Appellate Update – Third District Holds That the Failure to Contemporaneously Move for a Mistrial after Objection Was Sustained Was Fatal to Obtaining a New Trial

February 17, 2016 by on News

In Aris v. Applebaum, No. 3D14-2050, 2016 WL 403434 (Fla. 3d DCA Feb. 3, 2016), Aris objected to an improper question by Applebaum’s counsel at trial. The trial court sustained the objection and, upon Aris’s request, the question was stricken and the jury was instructed to disregard the question. However, Aris failed to seek any additional curative instruction and did not move for a mistrial. After receiving an adverse jury verdict, Aris moved for a new trial based upon the question, which the trial court denied.

On appeal, the Third District held that the error was not properly preserved explaining:

Where a contemporaneous objection to attorney misconduct is sustained and a curative instruction is given to the jury, a party who believes the error has not been cured by the court’s actions must also contemporaneously move for a mistrial in order to preserve the issue for a trial court’s later consideration of a motion for new trial.

Accordingly, the Court affirmed denying Appellants’ motion for new trial.

Therefore, if a party believes that an instruction to disregard the question has not cured the prejudice or harm and the jury will still be influenced by the question, the party must move for a mistrial in order to later seek appellate review on the issue. Notably, a party is allowed to request that the trial court reserve ruling on the motion for mistrial until the jury enters its verdict. We highly recommend that attorneys to do so. This will allow the parties to see how the trial will play out and possibly save the parties time, money and expense in having to retry the case.

If you have any questions about this case or would like to refer an appellate matter, please contact our appellate attorneys.  

Kansas R. Gooden
Board Certified Appellate Attorney
Appellate Practice Group Leader
Direct: 904.493.3755
Fax: 904.493.5658


Associate, Loreyn P. Raab, thumbnail
Loreyn P. Raab
Direct: 904.309.6786
Fax: 904.520.7597


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