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