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Fla. L. Weekly D208aTop of Form
Fla. L. Weekly D208aTop of Form
Torts
— Juror interviews — Certiorari — Plaintiff is not entitled to writ of
certiorari to stop post-verdict juror interviews where plaintiff cannot
demonstrate irreparable harm to himself that cannot be remedied on appeal —
Continuation of litigation does not constitute irreparable harm — Harm to
jurors or sanctity of jury process does not constitute irreparable harm to
petitioner — Conflict certified — Writ of certiorari cannot be used simply
because strong policy reasons support interlocutory review
— Juror interviews — Certiorari — Plaintiff is not entitled to writ of
certiorari to stop post-verdict juror interviews where plaintiff cannot
demonstrate irreparable harm to himself that cannot be remedied on appeal —
Continuation of litigation does not constitute irreparable harm — Harm to
jurors or sanctity of jury process does not constitute irreparable harm to
petitioner — Conflict certified — Writ of certiorari cannot be used simply
because strong policy reasons support interlocutory review
DAVID
LAYCOCK, Petitioner, v. TMS LOGISTICS, INC., Respondent. 1st District. Case No.
1D15-5518. Opinion filed January 19, 2017. Petition for Writ of Certiorari —
Original Jurisdiction. Counsel: Michelline H. Ruth, William W. Kurtz, Jr.,
Denise M. Stocker, and Ryan E. Thompson of Ronald E. Sholes, P.A.,
Jacksonville, for Petitioner. Peter D. Webster and Christine Davis Graves of
Carlton Fields, Tallahassee, for Respondent.
LAYCOCK, Petitioner, v. TMS LOGISTICS, INC., Respondent. 1st District. Case No.
1D15-5518. Opinion filed January 19, 2017. Petition for Writ of Certiorari —
Original Jurisdiction. Counsel: Michelline H. Ruth, William W. Kurtz, Jr.,
Denise M. Stocker, and Ryan E. Thompson of Ronald E. Sholes, P.A.,
Jacksonville, for Petitioner. Peter D. Webster and Christine Davis Graves of
Carlton Fields, Tallahassee, for Respondent.
(WINSOR,
J.) There was a truck accident, there was a personal injury lawsuit, and there
was a multimillion-dollar jury verdict. Then there were allegations of juror
misconduct, which led to an order allowing juror interviews, which led to the
certiorari petition we now address.
J.) There was a truck accident, there was a personal injury lawsuit, and there
was a multimillion-dollar jury verdict. Then there were allegations of juror
misconduct, which led to an order allowing juror interviews, which led to the
certiorari petition we now address.
David
Laycock, the plaintiff who obtained the verdict below, seeks a writ of
certiorari to stop planned juror interviews before they begin — juror
interviews that the defendant sought in connection with its pending motion for
new trial. Because any harm Laycock might face can be remedied on appeal, we
dismiss the petition.
Laycock, the plaintiff who obtained the verdict below, seeks a writ of
certiorari to stop planned juror interviews before they begin — juror
interviews that the defendant sought in connection with its pending motion for
new trial. Because any harm Laycock might face can be remedied on appeal, we
dismiss the petition.
I.
Alleging
injuries from a 2012 accident, Laycock sued TMS Logistics, Inc., whose employee
drove the tractor-trailer involved in the crash. In 2015, a jury attributed
ninety-five percent fault to TMS’s driver and five percent to Laycock. The jury
found total damages just over $3.5 million, inclusive of medical expenses and
pain and suffering.
injuries from a 2012 accident, Laycock sued TMS Logistics, Inc., whose employee
drove the tractor-trailer involved in the crash. In 2015, a jury attributed
ninety-five percent fault to TMS’s driver and five percent to Laycock. The jury
found total damages just over $3.5 million, inclusive of medical expenses and
pain and suffering.
At
a hearing days after the verdict, the trial court announced that a juror had
contacted the court and spoken to the judge’s assistant. TMS then announced
that one of its attorneys, too, had spoken to jurors. According to an affidavit
that attorney later submitted, two jurors approached her as she left the
courthouse. They offered opinions on the case generally, along with specific
details on jury deliberations. One juror “kept repeating that the jurors agreed
not to follow the Court’s instructions.” TMS then sought more information.
a hearing days after the verdict, the trial court announced that a juror had
contacted the court and spoken to the judge’s assistant. TMS then announced
that one of its attorneys, too, had spoken to jurors. According to an affidavit
that attorney later submitted, two jurors approached her as she left the
courthouse. They offered opinions on the case generally, along with specific
details on jury deliberations. One juror “kept repeating that the jurors agreed
not to follow the Court’s instructions.” TMS then sought more information.
