           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4469
                  _____________________________

MARION LITTLE,

    Appellant,

    v.

JOANN DAVIS,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Charles W. Dodson, Judge.

                        December 14, 2018


ROWE, J.

     Joann Davis was stopped at a stop sign when the vehicle she
was driving was rear-ended by a car driven by Marion Little. Both
parties agreed that Little’s car was traveling less than five miles
per hour before it made contact with the bumper of Davis’s car.
Initially, Davis did not complain of any injuries. But nine days
after the accident, Davis asserted that she had pain in her left arm.
Eight months later, she filed suit alleging that she sustained
permanent injuries in the accident. The case proceeded to trial,
and the jury returned a verdict in favor of Davis, but found that
she did not sustain any permanent injury. The jury awarded no
damages for pain and suffering. Davis moved for a new trial on
grounds that a single question posed by defense counsel to Davis
under cross-examination was so prejudicial it warranted a new
trial. The trial court granted the motion. Because the record does
not support the trial court’s ruling, we reverse.

                               Facts

    Liability was not at issue in this case. Little admitted that
she caused the accident, but she disputed that Davis sustained
permanent injury during the low-speed collision. Further, the
parties argued over whether any of the injuries Davis alleged were
caused by the accident or were instead related to a pre-existing
condition. Evidence of causation was in conflict.

     On the one hand, Davis presented the testimony of two
physicians, including a neurological surgeon who opined that the
injuries to Davis’s left arm were caused by the accident.

     On the other hand, Little presented the testimony of a
biomechanics engineer, who testified that the mechanics of the
collision made it “physically impossible” for Davis to develop the
injuries she alleged as a result of the accident. Further, a doctor
who performed a comprehensive medical examination of Davis
testified that Davis’s pain complaints could not be explained on
any kind of anatomic basis. He also opined that she exhibited
conduct consistent with malingering. During defense counsel’s
cross-examination of Davis, the jury heard evidence regarding
Davis’s twenty years’ worth of medical records related to Davis’s
prior complaints and car accidents. Davis testified that she could
not recall the prior accidents or complaints and that she had never
specifically complained of pain in her left arm. Defense counsel
then inquired:

       DEFENSE:         Okay. Isn’t it true that as of today,
                        you no longer have any problems
                        with your left arm?

       DAVIS:           I still have problems with my left
                        arm.

       DEFENSE:         You still do?

       DAVIS:           Yes.

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DEFENSE:     You’ve lived with your boyfriend,
             William McNealy for several
             years; isn’t that right?

DAVIS:       Yeah. Three years.

DEFENSE:     Three years? Okay. He lived with
             you at the time of this accident?

DAVIS:       Yes.

DEFENSE:     Okay. If your arm’s still injured,
             how come Mr. Nealy testified that
             you don’t complain to him about
             problems with your left arm
             anymore?

PLAINTIFF:   Objection; speculation.

DAVIS:       (Inaudible).

COURT:       Hang on just a second. What’s the
             objection?

PLAINTIFF:   The objection is speculation. She’s
             asking why does he think
             something.

COURT:       Restate the question.

DEFENSE:     I said if you were – if your left arm
             is still injured, how come Mr.
             Nealy testified that you don’t
             complain to him about problems
             with your arm anymore?

DAVIS:       Because I –

COURT:       Hang on just a second. What’s the
             objection?


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       PLAINTIFF:       The objection is it’s hearsay and it
                        requires her to speculate on the
                        state of mind of another witness
                        that’s not even in evidence.

       COURT:           Sustained.

       DEFENSE:         Mr. Nealy wouldn’t make anything
                        up about you, would he?

       PLAINTIFF:       Objection.

       COURT:           Sustained.

       DEFENSE:         Isn’t it true, Ms. Davis, that the
                        problems you’re having now are
                        simply the same ones you’ve had
                        for 20 years?

       DEFENSE:         No.

     The jury returned a verdict in favor of Davis, finding that
Little caused the accident. The jurors further found that Davis
sustained an injury in the low-speed collision and awarded Davis
damages in the amount of her past medical bills. However, the
jury found that Davis did not sustain a permanent injury “within
a reasonable degree of medical probability.” Finding no permanent
injury, the jury did not award Davis any damages for past or future
pain and suffering.

