Object now or forever hold your peace: demonstrating fundamental error in civil appeals.

• Author: Canfield, Rachel A.
• Position: Appellate Practice

Although improper closing argument may provide a basis for granting a new trial, the issue generally must be properly preserved by contemporaneous objection. Florida's appellate courts do not look favorably upon arguments that have not been preserved for appellate review and usually will not consider an issue raised for the first time on appeal. (1) To obtain appellate review of a court's ruling, a litigant must either properly preserve the issue for review by a contemporaneous objection, (2) or establish that the unpreserved argument amounts to fundamental error. (3) Time and time again, Florida's appellate courts have articulated that, in the absence of fundamental error, they will not even entertain what may constitute an otherwise meritorious appellate argument because the argument was not properly preserved. (4) As a practical matter, appellate courts recognize that the trial judge is in the best position to both evaluate the propriety, and any resulting prejudice, from an allegedly improper argument. Thus, the trial judge should be given timely notice and an opportunity to correct any error that may have been committed in closing. (5) In Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000), the Florida Supreme Court was called upon to resolve an express and direct conflict that had arisen over the court's prior recognition of an exception to the contemporaneous objection rule and address whether and the extent to which such an exception should continue to exist in civil cases. (6) The court considered Florida law, federal law, and policy considerations to identify and clarify confusion that existed as to the appropriate standard. (7) In doing so, the Murphy court delineated a four-part categorical test to be applied when an appellant asserts error based on an unobjected-to argument that was first raised in a motion for new trial. The appellant must show that the challenged argument was 1) improper, 2) harmful, 3) incurable, and 4) such that it so damaged the fairness of the trial that the public's interest in our system of justice requires a new trial. (8) Further, the court directed that, when a new trial is granted, the trial court must specifically identify the improper argument and the argument's impact on the jury. (9)

After Murphy, the Florida courts have "all but closed the door on fundamental error in civil trials." (10) During the 13 years since Murphy, Florida appellate courts have by and large been consistent in their interpretation and application, but some peculiarities exist, as well. This article provides a brief overview of the appropriate standard and how, in the wake of Murphy, Florida's appellate courts have interpreted and applied the fundamental error test to civil cases. (11)

Preliminary Matters: Whether Fundamental Error Is Applicable

In order for an appellate court to apply the fundamental error exception articulated in Murphy, specific conditions must be met. (12) The allegedly improper argument must have been made during closing argument, (13) the complaining party failed to object to or move for a mistrial on the basis of the allegedly improper argument, (14) and the complaining party challenged with specificity the unobjected-to argument in the motion for new trial. (15) The failure to challenge the alleged error in a motion for new trial precludes appellate review of the argument. (16)

Consequently, Florida's appellate courts have declined to apply the fundamental error analysis when the argument was raised in a motion for mistrial. For example, the Third District Court of Appeal has emphasized that the Murphy standard for fundamental error is inapplicable when the allegedly improper argument was unobjected-to, but was considered by the trial court by way of motion for mistrial during and at the end of the closing argument. (17)

Merely filing a motion for a new trial is not enough to invoke the fundamental error analysis; the arguments raised on appeal must be the same as those raised in the motion for new trial. (18) Allegedly improper comments that were not specifically listed in the motion for new trial will not be reviewed for fundamental error. (19)

Even when the above conditions have been met, an appellate court may forgo application of the Murphy standard due to the existence of other properly preserved arguments, which, on their own, merit a new trial. (20)

Appellate Interpretation and Application of the Fundamental Error Analysis

Generally, a trial court's grant or denial of a motion for new trial is subject to review under an abuse of discretion standard and, thus, alleged error that falls within the fundamental error analysis is subject to a highly deferential standard of review. (21) Applying this standard of review, an appellate court will analyze the specific argument under each prong of the fundamental error test to determine whether the trial court did, indeed, abuse its discretion in granting or denying the motion for new trial. (22) An appellate court does not, however, afford the same level of deference to a trial court's determination whether to grant or deny a motion for a new trial if the ruling is by a successor judge who did not preside over the trial; a successor judge's review is more akin to that of an appellate court. (23)

Whether a challenged argument was improper is the threshold question in the fundamental error analysis. To determine whether an argument is improper, it is important to understand the purpose and scope of closing argument: Closing argument provides an attorney with the opportunity to assist the jury in understanding the facts and evidence presented during trial, and drawing logical deductions based on the facts and evidence to render a verdict. (24) An attorney may not, however, interject into closing argument a matter that is irrelevant, unsupported by record evidence, or a personal opinion. (25) Whether an argument is improper basically turns on whether it would cause the jury to return a verdict on impermissible considerations. (26)

That test has been found to be satisfied in a wide variety of cases. Arguments that are violative of a trial court's pretrial order or prior...