by Rachel A. Canfield
Although improper closing argument may provide a basis for granting a new trial, the issue generally must be properly preserved by contemporaneous objection. Florida’s appellate courts do not look favorably upon arguments that have not been preserved for appellate review and usually will not consider an issue raised for the first time on appeal.1 To obtain appellate review of a court’s ruling, a litigant must either properly preserve the issue for review by a contemporaneous objection,2 or establish that the unpreserved argument amounts to fundamental error.3 Time and time again, Florida’s appellate courts have articulated that, in the absence of fundamental error, they will not even entertain what may constitute an otherwise meritorious appellate argument because the argument was not properly preserved.4 As a practical matter, appellate courts recognize that the trial judge is in the best position to both evaluate the propriety, and any resulting prejudice, from an allegedly improper argument. Thus, the trial judge should be given timely notice and an opportunity to correct any error that may have been committed in closing.5
In Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000), the Florida Supreme Court was called upon to resolve an express and direct conflict that had arisen over the court’s prior recognition of an exception to the contemporaneous objection rule and address whether and the extent to which such an exception should continue to exist in civil cases.6 The court considered Florida law, federal law, and policy considerations to identify and clarify confusion that existed as to the appropriate standard.7 In doing so, the Murphy court delineated a four-part categorical test to be applied when an appellant asserts error based on an unobjected-to argument that was first raised in a motion for new trial. The appellant must show that the challenged argument was 1) improper, 2) harmful, 3) incurable, and 4) such that it so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.8 Further, the court directed that, when a new trial is granted, the trial court must specifically identify the improper argument and the argument’s impact on the jury.9
After Murphy, the Florida courts have “all but closed the door on fundamental error in civil trials.”10 During the 13 years since Murphy, Florida appellate courts have by and large been consistent in their interpretation and application, but some peculiarities exist, as well. This article provides a brief overview of the appropriate standard and how, in the wake of Murphy, Florida’s appellate courts have interpreted and applied the fundamental error test to civil cases.11
Preliminary Matters: Whether Fundamental Error Is Applicable
In order for an appellate court to apply the fundamental error exception articulated in Murphy, specific conditions must be met.12 The allegedly improper argument must have been made during closing argument,13 the complaining party failed to object to or move for a mistrial on the basis of the allegedly improper argument,14 and the complaining party challenged with specificity the unobjected-to argument in the motion for new trial.15 The failure to challenge the alleged error in a motion for new trial precludes appellate review of the argument.16
Consequently, Florida’s appellate courts have declined to apply the fundamental error analysis when the argument was raised in a motion for mistrial. For example, the Third District Court of Appeal has emphasized that the Murphy standard for fundamental error is inapplicable when the allegedly improper argument was unobjected-to, but was considered by the trial court by way of motion for mistrial during and at the end of the closing argument.17
Merely filing a motion for a new trial is not enough to invoke the fundamental error analysis; the arguments raised on appeal must be the same as those raised in the motion for new trial.18 Allegedly improper comments that were not specifically listed in the motion for new trial will not be reviewed for fundamental error.19
Even when the above conditions have been met, an appellate court may forgo application of the Murphy standard due to the existence of other properly preserved arguments, which, on their own, merit a new trial.20
Appellate Interpretation and Application of the Fundamental Error Analysis
Generally, a trial court’s grant or denial of a motion for new trial is subject to review under an abuse of discretion standard and, thus, alleged error that falls within the fundamental error analysis is subject to a highly deferential standard of review.21 Applying this standard of review, an appellate court will analyze the specific argument under each prong of the fundamental error test to determine whether the trial court did, indeed, abuse its discretion in granting or denying the motion for new trial.22 An appellate court does not, however, afford the same level of deference to a trial court’s determination whether to grant or deny a motion for a new trial if the ruling is by a successor judge who did not preside over the trial; a successor judge’s review is more akin to that of an appellate court.23
Whether a challenged argument was improper is the threshold question in the fundamental error analysis. To determine whether an argument is improper, it is important to understand the purpose and scope of closing argument: Closing argument provides an attorney with the opportunity to assist the jury in understanding the facts and evidence presented during trial, and drawing logical deductions based on the facts and evidence to render a verdict.24 An attorney may not, however, interject into closing argument a matter that is irrelevant, unsupported by record evidence, or a personal opinion.25 Whether an argument is improper basically turns on whether it would cause the jury to return a verdict on impermissible considerations.26
That test has been found to be satisfied in a wide variety of cases. Arguments that are violative of a trial court’s pretrial order or prior ruling will satisfy the test.27 Comments that were clearly intended to inflame the jury by emphasizing irrelevant evidence in an attempt to evoke national pride and loyalty from jurors in a breach of contract case have also been deemed improper.28 Likewise, an argument insinuating that opposing counsel took advantage of a client’s relationship with a witness, so as to “script” the witness’ testimony, was deemed to have gone “over the line” as “highly improper and impermissible.”29 Religious references and appeals to a higher power suggesting that the higher power favored a verdict on the plaintiff’s behalf, implying that the defendant had done something improper by defending its case, and grossly misrepresenting a medical witness’ compensation all constitute improper argument.30 Derogatory remarks about opposing counsel, presenting a “value of life” argument, or suggesting that the defendant would engage in “less than honest tactics” to win the trial have also been deemed improper.31
That an “improper argument is excessively wrong,” standing alone, “does not make it ‘fundamental’ or a proper basis for a new trial.”32 Once it is established that the argument was improper, the court must then determine whether it was harmful.
