FLORIDA PENINSULA INSURANCE COMPANY v. RAFAEL NOLASCO AND CELIA NOLASCO

Third District Court of Appeal
State of Florida
Opinion filed February 10, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-1393
Lower Tribunal No. 13-33959
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Florida Peninsula Insurance Company,
Appellant,
vs.
Rafael Nolasco and Celia Nolasco,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig,
Judge.
Quintairos, Prieto, Wood & Boyer, P.A., Thomas A. Valdez and
Kimberly J. Lopater (Tampa), for appellant.
Alvarez, Feltman, Da Silva & Costa, PL, and Paul B. Feltman, for
appellees.
Before GORDO, LOBREE and BOKOR, JJ.
PER CURIAM.
Florida Peninsula Insurance Company (FPIC) appeals the denial of its
motion for new trial arguing the trial court abused its discretion by not
ordering a new trial where counsel’s repeated inflammatory remarks aimed
at denigrating FPIC’s counsel and expert witness constituted fundamental
error, which devastated any chance FPIC had of receiving a fair trial. 1 For
the reasons that follow, we agree and reverse and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
The Nolascos filed suit against FPIC in 2013 after suffering water
damage to their home and making repairs. FPIC defended against the claim
based on expert testimony arguing the Nolascos staged the repairs and
submitted a fraudulent claim. Following a four-day trial, the jury returned a
verdict in favor of the Nolascos awarding $20,000 in damages.
FPIC subsequently filed a motion for new trial arguing that plaintiffs’
counsel committed reversible fundamental error in closing argument by
calling FPIC’s expert witness a “liar” and making inflammatory, prejudicial,
and sexist comments about defense counsel. Plaintiffs’ counsel argued that
because many of the improper comments were unobjected to, the error
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FPIC’s motion for new trial alternatively sought to interview jurors. FPIC
alleged a juror was unqualified to sit on the jury and the trial court abused its
discretion in denying the juror interview. As this alternative basis for reversal
is rendered moot by our decision, we decline to address it.
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complained of was not preserved and a new trial was not warranted. The
trial court denied the motion for new trial.
STANDARD OF REVIEW
We “employ an abuse of discretion standard of review when
considering the correctness of a trial court’s grant or denial of a new trial
based on unobjected-to closing argument.” Murphy v. Int’l Robotic Sys., Inc.,
766 So. 2d 1010, 1031 (Fla. 2000). “[T]he primary concern of courts must
be how the improper closing argument affected the fairness of the trial
proceedings.” Id. at 129; Carnival Corp. v. Jimenez, 112 So. 3d 513, 520
(Fla. 2d DCA 2013).
LEGAL ANALYSIS
“A contemporaneous objection to improper comments during closing
argument is necessary to preserve error, unless the error can be said to be
fundamental.” Owens Corning Fiberglas Corp. v. Morse, 653 So. 2d 409,
410 (Fla. 3d DCA 1995). “Fundamental error occurs if the argument ‘was so
prejudicial as to be incapable of cure by rebuke or retraction,’ or if the error
extinguishes ‘a party’s right to a fair trial.’” Id. (citations omitted).
We examine the trial court’s ruling on the motion for new trial under
Murphy’s four-part test. “To receive a new trial . . . based on unobjected-to
closing argument,” “a complaining party [must] establish that the unobjected-
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to argument being challenged was improper, harmful, and incurable,” and
“that the argument so damaged the fairness of the trial that the public’s
interest in our system of justice requires a new trial.” Murphy, 766 So. 2d at1028–30.
Improper Remarks
1. Referring to defense counsel, Mr. Bosch and Ms. Jackson, as
“liars”
MR. ALVAREZ: The next promise they broke is when
Mr. Bosch walked up here and lied to you.
...
MR. ALVAREZ: The next thing that they did to lie to
you, to break their promise to my client and then to
you, Oh, it was a staged repair.
...
