Published in Forum 8, Eighth Judicial Circuit Bar Association, Inc. Newsletter, Vol. 71, No. 1, September of 2011

     In December of 2010, the Florida Supreme Court, in Campanioni, Jr. v. City of Tampa, 51 So. 3d 452 (Fla. 2010), held that when a party objects to attorney misconduct during trial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the misconduct issue for appellate review of a motion for a new trial.  If the issue is not properly preserved with a motion for mistrial, then the attorney misconduct is subject to the fundamental error analysis under the Florida Supreme Court’s opinion in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000). 

     In rendering this opinion, the Court overturned the Second District Court of Appeal and sided with the Third and Fifth District Courts of Appeal.  Companioni, Jr. 51 So. 3d at 453 & 456.  The Florida Supreme Court has previously held that in order to preserve a sustained objection for appellate review, a motion for mistrial must be made at the time the improper comment was made unless the improper comment constitutes fundamental error.  Id., citing, Ed Ricke & Sons, Inc. v. Green, 468 So. 2d 908, 910 (Fla. 1985) (quoting Clark v. State, 363 So. 2d 331 (Fla. 1978).   The motion for mistrial can be coupled with a request that the trial court defer ruling until after the jury returns its verdict because the verdict may cure the error.  Id. at 455, citing, Ed Ricke, 468 So. 2d at 910-11.   If the verdict does cure the error, the trial court will have saved the expenditure of additional time, money and delay associated with a new trial.  On the other hand, if the judge grants the motion after the verdict is rendered and orders a new trial, that order would be reviewable on appeal.  The appellate court could then reverse the order granting a new trial and order that the trial court enter a judgment on the jury verdict.  Id.  

     The Florida Supreme Court reasoned that the authority of a trial judge to decide when to rule on a motion for mistrial conserves judicial resources and operates to prohibit a wrongdoer from profiting from his intentional misconduct.  Id.  Further, requiring a party to move for a mistrial following a sustained objection promotes judicial economy in the same way the contemporaneous objection requirement promotes judicial economy.  Id. at 456.  Failing to alert a trial judge that an error may be incurable results in delay and wastes judicial resources, especially if the error occurs early on in the proceedings.

     Accordingly, next time you are confronted with misconduct from opposing counsel, while you must make a contemporaneous objection, in order to properly preserve the issue for appellate review, you must also move for a mistrial.  While the trial judge is not required to rule at that time, you are required to make the motion if you want the appellate court to review the motion for new trial.