Julia Luyster, Esq.

Rutherford Mulhall, P.A.

NEW BRIGHT LINE TO PRESERVE THE RIGHT TO A NEW TRIAL

Julia Luyster, Esq.[i]

In December, the Florida Supreme Court decided Companioni v. City of Tampa,[ii] which held that when a party objects to attorney misconduct during trial, and the objection is sustained, the party must also move for a mistrial at the time the objection is sustained in order to preserve the issue for a trial court=s review of a motion for new trial. A party may no longer preserve the right to a new trial by waiting until post-verdict to move for a mistrial based upon attorney misconduct or by just asking for a curative instruction. [iii] If the issue is not preserved with a timely motion for mistrial, then the conduct in a civil case must pass the fundamental error analysis in Murphy v. International Robotic Systems, Inc.[iv] This changes the procedure for preservation of a motion for a new trial when a party objects to attorney misconduct and the objection is sustained.

The Companioni case came before the Florida Supreme Court for review from a decision of the Second District Court of Appeal, City of Tampa v. Companioni,[v] which was in express and direct conflict with the Third District Court and Fifth District Court decisions of State v. Benton, [vi] Sears Roebuck & Co. v. Jackson,[vii] and, State v. Fritz [viii] .

In the underlying Companioni case, Ramiro Companioni sued the City of Tampa for injuries he sustained in a motor vehicle accident with a City truck.[ix] Throughout the jury trial of the case, the City objected on several occasions of misconduct by Companioni=s attorney. [x] The trial court sustained the objections, but the City never moved for a mistrial. [xi]

The jury returned a verdict for Companioni and a final judgment was entered.[xii] Thereafter, the City moved for a new trial. [xiii] The grounds for the new trial were, in part, that opposing counsel had engaged in misconduct during the trial. [xiv] The trial court denied the motion for new trial on the grounds that the City had not moved for a mistrial, and that the conduct did not meet the Murphy^[xv] fundamental error test; in that the Amisconduct was not so extreme so as to undermine the public=s confidence in the judicial system.@ ^[xvi]

The City appealed the trial court=s denial of its motion for new trial. The Second District Court of Appeal held that the trial court erred in that it did not need to consider the Murphy fundamental error argument because the City had objected to the misconduct during trial. [xvii] The Second District Court of Appeal reasoned that a motion for mistrial was only necessary to preserve the right to appellate review, but was not a prerequisite for moving for a new trial. ^[xviii] One needed only to object to the misconduct to properly preserve the right for a new trial.

The Second District Court decision was contrary to the Third and Fifth Districts. The Second District Court held that preserving a motion for new trial, based upon opposing counsel=s misconduct, required that the moving party must move for a mistrial at the time his objection is sustained.^[xix] The procedure applied in the Third and the Fifth Districts was, after the objection to the attorney misconduct was sustained, the movant had the option to either ask for a curative instruction ormove for a mistrial. ^[xx]

Companioni implements a uniform statewide procedure for the preservation of the right to move for a new trial based upon attorney misconduct during trial. [xxi] No longer is a curative instruction sufficient, or apparently necessary, according to the opinion, although not expressly stated as such. [xxii] However, a timely motion for a mistrial must be made when the objection to misconduct is sustained. Post verdict motions for mistrial do not preserve the right to a new trial based upon attorney misconduct. [xxiii]

Companioni concluded that the procedure for preserving the issue for appellate review and the procedure for preserving the issue for the trial court=s review are the same.[xxiv] The Court rationalized this under the assumption that trial judges will exercise their discretion by considerations of judicial economy. [xxv]

Companioni states that Ait is more efficient to alert the trial judge at the earliest possible point in the proceedings that an error may be incurable.@^[xxvi] Thus, a motion for mistrial must be timely made. A motion post verdict is no longer considered to be “timely made”. ^[xxvii] Companioni also changes the procedures expressed in Benton in the Third District and Fritz in the Fifth District, where a request for a curative instruction ora motion for a mistrial was sufficient to preserve the right to a new trial. [xxviii] A curative instruction is no longer sufficient to preserve the right to a new trial.

Endnotes

[i] Julia Luyster is appellate counsel at Rutherford Mulhall, P.A. She is a frequent author and lecturer. Visit her Law Blog at rmlawyer.com. She obtained her J.D. from Baylor University in Texas in 1994, and is a member of the Florida, Washington D.C., and Minnesota state Bars. She is admitted before the United States Court of Appeals for the Eleventh Judicial Circuit, as well as the Supreme Court of the United States.

[ii] 51 So. 3d 452 (Fla. 2010).

[iii] Id.

[iv] 766 So. 2d 1010, 1027-32 (Fla. 2000).

[v] 26 So. 3d 598 (Fla. 2d DCA 2009).

