Murphy v. International Robotic Systems, Inc. (766 So. 2d 1010, 2000)

LEWIS, J.

We have for review Murphy v. International Robotics Systems, Inc., 710 So.2d 587 (Fla. 4th DCA 1998), which expressly and directly conflicts with decisions from the First and Third District Courts of Appeal regarding when relief may be granted in a civil case based upon improper, bút unobjected-to, closing argument. We have jurisdiction. See Art. V, § 3(b)(3), Fla. Const. As explained more fully below, we hold that relief may not be granted in a civil case based on improper, but unobjected-to, closing argument unless such argument is first challenged and judicially evaluated in the trial court.

I. GENERAL FACTUAL BACKGROUND IN THE PRESENT CASE

During the mid-1980s, Robert Murphy (Murphy) and Howard Hornsby (Hornsby) developed a low-profile, remote-controlled, unmanned marine vehicle known as the OWL. Generally described, the OWL consists of a fiberglass hull, motor, and various electronic components, all formed around the base of a jet ski type personal watercraft. In 1988, Murphy and Horns-by, along with several other individuals, formed International Robotic Systems, Inc. (Robotic Systems I), a Florida corporation, in large part to conduct business relating to the development and marketing of the OWL. Murphy and Hornsby each owned forty percent of the stock in Robotic Systems I; Murphy became the president of the company and Hornsby its vice-president. By 1990, two patents had been issued to Murphy and Hornsby as co-inventors of the OWL, and they assigned those patents to Robotic Systems I.

During the late 1980s and early 1990s, Murphy and Hornsby attempted to attract business interest in the OWL, with a primary potential customer being the U.S. Navy. In addition to the U.S. Navy, private companies such as Boston Whaler and Israeli Aircraft Industries expressed varying interest in the product. Aso during this time period, several business interests loaned funds to Robotic Systems I, including a New York financier who loaned $100,000 to the company, and International Commercial Development Company (ICDC), which loaned the company $125,-000. To secure the $125,000 loan from ICDC, Robotic Systems I assigned the two patents on the OWL to ICDC as collateral. Robotic Systems I also obtained several other smaller loans during this time period.

By the end of 1991, the U.S. Navy had expressed an interest in purchasing a prototype OWL, but there were no guarantees of when, if ever, the Navy would actually make the purchase. During February 1992, Murphy and Hornsby were introduced to John Terry Carroll (Carroll), an employee and representative of United Technologies Optical Systems (UTOS), a subsidiary of United Technologies Corporation (UTC). UTOS was not UTC’s only subsidiary, as UTC was also the parent company of entities such as PratL-Whit-ney; generally speaking, UTC was a large corporate entity with significant ties to the defense industry. Upon meeting with Murphy and Hornsby and viewing the OWL, Carroll expressed interest in the OWL’s potential uses.

In April 1992, Carroll introduced Murphy and Hornsby to Peter Just (Just) and John Wood (Wood), officers of Laser Holdings, Ltd. (Laser), an Australian company with which UTC had a pre-existing business relationship. On April 12, 1992, Murphy, Hornsby, Just, and Wood met to discuss the sale of Robotic Systems I’s assets to Laser. Carroll attended this meeting as well, acting in large part as moderator. At the end of the meeting, Murphy and Hornsby on behalf of Robotic Systems I, and Just and Wood on behalf of Laser, executed a “Memorandum of Understanding” (MOU). According to the terms of the MOU, Robotic Systems I agreed to sell its assets to Laser for $200,000, of which $25,000 would be payable on April 15, 1992, with the remaining $175,000 payable at closing. The assets to be transferred included, among other things, the two OWL patents, any future contract with the U.S. Navy, a prototype OWL, and the goodwill of Robotic Systems I, including its corporate name. The memorandum also specified that any sale was contingent upon (1) Robotic Systems I successfully procuring a contract from the U.S. Navy for the purchase of an OWL; and (2) Hornsby becoming an employee of the purchasing company.

Ater executing the MOU, but prior to closing, the parties entered into several additional agreements. Specifically, on May 27, 1992, Laser entered into a “Consultancy Agreement” and a “Loan Agreement” with Robotics Systems I, and Laser also entered into a “Commission Agreement” with Hornsby and Murphy, individually. Under the terms of the “Consultancy Agreement,” Robotic Systems I agreed to be a consultant to Laser for a period of five years for development of the business purchased from Robotic Systems I, and Laser agreed to pay a total consultant’s fee of not less than $800,000 but not more than $400,000 during that five-year period. According to the “Loan Agreement,” Laser agreed to lend $300,000 to Robotic Systems I for a five-year period at an interest rate of six percent, to be paid back in amounts to be agreed upon by the parties “from time to time.” Finally, under the terms of the “Commission Agreement,” Laser agreed to pay Murphy and Hornsby a commission of $5000 each for every OWL produced in the first twelve months following the date of execution of the agreement, and $750 for every OWL produced in the four years following that first twelve-month period. The cap on commissions payable to Murphy and Hornsby over the five-year period was $1,000,000 each.

The closing on the proposed transaction was held on July 24, 1992. Several weeks prior to that time, one of the conditions precedent to the proposed transaction had been fulfilled; namely, the U.S. Navy entered into a contract with .Robotic Systems I for the purchase of a prototype OWL, with a sales price of approximately $449,-000. Hornsby fulfilled the other condition precedent set forth in the MOU by agreeing at the closing to a five-year employment contract with the Australian interests, with a starting salary of $80,000 per year. In conjunction with the closing, Just and Wood formed a new Florida corporation, Justwood, Inc. (Justwood), to receive the assets of Robotic Systems I, including its corporate name. Additionally, all of Laser’s rights under the previously executed agreements were transferred to Justwood, which adopted the name International Robotic Systems, Inc. (Robotic Systems II). At the same time, Robotic Systems I changed its name to Technology Innovations International, Inc. (Innovations), and Murphy remained with Innovations. Using the money obtained from the sale, Robotic Systems I satisfied all of its existing debts.

