EARL HOLLIS, INC., Appellant, v. FRASER MORTGAGE COMPANY, etc., Appellee.
No. 80-1639.
District Court of Appeal of Florida, Fourth District.
Aug. 26, 1981.
Rehearing Denied Oct. 13, 1981.
John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellant.
L. M. Taylor, North Palm Beach, for ap-pellee.
PER CURIAM.
While the final argument of defendant’s counsel was egregiously improper, we find that the plaintiff specifically waived the right to a mistrial on that ground below and therefore may not insist upon the issue on appeal. Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980); 3 Fla.Jur.2d Appellate Review § 292 (1978); see State v, Cumbie, 380 So.2d 1031 (Fla.1980). The other points raised present no error.
AFFIRMED.
GLICKSTEIN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.
LETTS, C. J., dissents with opinion.
LETTS, Chief Judge,
dissenting.
I do not agree that the plaintiff “specifically waived the right to a mistrial.” The colloquy in substance consisted of an enqui-ry by plaintiff’s counsel as to whether the judge would postpone a ruling on any motion for a mistrial. To this the judge responded in the negative. In my view no motion for a mistrial was ever actually made to be waived. An actual motion for mistrial was not required under the facts of this case according to Nelson v. Reliance Insurance Company, 368 So.2d 361 (Fla. 4th DCA 1978) and Seguin v. Hauser Motor Company, 350 So.2d 1089 (Fla. 4th DCA 1977).