     Davis moved for a new trial on damages. She argued that the
jury’s verdict finding no permanency was contrary to the manifest
weight of the evidence presented at trial. At the hearing on the
motion, Davis asserted that the jury was misled by defense
counsel’s cross-examination questions regarding her boyfriend
William McNealy and misperceived the weight of the evidence.
She argued that defense counsel’s conduct was so prejudicial and
incurable that it warranted a new trial. The court expressed its
dissatisfaction in defense counsel for inquiring about Davis’s
boyfriend. The court explained on the record the reasons it found
defense counsel’s line of questioning to be prejudicial:

                                4
COURT:     Let me just – you know, I, under
           the circumstances, did find that to
           be highly prejudicial and I am
           going to grant a new trial on
           damages based on that.

           And just for the purpose of the
           appellate court, if that’s taken up,
           wondering why I’m making that,
           my observations of Ms. Davis was
           that she frankly was a very
           uncommunicative witness. Not
           that she was the least bit hostile,
           it’s just that she had a lot of
           difficulty expressing herself both
           on direct and cross examination,
           such that on direct examination,
           my recollection is [Davis’s counsel]
           really struggled to get her to
           testify to the basics on direct
           examination, just because she was
           so unable to express herself
           verbally. Whether it was shyness
           or whatever, she was unable to do
           that.

           On cross examination, that caused
           on cross, I believe, the jury to
           believe that whatever she was
           asked on cross was the truth,
           because I don’t think she disagreed
           with anything you said on cross, to
           the best of my recollection.

DEFENSE:   I didn’t ask any questions that she
           could have disagreed with.

COURT:     Well, I mean, there were a lot of
           just grunts, as I recall, not even –
           but I really – that bothered me
           when I heard it, because I

                   5
           remember thinking this jury, it
           would be easy for them to believe
           that the boyfriend – that she must
           have told the boyfriend that she’s
           not hurt.

           I am going to grant the new trial
           on damages because of that and I
           just wanted to make sure the
           appellate court understood that. I
           know my job in part as a judge is
           to, based upon my experience as
           both a trial lawyer and a judge and
           my observations of witnesses and
           their demeanor and all of those
           things that go with a trial, that
           while I have to be very reluctant to
           substitute my judgment for the
           jury’s in the long run, I do have to
           make sure the jury is not misled on
           the testimony. And with this being
           really a dispute between Dr.
           Rumana, who was her long time
           treating physician, and Dr.
           Rogozinski, who saw her for about
           30 minutes, that I think that
           question itself, although it wasn’t
           answered, it was objected to and
           the objection was sustained,
           caused that to be a big part in the
           jury making their determination
           as to the permanency, so I’m going
           to grant the new trial based on
           that.

           ...

DEFENSE:   So just to be clear for the
           appellate record, you are
           granting a new trial solely on


                   6
                         the issue of the one hearsay
                         question?

       COURT:            A highly prejudicial hearsay
                         question.

     The written order granting a new trial indicated that the trial
court’s ruling was “based upon the introduction of certain hearsay
evidence during the cross-examination of [Davis], which the Court
[found] was unduly prejudicial to the [Davis] and deprived her of
a fair trial.” This appeal follows.

                              Analysis

     We “begin with the presumption that the trial court properly
exercised its discretion, and [] will not disturb the trial court’s
ruling absent a clear abuse of that discretion.” Allstate Ins. Co. v.
Manasse, 707 So. 2d 1110, 1111 (Fla. 1998). The trial court’s
“decision to grant a new trial is given even greater deference than
a court’s decision to deny a new trial.” Sullivan v. Kanarek, 79 So.
3d 900, 903 (Fla. 2d DCA 2012). This is because the trial court
“had the opportunity to observe the witnesses and to consider the
evidence in the context of a living trial rather than upon a cold
record.” Johns-Manville Sales Corp. v. Janssens, 463 So. 2d 242
(Fla. 1st DCA 1984). But, despite this deference to the trial court,
the order granting a new trial must be supported by the record.
Moore v. Gillett, 96 So. 3d 933, 938 (Fla. 2d DCA 2012). Here, the
record does not support the trial court’s order.

