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Unformatted text preview: 3d DCA), review denied, 513 So. 2d 1062 (Fla. 1987). Fundamental error
occurs if the error extinguishes "a party's [**4] right to a fair trial," Moore v. Taylor
Concrete & Supply Co., Inc., 553 So. 2d 787, 792 (Fla. 1st DCA 1989), or if the
argument "was so prejudicial as to be incapable of cure by rebuke or retraction." Borden,
Inc. v. Young, 479 So. 2d 850, 851 (Fla. 3d DCA 1985), review denied, 488 So. 2d 832
(Fla. 1986). In the instant case, we find that the cumulative effect of these improper and
prejudicial comments rises to the level of fundamental error, Pippin v. Latosynski, 622
So. 2d 566 (Fla. 1st DCA 1993); Murphy v. Murphy, 622 So. 2d 99 (Fla. 2d DCA 1993);
Schubert v. Allstate Ins. Co., 603 So. 2d 554 (Fla. 5th DCA), rev. dismissed, 606 So. 2d
1164 (Fla. 1992), and that a new trial is warranted.
As to the cross-appeal, we find that the trial court correctly denied Dade County's motion
for directed verdict. In light of Kenneth Harms' expert testimony, there was sufficient
evidence upon which the jury could find for the plaintiffs, See Ogden v. State, Dep't of
Transp., 601 So. 2d 1300 (Fla. 3d DCA 1992); Balart v. Michel's Kartway, Inc., 364 So.
2d 90 (Fla. 3d DCA 1978), and we, therefore, affirm the denial of Dade County's motion
for directed verdict. [**5]
Affirmed, in part, and reversed and remanded, in part. 6 Case # 2 STRAHAN v. GAULDIN
ARTHUR P. STRAHAN, etc., et al., Appellants, v. DEWEY L. GAULDIN, Appellee.
Case No. 5D99-230 & 5D99-874
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
756 So. 2d 158; 2000 Fla. App. LEXIS 2956; 25 Fla. Law W. D 666
March 17, 2000, Opinion Filed
SUBSEQUENT HISTORY: [**1] Rehearing Denied May 2, 2000. Released for
Publication May 19, 2000.
PRIOR HISTORY: Appeal from the Circuit Court for Brevard County, Jere E. Lober,
DISPOSITION: AFFIRMED IN PART, REVERSED IN PART; REMANDED.
COUNSEL: Richard A. Sherman and Rosemary B. Wilder of Richard A. Sherman, P.A.,
Fort Lauderdale, and Scott Turner of Jack, Wyat...
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This note was uploaded on 09/30/2012 for the course ENC 102 taught by Professor Deria during the Spring '08 term at FIU.
- Spring '08