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Ruvim London v. Vladimir Dubrovin, Case No. 3D13-2881 (3rd DCA)

In London, the Third District reversed the trial court's order granting a new trial. In the underlying case, the trial court entered an order setting trial for April 30, 2013. On the first day of trial, the trial court heard the following three matters on the defendant's motions in limine. First, the plaintiff had served his exhibit list six days before trial in violation of the trial order. The trial court declined to exclude the exhibits, and the defendant declined a continuance offered by the court. Second, the plaintiff took a videotaped deposition the day before trial also in violation of the trial order. The defendant, however, did not claim prejudice or surprise from the deposition, nor did the defendant request a continuance. Third, the day before trial, the plaintiff moved to amend the complaint to correct scrivener's errors. The defendant claimed prejudice, but again declined a continuance. On October 22, 2013, the trial court entered an order granting the defendant a new trial, finding cumulative unfair surprise.

On appeal, the Third District found that a new trial was not warranted. "The appropriate cure for a violation that results in surprise during the trial is a continuance, and a failure to request one precludes a later claim of prejudice." In addition, where individual claims of error fail, a related cumulative error claim must likewise fail. The Third District found that the defendant either declined a court offered continuance, or failed to request one, after each of the incidents which the trial court identified as constituting unfair surprise. Accordingly, the Third District reversed.


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