Opinion
Case Nos. 95-1426 95-1869
Opinion filed March 4, 1997. Rehearing Denied April 7, 1997
Appeal from the Circuit Court of Marion County, Thomas D. Sawaya, Judge.
Robert J. Denson of Robert J. Denson, P.A., Gainesville, for Appellants.
Christopher C. Coleman of Cameron, Marriott, Walsh, Hodges D'Assaro, P.A., Ocala, for Appellee Kinder Mobile Home Sales, Inc.
Douglas A. Walker of Boehm, Brown, Rigdon, Seacrest Fischer, Ocala, and Francis J. Carroll, Jr., of Boehm, Brown, Rigdon, Seacrest Fischer, P.A., Daytona Beach, for Appellee Milford Willard Sims.
This is the consolidated appeal of a final judgment entered in favor of Appellees following a jury trial on Appellants' multi-count complaint and on an order awarding Appellees attorneys' fees pursuant to an offer of judgment. Appellants contend that improper comments made by Appellee's counsel during closing statements were so egregious that, regardless of the lack of objection below, they constituted fundamental error and entitle Appellants to a new trial. We disagree.
Our review of the record brings us to the conclusion that many of the Appellees' attorneys' remarks were improper and, had they had been objected to, undoubtedly would have been stricken. Unfortunately, for whatever reason, no objections were lodged nor was a motion for mistrial made. The presiding trial judge denied the motion for new trial. Like the trial court, we are unable to find that the cumulative effect of Appellees' counsels' comments "gravely impair[ed] a calm and dispassionate consideration of the evidence and the merits by the jury." Tyus v. Apalachicola N. R.R., 130 So.2d 580, 587 (Fla. 1961). The collective impact of the prejudicial statements was not so extensive that it deprived Appellants of a fair trial. Accordingly, we affirm the judgment.
We affirm the award of fees to Kinder based on its offer of judgment but reverse the fees award to Sims. This is no dispute that the only offer of judgment made on behalf of Sims was a joint offer made by Sims' counsel in the name of both defendants. Kinder had not authorized the settlement and Kinder's counsel did not sign it. Because of the ambiguity in the offer and its lack of authority in fact, the offer cannot be the basis for the award of fees to Sims. We believe the law should discourage such drafting, not reward it.
AFFIRMED in part; REVERSED in part.
DAUKSCH and GRIFFIN, JJ., concur.