MR. ALVAREZ: No one came up here and said there
was no water, no one came up here and said a loss
occurred in another way. No one. It was nothing
other than the argument of counsel, Mr. Bosch and
Ms. Jackson making outlandish allegations, trying to
get you to make leaps and inferences, but that’s not
evidence. Evidence is what you hear from that box,
and the law is what the judge tells you it is. That’s
unfortunately the way the system goes. They can’t
come up here and lie to you and make
misrepresentations like they did.
...
MR. ALVAREZ: For [Ms. Jackson] to come up here
and say it is inconceivable that he said that, it is
honestly just another lie by the defense team
because they have no case.
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2. Referring to counsel, Ms. Jackson, and “her drama”
MR. ALVAREZ: Everyone loves drama. That’s what
Ms. Jackson is all about, drama.
...
MR. ALVAREZ: They didn’t put up a single witness.
All they have is Ms. Jackson and her drama and her
book.
...
MR. ALVAREZ: Now, she said some things that,
again, back to drama.
...
MR. ALVAREZ: No, no, it is just Ms. Jackson and her
drama.
...
MR. ALVAREZ: No one from the insurance company
sat there and said it didn’t happen, there was no
water, it was fraud . . . . It is just Ms. Jackson and her
drama and Mr. Bosch and his lies to you.
THE COURT: Mr. Alvarez, I ask you to be more polite
to Ms. Jackson.
MR. ALVAREZ: I apologize, sir.
3. Referring to expert witness, Donald Dunn, as a “liar”
MR. ALVAREZ: [Mr. Dunn] went up there as a hired
gun.
...
MR. ALVAREZ: Mr. Dunn bolstered himself and his
testimony and broke his promise to you by not telling
the truth, by not being 100 percent forthright with
what happened. And that is the only basis that Ms.
Jackson and Mr. Bosch and their client are using to
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claim that my client committed some sort of fraud
. . . . Mr. Dunn, the hired gun, the guy that works 90
percent of the time for insurance companies . . . .
...
MR. ALVAREZ: [Mr. Dunn] lied to me. Why? He is
not up there as an expert. He’s up as a hired gun by
them to go back and accuse my client so they can
deny his claim.
...
MR. ALVAREZ: I got out of him that 90 percent of his
work is for the insurance companies. So obviously
he skewed – he wants to keep making money. He
kept smiling over at you guys, at the whole jury. I
love to make money, kept shaking his head. Frankly,
it is unrefuted that he is nothing more than a proxy
for the insurance company.
Fundamental Error
“[I]t is never acceptable for one attorney to effectively impugn the
integrity or credibility of opposing counsel before the jury . . . .” Owens-
Corning Fiberglas Corp. v. Crane, 683 So. 2d 552, 555 (Fla. 3d DCA 1996).
“[D]erogatory comments specifically attacking the integrity of opposing
counsel constitute fundamental error, depriving the plaintiffs of a fair trial.”
Morse, 653 So. 2d at 411. This Court has repeatedly held that arguments
claiming opposing counsel “lied to the jury” or accusing counsel of “trickery”
and “hiding the ball” are highly prejudicial and improper. Id.; Sun
Supermarkets, Inc. v. Fields, 568 So. 2d 480, 481 (Fla. 3d DCA 1990) (“The
conduct of the plaintiff’s counsel in this case devastated any chance the
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defendant might have had to secure a fair trial in front of a jury who had been
told not to trust the defendant’s counsel.”); Kendall Skating Ctrs., Inc. v.
Martin, 448 So. 2d 1137, 1137 (Fla. 3d DCA 1984) (finding plaintiff’s
assertion that defendants and their lawyers were “liars” compels reversal).
Such comments are of a “nature and type that neither rebuke nor a retraction
of the comments would ‘destroy their prejudicial and sinister influence.’”
Morse, 653 So. 2d at 411 (quoting Sun Supermarkets, 568 So. 2d at 481);
E. Steamship Lines, Inc. v. Martial, 380 So. 2d 1070, 1072 (Fla. 3d DCA
1980).
