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R and W Rental Properties, LLC v. Warnick

Florida Court of Appeals, Fifth District

August 9, 2019

R AND W RENTAL PROPERTIES, LLC Appellant,
v.
HARRY W. WARNICK, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Volusia County, Sandra C. Upchurch, Judge.

          Kevin D. Franz, of Boyd & Jenerette, P.A., Boca Raton, and Kansas R. Gooden, of Boyd & Jenerette, P.A., Jacksonville, for Appellant.

          Nancye R. Jones and Mark A. Matovina, of Politis & Matovina, P.A., Port Orange, for Appellee.

          SASSO, J.

         Appellant, R and W Rental Properties, LLC, appeals from an order granting Appellee's, Harry W. Warnick, motion for mistrial and ordering a new trial. Appellant argues that the trial court abused its discretion in ordering a new trial based on an isolated comment by Appellant's counsel during closing argument. We agree and reverse on that issue. We affirm the trial court's denial of Appellant's motion for directed verdict without further discussion.

         Appellee sued Appellant for negligence after he was injured when he stepped onto particleboard and fell through the ceiling while inspecting the attic in a house owned by Appellant. Appellee alleged that Appellant failed to warn him about the particleboard and failed to correct the danger it created. Appellant argued any dangerous condition created by the particleboard was open and obvious.

         Appellant's theme throughout the ensuing trial was that Appellee, a professional home inspector, should have been able to detect that the board at issue was, in fact, particleboard and should have known the dangers presented by walking on particleboard. Indeed, Appellant's opening and closing argument largely focused on that theme. However, at the beginning of his closing argument, Appellant's counsel made the following comment:

Good afternoon, folks. This is the last time I'm going to be able to talk to you on behalf of my client, and I want to thank you for being very, very attentive and sharing your time with us. You know, sometimes you get picked, as you are, in a special - - a very special position, being a juror, and jurors are the gatekeepers. They're the ones that hear litigation, hear cases, and make a decision that, in this case, we would submit to you, that - - that can protect the homeowners of Volusia County - -

(Emphasis added). Appellee's counsel objected and moved for a mistrial, arguing the comment about protecting homeowners was an improper "golden rule" violation. The trial court reserved ruling on the motion and Appellant's counsel made no further references to protecting homeowners.

         Ultimately, the jury returned a verdict for Appellant. After dismissing the jury, the trial court granted Appellee's motion for mistrial. The court stated, "In light of what I perceive to be a violation of the Golden Rule . . . I feel that I am compelled to grant the motion for a mistrial." In its written order memorializing the oral pronouncement, the court noted that it granted the motion because Appellant violated the "golden rule" and "improperly encouraged the jurors to send a message to protect the homeowners of Volusia County."

         We review the trial court's order granting a new trial for an abuse of discretion. Hang Thu Hguyen v. Wigley, 161 So.3d 486, 488 (Fla. 5th DCA 2014) (reviewing trial court's order granting new trial based on improper argument for abuse of discretion). It is important to note at the outset that while trial counsel objected to the argument based on a violation of the "golden rule," the argument was not a "golden rule" violation. A "golden rule" argument urges the jury to place themselves in a party's position to allow recovery as they would want were they the party. Shaffer v. Ward, 510 So.2d 602, 603 (Fla. 5th DCA 1987). But here, counsel did not ask the jurors to assume the position of either party, nor did the statement "strike into the sensitive area of financial responsibility." Cf. Metro. Dade Cty. v. Zapata, 601 So.2d 239 (Fla. 3d DCA 1992) (to be impermissible, argument must strike at sensitive area of financial responsibility and hypothetically request jury to consider how much they would wish to receive in similar situation).

         While the argument may have been an improper "conscience of the community"[1] remark, this argument was not properly preserved by objection. Charles v. State, 258 So.3d 549, 552 (Fla. 3d DCA 2018) (reiterating that objected-to remarks are not properly preserved for review where different legal basis is presented on appeal). Thus, the trial court should have only granted a new trial if the argument was improper, harmful, incurable, and so damaging to the fairness of the trial that "the public's [confidence] in our system of justice requires a new trial." Wilbur v. Hightower, 778 So.2d 381, 384 (Fla. 4th DCA 2001) (citing Murphy v. Int'l Robotic Sys., Inc., 766 So.2d 1010 (Fla. 2000)).

         Viewing this single, isolated comment in the context of the entire trial, the comment did not "sink to a level of perniciousness at which a new trial is required to maintain public confidence in our system of justice." Little v. Davis, 260 So.3d 1139, 1145 (Fla. 1st DCA 2018) (holding trial court abused its discretion in granting new trial where isolated cross-examination question did not undermine integrity of judicial process). Moreover, any perceived harm by the comment could have been cured. See, e.g., Rivera v. State, 745 So.2d 343, 354 (Fla. 4th DCA 1999) ("Generally speaking, the use of a curative instruction to dispel the prejudicial effect of an objectionable comment is sufficient."). As such, the trial court abused its discretion in granting a new trial. See, e.g., McDuffie v. State, 970 So.2d 312, 326 (Fla. 2007) (holding that trial court "abuses its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence"); CEC Entm't, Inc. v. Zaldivar, 44 Fla.L.Weekly D1026, D1027, 2019 WL 1781300, at *4 (Fla. 3d DCA Apr. 24, 2019) (holding trial court abused its discretion in granting motion for ...


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