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Florida Third DCA rules that plaintiff was not entitled to new trial based on improper closing argument by defense counsel because plaintiff failed to make timely objection

On April 24, 2019, in CEC Entertainment, Inc. v. Zaldivar, No. 3D17-474, the Florida Third DCA reversed a trial court’s order granting the plaintiff in a premises liability case a new trial based on allegedly improper closing arguments made by defense counsel. The trial court had granted the new trial based on comments made by defense counsel in closing argument attacking the plaintiff, including calling the plaintiff a “magician” and “manipulator.”  However, the plaintiff’s counsel failed to make a contemporaneous objection, only raising the issue after the jury returned a defense verdict.  The Third DCA applied the four-part test articulated by the Florida Supreme Court in Murphy v. International Robotic Systems, 766 So. 2d 1010 (Fla. 2000), regarding unobjected-to closing arguments:  “before a complaining party may receive a new trial based on unobjected-to closing argument, the party must establish that the argument being challenged was improper, harmful, incurable, and so damaged the fairness of the trial that the public's interest in our system of justice requires a new trial. . . . Although we have not absolutely ‘closed the door’ on appellate review of unpreserved challenges to closing argument, we have come as close to doing so as we believe consistent with notions of due process which deserve public trust in the judicial system.” The Third DCA concluded that while the argument was improper, it did not rise to the required level of harmfulness (comments that are so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury) and the error could have been cured by a timely objection.