SAUNDERS v. SMITH

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Docket Number

No. 77-2481.

Attorney(S)

Edna L. Caruso and Montgomery, Lytal, Reiter, Denney Searcy, P.A., West Palm Beach, for appellants. Richard J. Meehan of DeSantis, Cook, Meehan, Cohen, Gaskill Silverman, P.A., North Palm Beach, for appellees.

Judges

SIMONS, STUART M., Associate Judge.
ANSTEAD, Judge, dissenting:

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Smart Summary

Factual and Procedural Background

The case arises from a traffic accident in which appellant Douglas M. Saunders was conceded to be at fault for injuries sustained by appellee Thomas J. Smith. The central issues submitted to the jury were causation and damages related to Smith's knee injury and subsequent complications. The jury returned a verdict in favor of Saunders, and judgment was entered accordingly. Smith moved for a new trial, alleging numerous errors, but the trial court denied the motion except on the ground that it erred by not striking certain prejudicial comments made by defense counsel during voir dire. These comments referenced a proposed witness, Dr. Dolcey, who had been mentioned in newspaper articles accusing him of tax evasion. Although plaintiff's counsel objected to these statements and the objections were sustained, no request was made for curative instructions, mistrial, or a new venire.

Legal Issues Presented

Whether prejudicial comments made by defense counsel during voir dire, without any request for curative instructions, mistrial, or new venire, justify granting a new trial.

Arguments of the Parties

Appellants' Arguments

The trial court abused its discretion in granting a new trial based on voir dire comments when no curative measures were requested by plaintiff's counsel.
Failure to request curative instructions, mistrial, or a new venire constituted intentional trial tactics, and errors arising from such tactics should not be remedied on appeal simply because they backfired.
Imposing a duty on trial judges to act sua sponte to strike improper statements absent a party's request would create an untenable burden and sanction a non-existent "fundamental error" doctrine.

Appellees' Arguments

Despite not requesting curative instructions or mistrial, the prejudicial voir dire statements influenced the jury and warranted a new trial.
The trial court is vested with broad discretion to grant a new trial when the verdict is against the manifest weight of the evidence or when the jury has been influenced by considerations outside the record.
The credibility of a key witness, Dr. Dolce, was substantially challenged by the improper voir dire comments, justifying the trial court's decision.
Procedural deficiencies such as failure to request curative instructions or mistrial should not bar the trial court from granting a new trial if improper influences on the jury are found.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Cloud v. Fallis, 110 So.2d 669 (Fla. 1959)	Trial court's broad discretion in granting new trials; appellate review limited to abuse of discretion.	Both majority and dissent cited it to frame the standard of review for new trial motions.
Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977)	Standard for reversal: whether the trial court's order was arbitrary, fanciful, or unreasonable.	Majority found the trial court's order granting new trial based on sua sponte action unreasonable; dissent found it reasonable.
Nelson v. Reliance Insurance Company, 368 So.2d 361 (Fla. 4th DCA 1978)	Errors from counsel's tactical decisions not cured on appeal if no timely objection or motion made.	Majority relied on it to reject the idea that trial court must act sua sponte to correct counsel's improper voir dire statements.
Poindexter v. Seaboard Air Line R. Co., 56 So.2d 905 (Fla.)	Trial judge's superior position to assess truth and credibility based on trial observation.	Dissent cited to emphasize deference to trial court's discretion in granting new trial.
Mead v. Bentley, 61 So.2d 428 (Fla.)	Trial judge's discretion grounded in personal observation of witnesses and trial dynamics.	Dissent cited to support trial court's authority to grant new trial.
Pyms v. Meranda, 98 So.2d 341 (Fla.)	Trial judge's unique position to evaluate credibility and truth.	Dissent cited to reinforce trial court's role in safeguarding fair verdicts.
Martin v. Stone, 51 So.2d 33 (Fla.)	Trial court must grant new trial if verdict is against manifest weight of evidence or influenced by improper considerations.	Dissent cited to justify affirming new trial order.
Turner v. Frey, 81 So.2d 721 (Fla.)	Same principle as Martin v. Stone regarding trial court's duty to grant new trial under certain circumstances.	Dissent cited to support trial court's discretion.
Myers v. Atlantic Coast Line Railroad Co., 86 So.2d 792 (Fla.)	Trial court's responsibility to ensure jury verdict is just and fair.	Dissent cited to back trial court's decision to grant new trial.
Florida Publishing Co. v. Copeland, 89 So.2d 18 (Fla.)	Trial court's authority to grant new trial when verdict is improperly influenced.	Dissent relied on this for supporting new trial grant.

