       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 23, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-370
                         Lower Tribunal No. 11-14076
                             ________________


                                City of Miami,
                                    Appellant,

                                        vs.

                                Sheila Kinser,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Stanford Blake,
Judge.

      Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City
Attorney, for appellant.

     Feiler & Leach, P.L., and Martin E. Leach, for appellee.


Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.

     ROTHENBERG, J.
      The City of Miami (“the City”) appeals the trial court’s denial of its motion

for a new trial in a premises liability negligence suit after the plaintiff, Sheila

Kinser (“Kinser”), received a favorable jury verdict.       Because the cumulative

effect of the objected-to improper statements did not deprive the City of a fair trial

and the jury verdict was not against the manifest weight of the evidence, we find

no abuse of discretion in the denial of the City’s motion for a new trial. We

therefore affirm the judgment below.

      It was undisputed that Kinser injured her knee and hip when she fell through

a missing section of a dock while she was walking backwards and sideways,

pulling a boat towards the shore. Kinser sued the City for negligence, and in its

answer, the City admitted that it was responsible for the maintenance of the dock

and raised only one defense—that Kinser was comparatively negligent.

      The jury returned a verdict in favor of Kinser assigning 100% of the fault to

the City. The City moved for a new trial, arguing that (1) the cumulative effect of

the improper statements made by Kinser’s counsel during closing arguments

deprived the City of a fair trial, and (2) the jury verdict apportioning no fault to

Kinser was against the manifest weight of the evidence. The trial court denied the

City’s motion for a new trial, and the City appealed.

      A motion for a new trial based on improper comments made during closing

arguments should be granted if the comments were so highly prejudicial and



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inflammatory that the opposing party was denied its right to a fair trial. Tanner v.

Beck ex rel. Hagerty, 907 So. 2d 1190, 1196 (Fla. 3d DCA 2005). A motion for a

new trial may also be granted where the jury verdict is against the manifest weight

of the evidence. Weatherly v. Louis, 31 So. 3d 803, 805 (Fla. 3d DCA 2009).

However, when reviewing a trial court’s ruling on a motion for a new trial,

      . . . an appellate court must recognize the broad discretionary authority
      of the trial judge and apply the reasonableness test to determine
      whether the trial judge committed an abuse of discretion. If an
      appellate court determines that reasonable persons could differ as to
      the propriety of the action taken by the trial court, there can be no
      finding of an abuse of discretion.

Brown v. Estate of Stuckey, 749 So. 2d 490, 497-98 (Fla. 1999); see Allstate Ins.

Co. v. Manasse, 707 So. 2d 1110, 1111 (Fla. 1998).

      During closing arguments, the City objected to several arguments made by

Kinser’s counsel, which we divide into three categories: improper bolstering of a

witness’s credibility, improper denigration of a party’s defense, and improper

appeal to the conscience of the community. Although we conclude that the trial

court did not abuse its discretion by determining that in this case the improper,

objected-to statements made during closing arguments were not so prejudicial as to

deprive the City of a fair trial, we caution trial counsel that, under different facts

and circumstances, and had the City objected to additional and perhaps more

egregious comments made by Kinser’s counsel, a new trial may have been

required. See Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1031 (Fla. 2000)


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(setting the following high threshold before granting a new trial based on

unobjected-to comments during closing arguments: “[W]e hold that 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.”).

I. Improper Bolstering

      It is well established that an attorney is not permitted to express a personal

opinion bolstering the credibility of his witness. R. Regulating Fla. Bar 4-3.4(e)

(providing that a “lawyer must not . . . in trial, state a personal opinion about the

credibility of a witness unless the statement is authorized by current rule or case

law”); Airport Rent-A-Car, Inc. v. Lewis, 701 So. 2d 893, 896 (Fla. 4th DCA

1997); Forman v. Wallshein, 671 So. 2d 872, 875 (Fla. 3d DCA 1996);

Muhammad v. Toys “R” Us, Inc., 668 So. 2d 254, 258 (Fla. 1st DCA 1996); Walt

Disney World Co. v. Blalock, 640 So. 2d 1156, 1158 (Fla. 5th DCA 1994).

Nevertheless, during his closing argument, Kinser’s counsel improperly bolstered

the credibility of Kinser’s testimony by stating:

      Well, we heard about what Ms. Kinser told you, and, you know,
      there’s an instruction about the frankness and candor of witnesses and
      why they say what they say, and I want to talk about that a little bit.
      Ms. Kinser looked you in the eye, she didn’t make anything up.

The City properly objected to this statement, and the trial court instructed the jury


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to disregard it. Kinser’s counsel, however, continued to bolster the credibility of

Kinser’s testimony by stating:

      She didn’t claim things were hurt that weren’t hurt. She
      acknowledged that she had problems with her feet, she acknowledged
      what her limitations are, and she was very honest with you about
      everything she did.

The City objected, and the trial court instructed the jury again to disregard the

improper comment. The impact of these improper statements was enhanced

because while Kinser’s counsel told the jury that Kinser was “very honest” and

“she didn’t make anything up,” he insinuated that the City’s witnesses were

dishonest—that they were paid to “make stuff up.”

