FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Volusia County, Sandra C.
D. Franz, of Boyd & Jenerette, P.A., Boca Raton, and
Kansas R. Gooden, of Boyd & Jenerette, P.A.,
Jacksonville, for Appellant.
R. Jones and Mark A. Matovina, of Politis & Matovina,
P.A., Port Orange, for Appellee.
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.
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.
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
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
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
the argument may have been an improper "conscience of
the community" 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)).
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 ...