After the closing, Hornsby, as president of Robotic Systems II, began developing and building a new prototype OWL according to the specifications and requirements set forth in the contract with the U.S. Navy. Cost overruns occurred during this development and building process, and the OWL ultimately was delivered to the U.S. Navy behind schedule. During the same time period, Laser experienced financial difficulties and was placed into receivership in Australia. A $5000 commission check was sent to Murphy for the OWL produced for the U.S. Navy, and another $750 commission check was sent to him after another prototype demonstrator OWL was produced. The OWL built for the Navy and the demonstrator OWL were the only two OWLs fully produced in the three years following the closing of July 14, 1992.

II. PROCEEDINGS IN THE TRIAL COURT AND THE FOURTH DISTRICT

Murphy and Innovations (collectively “the Plaintiffs”) filed suit against UTC/ UTOS, Laser, Robotic Systems II, and Hornsby (collectively “the Defendants”). One of the Plaintiffs’ primary allegations was that Carroll, the employee and representative of UTOS/UTC, had misrepresented the extent of involvement that UTC/ UTOS would have in producing and marketing the OWL after the deal with Laser was completed. More specifically, the Plaintiffs asserted that Carroll represented that the Australian interests were merely a conduit for UTC/UTOS to become involved with the OWL. The Plaintiffs claimed that if the major corporate presence of UTC/UTOS had supported the OWL, the ultimate financial and production problems associated with the product would not have occurred.

The case proceeded to trial and, at the conclusion of the four-week trial, the jury-found in favor of the Defendants on all but one claim. Specifically, the jury returned a special interrogatory verdict form finding the following: (1) none of the Defendants either intentionally or negligently misrepresented material facts which the Plaintiffs reasonably relied upon and which caused monetary losses to the Plaintiffs; (2) none of the Defendants conspired with one another to intentionally misrepresent material facts which the Plaintiffs relied upon and which caused monetary losses to the Plaintiffs; (3) none of the Defendants breached the “Commission Agreement” with Murphy; (4) none of the Defendants breached the “Consultancy Agreement” with Innovations; (5) Hornsby, individually, breached a fiduciary duty owed to the Plaintiffs, from which the Plaintiffs suffered damages in the amount of $1; (6) Hornsby, individually, did not receive and conceal moneys for himself which were corporate opportunities of Innovations; (7) the assignment of the two OWL patents from Innovations to Robotic Systems II should not be held null and void due to the conduct of the Defendants; and (8) none of the Defendants were liable for punitive damages.

After the jury returned its verdict and the trial court had discharged the jury, the Plaintiffs filed a motion for new trial, seeking relief on several grounds. First, the Plaintiffs alleged that a special “reasonable reliance” jury instruction given by the trial court at the request of the Defendants erroneously stated the law and thus required a new trial. Sebond, the Plaintiffs argued that they were entitled to a new trial against the Defendants because counsel for UTC/UTOS allegedly made numerous improper comments during closing argument, even, though counsel for the Plaintiffs made no objections during such argument. Finally, the Plaintiffs alleged that the jury verdict was against the manifest weight of the evidence and was grossly inadequate as to the award of damages against Hornsby. After considering the parties’ memoranda of law and conducting a hearing, the trial court entered an order summarily denying the Plaintiffs’ motion for new trial, and the Plaintiffs appealed.

On appeal, the Fourth District rejected the Plaintiffs’ request for relief on the closing argument issue. See Murphy, 710 So.2d at 587-91. In so doing, the court (1) disagreed with decisions from the First, Third, and Fifth Districts as to when relief may be granted in a civil case based upon improper, but unobjected-to, closing argument, see id. at 587-88; (2) stated that “we do not think improper, but unob-jected-to, closing argument in a civil case is something which is so fundamental that there should be an exception to the rule requiring an objection,” id. at 589; and (3) expressed that it did not think it was being inconsistent with precedent from this Court on the improper, but unobjected-to, closing argument issue. See id. at 590. The Plaintiffs petitioned this Court for review, and we granted review to resolve the conflict among Florida’s District Courts of Appeal regarding the improper, but unob-jected-to, closing argument issue. Thus, it is within these complex and multiple contractual circumstances that required four weeks of trial for presentation to a jury that we consider the unobjected-to closing argument issue.

III. ANALYSIS OF THE CONFLICT ISSUE

A. GENERAL BACKGROUND This Court has previously decided four civil cases involving the issue of improper, but unobjected-to, closing argument. See White Constr. Co. v. Dupont, 455 So.2d 1026 (Fla.1984); Tyus v. Apalachicola N.R.R. Co., 130 So.2d 580 (Fla.1961); Seaboard Air Line R.R. Co. v. Strickland, 88 So.2d 519 (Fla.1956); Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936). As explained in more detail below, this Court recognized in those cases that, under certain circumstances, a civil litigant may obtain relief based on improper closing argument made by counsel for an opposing party, even though the litigant’s own counsel failed to contemporaneously object to such improper argument. See Dupont, 455 So.2d at 1030; Tyus, 130 So.2d at 587-88; Strickland, 88 So.2d at 523-24; Baggett, 124 Fla. at 717, 169 So. at 379. Stated another way, this Court recognized an exception to the contemporaneous objection requirement in civil cases in the context of improper, but unobjected-to, closing argument. However, despite this Court’s prior decisions, there has been much recent debate regarding (1) whether an exception to the contemporaneous objection requirement should continue to exist in civil cases in this context; and (2) if such an exception continues to exist, what the appropriate standard for relief should be. This case affords the opportunity to address both the continuing validity of the exception and the appropriate standard for determining whether relief should be granted.

B. CONTINUING VALIDITY OF THE EXCEPTION

The contemporaneous objection requirement originated in the English legal system as a mechanism for preserving error for appellate review, and the requirement was carried forward and generally adopted in America. See, e.g., Robert J. Marti-neau, Considering New Issues On Appeal: The General Rule and the Gorilla Rule, 40 Vand. L.Rev. 1023, 1026 (1987). In Florida, “[j]ust like with any other trial error, lawyers have a duty to object to improper comments made during closing arguments.” Fravel v. Haughey, 727 So.2d 1033, 1034 (Fla. 5th DCA 1999) (en banc). In Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453, 457 n. 1 (3d Cir.1982), vacated on other grounds, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983), the United States Court of Appeals for the Third Circuit stated that the reasons for the contemporaneous objection requirement:

go to the heart of the common law tradition and the adversary system. It affords an opportunity for correction and avoidance in the trial court in various ways: it gives the adversary the opportunity either to avoid the challenged action or to present a reasoned defense of the trial court’s action; and it provides the trial court with the alternative of altering or modifying a decision or of ordering a more fully developed record for review.

