Court's Ruling Denying Motion for New Trial Was Quashed Holding That 'Two Issue' Rule Was Inapplicapable
In Aills v. Boemi, 990 So. 2d 540 (Fla. 2d DCA 2008), the Second District reviewed Dr. Boemi's claim that the trial court erred in denying his motion for new trial based on Aills' closing argument regarding his asserted postoperative negligence. Id. at 546.
The district court observed that during closing argument, Dr. Boemi's counsel objected when Aills' counsel began to argue that Dr. Boemi failed to provide Aills with appropriate postoperative care. Id. at 544.
The district court summarized the parties' arguments as follows:
At a sidebar conference, Dr. Boemi's counsel explained that opposing counsel's remarks were improper because of the absence of any basis in the record "that the postoperative care was negligent" and "that it would have made a difference."
Ms. Aills' counsel responded that his remarks were "fair comment" because "we have already put on testimony . . . that the entire thing that this doctor did caused her to have her harm."
The trial court overruled the objection. Id. at 544.
The district court's review of the pleadings, arguments, and witness testimony led it to conclude that the issue of postoperative negligence had neither been pled in the complaint nor tried by consent.
Therefore, the district court concluded that Aills' closing argument was improper and that the trial court abused its discretion in failing to grant Dr. Boemi a new trial on all issues. Id. at 547-48, 550.
The district court found that the theory of postoperative negligence was neither pled in Aills' second amended complaint nor tried by consent and held that the "two-issue" rule was inapplicable. Id. at 549-50.
Because we find these grounds were not preserved for review, and are quashing the district court's ruling and remanding it for further proceedings, we need not address the question of the "two-issue" rule.