While the blatant claims that defense counsel lied to the jury in and of
themselves amount to fundamental error, here, the trial court observed that
plaintiffs’ counsel employed sexist 2 language in its strategy of denigrating
the defense. The trial judge, who is in “the best position to evaluate
improper, unobjected-to errors,” specifically found plaintiffs’ counsel’s
remarks offensive, sexist and unacceptable. Aarmada Prot. Sys. 2000, Inc.
v. Yandell, 73 So. 3d 893, 900 (Fla. 4th DCA 2011). The repeated remarks
2
We recognize that the term “drama” can be attributed to a person
regardless of sex, but we accept the trial court’s finding on the record that
counsel’s remarks were “sexist” given that the trial court is in a far better
position than the appellate court to gauge the delivery, intonation and context
of improper remarks in the first instance. See Aarmada Prot. Sys. 2000, Inc.
v. Yandell, 73 So. 3d 893, 900 (Fla. 4th DCA 2011).
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prompted the trial judge to interject and stop counsel from making further
derogatory remarks consistent with the judge’s “ultimate responsibility to
ensure proper behavior of trial counsel and fair trial proceedings in his or her
courtroom.” R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 763
(Fla. 4th DCA 2016). We do not find, however, that the judge’s admonition
cured the cumulative effect of the prejudicial statements.
We further find that plaintiffs’ counsel’s argument referring to the
defense expert witness as a “liar” and a “hired gun” constituted fundamental
error as counsel’s remarks were not supported by record evidence. It is only
permissible for counsel to refer to a witness as being a “liar” where “such
characterizations are supported by the record.” Murphy, 766 So. 2d at 1028;
Craig v. State, 510 So. 2d 857, 865 (Fla. 1987) (“When counsel refers to a
witness . . . as being a ‘liar,’ and it is understood from the context that the
charge is made with reference to testimony given by the person thus
characterized, [counsel] is merely submitting to the jury a conclusion that he
is arguing can be drawn from the evidence.”). A lawyer must not, however,
state a personal opinion as to the credibility of a witness. R. Regulating Fla.
Bar 4–3.4(e). “By doing so, an attorney removes himself from his position
as an advocate and as an officer of the court and, in effect, becomes an
additional witness for his client, not subject to cross examination.”
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Muhammad v. Toys R Us, Inc., 668 So. 2d 254, 258 (Fla. 1st DCA 1996).
“A lawyer’s expression of his personal opinion as to the credibility of a
witness, or of his personal knowledge of facts, is fundamentally improper.”
Id.; Moore v. Taylor Concrete & Supply Co., Inc., 553 So. 2d 787, 792 (Fla.
1st DCA 1989); Stokes v. Wet ‘N Wild, Inc., 523 So. 2d 181, 182 (Fla. 5th
DCA 1988). Closing arguments that “attempt to impugn the integrity of a
witness by calling him a liar,” “fall squarely within that category of
fundamental error—requiring no preservation below—in which the basic
right to a fair and legitimate trial has been fatally compromised.” Kaas v.
Atlas Chemical Co., 623 So. 2d 525, 526 (Fla. 3d DCA 1993).
CONCLUSION
It is readily apparent that the focus of the closing argument was on
denigration of defense counsel and the defense witness as opposed to
attacking the evidence adduced at trial. Plaintiffs’ counsel repeatedly
denigrated the integrity and credibility of defense counsel and their witness
by calling them “liars” and ridiculing Ms. Jackson for “her drama”. “[T]hese
inflammatory and prejudicial remarks will not be condoned.” Morse, 653 So.
2d at 411. “We demean ourselves and the system of justice we serve when
we permit this to occur.” Borden, Inc. v. Young, 479 So. 2d 850, 851–52
(Fla. 3d DCA 1985).
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We find the improper remarks in this case were “so highly prejudicial
and of such collective impact as to gravely impair a fair consideration and
determination of the case by the jury.” Murphy, 766 So. 2d at 1029. “[T]he
argument so damaged the fairness of the trial that the public’s interest in our
system of justice requires a new trial.” Id. at 1030. We, therefore, conclude
the trial court abused its discretion in denying the motion for new trial.
Reversed and remanded for new trial.
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