Opinion
No. 3D05-1529.
March 7, 2007.
Appeal from the Circuit Court, Miami-Dade County, Michael A. Genden, J.
Lauri Waldman Ross; Dickman Dickman and Robert J. Dickman, Jr. and Manuel Epelbaum, Miami, for appellant.
Stephens, Lynn, Klein, LaCava, Hoffman Puya and Robert J. Cousins, Ft. Lauderdale; Hicks Kneale and Mark Hicks and Richard A. Warren, Miami, for appellee.
Before GERSTEN, CORTINAS, and ROTHENBERG, JJ.
We review the trial court's order granting a new trial based on numerous improper comments made by plaintiffs counsel during closing argument and the cumulative effect of those comments. A trial court's decision to grant a new trial is reviewed for abuse of discretion. See Engle v. Liggett Group, Inc., 945 So.2d 1246, 1263 (Fla. 2006); Murphy v. Int'l Robotic Sys.Inc., 766 So.2d 1010 (Fla. 2000).
In Murphy, the Florida Supreme Court addressed the factors which a trial court must consider when dealing with unobjected-to comments in closing argument. Murphy, 766 So.2d at 1028-31. Such factors are only to be considered when there is a failure to object during closing argument or a failure to request a mistrial based on such statements during or at the close of such argument. See id. at 1031; Garbutt v. LaFarnara, 807 So.2d 83, 83 (Fla. 2d DCA 2001).
In this case, all of the improper comments cited by the trial court in its order granting a new trial were addressed through the trial court's consideration of defense counsel's motions for mistrials both during and at the end of plaintiffs closing argument. Thus, the trial court was correct that the Murphy standard for unobjected to comments did not apply. We find that the trial court did not abuse its discretion in granting a new trial.
We note that many of the improper comments made by plaintiff's counsel were also objected to by defense counsel during closing argument.
Affirmed.