JANINE ARIS AND PIERRE ARIS, APPELLANTS,
v.
SEVILLE C. APPLEBAUM, APPELLEE

Fla. 3d DCA | 2016-02-03
No. 3D14-2050
Before WELLS, ROTHENBERG and EMAS, JJ.
184 So. 3d 633 Florida District Court of Appeal, Third District (2016) Positive Treatment
Cited by 1 case

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Synopsis

The Third District Court of Appeal affirmed the trial court's denial of a post-trial motion for new trial, holding that appellants failed to preserve error by not contemporaneously moving for mistrial after their objection to improper questioning was sustained and a curative instruction was given to the jury.


Holding

Appellants did not preserve the error for appeal. Where a contemporaneous objection to attorney misconduct is sustained and a curative instruction is given, a party must contemporaneously move for mistrial to preserve the issue for later consideration in a motion for new trial, unless the error constitutes fundamental error. The objected-to question did not constitute fundamental error.


Headnotes

[1] A party seeking to preserve an issue of attorney misconduct for appellate review must move for a mistrial contemporaneously with a sustained objection if the party believ…

[2] Failure to move for a mistrial after a sustained objection and curative instruction, unless the error is fundamental, waives the right to later seek a new trial on that g…

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Key Quotes

“Where a contemporaneous objection to attorney misconduct is sustained and a curative instruction is given to the jury, a party who believes the error has not been cured by the court's actions, must also contemporaneously move for a mistrial in order to preserve the issue for a trial court's later consideration of a motion for new trial.”

Establishes the core holding regarding preservation of error in attorney misconduct cases

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Facts & Procedural History

During trial, Appellee's counsel posed a clearly improper question to a witness. Appellants objected to the question, the objection was sustained, the…

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Opinion of the Court
EMAS, J.

EMAS, J.

We affirm the final judgment below and the trial court’s order denying Appellants’ post-trial motion for new trial. The error complained of in this case was not properly preserved. Appellants objected to a clearly improper question posed at trial by Appellee’s counsel. The objection was sustained and, upon Appellants’ request, the question was stricken from the record and the jury was instructed to disregard the question. Appellees did not seek any additional curative instruction and did not move for a mistrial.1

*634Where a contemporaneous objection to attorney misconduct is • sustained and a curative instruction is given to the jury, a. party who believes the error has not been cured by the court’s actions, must also contemporaneously move for a mistrial in order to preserve the issue for a' trial court’s later consideration of a motion for new trial.2 Companioni v. City of Tampa, 51 So.3d 452 (Fla.2010) (approving the decisions in State v. Benton, 662 So.2d 1364 (Fla. 3d DCA 1995) and State v. Fritz, 652 So.2d 1243 (Fla. 5th DCA 1995)). See also Aarmada Prot. Sys. 2000, Inc. v. Yandell, 73 So.3d 893 (Fla. 4th DCA 2011). In Companioni, 51 So.3d at 455, the Florida Supreme Court addressed the purpose for requiring a contemporaneous motion for mistrial:

The City argues that Ed Ricke [& Sons, Inc. v. Green, 468 So.2d 908 (Fla.1985) ] supports its position that a party can move for a new trial without first moving for mistrial.- We disagree. Ed Riche stands for the proposition that a trial judge has a superior vantage point from which to decide whether granting a mistrial prior to the jury rendering its verdict preserves judicial economy. It does not in any, way imply that the parties’ attorneys have a superior, vantage point, and can thus utilize-the “wait and see” approach. Litigants often engage in improper conduct to prompt a .mistrial if they believe their-chances of winning are slim. Id. In those cases, judicial economy dictates that if the verdict may cure the objection, then it is in the interest of the court to wait. See id. On the other hand, if the trial is permeated with attorney misconduct, it would not be in the interest of judicial economy to wait and see what a jury decides. Instead, requiring a litigant to move for mistrial following a sustained objection promotes judicial economy in the same way the contemporaneous objection requirement promotes judicial economy. As this Court explained in Murphy [v. International Robotic Systems, Inc.], 766 So.2d [1010] at 1017 [(Fla.2000)] (quoting Castor v. State, 365 So.2d 701, 703 (Fla.1978)),
[t]he 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 only exception to this preservation requirement is where the error complained of was fundamental. Ed Ricke, 468 So.2d at 910. Upon our review of the record, we conclude that the objected-to question did not constitute fundamental error. Therefore, Appellants’ failure to contemporaneously move for a mistrial was fatal, and the trial court properly denied Appellants’ post-verdict motion for new trial.

Affirmed.


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