Attorney misconduct at trial — Preservation of issue

41
Fla. L. Weekly D327aTop of Form

Appeals
— Attorney misconduct at trial — Preservation of issue — Where party made
contemporaneous objection to a clearly improper question posed at trial by
opposing counsel, objection was sustained, question was stricken from record,
and jury was instructed to disregard the question, party was required to
contemporaneously move for mistrial in order to preserve issue for appeal —
Review of record indicates objected-to question did not amount to fundamental
error

JANINE ARIS AND PIERRE ARIS, Appellants, vs. SEVILLE C.
APPLEBAUM, Appellee. 3rd District. Case No. 3D14-2050. L.T. Case No. 13-740.
Opinion filed February 3, 2016. An Appeal from the Circuit Court for Miami-Dade
County, Norma S. Lindsey, Judge. Counsel: Jontiff & Jontiff, Scott J.
Jontiff and Jeannie M. Jontiff; Daniel M. Samson, for appellants. Cole Scott
& Kissane and Kathryn L. Ender, for appellee.

(Before WELLS, ROTHENBERG and EMAS, JJ.)

(EMAS, Judge.) 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

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.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 Ricke 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 at 1017 (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.

__________________

1Significantly, later on in the
trial, Appellants objected to Appellee’s late disclosure of a witness and moved
for a mistrial. However, when the court said it would entertain a stipulated
mistrial, and pressed the issue by asking Appellants’ counsel, “Do you really
want a mistrial?”, Appellants’ counsel declined such an option, advising that
Appellants could not go forward with their request for a mistrial and instead
wished to continue with the trial notwithstanding the court’s decision to
permit the late-disclosed witness to testify.

2Appellants could have coupled their
motion for mistrial with a request that the trial court reserve ruling on the
motion for mistrial until after the return of the verdict. Companioni v.
City of Tampa, 51 So. 3d 452, 455 (Fla. 2010) (citing Ed Ricke & Sons,
Inc. v. Green, 468 So. 2d 908, 911 (Fla. 1985)).

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