Conklin Shows, Inc. v. Llanes

733 So. 2d 595, 1999 Fla. App. LEXIS 7571, 1999 WL 371307

• Court: District Court of Appeal of Florida
• Decided: June 9, 1999
• Docket: 98-2680
• Status: Published

Opinion

733 So.2d 595 (1999)

CONKLIN SHOWS, INC., etc., Appellant,
v.
Gloria LLANES, et al., Appellees.

No. 98-2680.

District Court of Appeal of Florida, Third District.

June 9, 1999. Rehearing Denied July 7, 1999.

McGrane & Nosich and Rhea P. Grossman, Coral Gables, for appellant.

Eddy O. Marban, for appellees.

Before NESBITT, JORGENSON, and LEVY, JJ.

PER CURIAM.

Conklin Shows, Inc., the defendant below, appeals from an order granting a new trial. For the following reasons, we reverse.

The trial court abused its discretion in granting a new trial. "Trial courts lack discretion to grant a motion for a new trial... for unpreserved error that is not fundamental error." Celentano v. Banker, 728 So.2d 244, 245 (Fla. 4th DCA 1998). In this case, the alleged error was neither preserved nor fundamental. Furthermore, there was no showing that the plaintiff was prejudiced by the remarks made by defense counsel, particularly in light of the court's instruction to the jury, to which counsel for each party agreed. See Snider v. Cardigos, 723 So.2d 320 (Fla. 3d DCA 1998) (holding that where appellee failed to demonstrate that alleged error affected outcome of case, trial court abused its discretion in ordering new trial); Katos v. Cushing, 601 So.2d 612 (Fla. 3d DCA 1992).

Reversed and remanded with directions to reinstate the jury verdict for the defendant.^[1]

NOTES

[1] In light of our disposition of the appeal, the cross appeal is moot.