     The parties agree that the alleged error in this case was not
properly preserved. “[W]hen a party objects to instances of
attorney misconduct during trial, and the objection is sustained,
the party must also timely move for a mistrial in order to preserve
the issue for a trial court’s review of a motion for a new trial.”
Companioni v. City of Tampa, 51 So. 3d 452, 456 (Fla. 2010). Here,
although Davis’s counsel objected to defense counsel’s question
regarding McNealy, and the trial court sustained it, Davis’s
counsel never sought a curative instruction and did not move for
mistrial. Thus, our review is for fundamental error. Id. at 454
(citing Ed Ricke & Sons, Inc. v. Green, 468 So. 2d 908, 910 (Fla.
1985)).

                                 7
     In Murphy v. International Robotic Sys., Inc., 766 So. 2d 1010
(Fla. 2000), the Florida Supreme Court set forth a four-part test
that trial courts must apply when determining whether a new trial
should be granted based on unpreserved error in closing argument.
Id. To prevail on a motion for new trial under Murphy, the movant
must establish that the challenged argument was (1) improper, (2)
harmful, (3) incurable, and (4) so damaging to the fairness of the
trial that the public’s interest in our system of justice requires a
new trial. Id. at 1028-30. The test outlined in Murphy is not
limited to a trial court’s review of unpreserved errors made during
closing argument. The Florida Supreme Court has since held that
the Murphy test also applies to a trial court’s review of
unpreserved errors related to “instances of attorney misconduct.”
Companioni, 51 So. 3d at 456; see also Carnival Corp. v. Jimenez,
112 So. 3d 513, 519 (Fla. 2d DCA 2013) (applying Murphy test to
review defense counsel’s misconduct throughout trial); Platz v.
Auto Recycling & Repair, Inc., 795 So. 2d 1025, 1027 (Fla. 2d DCA
2001) (recognizing that the Murphy court “did not expressly limit
its holding to closing argument”). A trial court abuses its
discretion when it grants a new trial based on an unpreserved
error involving attorney misconduct without first applying the
four-part test outlined in Murphy. See Black v. Cohen, 246 So. 3d
379, 385 (Fla. 4th DCA 2018).

     Here, the trial court did not make the four findings required
by Murphy and failed to address each requirement at the hearing
or in its written order. On this basis alone, the trial court abused
its discretion. See McDuffie v. State, 970 So. 2d 312, 326 (Fla.
2007) (holding that a trial court “abuses its discretion if its ruling
is based on an erroneous view of the law or on a clearly erroneous
assessment of the evidence”) (internal quotes omitted); see also
Companioni, 51 So. 3d at 456 (holding that trial court may not
grant a new trial based on objections to attorney misconduct which
were sustained, but for which no motion for mistrial was
requested, without the requirements of Murphy being met);
Carnival Corp., 112 So. 3d at 520 (noting that complaining party
must successfully establish the four criteria outlined in Murphy
before the trial court can grant the party’s motion for new trial);
Mercury Ins. Co. of Florida v. Moreta, 957 So. 2d 1242, 1250 (Fla.
2d DCA 2007) (same); Sawczak v. Goldenberg, 781 So. 2d 450, 451
(Fla. 4th DCA 2001) (same).

                                  8
     Further, our review of the record establishes that in this case,
the four requirements of the Murphy test cannot be met.

                       1. Improper conduct

     With regard to the first prong of the Murphy test, the question
posed by defense counsel during the cross-examination of Davis—
“If your left arm is still injured, how come Mr. Nealy testified that
you don’t complain to him about problems with your arm
anymore?”—was improper 1 because it misrepresented the
evidence and introduced hearsay testimony from a non-testifying
witness. See generally Boyles v. Dillard’s Inc., 199 So. 3d 315, 319
(Fla. 1st DCA 2016) (finding improper defense counsel’s attempted
impeachment of plaintiff’s credibility by referring to a deposition
that had not previously been introduced into evidence); Moreta,
957 So. 2d at 1252 (finding improper defense counsel’s closing
argument revealing opinion of non-testifying witness).

                          2. Harmfulness

     The second prong under Murphy requires the trial court to
determine whether defense counsel’s question was harmful.
Harmful comments are those 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,” such that “the verdict
reached could not have been obtained but for such comments.” Id.
Defense counsel’s question, asked on the first day of a three-day
trial, was isolated and unanswered. McNealy was never called as
a witness, and his name was never mentioned again. “No
reasonable person would conclude that the verdict was fatally
tainted by this single remark.” Black, 246 So. 3d at 385.

