Aris v. Applebaum ( 2016 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed February 3, 2016.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D14-2050
    Lower Tribunal No. 13-740
    ________________
    Janine Aris and Pierre Aris,
    Appellants,
    vs.
    Seville C. Applebaum,
    Appellee.
    An Appeal from the Circuit Court for Miami-Dade County, Norma S.
    Lindsey, Judge.
    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, J.
    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,
    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.
    2 Appellants 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)).
    2
    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
    3
    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.
    4
    

Document Info

Docket Number: 3D14-2050

Judges: Wells, Rothenberg, Emas

Filed Date: 2/3/2016

Precedential Status: Precedential

Modified Date: 10/19/2024