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Janine Aris, et al. v. Seville C. Applebaum, Case No. 3D14-2050 (3rd DCA)

In Aris, the Third District affirmed a final judgment entered below and the trial court's denial of a post-trial motion for new trial. The Third District noted that the appellant have objected to clearly improper questioning by the appellee's counsel. The trial court sustained the objection, struck the question from the record and instructed the jury to disregard the question. The appellant's counsel did not request any additional curative instructions and did not move for a mistrial.

The Third District noted that 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." The only exception to this preservation requirement is where the error complained of was fundamental. Finding that the objected-to question did not constitute fundamental error, the Third District ruled that the appellant's failure to contemporaneously move for a mistrial was fatal, and the trial court properly denied the post-verdict motion for new trial.


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