Florida's Third District Court of Appeal has crushed a Miami legal secretary's hope of pursuing personal injury claims against Chuck E. Cheese's Inc.

On Wednesday, the appellate court reversed retired Miami-Dade Circuit Judge Jerald Bagley's order granting plaintiff Aurora Zaldivar's motion for a new trial against the children's entertainment franchise.

Zaldivar, a legal secretary with the Sanchez Law Group in Miami, filed a negligence suit against CEC Entertainment Inc., which does business as Chuck E. Cheese's Inc. She alleged she and her son had sustained injuries at the restaurant in Kendall when the booth they were exiting tipped backward.

During the litigation Zaldivar sought to exclude evidence that showed she worked for a law firm, and that her attorney was also her boss. She filed a motion in limine seeking to exclude mention of her employment with attorney Gabriel Sanchez.

The court granted the motion in part, ordering opposing counsel to “make no mention, suggestion or assertion of any collusion or fraud, between plaintiff and her attorney.” But it did permit evidence about Zaldivar's place of employment and her work history with her attorney — a misstep, according to the appellate court.

Plaintiff counsel Sanchez declined to comment on the case.

The jury ruled for the restaurant, prompting Zaldivar to filed a motion for a new trial. In that filing, Zaldivar sought to hinge her challenge on what she suggested were inappropriate comments by one of Chuck E. Cheese's attorneys, Groelle & Salmon partner Eric Knuth. She claimed Knuth had called her a “magician” and “manipulator,” and “had violated the Golden Rule by placing the jury in the defendant's position,” according to the appellate opinion.

The lower court had granted Zaldivar's motion for a new trial and found Knuth was “personally attacking this plaintiff by calling her a magician, a manipulator, as well as the opinion you elicited or presented that is not supported by the evidence.”

However, the Third DCA found Zaldivar had “failed to voice a contemporaneous objection at trial” to Knuth's remarks. The appellate court also held Bagley neglected to apply the the four-part test established by the Florida Supreme Court in Murphy v. International Robotic Systems Inc., for determining whether a fundamental error occurred, which would justify a new trial.

Read the opinion: 

“We find that the trial court correctly determined that CEC's counsel's use of the terms 'magician' and 'manipulator' to describe Zaldivar, along with the Golden Rule violation, constituted improper argument,” the opinion said. “However, the trial court failed to apply the remaining three parts of the Murphy test, that being, whether the argument was also harmful, incurable, and of a nature that the public's interest in justice requires a new trial. The Supreme Court cautioned the courts that granting a new trial was not to be used as a vehicle to punish or regulate the misconduct of attorneys.”

Wednesday's appellate opinion said Zaldivar's grievances “could have been cured, had a proper objection been voiced.”

“Even if the trial court properly applied the Murphy analysis, the record reflects that the comments made during closing did not rise to the level of fundamental error that would require a new trial,” the opinion said.

The appellate court the remanded the case, and ordered the original jury verdict to be reinstated.

Zaldivar's appellate attorneys, Lopez & Best litigators Virginia Best and Johanna Menendez, did not respond to telephone and email inquiries by press time.

Knuth told the Daily Business Review he wasn't surprised by the Third DCA's opinion, “given the strict requirements of the Murphy criteria set by the Florida Supreme Court and the fact that the trial judge made no findings on those whatsoever.”

“The plaintiff never objected during the closing arguments, but once they lost became offended,” he said. “If you look at the transcripts, I referred to the plaintiff as a magician 13 times and they never objected once.”

He added, “I think the court made the decision they had to.”

Chuck E. Cheese's did not respond to requests for comment by deadline.

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