Over
Laycock’s objection, the trial court ordered a limited interview of one juror.
Laycock filed no certiorari petition to stop it, and the interview went
forward. After that, the trial court considered TMS’s motion to interview additional
jurors. The court ultimately concluded that TMS “established by sworn factual
allegations and the testimony of [the juror already interviewed] a prima facie
case of juror misconduct.” That misconduct, the court continued, would require
a new trial if found to be true, unless Laycock could “demonstrate there is no
reasonable possibility that the juror misconduct affected the verdict.”
Accordingly, the court ordered that it would contact the remaining five jurors
and schedule the interviews.1
Laycock’s objection, the trial court ordered a limited interview of one juror.
Laycock filed no certiorari petition to stop it, and the interview went
forward. After that, the trial court considered TMS’s motion to interview additional
jurors. The court ultimately concluded that TMS “established by sworn factual
allegations and the testimony of [the juror already interviewed] a prima facie
case of juror misconduct.” That misconduct, the court continued, would require
a new trial if found to be true, unless Laycock could “demonstrate there is no
reasonable possibility that the juror misconduct affected the verdict.”
Accordingly, the court ordered that it would contact the remaining five jurors
and schedule the interviews.1
II.
Laycock
challenges the trial court’s decision, which he contends misapplied the
standard for permitting post-verdict juror interviews. But before we consider
the merits of this argument, we must first determine whether Laycock has shown
“a material injury that cannot be corrected on appeal, otherwise termed as
irreparable harm.” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So.
3d 344, 351 (Fla. 2012); accord Jaye v. Royal Saxon, Inc., 720
So. 2d 214, 215 (Fla. 1998); AVCO Corp. v. Neff, 30 So. 3d 597, 601
(Fla. 1st DCA 2010). Because this is a threshold jurisdictional question, we
cannot grant the writ without such a showing — no matter how wrong the trial
court might have been.
challenges the trial court’s decision, which he contends misapplied the
standard for permitting post-verdict juror interviews. But before we consider
the merits of this argument, we must first determine whether Laycock has shown
“a material injury that cannot be corrected on appeal, otherwise termed as
irreparable harm.” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So.
3d 344, 351 (Fla. 2012); accord Jaye v. Royal Saxon, Inc., 720
So. 2d 214, 215 (Fla. 1998); AVCO Corp. v. Neff, 30 So. 3d 597, 601
(Fla. 1st DCA 2010). Because this is a threshold jurisdictional question, we
cannot grant the writ without such a showing — no matter how wrong the trial
court might have been.
Laycock
acknowledges the irreparable-harm requirement, and he argues the trial court’s
order will cause that harm “by needlessly extending litigation in this matter,
exploring the subjective motives of jurors, and invading the privacy of the
jury deliberation room.” Pet. at 11; accord id. at 30-31 (explaining
that “litigation would be extended in this matter without legal justification,
the sanctity of the jury room would be violated, decades of jurisprudence and
public policy would be eroded, and jurors would be unnecessarily harassed”).
These harms, even if demonstrated, cannot provide a basis for our jurisdiction.
acknowledges the irreparable-harm requirement, and he argues the trial court’s
order will cause that harm “by needlessly extending litigation in this matter,
exploring the subjective motives of jurors, and invading the privacy of the
jury deliberation room.” Pet. at 11; accord id. at 30-31 (explaining
that “litigation would be extended in this matter without legal justification,
the sanctity of the jury room would be violated, decades of jurisprudence and
public policy would be eroded, and jurors would be unnecessarily harassed”).
These harms, even if demonstrated, cannot provide a basis for our jurisdiction.
A.
The
first asserted harm — needless continuation of litigation — requires little discussion.
The Florida Supreme Court has made clear that “the continuation of litigation
and any ensuing costs, time, and effort in defending such litigation does not
constitute irreparable harm.” Rodriguez v. Miami-Dade County, 117 So. 3d
400, 405-06 (Fla. 2013); accord AVCO Corp., 30 So. 3d at 601 (“We have
repeatedly declined to grant certiorari review to orders that petitioners claim
will cause irreparable harm due to payment of unnecessary litigation and
defense expenses.”). Where that is the asserted injury, “the use of certiorari
review is improper.” Rodriguez, 117 So. 3d at 405.2
first asserted harm — needless continuation of litigation — requires little discussion.