[vi] 662 So. 2d 1364 (Fla. 3d DCA 1995).

[vii] 433 So. 2d 1319 (Fla. 3d DCA 1983).

[viii] 652 So. 2d 1243 (Fla. 5^th DCA 1995).

[ix] 26 So. 3d 598 (Fla. 2d DCA 2009).

[x] Id.

[xi] Id.

[xii] Id.

[xiii]. Id.

[xiv]. Id.

[xv]. 766 So. 2d 1010, 1027-32 (Fla. 2000).

[xvi]. Id.

[xvii]. Id.

[xviii]. Id.

[xix]. Id.

[xx]. Benton, 622 So. 2d at 1365; Fritz, 652 So. 2d at 1244. A request for a curative instruction is not required to preserve an issue for appellate review once an objection and timely motion for mistrial is made. Evans v. State, 995 So. 2d 933 (Fla. 2008).

[xxi] . 51 So. 3d 452 (Fla. 2010).

[xxii] . Id.

[xxiii] . Id.

[xxiv] . Id.

[xxv] . Id.

[xxvi]. Id.

[xxvii]. Id.

[xxviii]. Id.

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By: Laurie S. Cohen, Esq.

Rutherford Mulhall, P.A.

Public policy in the State of Florida, as in many other states, favors settlement of legal disputes. This policy helps to reduce the burden on our already overburdened court system. In some instances, the legislature has imposed a pre-suit mediation or arbitration requirement for certain types of disputes, such as claims by a unit owner against a homeowner or condominium association. However, even when there is no statutorily imposed requirement to mediate, written agreements containing such a provision will be enforced.

Mediation is an informal proceeding in which a neutral third party assists the parties in trying to negotiate a settlement of their dispute. In the typical mediation, the parties meet together in a conference room setting. Each side is afforded an opportunity to make an "opening statement" regarding the facts of the case. The parties then separate and "caucus" privately with the mediator. The mediator meets with each side on an alternating basis and attempts to help the parties find a resolution with which they can all live. It is often said that in a successful mediation, each side must agree to give up something and neither side walks away feeling completely satisfied with the result. Nevertheless, there are many reasons why it makes good business sense to settle early. For example, settlement avoids the uncertainty and expense of a trial and can also save the practitioner time and money.

It is with these benefits in mind that physicians should consider modifying their patient services agreements to require pre-suit mediation. While physicians typically send their past due accounts to a collection agency and recover a reduced percentage of the amount collected (typically 60% to 65%), the mediation process may afford the practitioner an opportunity to "keep" more of the funds the patient is able to pay.

Hourly rates for mediators can vary widely and typically range from $250 to $375 per hour. However, a physician may be able to negotiate a reduced hourly fee or a daily flat fee based upon the volume of work provided to the mediator. A Professional Association might also consider offering such a service to its members as an additional membership benefit.

By way of example, let us assume the following: The practitioner sends 16 accounts out for collection, with the past due amount totaling $20,000. Of that amount, the collection agency recovers $10,000. The collection agency's fee for services is $3,500 (35% of the amount recovered). The balance of the recovery, totaling $6,500.00, goes to the physician. Now let's assume that the physician decides to mediate these same disputes instead. The physician would be required to send a representative from his/her office to the mediation and the representative must have full authority to settle. Assume hypothetically that the mediator agrees to accept a reduced hourly rate of $175. Assume also that the physician (or group of physicians) books the mediator for an eight-hour period and that the same 16 matters are scheduled for back-to-back mediations during the course of the day, each occurring on the half hour. With the mediator's help, the total settlement negotiated by the parities for the 16 matters totals $10,000.00. The mediator's fee for he full day is $1,400.00. The balance of the settlement, totaling $8,600.00, goes to the physician. In this scenario, the physician has recovered $2,100.00 more using the mediation process than was recovered using the collection process.

Each practice is unique and physicians will necessarily have to evaluate each account or group of accounts to determine whether mediation or collection best serves his/her needs. The mediation process simply offers another tool in the practitioner's toolkit for the recovery of accounts receivable, and in these difficult economic times, may prove beneficial to the practice.

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Ms. Cohen practices with the law firm of Rutherford Mulhall, P.A. and concentrates her practice in the area of complex commercial litigation. Ms. Cohen is a Supreme Court Certified County and Circuit Civil Mediator.

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Arbitration may be binding or non-binding, but in either case differs significantly from mediation. This article discusses only mediation and does not recommend that physicians include an arbitration provision in their agreements for the provision of services. The hypothetical scenario discussed herein is for illustrative purposes only and is not intended to represent or guarantee actual results. The physician should consult his/her legal counsel before deciding whether to implement the mediation process as an addition to or alternative to any current procedure used for the collection of past due accounts.

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