In Castor v. State, 365 So.2d 701, 703 (Fla.1978), this Court similarly stated:

The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.

While it is clear that this Court has previously recognized an exception to the contemporaneous objection requirement in civil cases in the context of improper, but unobjected-to, closing argument, there has been much recent debate regarding whether such an exception should continue to exist. For example, the Fourth District stated in Murphy that “we do not think improper, but unobjected-to, closing argument in a civil case is something which is so fundamental that there should be an exception to the rule requiring an objection.” 710 So.2d at 589. Similarly, in Walt Disney World Co. v. Blalock, 640 So.2d 1156, 1159 (Fla. 5th DCA 1994) (Griffin, J., concurring in part and dissenting in part), Judge Griffin commented: “I have come to be of the view that a party who does not object to counsel’s comments in closing should not be allowed to complain of those comments on appeal.” Finally, in a recently published law review article, the author of the opinion below, Judge Klein, concluded that there should no longer be an exception to the contemporaneous objection requirement in civil cases in the context of improper, but unob-jected-to, closing argument. See Larry A. Klein, Allowing Im/proper Argument of Counsel to be Raised for the First Time on Appeal as Fundamental Error: Are Florida Courts Throwing Out the Baby with the Bath Water?, 26 Fla. St. U.L.Rev. 97, 98-126 (1998) [hereinafter Klein; Baby with the Bath Water]; see also Gary D. Fox, Objectionable Closing Argument: Causes and Solutions, 70 Fla. B.J. 43, 48 (Dec. 1996) (proposing abolition of “the part of the fundamental error rule that allows a party to preserve error without objecting to its adversaries’ closing argument”). In determining whether we should continue recognizing an exception to the contemporaneous objection requirement in civil cases in this context, we consider this Court’s prior decisions addressing the issue, how courts in other jurisdictions have addressed the issue, and the competing policy concerns that must be considered.

1. THIS COURT’S PRIOR DECISIONS

The first of this Court’s decisions in the civil context addressing improper, but unobjected-to, closing argument was Bag-gett, in which the plaintiff sought recovery for injuries sustained in an automobile accident. See 124 Fla. at 704, 169 So. at 374. The jury found in favor of the plaintiff, and the defendant filed a motion for new trial; the trial court denied that motion, and the case proceeded for review in this Court. See id. at 706, 169 So. at 375.

Before this Court, the defendant asserted that numerous errors had occurred during trial, many of which related to the jury instructions given by the trial court, see id. at 709-13, 169 So. at 376-78, two of which related to the admission of evidence, see id. at 706-10, 169 So. at 375-76, and two of which related to several statements made by plaintiffs counsel during closing argument. See id. at 715-16, 169 So. at 378-79. After addressing the admission of evidence and jury instruction issues and finding two errors therein, see id. at 709-15, 169 So. at 376-78, this Court considered the statements made by plaintiffs counsel during closing argument. See id. at 714-17,169 So. at 378-79.

The bill of exceptions filed by the defendant showed that the first allegedly improper statement made by plaintiffs counsel consisted of the following:

Gentlemen of the Jury, in considering the amount of your verdict you need not stop to consider that it will cost Mr. Baggett, the defendant, because he will not be out anything, and that same will not cost him a cent, and that he will not be one cent richer or poorer; or words to that effect.

Id. The Baggett Court noted that the defendant did not object to this statement, nor had the trial court “of its own motion” admonished plaintiffs counsel or instructed the jury not to consider the statement. See id. at 715, 169 So. at 378. The defendant’s bill of exceptions also set forth the nature of plaintiffs counsel’s second allegedly improper statement:

That the defendant if a verdict was found against him had a right to file a motion for a new trial, and upon the hearing of which the trial judge would determine whether the verdict should stand or fall, and that thereafter if the trial judge held that the verdict should stand the defendant had available the right of appeal by writ of error to the Supreme Court of Florida where the legal errors in the proceedings might be reconsidered and readjudged, and that thereafter it would be necessary for the plaintiff to sue out an execution; or words to that effect.

Id. at 716, 169 So. at 378. The Baggett Court noted that defense counsel objected to this second statement and that the trial court “immediately stopped counsel for plaintiff and stated to the jury that this statement should not be considered.” Id.

In analyzing the second, objected-to statement, this Court determined that the statement was improper but that the trial court corrected any error by immediately cautioning the jury to disregard the statement. See id. In analyzing the unobject-ed-to statement, the Baggett Court first reiterated that a party should state the grounds for objection to improper argument. See id. The Court then quoted from its prior decision in the criminal case of Akin v. State, 86 Fla. 564, 572-73, 98 So. 609, 612 (1923), in which the Court stated: See, Baggett, 124 Fla. at 716-17, 169 So. at 379. The Baggett Court found that the unobjected-to statement made by plaintiffs counsel during closing argument “was similar in its probable effect upon the jury to the first remark of counsel objected to in ... Akin v. State,” and then, after addressing several other issues, reversed the trial court’s' judgment “for the errors pointed out herein.” Id. at 717-18, 169 So. at 379. On the face of the Baggett opinion, however, it is not absolutely clear whether the unobjected-to statement made by plaintiffs counsel during closing argument was among the multiple “errors” for which this Court reversed due to the reliance upon Akin. To understand the principles, therefore, we must look to Akin for guidance.

The law seems to be well settled that it is the duty of the trial judge, whether requested or not, to check improper remarks of counsel to the jury, and to seek by proper instructions to the jury to remove any prejudicial effect they may be calculated to have against the.opposite party. A verdict will not be set aside by an appellate court because of such remarks or because of any omission of the judge to perform his duty in the matter, unless objection be made at the time of their utterance. This rule is subject to the exception that, if the improper remarks are of such a character that neither rebuke nor retraction may entirely destroy their sinister influence, in which event a new trial should be awarded regardless of the want of objection or exception.

