The Fourth District Court of Appeals has previously held that a trial court generally has broad discretion to set aside a jury verdict and grant a new trial. See Nigro v. Brady, 731 So. 2d 54, 56 (Fla. 4th DCA 1999). As a result, the Fourth and Second Districts have held that although a party whose objection is sustained must move for a mistrial in order to preserve the issue for appellate review, a motion for mistrial is not a prerequisite to moving for a new trial based on attorney misconduct. See id.; Companioni v. City of Tampa, 26 So. 3d 598 (Fla. 2d DCA 2009).
However, this holding has been in direct conflict with the Third and Fifth District Court of Appeals that have held that in order to preserve the issue of an attorney’s misconduct for appeal, the moving party must first move for a mistrial after his or her objection is sustained. See State v. Benton, 662 So. 2d 1364 (Fla. 3d DCA 1995); Sears Roebuck & Co. v. Jackson, 433 So. 2d 1319 (Fla. 3d DCA 1983); State v. Fritz, 652 So. 2d 1243 (Fla. 5th DCA 1995).
The Florida Supreme Court has recently resolved this conflict in Companioni v. City of Tampa, 35 Fla. L. Weekly S739 (Fla. December 16, 2010), in which the Court held that in order to preserve a sustained objection for the trial court’s consideration of a motion for new trial based on attorney misconduct, the complaining party must timely move for a mistrial. As a result, the Fourth District Court of Appeal’s holding is no longer good law.