Bearing in mind that whether a new trial should be granted as a remedy turns on fairness of the proceedings,33 the harmfulness prong serves as a reminder of that purpose and helps ensure that the remedy is not used as a mechanism to punish attorney misconduct.34 To achieve this aim, an appellate court considers whether the comment was so “highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury” that it “reaches into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments.”35 It necessarily follows that harmfulness will not be found when there is record evidence from which a jury could have fairly reached the complained-of verdict.36
Appellate courts routinely look to the amount of the damages award as a barometer of whether the allegedly improper argument was, in fact, harmful. Florida’s Second District has explained that harmfulness is not established when the jury returns an award that is less than the damages sought if there is record evidence to support the award.37 Along the same lines, the Fourth District has declined to find harmfulness when the jury returned an award that was slightly higher than the amount of damages sought,38 or when the award of damages was substantial but, given the facts of the particular case, indicated that any alleged improper argument was “utterly ineffective.”39 The Third District declined to find harmfulness when the jury returned a verdict that was nearly three times the amount of damages sought for breach of contract, but trial court later remitted the award.40
A damages award is not necessarily conclusive of whether harm occurred,41 and courts have also assessed harmfulness by considering the extent and nature of the allegedly improper argument, when taken into context.42 Isolated instances of misconduct, especially when made during a lengthy trial, will not generally be found harmful because it cannot be said that, but for the comment, the verdict would not have been reached. Harmfulness, for example, was not established when a “single comment in argument near the end of a five week trial that — while capable of being interpreted to be an improper attribution of motives without any basis therefore — was of highly doubtful effect.”43 Similarly, harmfulness was not established when defense counsel argued that plaintiff’s failure to produce witnesses at trial created an impermissible missing witness inference.44 In contrast, the Second District concluded that harmfulness had been established when “the portions of the conduct that were reflected in the record were extensive and not isolated” and the conduct had “some type of influence on the jury” based on the record’s reflection of the interruption and delay the conduct caused during trial.45
Once harmfulness has been established, the appellant must demonstrate that the argument was incurable. It has proven “extremely difficult for a complaining party to establish that an unobjected-to argument is incurable.”46
This prong has its origin in the general principle that a contemporaneous objection is a prerequisite to appellate review, unless it can be shown that the argument was of such a nature that “neither rebuke nor retraction may entirely destroy [its] sinister influence, in which event a new trial s[h]ould be awarded.”47 In order to demonstrate that an argument is incurable, the appellant must establish that even if the contemporaneous objection had been made and was sustained, and the jury had been given a curative instruction to disregard the argument, such corrective measures would not have eliminated the probability that the argument resulted in an improper verdict.48 The Second District has found that this prong was established when the record demonstrated that the trial judge continuously attempted to manage counsel’s conduct, but was unable to do so.49 The Second District has considered not only whether a curative instruction would have been insufficient to cure the effect of the improper argument, but also the likelihood that the trial court would have sustained the objection and instructed the jury to disregard defense counsel’s improper comments.50
The fourth, and perhaps most difficult, prong to establish is that the unobjected-to argument damaged the trial to the extent that it interfered with the public’s interest in the justice system. Many courts have not even reached this issue, and thus, case law on this prong is limited.51 It is an onerous burden met only in rare cases that typically involve an “argument that appeals to racial, ethnic, or religious prejudices,” when the basic integrity of the judicial system is affected by the argument.52
The Second District appears to be the only court to have held that this prong was established.53 The court noted that the “trial transcript reflect[ed] a highly contentious and raucous five-day jury trial, fraught with objections and bench conferences.”54 Among other things, defense counsel repeatedly violated a pretrial order, disregarded rulings by the trial court, and engaged in other misconduct that repeatedly brought the trial to a halt, causing the presiding judge to express her frustration with the defense counsel’s behavior, which she noted the totality of could not be “gleaned from the cold record.”55 After moving for a new trial, but before the presiding judge could rule, defense counsel filed a successful motion to disqualify the judge based on her comments regarding his conduct.56 In reaching the fourth prong, the Second District concluded that by taking the focus away from the actual adjudication of the legitimate issue and placing it on counsel’s courtroom behavior, the misconduct “affected the basic fairness, integrity, and public reputation of the judicial process” such that a new trial was required.