In Akin, the defendant appealed to this Court after being convicted of forgery, arguing that numerous errors had occurred during his trial. See 86 Fla. at 566-72, 98 So. at 610-12. After agreeing with the defendant that numerous errors occurred concerning the admission and exclusion of certain evidence, see id., the Akin Court addressed the propriety of various statements made by the prosecutor during closing argument, an issue that the defendant had raised in a motion for new trial. See id. at 572-73, 98 So. at 612. The first statement made by the prosecutor during closing argument in Akin, to which the Baggett Court analogized the unobjected-to statement made by plaintiffs counsel in that case, consisted of the following:

(1) “This defendant has other indictments pending against him in connection with these transactions. I do not intend to try the other cases, and it is up to you as to whether you will let this man go scot free and say that he has not committed any wrong. If he is convicted he would probably only have to pay a small fine, and it is in the power of the court to fine him not more than 5 cents, if he wanted to.”

Akin, 86 Fla. at 571, 98 So. at 612. The defendant also challenged three other statements made by the prosecutor during closing argument. See id. In analyzing all of the statements made by the prosecutor, the Akin Court, used the language quoted in Baggett: in short, that a timely objection to improper closing argument is required before a new trial may be granted based on such argument unless “the improper remarks are of such character that neither rebuke nor retraction may entirely destroy their sinister influence.” Akin, 86 Fla. at 572-73, 98 So. at 612. The Akin Court determined that the prosecutor’s first statement during closing argument was both a misstatement of the law and had no basis in the record, and that the other statements made by the prosecutor were also improper. See id. at 572, 98 So. at 612. However, the Akin Court stated the following regarding all of the prosecutor’s statements:

In the case at bar no attempt seems to have been made to check the improper remarks of the state attorney by the trial court, and they were not properly excepted to by the defendant, nor does it fully appear that they came within the exception to the rule as above announced. It is proper to state, however, in addition to what has already been said in this connection, that these remarks have no basis in the record, should never be indulged in trial courts, and would ordinarily be ground for reversal.

Id. at 573, 98 So. at 612 (emphasis added). The Akin Court reversed and remanded for a new trial, see id. at 574, 98 So. at 613, but, based on the language quoted and emphasized above, it is clear that the Court did not reverse based on the prosecutor’s improper statements during closing argument. Concomitantly, by analogizing the unobjected-to improper statement made by plaintiffs counsel in Baggett with the prosecutor’s first statement in Akin, it appears that the Baggett Court may not have counted plaintiffs counsel’s improper, but unobjected-to, statement among the errors for which it reversed.

Twenty years after Baggett, this Court decided Strickland, which involved an employee suing a railroad company by which he was employed to recover for personal injuries he sustained while on the job. See 88 So.2d at 520-21. After the plaintiff prevailed in the trial court, the defendant appealed to this Court, claiming that several errors were made during the trial. See id. at 521. Specifically, the defendant claimed on appeal that (1) the trial court erred in admitting several letters into evidence; and (2) various statements made by plaintiffs counsel during examination of witnesses and closing argument — concerning those letters and other matters — -were so prejudicial as to warrant a new trial. See id. Several of the letters showed that the railroad’s general counsel and its doctor derived “amusement” and engaged in “hearty laughter” after receiving a report from a doctor who had examined the plaintiff. See id. at 520-21. After reviewing the content of the letters, this Court determined thát “[tjhere was no foundation in the evidence for admitting the letters and it was error to admit them over objection of defendant.” See id. at 521. The Court then proceeded to review the various comments made by plaintiffs counsel throughout the trial. See id. at 522-23.

First, the Court reviewed comments made by plaintiffs counsel while questioning one of the plaintiffs witnesses. See id. at 521-22. In short, counsel’s comments during questioning stressed the “amusement” referred to in several of the letters mentioned above, obviously attempting to elicit testimony from the witness that the plaintiffs injuries were nothing to laugh about. See id. The Court noted that defense counsel objected to many of the comments, with the trial court sustaining some of the objections and issuing a “mild rebuke” to plaintiffs counsel in several instances. See id. at 523. The Court then considered various comments made by plaintiffs counsel during closing argument — relating to the letters — in which counsel expressed that he could envision the railroad’s general counsel and doctor sitting in their office “laughing,” feet on their desks, saying,” ‘Isn’t this a big joke? Strickland has hurt his back, and he is having trouble with it.’ ” Id. at 522. Plaintiffs counsel argued that the matter was not a joke and that he would “like to wipe that smile off [general counsel’s] face.” Id. Finally, the Court considered comments made by plaintiffs counsel during closing argument related to a demonstration the jury had seen at the railroad yard that attempted to recreate the plaintiffs working conditions when he was injured. See id. at 522-23. Counsel repeatedly injected his personal observations about the demonstration, ultimately stating that there was no doubt in his mind that the railroad was negligent. See id. at 523. Counsel ended this portion of the argument by commenting that “I think in this case [the defendant] has pulled every sly trick in the books.” Id.

After finding that defense counsel raised no objections during closing argument by plaintiffs counsel, this Court stated:

While we are committed to the rule that in the ordinary case, unless timely objections to counsel’s prejudicial remarks are made, this court will not re- , verse the judgment on appeal, however, this ruling does not mean that if prejudicial conduct of that character in its collective impact of numerous incidents, as in this case, is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury, this court will not afford redress. In this state of the record, even though the [letters w'ere] admissible, [ ] the prejudicial remarks of counsel, including the statements made in argument amounting to testimony in the case, require a new trial. Courts are conscious of the fact that without partisan zeal for the cause of this client, counsel in many instances could have little success in properly representing litigants in sharply contested cases, but his conduct during the cause must always be so guarded that it will not impair or thwart the orderly processes of a fair consideration and determination of the cause by the jury.

Id. at 523 (footnote added). The Strickland Court reversed and remanded for a new trial, closing with the following comment: “It is the responsibility of the trial court to protect litigants against such interference by counsel with the orderly administration of justice and the protection of the right of the litigant to a verdict ‘uninfluenced by the appeals of counsel to passion or prejudice.’ ” Id. at 524.

Five years after deciding Strickland, this Court decided Tyus, in which the plaintiff sought recovery due to the death of her husband resulting from a collision with one of the defendant’s trains. See 130 So.2d at 582. The case proceeded to trial, and a jury found in favor of the plaintiff. See id. The trial court entered judgment in favor of the plaintiff after denying the defendant’s motion for new trial, and the defendant appealed to the First District. See id. at 582, 588.

