FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-4469

_____________________________

MARION LITTLE,

Appellant,

v.

JOANN DAVIS,

Appellee.

_____________________________

On appeal from the Circuit Court for Leon County.

Charles W. Dodson, Judge.

December 14, 2018

ROWE, J.

Joann Davis was stopped at a stop sign when the vehicle she 

was driving was rear-ended by a car driven by Marion Little. Both 

parties agreed that Little’s car was traveling less than five miles 

per hour before it made contact with the bumper of Davis’s car. 

Initially, Davis did not complain of any injuries. But nine days 

after the accident, Davis asserted that she had pain in her left arm. 

Eight months later, she filed suit alleging that she sustained 

permanent injuries in the accident. The case proceeded to trial, 

and the jury returned a verdict in favor of Davis, but found that 

she did not sustain any permanent injury. The jury awarded no

damages for pain and suffering. Davis moved for a new trial on 

grounds that a single question posed by defense counsel to Davis 

under cross-examination was so prejudicial it warranted a new 
2

trial. The trial court granted the motion. Because the record does 

not support the trial court’s ruling, we reverse.

Facts

Liability was not at issue in this case. Little admitted that 

she caused the accident, but she disputed that Davis sustained 

permanent injury during the low-speed collision. Further, the 

parties argued over whether any of the injuries Davis alleged were 

caused by the accident or were instead related to a pre-existing 

condition. Evidence of causation was in conflict.

On the one hand, Davis presented the testimony of two 

physicians, including a neurological surgeon who opined that the 

injuries to Davis’s left arm were caused by the accident.

On the other hand, Little presented the testimony of a 

biomechanics engineer, who testified that the mechanics of the 

collision made it “physically impossible” for Davis to develop the 

injuries she alleged as a result of the accident. Further, a doctor 

who performed a comprehensive medical examination of Davis 

testified that Davis’s pain complaints could not be explained on 

any kind of anatomic basis. He also opined that she exhibited 

conduct consistent with malingering. During defense counsel’s 

cross-examination of Davis, the jury heard evidence regarding 

Davis’s twenty years’ worth of medical records related to Davis’s 

prior complaints and car accidents. Davis testified that she could 

not recall the prior accidents or complaints and that she had never 

specifically complained of pain in her left arm. Defense counsel 

then inquired:

DEFENSE: Okay. Isn’t it true that as of today, 

you no longer have any problems 

with your left arm?

DAVIS: I still have problems with my left 

arm.

DEFENSE: You still do?

DAVIS: Yes.
3

DEFENSE: You’ve lived with your boyfriend, 

William McNealy for several 

years; isn’t that right?

DAVIS: Yeah. Three years.

DEFENSE: Three years? Okay. He lived with 

you at the time of this accident?

DAVIS: Yes.

DEFENSE: Okay. If your arm’s still injured, 

how come Mr. Nealy testified that 

you don’t complain to him about 

problems with your left arm 

anymore?

PLAINTIFF: Objection; speculation.

DAVIS: (Inaudible).

COURT: Hang on just a second. What’s the 

objection?

PLAINTIFF: The objection is speculation. She’s 

asking why does he think 

something.

COURT: Restate the question.

DEFENSE: I said if you were – if your left arm 

is still injured, how come Mr. 

Nealy testified that you don’t 

complain to him about problems 

with your arm anymore?

DAVIS: Because I –

COURT: Hang on just a second. What’s the 

objection?
4

PLAINTIFF: The objection is it’s hearsay and it 

requires her to speculate on the 

state of mind of another witness 

that’s not even in evidence.

COURT: Sustained.

DEFENSE: Mr. Nealy wouldn’t make anything 

up about you, would he?

PLAINTIFF: Objection.

COURT: Sustained.

DEFENSE: Isn’t it true, Ms. Davis, that the 

problems you’re having now are 

simply the same ones you’ve had 

for 20 years?

DEFENSE: No.

The jury returned a verdict in favor of Davis, finding that 

Little caused the accident. The jurors further found that Davis 

sustained an injury in the low-speed collision and awarded Davis

damages in the amount of her past medical bills. However, the 

jury found that Davis did not sustain a permanent injury “within 

a reasonable degree of medical probability.” Finding no permanent 

injury, the jury did not award Davis any damages for past or future 

pain and suffering. 

