Full Opinion

Third District Court of Appeal State of Florida Opinion filed October 28, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-1652 Lower Tribunal No. 14-14654 ________________ We The Best Music, Inc., Appellant, vs. Kendrick Stafford, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge. ADR Miami LLC, and Juan Ramirez, Jr., for appellant. Roberts, P.A., and H. Clay Roberts and Javier A. Basnuevo Valdivia, for appellee. Before SCALES, HENDON, and LOBREE, JJ. HENDON, J. The defendant below, We The Best Music, Inc. (“WTBM”), appeals from an order granting Kendrick Stafford’s motion for new trial. Following our review of the record and the trial court’s detailed order outlining WTBM’s counsel’s1 intentional misrepresentations to the trial court and WTBM’s counsel’s improper and inflammatory arguments made during closing argument, we conclude that the trial court did not abuse its discretion by granting Stafford’s motion for new trial. Stafford filed an action against WTBM stemming from Stafford’s alleged fall from approximately ten feet high, which occurred at a job site at premises leased by WTBM. At trial, WTBM asserted that there was no accident, and that Stafford was fabricating the alleged incident. In support of its position, during closing argument, WTBM’s counsel began his argument by stating that Stafford “is a fraud . . . . There was no accident. He did not fall. That was made up. . . . What evidence other than from his lying mouth is there that he really fell?” Stafford’s counsel objected, and the trial court overruled the objection. Immediately after the objection was overruled, WTBM’s counsel continued as follows: MR. SOVEN [WTBM’s counsel]: So let’s talk about the evidence that could prove that he fell that’s easily and readily available to prove you to [sic] that he fell. For instance, he said, “I called fire rescue. Fire rescue showed up. But after they checked me out, I told them to leave because my wife would take me to the Aventura Hospital.” 1 WTBM’s appellate counsel was not WTBM’s trial counsel. 2 Okay. Where is the report from fire rescue that they showed up? MR. ROBERTS [Stafford’s counsel]: Your Honor, can we approach? MR. SOVEN: Excuse me. May I make my argument? THE COURT: What’s the objection, counsel? MR. ROBERTS: The fire rescue is in evidence. MR. SOVEN: No, it isn’t. There is no fire rescue report. There is no fire report. There never was one. There was never a fire report. .... THE COURT: . . . I’m going to overrule your objection. . . . Counsel, you may proceed. MR. SOVEN: And there is no fire rescue report. (emphasis added). The jury ultimately returned a verdict in favor of WTBM. Thereafter, Stafford filed a motion for new trial, explaining that at the outset of the trial, Stafford’s exhibits, including the Fire Rescue Report, were reviewed by WTBM’s counsel. Thereafter, without objection, the exhibits were introduced into evidence. Prior to resting, Stafford’s counsel confirmed with the trial court, the court clerk, and WTBM’s counsel that all exhibits, with the exception of two other exhibits that had been withdrawn, had been entered into evidence. Nonetheless, during closing, WTBM’s counsel falsely argued that the Fire Rescue Report “did not exist” and informed the trial court that the Fire Rescue Report had not been admitted into evidence. As a result of WTBM’s counsel’s false information, the trial court erroneously removed the Fire Rescue Report from evidence in the 3 middle of closing argument. Stafford’s motion for new trial also took issue with certain references made by WTBM’s counsel as to Stafford, such as calling Stafford a “liar” and asking the jury that, except for the statements from Stafford’s “lying mouth,” what evidence was there that Stafford actually fell. The trial court conducted a hearing on Stafford’s motion for new trial, where the court clerk testified as to procedures she used in handling the Fire Rescue Report and other evidence. Following the hearing, the trial court granted Stafford’s motion for new trial, stating as follows: The Court was convinced by the clerk’s testimony, as well as further argument of counsel, that in fact the Fire Rescue Report had been stipulated to between the parties and properly admitted into evidence. The Court specifically finds that defense counsel intentionally misrepresented to the Court that there had been no such stipulation. The Court was therefore led into error by defense counsel when it removed the Incident Report from evidence during closing argument. As the Court stated in Greenberg v. Schindler Elevator Corporation, 47 So. 3d 901 (Fla. 3d DCA 2010): “It is improper argument for defense counsel to obtain exclusion of evidence and then in closing argument criticize the Plaintiff for failing to produce that very evidence.” The case at bar is even more extreme since Defense counsel falsely argued that the evidence, the Fire Rescue Report, did not exist when in fact it did exist. Defense counsel’s improper argument, after obtaining the removal of the Fire Rescue Report from evidence under false pretenses, severely prejudiced the Plaintiff’s case and caused the Plaintiff not to receive a fair trial. (emphasis added). In addition, in its order, the trial court correctly determined that WTBM’s counsel made improper and inflammatory arguments, which “were prejudicial to the Plaintiff and were so extreme as to require a new trial.” The trial 4 court referenced, among others, the statements made about Stafford having a “lying mouth” and stating that Stafford is “fraud.”2 We conclude that the trial court did not abuse its discretion by granting Stafford’s motion for new trial based on WTBM’s counsel’s improper and inflammatory statements and the misrepresentation as to the Fire Rescue Report.3 Accordingly, we affirm the order under review and remand for a new trial. 4 Affirmed; remanded for new trial. 2 WTBM reliance on Watkins v. Sims, 88 So. 764, 767 (Fla. 1921), and Forman v. Wallshein, 671 So. 2d 872, 873 (Fla. 3d DCA 1996), is misplaced as those cases are factually distinguishable from the facts in the instant case. 3 As stated in the trial court’s order, defense counsel made other improper statements. We caution WTBM’s counsel to refrain from making such arguments in the future. 4 As to the remaining issues raised by WTBM, we affirm without prejudice, allowing WTBM to raise the issues during the new trial. 5