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.
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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