ANNEMARIE WEISE AND EDWARD WEISE, INDIVIDUALLY AS PARENTS AND NEXT FRIENDS OF MELISSA WEISE, APPELLANTS,
v.
REPA FILM INTERNATIONAL, INC., A FLORIDA CORPORATION D/B/A PALM COURT APARTMENTS AND DIVERSIFIED MANAGEMENT COMPANY, A FLORIDA CORPORATION, APPELLEES
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Plaintiffs appealed an adverse jury verdict in a negligence case, arguing that defense counsel's improper closing argument warranted a new trial. The court affirmed, holding that the error was not preserved for appeal because plaintiffs did not move for mistrial after their objection was sustained, and plaintiffs failed to demonstrate the error was not harmless.
The court held that plaintiffs did not preserve the issue for appellate review because they failed to move for mistrial after their objection was sustained, and the error was not fundamental error qualifying for reversal absent preservation. Additionally, plaintiffs failed to demonstrate the error was not harmless by providing only the closing argument portion of the transcript.
[1] To preserve an improper remark made during closing argument for appellate review, a party must move for a mistrial after their objection is sustained and before the jury…
[2] Fundamental error in closing arguments, warranting a new trial absent objection, is limited to remarks of such character that neither rebuke nor retraction may entirely d…
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 an objection to an improper remark is sustained, a motion for mistrial must be made before the jury retires to deliberate in order to preserve the issue for appellate review”
Establishes that failure to move for mistrial after objection is sustained results in waiver of the appellate issue.
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Join FLexlaw to unlock all legal intelligencePlaintiffs Annemarie Weise, Edward Weise, and their daughter Melissa brought suit against Repa Film International and Diversified Management Company. …
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KLEIN, Judge.
Plaintiffs appeal an adverse jury verdict, arguing that we should grant a new trial because of defense counsel’s remark in clos ing argument. Plaintiffs’ objection to the remark was sustained by the trial court, but plaintiffs did not move for a mistrial. We affirm. Hagan v. Sun Bank of Mid-Florida, N.A, 666 So. 2d 580, 585 (Fla. 2d DCA 1996) (holding that if an objection to an improper remark is sustained, a motion for mistrial must be made before the jury retires to deliberate in order to preserve the issue for appellate review).
Plaintiffs, recognizing that the issue was not preserved, argue that the error was fundamental citing our opinion in Norman v. Gloria Farms, Inc., 668 So. 2d 1016 (Fla. 4th DCA 1996). In Norman, our reversal was grounded on juror misconduct in combination with improper argument, and we were careful to point out that only remarks “of such character that neither rebuke nor retraction may entirely destroy their sinister influence” could result in a new trial absent objection. Norman at 1023 (quoting Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936)). Norman did not, therefore, expand fundamental error beyond the narrow definition given to it in LeRetilley v. Harris, 354 So. 2d 1213 (Fla. 4th DCA), cert, denied, 359 So. 2d 1216 (Fla. 1978).
An argument on appeal that opposing counsel’s remarks were so egregious as to be of the type contemplated by Baggett will generally be sorely lacking in credibility where there is no objection, or, if an objection is sustained, there is no motion for mistrial. See Hagan, 666 So. 2d at 585; Walt Disney World Co. v. Blalock, 640 So. 2d 1156, 1159 (Fla. 5th DCA 1994) (Griffin, J., dissenting.)
In addition to lack of preservation, another problem we see all too frequently in appeals involving closing argument is the failure of the appellant to demonstrate that the error was not harmless. § 59.041, Fla.Stat. (1995); Hagan, 666 So. 2d at 587. In Tyus v. Apalachicola Northern Railroad Co., 130 So. 2d 580, 587 (Fla.1961), our supreme court explained that appellate courts will not reverse because of prejudicial remarks, unless the prejudice is “so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury.”
In the present case, appellants have not furnished us with any part of the transcript other than defense counsel’s closing argument.1 Where, as here, appellants argue that the alleged prejudice resulted in a defense verdict, the liability portion of the transcript would generally be necessary in order for us to determine whether a new trial is warranted under Tyus and LeRetilley.
Affirmed.
GROSS, J., and GERSTEN, CAROL R., Associate Judge, concur. . We are not suggesting that a transcript would have affected the outcome of this appeal. The remark, a single sentence, was susceptible of two interpretations, one of which was innocent. We accept defendant’s interpretation.
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Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000)…d a complaining party establish that the unobjected-to argument being challenged is improper, the party must then also establish that the argument being challenged is harmful.22 See, e.g., § 59.041, Fla. Stat. (1999); Weise v. Repa Film Int’l, Inc., 683 So. 2d 1128 (Fla. 4th DCA 1996) (declining to grant new trial based on allegedly improper closing argument where complaining party failed to establish that such argument was harmful). In imposing this harmfulness requirement, we recognize that “there is a tempt…
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William K. Fravel, D.M.D. v. Haughey, 727 So. 2d 1033 (Fla. 5th DCA 1999)…e, 619 So. 2d 4 (Fla. 5th DCA 1993) (comments must be so pervasive as to sway jury from dispassionate consideration). [*1040] See also § 59.041, Cleveland Clinic Florida v. Wilson, 685 So. 2d 15 (Fla. 4th DCA 1996); Weise v. Repa Film International, 683 So. 2d 1128 (Fla. 4th DCA 1996) (judgment may not be reversed unless miscarriage of justice occurs). There ought to be a lesser standard for preserved error in such cases, and at this point, there is not. Second, although we urge trial judges to take a more a…
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Pedroza v. State, 773 So. 2d 639 (Fla. 5th DCA 2000)…mproper comment which is sustained by the trial judge, the party must move for mistrial if he or she wishes to preserve the objection for appellate review. See Ed Ricke & Sons, Inc. v. Green, 468 So. 2d 908 (Fla.1985); Weise v. Repa Film Int'l Inc., 683 So. 2d 1128 (Fla. 4th DCA 1996); Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996), disapproved of on other grounds, Murphy v. International Robotic Sys., Inc., 766 So. 2d 1010 (Fla.2000); Newton v. South Florida Baptist Hosp., 614 So. 2…
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
- Tyus v. Apalachicola N. R.R. Co., 130 So. 2d 580 (Fla. 1961)
- Baggett v. Davis, 124 Fla. 701 (Fla. 1936)
- Hagan v. SUN Bank OF Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996)
- LeRETILLEY v. Harris, 354 So. 2d 1213 (Fla. 4th DCA 1978)
- Walt Disney World Co. v. Blalock, 640 So. 2d 1156 (Fla. 5th DCA 1994)
- Norman v. Gloria Farms, Inc., 668 So. 2d 1016 (Fla. 4th DCA 1996)