On appeal, the First District determined that the evidence presented was insufficient to warrant submission to the jury and reversed with directions to enter judgment in favor of the defendant. See id. at 582; see also Apalachicola Northern Railroad Co. v. Tyus, 114 So.2d 33, 35-37 (Fla. 1st DCA 1959), quashed, 130 So.2d 580 (Fla.1961). In addition, the First District concluded that plaintiffs counsel had made improper statements during closing argument which, standing alone, constituted grounds for reversal “notwithstanding the effort of the trial court to remove their effect by instructing the jury to disregard them.” Id. at 37. In denying a motion for rehearing, the First District set forth the statements made by plaintiffs counsel which the court held to be reversible error:

“It would have cost them very little to have put some kind of signals there so that the man, when he was going across that track, would have had knowledge of the fact that the train was coming out from this blinding end of the railroad; but they didn’t value the life of somebody crossing that track enough to do it.

“In other words, what is another man unless he can be some gain to that corporation, knowing its enterprise? What is a mere human being, dead or alive, unless he can contribute something to the fortune and future of the Apalachicola Northern Railroad?”

Id. at 38.

This Court accepted jurisdiction in the case to resolve a conflict regarding the sufficiency of the evidence issue. See Tyus, 130 So.2d at 582-83. After analyzing that issue, this Court proceeded to disagree with the First District and held that there was sufficient evidence to submit the case to the jury for determination. See id. at 586-87. This Court’s view also differed from that of the First District regarding whether plaintiffs counsel’s closing argument statements constituted grounds for reversal. See id. at 587. This Court noted that (1) defense counsel failed to object to the improper statements quoted in the First District’s opinion; and (2) the trial court sustained objections to other improper statements and charged the jury to disregard such statements. See id. The Tyus Court reiterated the standard for reviewing unobjected-to improper statements by counsel set forth in Strickland, see id., and also referred to Baggett. See id. at 587 n. 10. Further, the Tyus Court clarified the term “pervades” as used in the Strickland standard, finding that “in order to employ the exception to the general rule where no objections are made to alleged prejudicial remarks or conduct, such remarks or conduct need not begin at the outset of a trial and continue intermittently to its conclusion.” Id. at 587. In declining to reverse for a new trial, the Tyus Court closed with the following remarks:

We believe that the charge given in this case by the able circuit judge was sufficient to alleviate any harm to the defendant which might otherwise have existed by virtue of the alleged prejudicial remarks made by counsel for the petitioner only in his closing argument.

We are of the opinion that when the charge delivered by the trial judge is considered together with the fact that respondent failed to object to the alleged prejudicial remarks relied on by the District Court of Appeal as the basis for its holding on this issue, coupled with the fact that the alleged “prejudicial conduct” took place only during petitioner’s closing argument and was not so extensive that its influence pervaded the trial, it is crystal clear this case should not have been reversed even for a new trial.

Moreover, it is most significant that in the instant litigation the veteran and learned trial judge, who was in the milieu of the court room throughout the trial and who was therefore in a much better position than this court or the District Court to determine whether the alleged prejudicial remarks were actually “in effect” of such character, denied a motion for a new trial.

No useful purpose would be served by submitting the factual issues in this case to a second jury for a retrial thereof because we find that such issues were fairly considered and determined by the jury....

Id. at 588.

The last civil case in which this Court addressed improper, but unobjected-to, conduct by counsel during closing argument was Dupont. In that case, the subject of the litigation was an accident that occurred at a mining site. See Dupont, 455 So.2d at 1027. At the conclusion of the trial, the jury awarded the plaintiffs both compensatory and punitive damages. See id. at 1027-28. The defendants filed a motion for new trial raising several claims for reversal, including a claim that plaintiffs’ counsel made inflammatory statements during closing argument. See id. at 1028. The trial court denied the motion for new trial, and the defendants appealed. See id.

On appeal, the First District affirmed the trial court’s ruling on all but one basis, and the defendants sought review before this Court. See id. This Court accepted review to resolve a conflict regarding the admissibility of evidence relating to post-accident repairs, see id. at 1027, 1029, but proceeded to resolve several other issues. See id. at 1028-30. Specifically, this Court found that punitive damages should not have been assessed against the defendants, see id. at 1029, and determined that several statements made by plaintiffs’ counsel during closing argument did not constitute a basis for reversal. See id. at 1030. In resolving the closing argument issue, this Court stated the following:

Petitioners argue that some of the comments made by respondent’s counsel during closing argument were improper and prejudicial. These comments concerned the differences in race and economic standing between the two parties, among other things. Some latitude is permitted when arguing the amount of “smart money” to punish defendants. See, e.g., Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Tate v. Gray, 292 So.2d 618 (Fla. 2d DCA 1974); Dixie-Bell Oil Co. v. Gold, 275 So.2d 19 (Fla. 3d DCA 1973). However, since in today’s decision we hold that the issue of punitive damages was improperly submitted to the jury, it was error for the trial judge to allow these comments. In any event, we hold that these comments do not amount to fundamental error, and therefore, they cannot form the basis for a new trial on appeal, since there was no timely and proper objection made by defense counsel. Tyus v. Apalachicola Northern Railroad [Co.], 130 So.2d 580, 587 (Fla.1961); Bishop v. Watson, 367 So.2d 1073 (Fla. 3d DCA 1979).

Dupont, 455 So.2d at 1030.

After analyzing this Court’s decisions in Baggett, Strickland, Tyus, and Dupont, several matters are clear. First, this Court has recognized that a trial judge is in the best position to determine both the propriety of counsel’s closing argument and any possible prejudice resulting from any improper argument. Second, this Court has recognized that a trial judge has a duty to prevent improper closing argument from prejudicing the jury. Third, it is clear that in all but the Strickland case, the party seeking relief on the basis of improper, but unobjected-to, closing argument initially sought relief on that basis by filing a motion for new trial in the trial court. Finally, it is also clear that this Court’s overarching concern in allowing an exception to the contemporaneous objection requirement in civil cases in the context of improper, but unobjected-to, closing argument is that a party should not be deprived of a fair trial and due process based on such improper argument and that public confidence in the system of justice be maintained. With these observations from prior decisions of this Court in mind, we now review how courts in other jurisdictions have addressed the issue of improper, but unobjected-to, closing argument in civil cases.

