Earl Hollis, Inc. v. Fraser Mortgage Co., 403 So. 2d 1038

Lead Opinion

PER CURIAM.

While the final argument of defendant’s counsel was egregiously improper, we find that the plaintiff specifically waived the right to a mistrial on that ground below and therefore may not insist upon the issue on appeal. Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980); 3 Fla.Jur.2d Appellate Review § 292 (1978); see State v, Cumbie, 380 So.2d 1031 (Fla.1980). The other points raised present no error.

AFFIRMED.

GLICKSTEIN, J., and SCHWARTZ, ALAN R., Associate Judge, concur. LETTS, C. J., dissents with opinion.

---

Dissenting Opinion

LETTS, Chief Judge,

dissenting.

I do not agree that the plaintiff “specifically waived the right to a mistrial.” The colloquy in substance consisted of an enqui-ry by plaintiff’s counsel as to whether the judge would postpone a ruling on any motion for a mistrial. To this the judge responded in the negative. In my view no motion for a mistrial was ever actually made to be waived. An actual motion for mistrial was not required under the facts of this case according to Nelson v. Reliance Insurance Company, 368 So.2d 361 (Fla. 4th DCA 1978) and Seguin v. Hauser Motor Company, 350 So.2d 1089 (Fla. 4th DCA 1977).

Case Details

Case Name: Earl Hollis, Inc. v. Fraser Mortgage Co.

Court Name: District Court of Appeal of Florida

Date Published: Aug 26, 1981

Citations: 403 So. 2d 1038; 1981 Fla. App. LEXIS 20914; No. 80-1639

Docket Number: No. 80-1639

Court Abbreviation: Fla. Dist. Ct. App.