Court's Reasoning and Analysis

The majority held that the trial court erred in granting a new trial based solely on its failure to act sua sponte to strike prejudicial voir dire statements after sustaining objections, where the plaintiff's counsel did not request curative instructions, mistrial, or a new venire. The court emphasized that trial judges have broad discretion in granting new trials, but this discretion is not unlimited and appellate courts will not overturn such orders absent clear abuse. The majority reasoned that allowing a new trial under these circumstances would impose an undue burden on trial judges and would effectively create a "fundamental error" doctrine not recognized by law. The failure of counsel to take corrective procedural steps was viewed as an intentional tactical choice, and errors resulting from such choices are generally not curable on appeal. Accordingly, the majority reversed the order granting a new trial and directed reinstatement of the jury verdict.

The dissent, however, argued for deference to the trial court's broad discretion to grant a new trial when the verdict is against the manifest weight of the evidence or influenced by improper extraneous considerations. The dissent noted that the voir dire comments challenged the credibility of a key witness, Dr. Dolce, and that the trial court was justified in concluding the jury was improperly influenced. Although appellees did not request curative instructions or a mistrial, the dissent believed these procedural deficiencies should not bar the trial court from granting a new trial if the jury's verdict was compromised. The dissent relied extensively on precedent underscoring the trial judge's superior position to assess the fairness of the trial and the weight of evidence.

Holding and Implications

The court REVERSED the trial court's order granting a new trial and REMANDED WITH INSTRUCTIONS TO REINSTATE THE JURY VERDICT in favor of the defendant, Saunders.

The direct effect of this decision is to uphold the jury's original verdict and judgment in favor of the defendant. The ruling clarifies that a trial court is not required to act sua sponte to correct counsel's improper voir dire statements absent a party's request for curative measures. The decision rejects the imposition of a "fundamental error" standard in this context and reinforces the principle that tactical decisions by counsel that are not timely challenged cannot be remedied on appeal. No new precedent was established beyond the reaffirmation of existing standards governing trial court discretion and appellate review of new trial motions.

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DOUGLAS M. SAUNDERS AND NATIONWIDE INSURANCE COMPANY, APPELLANTS, v. THOMAS J. SMITH AND CLAUDIA SMITH, HIS WIFE, APPELLEES.

SIMONS, STUART M., Associate Judge.

For consideration in this appeal is the sole issue of whether certain comments by defense counsel on voir dire were so prejudicial as to authorize the granting of a new trial although no request for curative instructions was made, nor request for mistrial was made, nor demand made for a new venire. The case involved a knee injury and complications suffered by appellee Smith. Saunders concededly was at fault in a traffic accident involving appellee Smith; the only issues submitted to the jury were causation and damages. A verdict was returned in Saunders' favor and against Smith, and judgment was entered thereon. Smith made a motion for new trial, asserting numerous errors in the proceedings. The motion was denied on all grounds except for that ground which stated that the court erred in "failing on its own motion to strike all voir dire statements made by counsel for the defendant when referring to the proposed witness in voir dire," i.e., that the jury should have known of witnesses from newspaper articles wherein he was accused of tax evasion.

Plaintiff's counsel objected to the statements made on voir dire, and the objections were sustained, but counsel neither asked for curative instructions, a mistrial, nor made demand for a new venire.