2. DECISIONS FROM OTHER JURISDICTIONS

In the decision below, the Fourth District observed that other courts in this country do not allow issues concerning improper argument to be raised for the first time on appeal in civil cases. See Murphy, 710 So.2d at 591; see also Fravel, 727 So.2d at 1036 (citing Murphy for similar proposition); Klein, Baby with the Bath Water, 26 Fla. St. U.L.Rev. at 114 (stating that “no courts outside Florida are attempting to curb improper argument in civil cases by allowing it to be raised for the first time on appeal”). Therefore, we consider the jurisprudence from other jurisdictions to assist in the formulation of a just and workable framework, and our research indicates that courts in other jurisdictions have addressed the issue. We now discuss the decisions of our sister courts.

a. FEDERAL COURTS

Many of the federal appellate courts have taken similar approaches in addressing the issue of improper, but unobjected-to, closing argument. Illustrative is Smith v. Kmart Corp., 177 F.3d 19, 24-26 (1st Cir.1999), in which the First Circuit determined that the defendant could seek a new trial based on improper statements made by plaintiffs’ counsel during closing argument, even though defense counsel failed to object to such argument and failed to address such argument in a motion for new trial filed in the trial court. The First Circuit found that even in the absence of a contemporaneous objection to the allegedly improper argument, an appellate court may conduct a “plain error” review of the improper argument. See id. at 26-26. The Second, Fifth, Sixth, Eight, Ninth, and Eleventh Circuits have taken approaches similar to that of the First Circuit. See, e.g., Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 51 (2d Cir.1998) (finding that an appellate court may reverse for a new trial in a civil case based on improper, but unobjected-to, closing argument only for plain error); Strickland v. Owens Corning, 142 F.3d 353, 358-59 (6th Cir. 1998) (recognizing exception to contemporaneous objection requirement in civil case where conduct of counsel is outrageous); Oxford Furniture Cos. v. Drexel Heritage Furnishings, Inc., 984 F.2d 1118, 1128-29 (11th Cir.1993) (finding that improper, but unobjected-to, closing argument in a civil case may be reviewed by appellate court only for plain error); Manning v. Lunda Constr. Co., 953 F.2d 1090, 1092-93 (8th Cir.1992) (quoting Thomure v. Truck Ins. Exch., 781 F.2d 141, 143 (8th Cir.1986), for the proposition that “[w]hen statements in a closing argument are not objected to at trial, we may only review them on a plain error standard”); Kaiser Steel Corp. v. Frank Coluccio Constr. Co., 785 F.2d 656, 658 (9th Cir.1986) (recognizing “high threshold” party must meet where no objection made to improper closing argument; finding no “fundamental error”); Rojas v. Richardson, 703 F.2d 186, 190 (5th Cir.) (reviewing improper, unobjected-to closing argument in a civil case for plain error and finding that argument rose to the level of plain error), modified on rehearing, 713 F.2d 116 (5th Cir.1983) (reversing earlier plain error finding based on supplemental record information). Based on these decisions, it is clear that many federal appellate courts have recognized an exception to the contemporaneous objection requirement in civil cases in this context. However, those courts have seldom granted relief in cases where counsel failed to contemporaneously object to improper argument. See, e.g., Smith, 177 F.3d at 26-28 (stating that “[pjlain error is a ‘rare species in civil litigation,’ encompassing only those errors that reach the ‘pinnacle of fault’ ” and finding that plaintiffs’ counsel’s improper, but unobjected-to, closing argument did not warrant reversal for a new trial).

b. STATE COURTS

State courts have taken more varied approaches than the federal appellate courts in addressing the issue of improper, but unobjected-to, closing argument in civil cases. Some state courts have created a bright-line rule: if counsel fails to timely object to improper closing argument made by opposing counsel, then such argument cannot form the basis for a new trial. See, e.g., Copeland v. City of Yuma, 160 Ariz. 307, 772 P.2d 1160, 1162-63 (App.1989); Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892, 894 (1994); Rego Co. v. McKown-Katy, 801 P.2d 536, 540 (Colo. 1990); Whitley v. Gwinnett County, 221 Ga.App. 18, 470 S.E.2d 724, 730 (1996); Cooper v. United Southern Assurance Co., 718 So.2d 1029, 1037-39 (La.Ct.App.1998); cf. Johnson v. Emerson, 103 Idaho 350, 647 P.2d 806 (App.1982) (finding that exception to improper closing argument is timely if made before case is submitted to the jury); Siler v. City of Kansas City, 211 Kan. 258, 505 P.2d 765, 766 (1973) (finding that improper closing argument was not available as basis for reversing judgment where counsel for the party seeking relief did not object, request a curative instruction, or move for a mistrial based on such improper argument). Other state courts have allowed parties to seek relief based on improper closing argument, even in the absence of a timely objection, although the standards for obtaining relief have varied significantly. See, e.g., Hill v. Sherwood, 488 So.2d 1357 (Ala.1986) (relief warranted only “where counsel’s remarks were so grossly improper and highly prejudicial as to be beyond corrective action by the trial court”) (quoted source omitted); Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 657 A.2d 1087, 1097 (1995) (relief warranted only where party can show it is “necessary to remedy a manifest injustice”); Medical Center of Delaware, Inc. v. Lougheed, 661 A.2d 1055, 1060 (Del.1995) (relief warranted only where improper remarks amount to “plain error”); Zoerner v. Iwan, 250 Ill.App.3d 576, 189 Ill.Dec. 191, 619 N.E.2d 892, 899-900 (1993) (stating that “despite the absence of an objection, a reviewing court may consider claims of improper statements during closing argument to the extent such statements prevented a fair trial”); Miller v. Szelenyi, 546 A.2d 1013, 1018 (Me.1988) (reviewing unobjected-to closing argument only for “obvious error”); Reetz v. Kinsman Marine Transit Co., 416 Mich. 97, 330 N.W.2d 638, 641-42 (1982) (“Where improper conduct by one or both parties influences the outcome of a trial, an appellate court may reverse although the appellant’s attorney did not seek to cure the error.”); Molkenbur v. Hart, 411 N.W.2d 249, 254 (Minn.Ct.App.1987) (relief warranted only where trial court should have stepped in, sua sponte, and given curative instructions); Nisivoccia v. Ademhill Assocs., 286 N.J.Super. 419, 669 A.2d 822, 825 (App.Div.1996) (reviewing unobjected-to closing argument only for “plain error”); City of Bellevue v. Kravik, 69 WashApp. 735, 850 P.2d 559, 564 (1993) (“Absent an objection to counsel’s remarks, the issue of misconduct cannot be raised on appeal unless the misconduct is so flagrant and ill intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct.”). Finally, several state courts have held that a party may not seek relief in an appellate court based on improper, but unobjected-to, closing argument unless such argument is first brought to the attention of the trial court by way of a post-trial motion. See, e.g., Dial v. Niggel Assocs. Inc., 333 S.C. 253, 509 S.E.2d 269, 271 (1998); Austin v. Shampine, 948 S.W.2d 900, 906 (Tex.Ct.App.1997). The varied approaches taken by our sister courts in addressing a common issue show that there are substantial policy concerns on both sides of the debate regarding whether there should be an exception to the contemporaneous objection requirement in civil cases in this context. We now consider those policy concerns.