The Florida Supreme Court has made clear that “the continuation of litigation
and any ensuing costs, time, and effort in defending such litigation does not
constitute irreparable harm.” Rodriguez v. Miami-Dade County, 117 So. 3d
400, 405-06 (Fla. 2013); accord AVCO Corp., 30 So. 3d at 601 (“We have
repeatedly declined to grant certiorari review to orders that petitioners claim
will cause irreparable harm due to payment of unnecessary litigation and
defense expenses.”). Where that is the asserted injury, “the use of certiorari
review is improper.” Rodriguez, 117 So. 3d at 405.2
B.
The
second asserted harm — injury to jurors or the sanctity of their process —
presents a more complicated question. Other district courts’ decisions have
found this sufficient, most notably in Pesci v. Maistrellis, 672 So. 2d
583 (Fla. 2d DCA 1996). In Pesci, the court exercised certiorari
jurisdiction based on perceived harm to the “sanctity of jury deliberations.” Id.
at 585. The court noted the longstanding rule of “prohibiting litigants or the
public from invading the privacy of jury deliberations,” and it concluded that
without certiorari review of juror-interview orders, “the continuing vitality
of this fundamental principle would be irreparably and materially harmed.” Id.
The Fifth District followed that same path, albeit with less detailed
justification. In Orange County v. Piper, 585 So. 2d 1182 (Fla. 5th DCA
1991), the court disagreed with the trial court’s decision to allow juror
interviews and announced that it “grant[ed] certiorari to prohibit invasion of
the sanctity of jury deliberations.” Id. at 1182. It did not otherwise
address the irreparable-harm jurisdictional threshold.
second asserted harm — injury to jurors or the sanctity of their process —
presents a more complicated question. Other district courts’ decisions have
found this sufficient, most notably in Pesci v. Maistrellis, 672 So. 2d
583 (Fla. 2d DCA 1996). In Pesci, the court exercised certiorari
jurisdiction based on perceived harm to the “sanctity of jury deliberations.” Id.
at 585. The court noted the longstanding rule of “prohibiting litigants or the
public from invading the privacy of jury deliberations,” and it concluded that
without certiorari review of juror-interview orders, “the continuing vitality
of this fundamental principle would be irreparably and materially harmed.” Id.
The Fifth District followed that same path, albeit with less detailed
justification. In Orange County v. Piper, 585 So. 2d 1182 (Fla. 5th DCA
1991), the court disagreed with the trial court’s decision to allow juror
interviews and announced that it “grant[ed] certiorari to prohibit invasion of
the sanctity of jury deliberations.” Id. at 1182. It did not otherwise
address the irreparable-harm jurisdictional threshold.
The
problem with relying on harm to jurors or the jury process is that “it is
settled law that, as a condition precedent to invoking a district court’s
certiorari jurisdiction, the petitioning party must establish that it
has suffered an irreparable harm that cannot be remedied on direct appeal.” Jaye,
720 So. 2d at 215 (emphasis added); accord San Perdido Ass’n, 104
So. 3d at 353 (certiorari unavailable unless “the party will suffer
irreparable harm”) (emphasis added); Bd. of Trs. of Internal Improvement Tr.
Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 455 (Fla. 2012) (certiorari
unavailable “[i]f the party seeking review does not demonstrate that it
will suffer material injury of an irreparable nature”) (emphasis added).
Neither alleged harm to “the sanctity of jury deliberations,” Pesci, 672
So. 2d at 585, nor any ethereal injury to “the civil trial process,” Pet. at
12, equals harm to Laycock.
problem with relying on harm to jurors or the jury process is that “it is
settled law that, as a condition precedent to invoking a district court’s
certiorari jurisdiction, the petitioning party must establish that it
has suffered an irreparable harm that cannot be remedied on direct appeal.” Jaye,
720 So. 2d at 215 (emphasis added); accord San Perdido Ass’n, 104
So. 3d at 353 (certiorari unavailable unless “the party will suffer
irreparable harm”) (emphasis added); Bd. of Trs. of Internal Improvement Tr.
Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 455 (Fla. 2012) (certiorari
unavailable “[i]f the party seeking review does not demonstrate that it
will suffer material injury of an irreparable nature”) (emphasis added).