      And then you have their people who are paid, between them, almost
      $10,000, about half of what she paid treating her injuries, just to say,
      she’s not hurt, and if she is, it was something else. Can I have my
      check, please? It’s not close. It’s not close.
      ....
      That’s another one of those Dr. Ramirez misdirection plays.
      ....
      But what do we know objectively from the reports of the films? Not
      doctors making stuff up . . .

II. Denigrating the City for Asserting a Defense

      It is also improper for a plaintiff’s counsel to denigrate the defense for

asserting a valid defense. See Carnival Corp. v. Pajares, 972 So. 2d 973, 977 (Fla.

3d DCA 2007) (“The most grievous arguments made by [plaintiff’s] counsel are

those suggesting that [the defendant] acted improperly by defending [against

plaintiff’s] claims, and denigrating its defenses.”); State Farm Mut. Auto. Ins. Co.


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v. Revuelta, 901 So. 2d 377, 380 (Fla. 3d DCA 2005) (finding that the plaintiff

“improperly insinuated that [the defendant] acted in bad faith in defending this

action”).

      The City argues that Kinser’s counsel improperly denigrated its defense by

stating: “It’s another thing all together to say, we know we created this problem,

but we did nothing wrong. When a bear steps in a trap and breaks its leg, is it the

bear’s fault?” The City objected to this comment, but the trial court overruled the

objection as constituting proper argument. We conclude that this comment comes

close to crossing the line between proper and improper argument, as it suggests

that the City’s comparative negligence defense was frivolous and that the City was

wrong to even defend the case. However, when Kinser’s counsel told the jury that

an argument made by the City was “ridiculous,” we have no difficulty finding that

the line between proper and improper argument had been crossed.

III. Improperly Appealing to the Conscience of the Community

      When an attorney makes “impassioned and prejudicial pleas intended to

evoke a sense of community law through common duty and expectation,” the

attorney generates unfair prejudice by creating an improper “us-against-them”

mentality, which at best is a “distraction from the jury’s sworn duty to reach a fair,

honest and just verdict according to the facts and evidence presented at trial.” Blue

Grass Shows, Inc. v. Collins, 614 So. 2d 626, 627 (Fla. 1st DCA 1993) (quoting



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S.H. Inv. & Dev. Corp. v. Kincaid, 495 So. 2d 768, 771 (Fla. 5th DCA 1986),

review denied, 504 So. 2d 767 (Fla. 1987) (quoting Westbrook v. Gen. Tire &

Rubber Co., 754 F.2d 1233, 1238-39 (5th Cir. 1985))).

      The City contends that Kinser’s counsel improperly appealed to the

conscience of the community by making the following statement:

      Nothing would be better than if juries had the ability to take a magic
      wand and, after hearing a case, go, we make it go away. It’s gone. It
      didn’t happen. That would be great, but we don’t have that. That
      technology, unfortunately, hasn’t been invented. All you have is this,
      you have your pen, and that’s a very powerful instrument, because
      that’s your instrument to deliver justice.

We disagree because nothing in this comment suggests that Kinser’s counsel

attempted to make an “us-against-them” argument, and it does not “evoke a sense

of community law.” The same cannot be said, however, of the following argument,

which we find was an improper appeal to the conscience of the community: “She

doesn’t get to come back. This is her one chance to be before you. This is her one

shot. It’s all of your one shot to get it right, so go back there and take your

instrument and get it right.” The trial court correctly sustained the City’s objection

to this argument as the jury’s role is to fairly evaluate the evidence before it in

order to reach a verdict based on the law and the facts.

IV. The Unobjected-to Improper Arguments

      In addition to the above objected-to arguments, Kinser’s counsel told the

jury that the City’s doctors were “courtroom doctors” who “have their little tricks”


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and were paid to say that Kinser was not hurt, and the City paid these doctors and

“[f]or the money they sent, they got what they needed.” These arguments were

clearly improper. But because they were not objected to, the City must

demonstrate that they could not have been cured by a timely objection and curative

instruction, and that they were so damaging to the fairness of the trial that the

“public’s interest in our system of justice requires a new trial.” Murphy, 766 So. 2d

at 1031. The City failed to meet this burden.

                                    CONCLUSION

       While it is clearly improper for an attorney to bolster the credibility of a

witness, attack a party for putting on a valid defense, or appeal to the conscience of

the community, most of the improper arguments were timely objected to; curative

instructions were given by the trial court; and the prejudice to the City caused by

these improper arguments was mitigated by the curative instructions. See Tanner,

907 So. 2d at 1197. We conclude that the cumulative effect of the improper

objected-to and unobjected-to, uncured comments did not, given the facts of this

case, deprive the City of a fair trial.

       We also find that the City’s remaining argument, that the jury verdict is

against the manifest weight of the evidence, is without merit. Accordingly, we

affirm the trial court’s denial of the City’s motion for a new trial.

       Affirmed.



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