Hang Thu Hguyen d/b/a Millenia Day Spa v. Jean Wigley, Case. No. 5D13-1925
(5thDCA) (July 3, 2014) – In
Wigley,the Fifth DCA reversed a trial order granting a plaintiff’s motion
for new trial. The plaintiff brought suit seeking damages for injuries
she sustained while receiving a paraffin wax manicure. At trial, the plaintiff’s
daughter testified that several photographs of the plaintiff’s damages
nails existed which were not admitted by the plaintiff into evidence.
In closing argument, defense counsel commented that it was interesting
that the plaintiff had so many other photographs which weren’t produced.
The plaintiff’s counsel objected, and the trial court sustained
the objection. The plaintiff’s counsel, however, failed to request
either a curative instruction or a mistrial. Later in closing, the defense
counsel referred to the plaintiff’s lawsuit as a lottery. The plaintiff’s
counsel objected and requested a curative instruction, which the court
gave to the jury. The plaintiff did not move for mistrial. The jury returned
a verdict in favor of the plaintiff, but apportioned eighty percent fault
to the plaintiff. The plaintiff moved for a new trial based on the defense
counsel’s improper statements in closing. The trial court granted
the motion for new trial.
The Fifth DCA noted that because the plaintiff did not request a mistrial,
both comments at issue on appeal must be reviewed for fundamental error.
Fundamental error is found if the comments in closing argument are (1)
improper; (2) harmful; (3) incurable; and (4) so damaging to the fairness
of trial that the public’s interest in the system of justice requires
a new trial. First, the Fifth DCA found that the defense counsel’s
comments regarding unproduced photographs was not improper, given that
the plaintiff’s daughter testified to photographs existing which
were not produced, and the plaintiff did not object. As such, that testimony
became part of the evidence. Second, the Fifth DCA found that the defense
counsel’s “isolated” reference to a lottery was not
enough to so damage the fairness of the trial that the public’s
interest in our system of justice requires a new trial. Accordingly, the
Fifth DCA reversed the trail court’s order granting a new trial.