The application of fundamental error in civil cases is rare, and the burden to overcome the standard is extremely high. Even if an appellant manages to obtain appellate review of an argument on the basis of fundamental error, it is highly unlikely that the appellant party will be able to meet all of the prongs and satisfy the standard of review to obtain a reversal. In the 13 years since Murphy, appellate courts have seldom affirmed a grant of, or reversed a denial of, a motion for new trial solely on the basis of fundamental error.57 Murphy and its progeny show that a litigant faced with an improper comment during closing should contemporaneously object, request a curative instruction, and move for a mistrial, if there is to be any likelihood of obtaining a new trial.
1 West Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 13 (Fla. 2012); Mann v. Yeatts, 111 So. 3d 934, 937 (Fla. 5th DCA 2013); Vorbeck v. Betancourt, 107 So. 3d 1142, 1147-48 (Fla. 3d DCA 2012); E.G. v. State, Dep’t of Children and Families, 97 So. 3d 945, 946 (Fla. 4th DCA 2012); Davis v. Hinson, 67 So. 3d 1107, 1110 n.1 (Fla. 1st DCA 2011); Pagan v. Sarasota Cnty. Hosp. Bd., 884 So. 2d 257, 270-71 (Fla. 2d DCA 2004).
2 E.g., Castor v. State, 365 So. 2d 701 (Fla. 1978).
3 E.g., Murphy v. Int’l Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000).
4 Health First, Inc. v. Cataldo, 92 So. 3d 859, 869 (Fla. 5th DCA 2012); Bradley v. S. Baptist Hosp. of Fla., Inc., 943 So. 2d 202, 207 (Fla. 1st DCA 2006); USAA Cas. Ins. Co. v. Howell, 901 So. 2d 876 (Fla. 4th DCA 2005); Thompson v. Hodson, 825 So. 2d 941, 947 (Fla. 1st DCA 2002).
5 Murphy, 766 So. 2d at 1023, 1027, 1030.
6 Id. at 1016.
7 Id. at 1027-28.
8 Id. at 1027-31.
9 Id. at 1031.
10 Grau v. Branham, 761 So. 2d 375, 378 (Fla. 4th DCA 2000); see Murphy, 766 So. 2d at 1031 (“[W]e have not absolutely ‘closed the door’ on appellate review of unpreserved challenges.”); Sawczak v. Goldenberg, 781 So. 2d 450, 451-52 (Fla. 2001).
11 It has been suggested that cases involving civil commitment should enjoy a lesser standard, presumably one closer to that applied in the confines of criminal cases. Pedroza v. State, 773 So. 2d 639, 643-44 (Fla. 5th DCA 2000) (Sharp, J. dissenting) (“[C]ivil cases … [do] not involve the liberty interests at stake here.”).
12 Murphy, 766 So. 2d at 1012, n.2 (“[T]his decision does not impact the legal standards applicable to consideration of the issue that has been properly preserved by objection and motion for mistrial.”).
13 Id. at 1027-31; see also Platz v. Auto Recycling & Repair, Inc., 795 So. 2d 1025, 1026-28 (Fla. 2d DCA 2001) (declining to apply Murphy because Murphy did not address improper conduct or argument outside of closing argument).
14 Companioni v. City of Tampa, 51 So. 3d 452, 456 (Fla. 2010) (an unpreserved issue is subject to a fundamental error analysis); Sullivan v. Kanarek, 79 So. 3d 900, 903 (Fla. 2d DCA 2012) (failure to move for mistrial resulted in fundamental error analysis), rev. den., 107 So. 3d 405 (Fla. 2012)); Zuniga v. Eisinger, 954 So. 2d 634, 636 (Fla. 3d DCA 2007) (finding the issue preserved because it was raised in the motion for new trial); Grau, 761 So. 2d at 378 (highly inflammatory comments did not require reversal when counsel made a tactical decision in not requesting a curative instruction and not moving for a mistrial); cf. Garbutt v. LaFarnara, 795 So. 2d 957, 959 (Fla. 2001) (Pariente, J. concurring in result only) (court should explore Murphy rule when motion for mistrial made prior to the conclusion of closing argument).
