ADVANCED X-RAY ANALYSIS, INC., A/A/O ANTONIO GOMES v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

• Court: District Court of Appeal of Florida
• Decided: January 26, 2022
• Docket: 21-0099
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 26, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-0099 Lower Tribunal Nos. 09-40129 CC & 20-60 AP ________________

Advanced X-Ray Analysis, Inc., a/a/o Antonio Gomes, Appellant,

vs.

State Farm Mutual Automobile Insurance Company, Appellee.

An Appeal from the County Court for Miami-Dade County, Linda Singer Stein, Judge.

Eiffert & Associates, P.A., and Crystal Eiffert and Robert Morris (Orlando), for appellant.

Birnbaum, Lippman & Gregoire, PLLC, and Nancy W. Gregoire Stamper (Fort Lauderdale); Kirwan Spellacy Danner Watkins & Brownstein, P.A., and Christopher L. Kirwan and R. Ryan Smith (Fort Lauderdale), for appellee.

Before LOGUE, SCALES and GORDO, JJ.

PER CURIAM. Affirmed. See Araujo v. Winn-Dixie Stores, Inc., 290 So. 3d 936, 938

(Fla. 3d DCA 2019) (“A trial court’s denial of a motion for mistrial and a motion

for new trial . . . is reviewed for an abuse of discretion. ‘Generally, a mistrial

or new trial should be granted only when counsel’s comments are so

inflammatory and prejudicial that they deny the opposing party a fair trial.’

When assessing the comments, ‘[c]ontext is crucial.’”) (citations omitted);

Philip Morris USA, Inc. v. Cuculino, 165 So. 3d 36, 38-39 (Fla. 3d DCA 2015)

(holding that, while counsel’s improper comments during closing argument

were not ones the appellate court condoned, nonetheless the comments

were not so highly prejudicial and inflammatory that a party was denied a fair

trial); Carnival Corp. v. Jimenez, 112 So. 3d 513, 519 (Fla. 2d DCA 2013)

(holding that, when alleged error arising from both improper closing

argument and attorney misconduct during trial is unpreserved, a motion for

a new trial must establish the argument or conduct was improper, harmful,

incurable, and damaging to the fairness of the trial).