Third District Court of Appeal
State of Florida
Opinion filed February 3, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-2050
Lower Tribunal No. 13-740
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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)).
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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
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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.
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