15 Santiago v. Abramovitz, 96 So. 3d 1091, 1092-93 (Fla. 4th DCA 2012); Howell, 901 So. 2d at 879. But see Pedroza, 773 So. 2d at 643-44 (Sharp, J. dissenting) (Defendant “specifically requested an instruction on the element of ‘likely’ and thus the court was clearly on notice of this issue…. [and] also objected to another improper comment.”).
16 Pedroza, 773 So. 2d at 640-41 (declining to find fundamental error on appeal from a civil commitment proceeding when the complaining party failed to file a motion for new trial).
17 Wyatt v. Marcus, 949 So. 2d 1204, 1204-05 (Fla. 3d DCA 2007) (inapplicable when the allegedly improper comments were addressed through the motions for mistrial during and after closing argument); see, e.g., Dorsey v. Reddy, 931 So. 2d 259, 265 (Fla. 5th DCA 2006) (motion for mistrial made one day after the unobjected-to comments made during a witness’ testimony was untimely).
18 Philippon v. Shreffler, 33 So. 3d 704, 709 (Fla. 4th DCA 2010).
19 Bradley, 943 So. 2d at 207 (“Appellants did not file a separate memorandum of law, nor did they list all of the allegedly improper remarks in their motion; thus, [a]ppellants did not sufficiently apprise the trial court of the [h]ospital’s improper closing argument.”); Howell, 901 So. 2d at 879 (“[O]nly those arguments set forth in the motion for new trial shall be considered.”).
20 Carvajal v. Penland, 120 So. 3d 6, 10 (Fla. 2d DCA 2013) (Murphy inapplicable when properly preserved statements warranted a new trial); Reznik v. FRCC Products, Inc., 15 So. 3d 847, 848 (Fla. 4th DCA 2009) (declining to analyze for fundamental error where new trial warranted on other grounds).
21 Aarmada Protection Sys. 2000, Inc. v. Yandell, 73 So. 3d 893, 900 (Fla. 4th DCA 2011); Ring Power Corp. v. Rosier, 67 So. 3d 1115, 1117-18 (Fla. 1st DCA 2011); Bradley, 943 So. 2d at 207. But cf. Spalding v. Zatz, 70 So. 3d 692, 698 (Fla. 5th DCA 2011) (reviewing de novo the trial court’s fundamental error analysis); Cordoba v. Rodriguez, 939 So. 2d 319, 322 (Fla. 4th DCA 2006) (“Whether an error is fundamental is reviewed on appeal as a question of law.”).
22 Murphy, 766 So. 2d at 1028-31. But see Fasani v. Kowalski, 43 So. 3d 805, 810-11 (Fla. 3d DCA 2010); SDG Dadeland Assocs., Inc. v. Anthony, 979 So. 2d 997, 1002-03 (Fla. 3d DCA 2008).
23 Sullivan, 79 So. 3d at 903-04 (The appellate court is in just as good a position as successor judge to determine the question of the “weight and legal effect of the evidence and its sufficiency to sustain the verdict as was the judge of the lower court who granted or denied the motion.”).
24 Murphy, 766 So. 2d at 1028-29.
25 Rules Regulating The Florida Bar 4-3.4.
26 Mercury Ins. Co. of Fla. v. Moreta, 957 So. 2d 1242, 1251 (Fla. 2007) (arguments that violate the trial court’s pretrial order, criticize opposing counsel’s alleged trial tactics, assert breach of contract where no action for breach of contract alleged, and inform the jury what counsel’s 14-year-old son would have thought about opposing counsel’s defense were improper); Murphy, 766 So. 2d at 1028-29 (not improper to argue that a witness lied if record evidence supports the accusation, nor is it improper to use “I” if it does not “impermissibly express a personal opinion”).
27 Moreta, 957 So. 2d at 1251 (counsel’s remarks were improper because they violated the trial court’s prior ruling); see also Ring Power, 67 So. 3d at 1119 (argument was not improper because it was not inconsistent with the trial court’s prior ruling).
28 Telemundo Network, Inc. v. Spanish Television Servs., Inc., 812 So. 2d 461, 463-65 (Fla. 3d DCA 2002) (comments similar to the following were improper: “This is America, where a handshake is often times more important than all the lawyers, all the businessmen, all the powerful accountants and technicians that Telemundo can muster….”).