Davis moved for a new trial on damages. She argued that the 

jury’s verdict finding no permanency was contrary to the manifest 

weight of the evidence presented at trial. At the hearing on the 

motion, Davis asserted that the jury was misled by defense 

counsel’s cross-examination questions regarding her boyfriend 

William McNealy and misperceived the weight of the evidence. 

She argued that defense counsel’s conduct was so prejudicial and 

incurable that it warranted a new trial. The court expressed its 

dissatisfaction in defense counsel for inquiring about Davis’s 

boyfriend. The court explained on the record the reasons it found 

defense counsel’s line of questioning to be prejudicial:
5

COURT: Let me just – you know, I, under 

the circumstances, did find that to 

be highly prejudicial and I am 

going to grant a new trial on 

damages based on that.

And just for the purpose of the 

appellate court, if that’s taken up, 

wondering why I’m making that, 

my observations of Ms. Davis was

that she frankly was a very 

uncommunicative witness. Not 

that she was the least bit hostile, 

it’s just that she had a lot of 

difficulty expressing herself both 

on direct and cross examination, 

such that on direct examination, 

my recollection is [Davis’s counsel]

really struggled to get her to 

testify to the basics on direct

examination, just because she was 

so unable to express herself 

verbally. Whether it was shyness 

or whatever, she was unable to do 

that.

On cross examination, that caused 

on cross, I believe, the jury to 

believe that whatever she was 

asked on cross was the truth, 

because I don’t think she disagreed 

with anything you said on cross, to 

the best of my recollection.

DEFENSE: I didn’t ask any questions that she 

could have disagreed with.

COURT: Well, I mean, there were a lot of 

just grunts, as I recall, not even –

but I really – that bothered me 

when I heard it, because I 
6

remember thinking this jury, it 

would be easy for them to believe 

that the boyfriend – that she must 

have told the boyfriend that she’s 

not hurt.

I am going to grant the new trial 

on damages because of that and I 

just wanted to make sure the 

appellate court understood that. I 

know my job in part as a judge is 

to, based upon my experience as 

both a trial lawyer and a judge and 

my observations of witnesses and 

their demeanor and all of those 

things that go with a trial, that 

while I have to be very reluctant to

substitute my judgment for the 

jury’s in the long run, I do have to 

make sure the jury is not misled on 

the testimony. And with this being

really a dispute between Dr. 

Rumana, who was her long time 

treating physician, and Dr. 

Rogozinski, who saw her for about 

30 minutes, that I think that 

question itself, although it wasn’t

answered, it was objected to and 

the objection was sustained, 

caused that to be a big part in the 

jury making their determination 

as to the permanency, so I’m going 

to grant the new trial based on 

that.

. . .

DEFENSE: So just to be clear for the 

appellate record, you are 

granting a new trial solely on 
7

the issue of the one hearsay 

question?

COURT: A highly prejudicial hearsay 

question.

The written order granting a new trial indicated that the trial 

court’s ruling was “based upon the introduction of certain hearsay 

evidence during the cross-examination of [Davis], which the Court 

[found] was unduly prejudicial to the [Davis] and deprived her of 

a fair trial.” This appeal follows.

Analysis

We “begin with the presumption that the trial court properly 

exercised its discretion, and [] will not disturb the trial court’s 

ruling absent a clear abuse of that discretion.” Allstate Ins. Co. v. 

Manasse, 707 So. 2d 1110, 1111 (Fla. 1998). The trial court’s 

“decision to grant a new trial is given even greater deference than 

a court’s decision to deny a new trial.” Sullivan v. Kanarek, 79 So. 

3d 900, 903 (Fla. 2d DCA 2012). This is because the trial court 

“had the opportunity to observe the witnesses and to consider the 

evidence in the context of a living trial rather than upon a cold 

record.” Johns-Manville Sales Corp. v. Janssens, 463 So. 2d 242 

(Fla. 1st DCA 1984). But, despite this deference to the trial court, 

the order granting a new trial must be supported by the record.

Moore v. Gillett, 96 So. 3d 933, 938 (Fla. 2d DCA 2012). Here, the 

record does not support the trial court’s order.

The parties agree that the alleged error in this case was not 

properly preserved. “[W]hen a party objects to instances of 

attorney misconduct during trial, and the objection is sustained, 

the party must also timely move for a mistrial in order to preserve 

the issue for a trial court’s review of a motion for a new trial.” 