3. POLICY CONCERNS

In Fravel, 727 So.2d at 1038-39 (Cobb, J., concurring specially), Judge Cobb succinctly summarized the focus of the competing policy concerns regarding this subject when he stated:

The basic conflict is exemplified by the clash between the opinion of Judge Schwartz in Borden, Inc. v. Young, 479 So.2d 850 (Fla. 3d DCA 1985), rev. denied, 488 So.2d 832 (Fla.1986), and that of Judge Klein in Murphy, and derives from a difference in focus: the former is primarily concerned with correcting reprehensible attorney misconduct during closing argument; the latter with the proper preservation of trial error and appellate predictability. Formidable arguments are available on both sides of this issue....

In Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099, 1103 (1997), the Supreme Court of Ohio used similar language while addressing whether the “plain error” doctrine should apply in civil cases: “Reviewing courts desire to see justice done; they also appreciate the importance of consistent application of procedural rules which promote expeditious and uniform resolution of disputes in our adversary system of litigation.” We must consider the various policy concerns summarized in Fravel and Goldfuss.

Several policy concerns weigh against an exception to the contemporaneous objection requirehient under the circumstances of improper arguments. First, if counsel contemporaneously objects to improper closing argument, such objection can deter opposing counsel from making further improper argument, thus preventing improper argument from becoming cumulative. Second, requiring a contemporaneous objection prevents counsel from engaging in “sandbagging” tactics, whereby counsel may intentionally refrain from objecting to improper closing argument, hoping to prevail despite such argument, and then seek relief based on the unobjected-to argument in the event that the desired outcome in the case is not achieved. See, e.g., Lowe Invest. Corp. v. Clemente, 685 So.2d 84, 85 (Fla. 2d DCA 1996) (“Trial counsel simply cannot allow error to occur without objection, hope they will win in spite of the error, and be confident of a new trial when the trial court has not been afforded an opportunity to cure the error. The cases are legion that warn trial counsel they cannot have their cake and eat it too.”). Relatedly, precluding relief absent a contemporaneous objection accounts for the possibility that counsel may, as a tactical decision, refrain from objecting to opposing counsel’s improper argument based on the belief that such improper argument actually hurts opposing counsel’s rapport with the jury. Cf. Nelson v. Reliance Ins. Co., 368 So.2d 361, 362 (Fla. 4th DCA 1978). Also, requiring a contemporaneous objection provides the trial judge, who is in the best position to evaluate the propriety and possible impact of allegedly improper closing argument, with the optimal opportunity to stop such argument when it is made. Finally, requiring a contemporaneous objection helps prevent confusion that can stem from appellate courts making “cold record” decisions regarding improper closing argument. See, e.g., Klein, Baby with the Bath Water, 26 Fla. St. U.L.Rev. at 109-15.

Juxtaposed against the policy concerns just discussed is the overarching concern that a litigant receive a fair trial and that our system operate so as to deserve public trust and confidence. Indeed, the concern that civil litigants receive a fair trial undoubtedly was this Court’s primary concern in recognizing an exception to the contemporaneous objection requirement in Baggett, Strickland, Tyus, and Dupont. However, as evidenced by the present case, Florida’s courts have had difficulty balancing the right to a fair trial with the competing policy concerns discussed above. We now attempt to strike such a balance. The policy considerations favoring a bright-line rule requiring an objection are, most assuredly, attractive. However, we believe an escape valve with a very narrowly defined parameter and of extremely limited application is essential to maintain public trust in our jury trial system. Additionally, the manner in which review of the issue is conducted needs limitation.

4. CONCLUSION

After considering this Court’s prior decisions, the analysis of each of our District Courts of Appeal, the decisions of courts in other jurisdictions, as well as the policy concerns discussed above, we find that the time has come to restate the approach to be taken regarding the issue of improper, but unobjected-to, closing argument in civil cases. It has become increasingly clear that the problem is not so much whether an exception exists, but, on the contrary, the difficulty has been generated by a lack of appellate uniformity and a failure at the appellate level to apply a very narrow and limited parameter of “fundamental error.” Accordingly, we now hold that a civil litigant may not seek relief in an appellate court based on improper, but unobjected-to, closing argument, unless the litigant has at least challenged such argument in the trial court by way of a motion for new trial even if no objection was voiced during trial. This approach is similar to that taken by our sister courts in South Carolina and Texas, see Dial, 509 S.E.2d at 271; Austin, 948 S.W.2d at 906, and we find that such approach adequately promotes the need for procedural rules, which enhance predictability in the resolution of cases, while also recognizing that justice may require relief in certain very limited situations even when established procedural rules have not been followed. Moreover, this approach ensures that the trial judge, who is in the best position to determine the propriety and potential impact of allegedly improper closing argument, has an opportunity to make a such a determination. In holding as we do, we recede from this Court’s prior decisions in Baggett, Strickland, Tyus, and Dupont to the extent that those decisions stand for the proposition that improper, but unobjected-to, closing argument in a civil case may be challenged for the first time on appeal. We also disapprove decisions issued by Florida’s District Courts of Appeal to the extent that they stand for such proposition.

In adopting this method of analysis, we have disposed of the first question posed above; namely, whether an exception to the contemporaneous objection requirement should continue to exist in civil cases in the context of improper, but unobjected-to, closing argument. However, we are mindful that adopting this approach does not clarify the appropriate standard for determining whether relief should be granted in post-trial proceedings at the trial level when no objection was presented during trial but the issue is presented in a motion for new trial. Therefore, we must now address the appropriate standard to be applied by the trial court.