29 Carnival Corp. v. Jimenez, 112 So. 3d 513, 520-21 (Fla. 2013).
30 Health First, 92 So. 3d at 869.
31 City of Orlando v. Pineiro, 66 So. 3d 1064, 1072-74 (Fla. 5th DCA 2011).
32 Wilbur v. Hightower, 778 So. 2d 381, 385 (Fla. 4th DCA 2001).
33 Platz, 795 So. 2d at 1026.
35 Murphy, 766 So. 2d at 1029-30.
36 Thompson, 825 So. 2d at 947 (remarks that the plaintiff blamed only the defendant for the decedent’s death were not harmful because the “thrust” of the argument was every doctor involved made reasonable decisions with information they had available and ample evidence from which the jury could have rendered verdict).
37 Carnival, 112 So. 3d at 521 (plaintiff “sought an award substantially higher than the jury’s $7,500 verdict” and there was ample record evidence to support the award); Moreta, 957 So. 2d at 1252-53 (plaintiff sought damages amounting to $1.5 million, but the jury returned a verdict of $800,000 for the plaintiff and record evidence supported the jury award).
38 Moreta, 957 So. 2d at 1253; Howell, 901 So. 2d at 879 (plaintiff sought damages in excess of $260,000 and the jury awarded $300,000).
39 Wilbur, 778 So. 2d at 384 (“[T]he award of damages [of $2.4 million against five doctors found to be negligent] strongly indicates that the argument was utterly ineffective.”).
40 Telemundo, 812 So. 2d at 463-64 (quoting Murphy, 766 So. 2d at 1029) (“Pointing to the $2.6 million verdict…we do not find the argument herein ‘to be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury.’”).
41 Health First, 92 So. 3d at 869 (plaintiff “awarded less than half of the damages she sought.… It is equally arguable that the verdict exceeded [the] pre-trial evaluation of the value of her case, neither of which is helpful to our analysis.”).
42 Murphy, 766 So. 2d at 1029-30 (“Passing remarks of little consequence in the scope of a lengthy trial should find little sympathy if no contemporaneous objection is voiced. The extensiveness of the objectionable material is a factor to be considered in the harmfulness analysis.”).
43 Wilbur, 778 So. 2d at 385.
44 Harris v. Grunow, 71 So. 3d 186, 191-92 (Fla. 3d DCA 2011) (reversing and remanding trial court’s grant of new trial because the allegedly improper comments that plaintiff failed to produce certain witnesses did not meet any of the prongs required for a finding of fundamental error).
45 Sullivan, 79 So. 3d at 906.
46 Wilbur, 778 So. 2d at 385.
47 Murphy, 766 So. 2d at 1030 (citing Baggett v. Davis, 124 Fla. 701 (1936)) (quoting Akin v. State, 98 So. 609, 612 (1923)).
48 Murphy, 766 So. 2d at 1030.
49 Sullivan, 79 So. 3d at 906.
50 Carnival, 112 So. 3d at 522.
51 Health First, 92 So. 3d at 869; Aarmada, 73 So. 3d at 901. But see Telemundo, 812 So. 2d at 468-469 (Sorondo, J., specially concurring) (“Few things strike more directly at the heart of our system of justice than an argument designed to appeal to a jury’s darkest instincts” and “[w]hether the arguments made in this case are perceived to be an appeal to the jury’s ethnic prejudices or to general xenophobic instincts, they clearly did not constitute fair comment on the law and the evidence, and they were improper, highly inflammatory and unfairly prejudicial…. If I were writing on a clean slate … I would conclude that [the] closing argument ‘so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.’”). But see Fasani, 43 So. 3d at 810-11; SDG Dadeland, 979 So. 2d at 1002-03.
52 Aarmada, 73 So. 3d at 900-01.
53 Sullivan, 79 So. 3d at 906.
54 Id. at 904.
55 Id. at 905.
56 Id. at 906.
57 Id. (“[T]he presiding judge would have been justified in granting a new trial. She was unable to do so because of the defense’s strategy of disqualifying her….Accordingly, we reverse the successor judge’s denial of the motion for new trial and remand for a new trial.”).
Rachel A. Canfield is an appellate practitioner. She was a law clerk for Justice James E.C. Perry, and later, an appellate associate in Greenberg Traurig’s Miami office.
This column is submitted on behalf of the Appellate Practice Section, Caryn Lynn Bellus, chair; Brandon Christian, editor; and Chris McAdams and Kristi Rothell, assistant editors.