Companioni v. City of Tampa, 51 So. 3d 452, 456 (Fla. 2010). Here, 

although Davis’s counsel objected to defense counsel’s question 

regarding McNealy, and the trial court sustained it, Davis’s 

counsel never sought a curative instruction and did not move for 

mistrial. Thus, our review is for fundamental error. Id. at 454 

(citing Ed Ricke & Sons, Inc. v. Green, 468 So. 2d 908, 910 (Fla.

1985)).
8

In Murphy v. International Robotic Sys., Inc., 766 So. 2d 1010 

(Fla. 2000), the Florida Supreme Court set forth a four-part test 

that trial courts must apply when determining whether a new trial 

should be granted based on unpreserved error in closing argument. 

Id. To prevail on a motion for new trial under Murphy, the movant 

must establish that the challenged argument was (1) improper, (2) 

harmful, (3) incurable, and (4) so damaging to the fairness of the 

trial that the public’s interest in our system of justice requires a 

new trial. Id. at 1028-30. The test outlined in Murphy is not 

limited to a trial court’s review of unpreserved errors made during 

closing argument. The Florida Supreme Court has since held that 

the Murphy test also applies to a trial court’s review of

unpreserved errors related to “instances of attorney misconduct.” 

Companioni, 51 So. 3d at 456; see also Carnival Corp. v. Jimenez, 

112 So. 3d 513, 519 (Fla. 2d DCA 2013) (applying Murphy test to 

review defense counsel’s misconduct throughout trial); Platz v. 

Auto Recycling & Repair, Inc., 795 So. 2d 1025, 1027 (Fla. 2d DCA 

2001) (recognizing that the Murphy court “did not expressly limit 

its holding to closing argument”). A trial court abuses its 

discretion when it grants a new trial based on an unpreserved 

error involving attorney misconduct without first applying the 

four-part test outlined in Murphy. See Black v. Cohen, 246 So. 3d 

379, 385 (Fla. 4th DCA 2018).

Here, the trial court did not make the four findings required 

by Murphy and failed to address each requirement at the hearing 

or in its written order. On this basis alone, the trial court abused 

its discretion. See McDuffie v. State, 970 So. 2d 312, 326 (Fla. 

2007) (holding that a trial court “abuses its discretion if its ruling 

is based on an erroneous view of the law or on a clearly erroneous 

assessment of the evidence”) (internal quotes omitted); see also 

Companioni, 51 So. 3d at 456 (holding that trial court may not 

grant a new trial based on objections to attorney misconduct which 

were sustained, but for which no motion for mistrial was 

requested, without the requirements of Murphy being met);

Carnival Corp., 112 So. 3d at 520 (noting that complaining party 

must successfully establish the four criteria outlined in Murphy 

before the trial court can grant the party’s motion for new trial); 

Mercury Ins. Co. of Florida v. Moreta, 957 So. 2d 1242, 1250 (Fla. 

2d DCA 2007) (same); Sawczak v. Goldenberg, 781 So. 2d 450, 451 

(Fla. 4th DCA 2001) (same).
9

Further, our review of the record establishes that in this case, 

the four requirements of the Murphy test cannot be met.

1. Improper conduct

With regard to the first prong of the Murphy test, the question 

posed by defense counsel during the cross-examination of Davis—

“If your left arm is still injured, how come Mr. Nealy testified that 

you don’t complain to him about problems with your arm 

anymore?”—was improper1 because it misrepresented the 

evidence and introduced hearsay testimony from a non-testifying 

witness. See generally Boyles v. Dillard’s Inc., 199 So. 3d 315, 319 

(Fla. 1st DCA 2016) (finding improper defense counsel’s attempted 

impeachment of plaintiff’s credibility by referring to a deposition 

that had not previously been introduced into evidence); Moreta, 

957 So. 2d at 1252 (finding improper defense counsel’s closing 

argument revealing opinion of non-testifying witness).

2. Harmfulness

The second prong under Murphy requires the trial court to 

determine whether defense counsel’s question was harmful. 

Harmful comments are those that are “so highly prejudicial and of 

such collective impact as to gravely impair a fair consideration and 

determination of the case by the jury,” such that “the verdict 

reached could not have been obtained but for such comments.” Id. 

Defense counsel’s question, asked on the first day of a three-day 

trial, was isolated and unanswered. McNealy was never called as 

a witness, and his name was never mentioned again. “No 

reasonable person would conclude that the verdict was fatally 

tainted by this single remark.” Black, 246 So. 3d at 385.

