Walt Disney Parks v. Grimes , 248 So. 3d 179 ( 2018 )

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
WALT DISNEY PARKS AND RESORTS U.S.,
INC.,
Appellants,
v. Case No. 5D16-3555
TROY DOUGLAS GRIMES AND TRACEY
GRIMES,
Appellees.
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Opinion filed April 13, 2018
Appeal from the Circuit Court
for Orange County,
Donald A. Myers, Jr., Judge.
Angela C. Flowers, of Kubicki Draper, P.A.,
Ocala, for Appellants.
Mark A. Nation and Paul W. Pritchard, of
The Nation Law Firm, Longwood, for
Appellees.
PER CURIAM.
Walt Disney Parks and Resorts U.S., Inc. (“Disney”) appeals the trial court’s order
granting the motion for new trial filed by Troy Douglas Grimes and Tracey Grimes (“the
Grimeses”) based upon certain arguments made by Disney’s counsel during closing and
not objected to by the Grimeses. We reverse.
Disney’s arguments, while indeed improper, did not rise to the high standard
delineated in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1031 (Fla.
2000). The Florida Supreme Court held in Murphy “that before a complaining party may
receive a new trial based on [an] 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.” Id.; accord Companioni v. City of Tampa, 51 So. 3d 452, 456 (Fla. 2010) (holding
that, if a party failed to object to an instance of attorney misconduct during trial, then the
conduct is subject to a fundamental error analysis pursuant to Murphy). We hold that the
impropriety in Disney’s closing arguments could have been cured by a timely objection,
after which the trial court could have sustained the objection and issued a curative
instruction to the jury. Therefore, the Grimeses failed to establish that “even if the trial
court had sustained a timely objection to the improper argument and instructed the jury
to disregard the improper argument, such curative measures could not have eliminated
the probability that the unobjected-to argument resulted in an improper verdict.” Murphy,
766 So. 2d at 1030.
Because the Grimeses did not show that Disney’s arguments were incurable, it is
not necessary for us to determine whether the public’s interest in our judicial system
requires a new trial. See Carnival Corp. v. Jimenez, 112 So. 3d 513, 522 (Fla. 2d DCA
2013) (“[I]f the complaining party fails to establish that the argument being challenged is
improper, harmful, and incurable, then the analysis does not proceed to the last prong of
this four-part test.” (emphasis added)). We reverse the order granting a new trial and
remand the case for the trial court to reinstate the jury’s verdict.
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REVERSED and REMANDED.
SAWAYA, BERGER and WALLIS, JJ., concur.
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