C. THE APPROPRIATE STANDARD

In Baggett, Strickland, Tyus, and Du-pont, this Court set forth different standards for determining whether relief should be granted in a civil case based on improper, but unobjected-to, closing argument. In Baggett, this Court focused on whether the improper argument was, in effect, incurable, see 124 Fla. at 717, 169 So. at 379; in Strickland and Tyus, this Court focused on the cumulativeness of the improper argument and whether such argument “gravely impair[s] a calm and dispassionate consideration of the evidence and the merits by the jury,” 88 So.2d at 523, 130 So.2d at 587; and in Dupont, this Court stated that improper, but unobject-ed-to, closing argument cannot form the basis of a new trial unless such argument constitutes “fundamental error.” 455 So.2d at 1030. Further, Florida’s District Courts of Appeal have applied different standards for determining whether relief should be granted when the situation arises. See, e.g., Murphy, 710 So.2d at 587; D’Auria v. Allstate Insurance Co., 673 So.2d 147, 147 (Fla. 5th DCA 1996) (Antoon, J., concurring) (“Recent case law from the various district courts has provided little guidance on the question of when unpreserved error justifies reversal.”); Hagan v. Sun Bank of Mid-Florida, N.A., 666 So.2d 580, 583 (Fla. 2d DCA 1996) (“Confusion, if not conflict, exists concerning the tests that trial courts should apply in granting or denying a new trial based on preserved or fundamental error in closing argument and the standards of review that appellate courts should apply see also Michael A. Kamen, Summation, in Florida Civil Trial Practice 48, 50 (1998) (“There is a divergence among the district courts about the propriety of granting a new trial in a civil case based on improper, but unobjected to, closing argument.”). We now attempt to eliminate the confusion over the appropriate standard and outline the standard to be applied by the trial court when considering unobjected-to statements on a motion for new trial.

1. THE CHALLENGED ARGUMENT MUST BE IMPROPER

To receive a new trial in a civil case based on unobjected-to closing argument, a complaining party must first establish that the argument being challenged is, in fact, improper. In determining whether the argument being challenged is improper, a trial judge should be guided by the following principles.

[3—5] The purpose of closing argument is to help the jury understand the issues in a case by “applying the evidence to the law applicable to the case.” Hill v. State, 515 So.2d 176, 178 (Fla.1987). Attorneys should be afforded great latitude in presenting closing argument, but they must “confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.” Knoizen v. Bruegger, 713 So.2d 1071, 1072 (Fla. 5th DCA 1998); see also Venning v. Roe, 616 So.2d 604 (Fla. 2d DCA 1993). Moreover, closing argument must not be used to “inflame the minds and passions of the jurors so that their verdict reflects an emotional response ... rather than the logical analysis of the evidence in light of the applicable law.” Bertolotti v. State, 476 So.2d 130, 134 (Fla. 1985).

Attorneys presenting closing argument in Florida courts, whether in criminal or civil trials, are governed by rule 4-3.4 of the Rules Regulating The Florida Bar. Rule 4-3.4 states:

A lawyer shall not ... in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.

R. Regulating Fla. Bar 4-3.4(e). The underpinnings of this ethical rule are well-founded; it not only prevents lawyers from placing their own credibility at issue in a case, it also limits the possibility that the jury may decide a case based on non-record evidence. See Davis v. South Florida Water Management Dist., 715 So.2d 996, 999 (Fla. 4th DCA 1998): Forman v. Wallshein, 671 So.2d 872, 875 (Fla. 3d DCA 1996). In sum, rule 4-3.4 is in place to help ensure that juries render verdicts based on record evidence and applicable law, not based on impermissible matters interjected by counsel during closing argument.

While we do not attempt to list here all of the various types of improper argument, we do wish to clarify several matters regarding how rule 4-3.4 should be interpreted. First, it is not improper for counsel to state during closing argument that a witness “lied” or is a “liar,” provided such characterizations are supported by the record. See Craig v. State, 510 So.2d 857, 865 (Fla.1987) (finding that even though intemperate, prosecutor’s closing argument remarks characterizing defendant’s testimony as untruthful and the defendant himself as being a “liar” did not exceed the bounds of proper argument in view of the record evidence); Forman, 671 So.2d at 874 (refusing to find improper counsel’s closing argument characterization of plaintiff as being a liar where “there was an ample evidentiary basis on which to dispute the credibility of the plaintiff’); see also Goutis v. Express Transport, Inc., 699 So.2d 757, 763-64 (Fla. 4th DCA 1997) (agreeing with For-man). If the evidence supports such a characterization, counsel is not impermissi-bly stating a personal opinion about the credibility of a witness, but is instead submitting to the jury a conclusion that reasonably may be drawn from the evidence.

Second, use of the personal pronoun “I” during closing argument is not, in and of itself, improper. On this issue, we agree with the Third District’s analysis in Forman, wherein the court reviewed several treatises and concluded that defense counsel’s use of the phrases “I think” and “I believe” did not impermissibly express a personal opinion, but was instead merely a figure of speech. See 671 So.2d at 874-75 (reviewing Thomas A. Mauet, Fundamentals of Trial Techniques 366 (3d ed.1992), and Steven Lubet, Modem Trial Advocacy Analysis and Practice, 432-33 (1993)). When determining whether counsels’ use of the personal pronoun “I” is improper, judges must not place form over substance; it must be understood that trial counsel is required to analyze the evidence and present reasonable interpretations and inferences based on the evidence to the jury.

2. THE ARGUMENT MUST BE HARMFUL

Should a complaining party establish that the unobjected-to argument being challenged is improper, the party must then also establish that the argument being challenged is harmful. See, e.g., § 59.041, Fla. Stat. (1999); Weise v. Repa Film Int’l, Inc., 683 So.2d 1128 (Fla. 4th DCA 1996) (declining to grant new trial based on allegedly improper closing argument where complaining party failed to establish that such argument was harmful). In imposing this harmfulness requirement, we recognize that “there is a temptation for both trial courts and appellate courts to use the remedy of new trial as a tool to punish misconduct of an attorney.” Hagan, 666 So.2d at 584. However, closing argument that is