Trial judges are vested with broad discretion in granting a new trial, and appellate courts will not reverse an order granting new trial absent a clear abuse of that discretion. Cloud v. Fallis, 110 So.2d 669 (Fla. 1959). In Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977), the standard for reversal was stated as whether the trial court's order was arbitrary, fanciful or unreasonable or that no reasonable man would adopt such a view. The court below felt that it had erred in not acting on its own motion to strike the improper statements to which it had already sustained an objection. We find this to be an unreasonable view of the responsibility of the trial court. The failure on the part of counsel to ask for curative instructions, request a mistrial, or to move for a new venire constituted intentional trial tactics, mistakes of which are not to be cured upon appeal simply because they backfired. Nelson v. Reliance Insurance Company, 368 So.2d 361 (Fla. 4th DCA 1978).

To allow an order granting new trial such as this to stand would be sanctioning a view of "fundamental error" which does not exist in law, and which would place upon the trial judge an untenable burden. The trial judge in a complicated civil matter has difficulty enough in ruling on motions and objections of the attorneys throughout the course of a trial without imposing upon himself this additional burden. Failure to act sua sponte without a specific request by a party should not be grounds for a new trial except in the most severe case. The order granting new trial is thus reversed and the cause remanded with directions to reinstate the jury verdict in favor of defendant and for further appropriate proceedings.

REVERSED AND REMANDED WITH INSTRUCTIONS TO REINSTATE THE JURY VERDICT.

BERANEK, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge, dissenting:

If the appellees were before this court as appellants seeking a new trial because of the improper comments involved herein, I would agree that their appeal should be denied. But we are reviewing an order granting a new trial and upon the granting of such motion our authority on review is simply not as great. The opinion of Justice Thomas in Cloud v. Fallis, 110 So.2d 669 (Fla. 1959) is still applicable:

When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, Poindexter v. Seaboard Air Line R. Co., Fla., 56 So.2d 905; Mead v. Bentley, Fla., 61 So.2d 428, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached, Pyms v. Meranda, Fla., 98 So.2d 341.

When the judge, who must be presumed to have drawn on his talents, his knowledge and his experience to keep the search for the truth in a proper channel, concludes that the verdict is against the manifest weight of the evidence, it is his duty to grant a new trial, and he should always do that if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record, Martin v. Stone [Fla., 51 So.2d 33], supra; Turner v. Frey [Fla., 81 So.2d 721], supra; Myers v. Atlantic Coast Line Railroad Co., Fla., 86 So.2d 792; Florida Publishing Co. v. Copeland, Fla., 89 So.2d 18. (Id. at 673)

We have held that in order to reverse an order granting a new trial it must be shown that the trial court's action was arbitrary or fanciful or that no reasonable man would take the view adopted by the trial court. Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977).

The incident during voir dire relied upon by the trial court in ordering a new trial consisted of the following:

MR. LYTAL: I have just been told there was a doctor by the name of Doctor Dolcey [sic] — Joseph Dolcey from Riviera Beach was going to testify here. You may have read about this man, he's been in the paper, he's been suspended by the Medical Society, he's been tried for tax evasion and so forth — have any —

MR. MEEHAN: I have to object to this reputation; it's not relevant to the case.

MR. LYTAL: Your Honor, I have a right to know if they know anything about this man.

THE COURT: I'm going to sustain the objection. I think to characterize other than he is a practicing physician is somewhat improper at this time.

MR. LYTAL: Do any of you know Doctor Dolcey who has an office down in Riviera Beach right by Blue Heron Boulevard — no one knows him or anything about him?

(No response.)

The appellants, defendants below, admitted negligence but claimed that the appellees' claims of injury were unfounded and exaggerated. And there was evidence to support this position. But there was also evidence to support the appellees' claims, consisting primarily of the testimony of Dr. Dolce. With damages being the only issue on trial and Dr. Dolce's credibility substantially challenged by considerations outside the record, it does not seem totally unreasonable for the trial court to conclude that a new trial should be granted. Weems, supra.

It is true that appellees only objected to the comments of counsel and did not request a curative instruction or move for a mistrial and that the motion for new trial was poorly drafted. However, I do not believe these deficiencies should prevent the trial court from granting a new trial if he concludes that the jury was influenced by improper considerations.