Esca Investment, Inc. v. Tarraza

239 So. 3d 1285

• Court: District Court of Appeal of Florida
• Decided: April 4, 2018
• Docket: 17-0039
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 4, 2018. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D17-39 Lower Tribunal No. 14-8415 ________________

ESCA Investment, Inc., Appellant,

vs.

Alejandro Tarraza, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Rodney Smith, Judge.

Quintairos, Prieto, Wood & Boyer, P.A., and Thomas A. Valdez (Tampa), David Tarlow (Fort Lauderdale) and Michael Wood (Fort Lauderdale), for appellant.

Kawel PLLC, and Andrew Paul Kawel, for appellee.

Before EMAS, FERNANDEZ and LUCK, JJ.

PER CURIAM. ESCA Investment, Inc., the defendant below, appeals from the trial court’s

order granting a new trial upon motion filed by Alejandro Tarraza, plaintiff below.

The trial court granted the motion for new trial based upon the individual and

cumulative effect of defendant’s violation of an order in limine, improper closing

argument (properly preserved by defendant’s contemporaneous objection), and a

determination that the jury’s award of zero damages for future pain and suffering

was contrary to the manifest weight of the evidence.

Upon our consideration of the trial court’s careful and detailed seven-page

order, and our own review of the record upon which the trial court based its

determinations, we find no abuse of discretion. See Brown v. Estate of Stuckey,

749 So. 2d 490, 497-98 (Fla. 1999) (holding: “When reviewing the order granting

a new trial, an appellate court must recognize the broad discretionary authority of

the trial judge and apply the reasonableness test to determine whether the trial

judge committed an abuse of discretion”); Castlewood Intern. Corp. v. LaFleur,

322 So. 2d 520, 522 (Fla. 1975) (observing: “Since at least 1962, it has been the

law of Florida that a trial court’s discretion to grant a new trial is ‘of such firmness

that it would not be disturbed except on clear showing of abuse . . . .’ Cloud v.

Fallis, 110 So. 2d 669, 672 (Fla. 1959). A heavy burden rests on appellants who

seek to overturn such a ruling, and any abuse of discretion must be patent from the

record”); Ryan v. Atlantic Fertilizer & Chem, Co., 515 So. 2d 324, 327 (Fla. 3d

2 DCA 1987) (holding that the burden is on appellant “to clearly or plainly show that

there was a gross or palpable abuse of discretion” in trial court’s granting new

trial).

Affirmed.