APPEALS FOR THE WEEK OF NOVEMBER 28th, 2011

In CITY OF TAMPA v. COMPANIONI, No. 2D08-921 (Fla. 2d DCA Nov. 23, 2011), a civil case addressing a personal injury claim against the City of Tampa, the DCA considered the case on remand from the Florida Supreme Court. The trial court had denied the city's notion for a new trial; in its original opinion the DCA reversed. The Supreme Court held that a party seeking a new trial based on the cumulative misconduct of opposing counsel must not only object to each instance of misconduct, but, if the objection is sustained, must also move for a mistrial in order to preserve the issue for the purposes of a motion for a new trial. Absent preservation in that manner, the conduct is subject to a fundamental error analysis. Here the DCA held that it could not conclude that the trial court abused its discretion when it determined the City had not satisfied the criteria established by the Supreme Court and thus the city was not entitled to a new trial based on the misconduct of opposing counsel.

In HARIDOPOLOS v. CITIZENS FOR STRONG SCHOOLS, INC., No. 1D10-6285 (Fla. 1st DCA Nov. 23, 2011), the DCA, sitting en banc, examined the proper use of a writ of prohibition. The trial court denied a motion to dismiss based on the argument that the circuit court lacked jurisdiction to decide a claim that Florida public schools are lacking in a number of particulars. The defendant below then petitioned the DCA for a writ of prohibition. The DCA held: "the only issue that is germane in prohibition proceedings [is] the nature and extent of the lower tribunal's jurisdiction." Slip opinion at 4. The DCA reasoned that a circuit court is court of general jurisdiction, and has statutory authority to entertain claims for declaratory judgment. Even if erroneous, the denial of a motion to dismiss is ordinarily no occasion for an appellate court to intervene in a proceeding pending in a trial court. The fact that a party might have to go through an unnecessary trial does not constitute material injury of an irreparable nature warranting grant of an extraordinary writ. Slip opinion at 4. The DCA further reasoned that no appeal was taken from the denial of the motion to dismiss the complaint, nor could any appeal have been taken from that interlocutory ruling. Instead the defendants below petitioned for a writ of prohibition in an effort to stymie further proceedings in the circuit court. Slip opinion at 5. The DCA held: "Prohibition lies to redress an inferior tribunal's usurpation of jurisdiction, but it does not lie to prevent mere error in the exercise of the inferior tribunal's jurisdiction.... Prohibition is unavailable to divest a lower tribunal of jurisdiction to hear and determine its own jurisdiction, or to test the correctness of a jurisdictional determination that depends on fact finding the lower tribunal is charged with making.... The writ is narrow in scope, is to be employed with great caution, and, our supreme court has even said, is to be utilized only in 'emergencies'.... There is no emergency here." Slip opinion at 6 (citations omitted). In this case the DCA concluded that educational adequacy provisions in the Florida Constitution are judicially enforceable, but certified the question for review by the Florida Supreme Court.

In COVINGTION v. STATE, No. 4D10-2410 (Fla. 4th DCA Nov. 23, 2011), the Defendant was charged with felony theft of groceries from a grocery store. A surveillance video of the theft had apparently existed at one time, but it had been recorded over after 60 days, long prior to the trial. During closing argument the Defendant contended that the absence of the video was a lack of evidence creating a reasonable doubt. During the state's closing argument, the prosecutor responded by stating: "And then a huge part about this video. Gosh, video that existed, it was a surveillance, State didn't show it to you. Well, you know what? They could have got it too. They could have shown it to you. They had just as much of an opportunity to go and ask for that video as we did." Slip opinion at 1. The DCA reversed the conviction, holding that the prosecutor's argument was improper for two reasons: (1) It was factually inaccurate. The State did not disclose the existence of any surveillance evidence until after it was recorded over; it was then too late for the Defendant to obtain it from the store. (2) The argument improperly shifted the burden of proof to the Defendant. The state cannot properly comment on a defendant's failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe the defendant carried the burden of introducing evidence. Here the prosecutor compounded the error by implying that video would have corroborated the state's case had it been shown.

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