ORANGE COUNTY, FLORIDA AND DENNIS R. O'CONNOR, ESQ.

v.

JAGGER S. FERGUSON

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

ORANGE COUNTY, FLORIDA AND

DENNIS R. O'CONNOR, ESQ.,

Appellants,

v. Case No. 5D18-2405

JAGGER S. FERGUSON,

CORRECTED

Appellee.

________________________________/

Opinion filed January 31, 2020

Appeal from the Circuit Court for Orange County, Bob LeBlanc, Judge.

Derek J. Angell, of Bell & Roper, P.A., Orlando, for Appellants.

Mark A. Nation and Paul W. Pritchard, of The Nation Law Firm, Longwood, for Appellee.

EVANDER, C.J.

In this personal injury case, Jagger Ferguson sued Orange County (“the County”) for negligence after allegedly being sexually abused by a jail inmate, while participating in a court-ordered jail tour as part of a juvenile diversion program. The jury returned a defense verdict. Subsequently, the trial court entered one omnibus order directing a verdict on liability in favor of Ferguson, granting a new trial, and imposing sanctions against the County’s attorney, Dennis O’Connor.

This Court has jurisdiction to review an order granting a new trial pursuant to section 59.04, Florida Statutes (2019), and Florida Rules of Appellate Procedure 9.110(a)(3) and 9.130(a)(4). We also have jurisdiction to review that portion of the order granting a directed verdict. See Bowen v. Willard, 340 So. 2d 110, 112 (Fla. 1976) (holding that appeal taken from new trial order shall be treated as appeal from final judgment to extent possible, and that appellate courts have authority to deal with other appealable issues); see also City of Tampa v. Jorda, 445 So. 2d 699, 700 (Fla. 2d DCA 1984) (holding that appeal from order granting new trial entitled appellant to challenge denial of motion for directed verdict). We dismiss, for lack of jurisdiction, the portion of the appeal challenging the imposition of sanctions,¹ but otherwise reverse.

A trial court’s ruling on a motion for directed verdict is reviewed under the de novo standard. 21st Century Centennial Ins. Co. v. Thynge, 234 So. 3d 824, 826 (Fla. 5th DCA 2017). This standard of review applies whether the trial court grants the motion at the close of evidence or after a jury verdict. Scott v. TPI Rests., Inc., 798 So. 2d 907, 908 (Fla. 5th DCA 2001). “A motion for a directed verdict should not be granted unless the court, after viewing the evidence and testimony in the light most favorable to the nonmoving party, determines that no reasonable jury could render a verdict for the nonmoving party.” Miller v. City of Jacksonville, 603 So. 2d 1310, 1311–12 (Fla. 1st DCA 1992). “If there are conflicts in the evidence or different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law.” Scott, 798 So. 2d at 909.

Here, the jury answered “No” to the first question on the verdict form: “Was there negligence on the part of ORANGE COUNTY, FLORIDA which was a legal cause of loss, injury, or damage to JAGGER S. FERGUSON?” We agree with the trial court that the evidence established that the County conducted the jail tour in a negligent manner and that there was no evidence that would support a finding that Ferguson was comparatively negligent. However, the County correctly argues that the jury could have found a lack of causation of loss, injury, or damage. Ferguson staked his entire claim on his contention that he suffered from posttraumatic stress disorder (“PTSD”) as a result of the events that occurred on the jail tour. The County, in addition to highlighting parts of Ferguson’s testimony that would suggest that Ferguson did not suffer from PTSD, presented expert testimony disputing Ferguson’s PTSD claim. Because the jury could properly conclude that the County’s negligence was not “a legal cause of loss, injury, or damage” to Ferguson, the trial court erred in granting Ferguson’s renewed motion for directed verdict.

Next, the trial court granted Ferguson’s motion for new trial on the ground that the County’s attorney, Dennis O’Connor, willfully violated orders in limine and, as a result, “the jury was deceived and was likely influenced by considerations outside the record.”

The record reflects that during closing argument, O’Connor violated two separate orders in limine. First, he displayed an unredacted copy of a psychological treatment note of Ferguson, which impermissibly stated that Ferguson’s participation in the jail tour was pursuant to a restorative justice program as the result of a “stealing” offense. Only a redacted copy of the treatment note was admitted into evidence, and the trial court repeatedly advised defense counsel that he was not to inject or suggest that Ferguson was the subject of a “criminal arrest” or that his participation in the jail tour was through a juvenile restorative justice program.² Second, defense counsel suggested that the United States Army (Ferguson’s current employer) would “take care of its own,” if Ferguson needed therapy in the future. The trial court had previously prohibited defense counsel from mentioning, inferring, or eliciting testimony regarding the availability of Tricare benefits or any other health insurance to pay for Ferguson’s possible future medical expenses.

Normally, we review new trial orders for abuse of discretion. R & W Rental Props., LLC v. Warnick, 277 So. 3d 1099, 1101 (Fla. 5th DCA 2019). Critical to our analysis, however, is the fact that despite defense counsel’s violations of the trial court’s orders in limine, Ferguson never moved for a mistrial. As a result, defense counsel’s misconduct was subject to a fundamental error analysis pursuant to the standard set forth in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000). See Companioni v.

City of Tampa, 51 So. 3d 452, 456 (Fla. 2010) (holding that if party failed to move for mistrial based on opposing attorney’s misconduct, upon consideration of motion for new trial, conduct was subject to fundamental error analysis under Murphy).³ A trial court errs, when, as in the instant case, it grants a new trial based on unpreserved error involving attorney misconduct without first applying the Murphy test. See R & W Rental Props., 277 So. 3d at 1101; Little v. Davis, 260 So. 3d 1139, 1145 (Fla. 1st DCA 2018).

In Murphy, the Florida Supreme Court held “that before a complaining party may receive a new trial based on unobjected-to closing argument, the party must establish that the argument being challenged was improper, harmful, incurable, and so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Murphy, 766 So. 2d at 1031. The standard set forth in Murphy is a high one. Walt Disney Parks & Resorts U.S., Inc. v. Grimes, 248 So. 3d 179, 179 (Fla. 5th DCA 2018). Indeed, in Murphy, the court stated: Although we have not absolutely “closed the door” on appellate review of unpreserved challenges to closing argument, we have come as close to doing so as we believe

The power of a trial court judge to reserve ruling on a motion for a mistrial will not only conserve judicial resources but may also operate to prohibit a wrongdoer from profiting from his intentional misconduct.

Id. (citing Ed Ricke & Sons, 468 So. 2d at 910).

consistent with notions of due process which deserve public trust in the judicial system.

Murphy, 766 So. 2d at 1031.

Based on our review of the record, we conclude that the Murphy test cannot be met in this case. Although defense counsel’s aforereferenced arguments were clearly improper, we cannot conclude that they were incurable or that they “so damaged the fairness of the trial that the public’s interests in our system of justice requires a new trial.” Murphy, 766 So. 2d at 1031; see also Grimes, 248 So. 3d at 179.

Because the trial court erred in granting Ferguson’s renewed motion for directed verdict and his motion for new trial, we reverse and remand with instruction that the trial court enter final judgment in accordance with the jury’s verdict. See Grimes, 248 So. 3d at 180.

REVERSED, in part; DISMISSED, in part; and REMANDED.

COHEN and GROSSHANS, JJ., concur.