Monday, August 31, 2009

Second District Reverses For New Trial - Wrong Standard Applied On Motion For New Trial

In City of Tampa v. Companioni, Jr. (2D08-921), the Second District reversed the trial court's denial of the appellant's motion for new trial. The court stated:

Although a party whose objection is sustained must move for a mistrial in order to preserve the issue for appellate review, a motion for mistrial is not a prerequisite to moving for a new trial...As explained in Nigro, a trial court generally has broad discretion to setaside a jury verdict and grant a new trial. Id. When counsel's misconduct deprives a party of a fair trial and that conduct has been objected to, the trial court may order a new trial even though there was no motion for a mistrial and the error was not fundamental.
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Here, the trial court erroneously concluded that the City had not preserved its objections to opposing counsel's misconduct. Consequently, it applied the wrong standard when it evaluated the City's motion for a new trial. Under the correct standard, the trial court would not need to consider whether counsel’s conduct was so egregious that failure to grant a new trial would undermine the public's confidence in the justice system. Rather, it only needed to consider whether opposing counsel's misconduct deprived the City of a fair trial. Having found that it did, the trial court should have granted the City's motion. Accordingly, we reverse and remand for a new trial.
*Disclaimer: Richard M. Zabak and/or GrayRobinson, P.A. were involved in the above-referenced action.

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