DCA 1999)…n is sustained, the party must move for a mistrial. Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996); Eichelkraut v. Kash N’Karry Food Stores, Inc., 644 So. 2d 90 (Fla. 2d DCA 1994); Newton v. South Florida Baptist Hospital, 614 So. 2d 1195 (Fla. 2d DCA 1993). Yet attorneys who do so are not much better off. Reversal by the appellate court for a new trial still depends on the appellate court finding what is essentially “fundamental error”. Grushoff v. Denny’s, Inc., 693 So. 2d 1068 (…
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R.J. Reynolds Tobacco Co. v. Grossman, 211 So. 3d 221 (Fla. 4th DCA 2017)…a party’s contemporaneous objection, the party must move for mistrial if he wishes to preserve his objection. If a contemporaneous objection is overruled, however, there is no reason for a party to seek a mistrial.” Newton v. S. Fla. Baptist Hosp., 614 So. 2d 1195, 1196 (Fla. 2d DCA 1993) (internal citations omitted). Motions for mistrial, if required, must be made, by the end of closing arguments at the latest. Murphy v. Int’l Robotics Sys., Inc., 710 So. 2d 587, 589 (Fla. 4th DCA 1998), approved 766 So. 2d…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simpson v. State, 418 So. 2d 984 (Fla. 1982)
- ED Ricke & Sons, Inc. v. Green, 468 So. 2d 908 (Fla. 1985)
- Schreidell v. Rabbi Bernard P. Shoter, 500 So. 2d 228 (Fla. 3d DCA 1986)
- Fort Pierce Utils. Auth. v. Fed. Energy Regulatory Comm'n, 459 U.S. 1156 (U.S. 1983)
- Chaparro-Almeida v. United States, 459 U.S. 1156 (U.S. 1983)
- Lyndell Hart v. State, 392 So. 2d 11 (Fla. 5th DCA 1980)
- Guay v. City OF Miami, 564 So. 2d 1249 (Fla. 3d DCA 1990)
- Goff v. 392208 Ontario Ltd. & 97897 Canada, Ltd., 539 So. 2d 1158 (Fla. 3d DCA 1989)