     Even clearly improper questioning is not harmful under
Murphy if the record contains “ample evidence” to support the
jury’s verdict. See Thompson v. Hodson, 825 So. 2d 941, 947 (Fla.
1st DCA 2001) (finding defense counsel’s false implication that his
client was the only one of plaintiff’s doctors being sued was not

    1 At oral argument, Little’s appellate counsel conceded that
the question was improper.

                                 9
harmful where the record contained “ample evidence from which a
jury could have fairly rendered a defense verdict”); see also
Carnival Corp., 112 So. 3d at 521-22. Here, there was ample
evidence to support the jury’s finding that Davis did not sustain
any permanent injury during the low-speed collision. Indeed,
Davis’s medical records reflected an extensive history of left-arm
pain and numbness over a twenty-year period. Further, the jury
heard testimony that it was “physically impossible” for Davis to
have developed her claimed injuries during the accident. The
physician who examined Davis opined that Davis’s conduct during
her examination was consistent with malingering. A finding that
Davis sustained no permanent injury is also consistent with the
neurological surgeon’s testimony that Davis’s surgeries were
successful and improved her condition and that Davis would
continue to see improvement for up to two years after the surgery.
Thus, there was ample evidence to support the jury’s verdict that
Davis was not entitled to damages for pain and suffering and that
Davis did not suffer any permanent injury. Accordingly, on this
record, we find that defense counsel’s conduct was not harmful
under Murphy.

                          3. Incurability

     The third prong outlined in Murphy requires the trial court to
determine “that even if [it] had sustained a timely objection to the
improper argument and instructed the jury to disregard the
improper argument, such curative measures could not have
eliminated the probability that the unobjected-argument resulted
in an improper verdict.” Murphy, 766 So. 2d at 1030. This is an
“extremely difficult” hurdle, and “rarely will a party be able to
satisfy the burden of this prong.” Carnival Corp., 112 So. 3d at
522. Davis cannot establish that the harm caused by defense
counsel’s question, if any, was incurable. Davis’s counsel did not
request a curative instruction 2 and, even if he had, Davis fails to

    2 At the hearing on Davis’s motion for new trial, the trial court
was laboring under the impression that it had in fact given a
curative instruction. When the court erroneously recalled that it
had given a curative instruction, Davis’s counsel compounded the
error, agreeing that a curative instruction had been given.

                                 10
explain why a general instruction to disregard the objectionable
statement would have been ineffective. See id. (noting that an
appellant must explain why an instruction to disregard would not
cure improper comments). On this record, there is no reason to
believe that a curative instruction would not have remedied any
potential harm caused by defense counsel’s unanswered question.

  4. Consideration of the public’s interest in the justice system

     Finally, the fourth prong requires the moving party to
establish that the attorney’s misconduct “so damaged the fairness
of the trial that the public’s interest in our system of justice
requires a new trial.” Murphy, 766 So. 2d at 1030. The category
of attorney misconduct that would satisfy this prong is very
limited. The court in Murphy provided that conduct appealing to
racial, ethnic, or religious preferences would traditionally meet
this requirement. Id. Here, the single, isolated question by
defense counsel made on the first day of a three-day trial “did not
sink to a level of perniciousness at which a new trial is required to
maintain public confidence in our system of justice.” Platz, 795 So.
2d at 1027. The trial court failed to consider this prong before
granting a new trial, Davis offered no argument to support it, and
our review of the record demonstrates defense counsel’s conduct in
asking the single, isolated cross-examination question did not
amount to an error that seriously affects the basic fairness,
integrity, or public reputation of the judicial process.

                            Conclusion

     Because the trial court failed to apply the four-part test
outlined in Murphy in ruling on Davis’s motion for new trial, and
because the Murphy test cannot be met on this record, the trial
court abused its discretion. Accordingly, we reverse the order
granting new trial and direct the lower court to enter a judgment
consistent with the jury’s verdict. See Walt Disney Parks & Resorts
U.S., Inc., v. Grimes, 248 So. 3d 179, 180 (Fla. 5th DCA 2018).

    REVERSED and REMANDED with directions.

LEWIS, J., concurs; WOLF, J., concurs in result.


                                 11
               _____________________________

   Not final until disposition of any timely and
   authorized motion under Fla. R. App. P. 9.330 or
   9.331.
              _____________________________


Rhonda B. Boggess and Amanda L. Ingersoll of Taylor, Day,
Grimm & Boyd, Jacksonville, for Appellant.

James G. Biggart, II, of Morgan & Morgan, Tallahassee, for
Appellee.




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