Companioni v. City of Tampa
51 So. 3d 452
| Fla. | 2010Background
- Companioni sued the City of Tampa for motorcycle-vehicle collision injuries; City objected to defense counsel misconduct during trial, and objections were sustained.
- After verdict, City moved for a new trial alleging pervasive misconduct; trial court denied the motion, citing lack of a mistrial request.
- Second District reversed on preservation grounds, holding a mistrial motion was not required to review a new-trial motion for misconduct.
- Second District concluded misconduct could support a new trial without a mistrial motion, based on Nigro v. Brady and broad trial-court discretion.
- Court noted Third and Fifth Districts (Benton, Fritz) require a timely mistrial request to preserve a misconduct issue for review, and conflict exists with Companioni.
- This Court agrees with Benton and Fritz that a mistrial motion is required to preserve such issues for new-trial review and quashes Companioni for remand to apply Murphy analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a sustained objection to attorney misconduct requires a mistrial motion to preserve for review | Companioni: no mistrial motion required to preserve for new trial review | City: must move for mistrial to preserve the issue | Yes; mistrial motion required to preserve |
| What standard governs preservation when misconduct is alleged during trial | Ed Ricke allows preservation via post-verdict review if properly objected | Ed Ricke does not authorize wait-and-see approach; contemporaneous objection plus mistrial demand required | Contemporaneous objection plus timely mistrial motion required |
| What is the controlling approach if the objection is sustained but no mistrial motion is made | Fundamental error review may apply if unpreserved | Preservation failure bars new-trial relief unless fundamental error shown | Apply preserved standard or Murphy fundamental-error analysis if not preserved |
Key Cases Cited
- Ed Ricke & Sons, Inc. v. Green, 468 So.2d 908 (Fla.1985) (mistrial preservation and judicial economy in improper argument)
- Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000) (standard for unpreserved errors; abuse-of-discretion review)
- Castor v. State, 365 So.2d 701 (Fla.1978) (contemporaneous objection necessity)
- Nixon v. State, 572 So.2d 1336 (Fla.1990) (objection plus mistrial motion required to preserve)
- Wilson v. State, 436 So.2d 908 (Fla.1983) (objecting party deemed satisfied if no curative action after sustained objection)
- Benton, 662 So.2d 1364 (Fla.3d DCA 1995) (mistrial/curative-instruction requirement to preserve misconduct claim)
- Fritz, 652 So.2d 1243 (Fla.5th DCA 1995) (timely mistrial/curative-instruction required to preserve misconduct claim)
- Sears, Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla.3d DCA 1983) (misconduct not fundamental error absent timely mistrial, cannot basis for new trial)
- Companioni, 26 So.3d 598 (Fla.2d DCA 2009) (Second District held no mistrial-mistrial prerequisite; conflict noted)