Even clearly improper questioning is not harmful under 

Murphy if the record contains “ample evidence” to support the 

jury’s verdict. See Thompson v. Hodson, 825 So. 2d 941, 947 (Fla. 

1st DCA 2001) (finding defense counsel’s false implication that his 

client was the only one of plaintiff’s doctors being sued was not 

 1 At oral argument, Little’s appellate counsel conceded that 

the question was improper.
10

harmful where the record contained “ample evidence from which a 

jury could have fairly rendered a defense verdict”); see also

Carnival Corp., 112 So. 3d at 521-22. Here, there was ample

evidence to support the jury’s finding that Davis did not sustain 

any permanent injury during the low-speed collision. Indeed, 

Davis’s medical records reflected an extensive history of left-arm 

pain and numbness over a twenty-year period. Further, the jury 

heard testimony that it was “physically impossible” for Davis to

have developed her claimed injuries during the accident. The 

physician who examined Davis opined that Davis’s conduct during 

her examination was consistent with malingering. A finding that 

Davis sustained no permanent injury is also consistent with the 

neurological surgeon’s testimony that Davis’s surgeries were 

successful and improved her condition and that Davis would 

continue to see improvement for up to two years after the surgery. 

Thus, there was ample evidence to support the jury’s verdict that 

Davis was not entitled to damages for pain and suffering and that 

Davis did not suffer any permanent injury. Accordingly, on this 

record, we find that defense counsel’s conduct was not harmful 

under Murphy.

3. Incurability

The third prong outlined in Murphy requires the trial court to 

determine “that even if [it] had sustained a timely objection to the 

improper argument and instructed the jury to disregard the 

improper argument, such curative measures could not have 

eliminated the probability that the unobjected-argument resulted 

in an improper verdict.” Murphy, 766 So. 2d at 1030. This is an 

“extremely difficult” hurdle, and “rarely will a party be able to 

satisfy the burden of this prong.” Carnival Corp., 112 So. 3d at 

522. Davis cannot establish that the harm caused by defense 

counsel’s question, if any, was incurable. Davis’s counsel did not 

request a curative instruction2 and, even if he had, Davis fails to

 2 At the hearing on Davis’s motion for new trial, the trial court 

was laboring under the impression that it had in fact given a 

curative instruction. When the court erroneously recalled that it 

had given a curative instruction, Davis’s counsel compounded the 

error, agreeing that a curative instruction had been given.
11

explain why a general instruction to disregard the objectionable 

statement would have been ineffective. See id. (noting that an 

appellant must explain why an instruction to disregard would not 

cure improper comments). On this record, there is no reason to 

believe that a curative instruction would not have remedied any 

potential harm caused by defense counsel’s unanswered question.

4. Consideration of the public’s interest in the justice system

Finally, the fourth prong requires the moving party to 

establish that the attorney’s misconduct “so damaged the fairness 

of the trial that the public’s interest in our system of justice 

requires a new trial.” Murphy, 766 So. 2d at 1030. The category 

of attorney misconduct that would satisfy this prong is very 

limited. The court in Murphy provided that conduct appealing to 

racial, ethnic, or religious preferences would traditionally meet 

this requirement. Id. Here, the single, isolated question by 

defense counsel made on the first day of a three-day trial “did not 

sink to a level of perniciousness at which a new trial is required to 

maintain public confidence in our system of justice.” Platz, 795 So. 

2d at 1027. The trial court failed to consider this prong before 

granting a new trial, Davis offered no argument to support it, and 

our review of the record demonstrates defense counsel’s conduct in 

asking the single, isolated cross-examination question did not 

amount to an error that seriously affects the basic fairness, 

integrity, or public reputation of the judicial process.

Conclusion

Because the trial court failed to apply the four-part test 

outlined in Murphy in ruling on Davis’s motion for new trial, and 

because the Murphy test cannot be met on this record, the trial 

court abused its discretion. Accordingly, we reverse the order 

granting new trial and direct the lower court to enter a judgment 

consistent with the jury’s verdict. See Walt Disney Parks & Resorts 

U.S., Inc., v. Grimes, 248 So. 3d 179, 180 (Fla. 5th DCA 2018).

REVERSED and REMANDED with directions.

LEWIS, J., concurs; WOLF, J., concurs in result.
12

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

Rhonda B. Boggess and Amanda L. Ingersoll of Taylor, Day, 

Grimm & Boyd, Jacksonville, for Appellant.

James G. Biggart, II, of Morgan & Morgan, Tallahassee, for 

Appellee.