Neither alleged harm to “the sanctity of jury deliberations,” Pesci, 672
So. 2d at 585, nor any ethereal injury to “the civil trial process,” Pet. at
12, equals harm to Laycock.
We
acknowledge that all five Florida district courts, including this one, have
addressed the merits of certiorari petitions dealing with juror interviews. See
Penalver v. Masomere, 178 So. 3d 533 (Fla. 3d DCA 2015); Naugle v.
Phillip Morris USA, Inc., 133 So. 3d 1235 (Fla. 4th DCA 2014); State v.
Monserrate-Jacobs, 89 So. 3d 294 (Fla. 5th DCA 2012); Hannon v. Shands
Teaching Hosp. & Clinics, Inc., 56 So. 3d 879 (Fla. 1st DCA 2011); Harbour
Island Sec. Co. v. Doe, 652 So. 2d 1198 (Fla. 2d DCA 1995). But these cases
did not address — or even mention — the irreparable-harm component, and we
cannot view these as holding that irreparable harm to “the party seeking
review,” Bd. of Trs. of Internal Improvement Tr. Fund, 99 So. 3d at 455,
is not required when it comes to juror interviews. Cf. Gretna Racing, LLC v.
Dep’t of Bus. & Prof’l Regulation, 178 So. 3d 15, 23 (Fla. 1st DCA
2015) (rejecting argument that earlier decision “implicitly held” that which it
“didn’t even mention”), review granted sub nom. Gretna Racing, LLC v. Fla.
Dep’t of Bus. & Prof’l Regulation, SC15-1929, 2015 WL 8212827 (Fla.
Dec. 1, 2015); Hargrett v. Toyota Motor Sales U.S.A., Inc., 705 So. 2d
1009, 1009 (Fla. 4th DCA 1998) (rejecting reliance on certiorari decision that
presented “similar circumstances” but “did not explain . . . how the order would
cause irreparable harm which could not be cured by final appeal”). Like the
United States Supreme Court, we recognize that one court’s addressing an issue
on the merits without discussing jurisdictional limitations does not constitute
a holding that jurisdiction existed. See, e.g., Ariz. Christian Sch.
Tuition Org. v. Winn, 563 U.S. 125, 144 (2011) (“When a potential
jurisdictional defect is neither noted nor discussed in a federal decision, the
decision does not stand for the proposition that no defect existed.”); Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (noting that
“drive-by jurisdictional rulings” have no precedential effect).
acknowledge that all five Florida district courts, including this one, have
addressed the merits of certiorari petitions dealing with juror interviews. See
Penalver v. Masomere, 178 So. 3d 533 (Fla. 3d DCA 2015); Naugle v.
Phillip Morris USA, Inc., 133 So. 3d 1235 (Fla. 4th DCA 2014); State v.
Monserrate-Jacobs, 89 So. 3d 294 (Fla. 5th DCA 2012); Hannon v. Shands
Teaching Hosp. & Clinics, Inc., 56 So. 3d 879 (Fla. 1st DCA 2011); Harbour
Island Sec. Co. v. Doe, 652 So. 2d 1198 (Fla. 2d DCA 1995). But these cases
did not address — or even mention — the irreparable-harm component, and we
cannot view these as holding that irreparable harm to “the party seeking
review,” Bd. of Trs. of Internal Improvement Tr. Fund, 99 So. 3d at 455,
is not required when it comes to juror interviews. Cf. Gretna Racing, LLC v.
Dep’t of Bus. & Prof’l Regulation, 178 So. 3d 15, 23 (Fla. 1st DCA
2015) (rejecting argument that earlier decision “implicitly held” that which it
“didn’t even mention”), review granted sub nom. Gretna Racing, LLC v. Fla.
Dep’t of Bus. & Prof’l Regulation, SC15-1929, 2015 WL 8212827 (Fla.
Dec. 1, 2015); Hargrett v. Toyota Motor Sales U.S.A., Inc., 705 So. 2d
1009, 1009 (Fla. 4th DCA 1998) (rejecting reliance on certiorari decision that
presented “similar circumstances” but “did not explain . . . how the order would
cause irreparable harm which could not be cured by final appeal”). Like the
United States Supreme Court, we recognize that one court’s addressing an issue
on the merits without discussing jurisdictional limitations does not constitute
a holding that jurisdiction existed. See, e.g., Ariz. Christian Sch.
Tuition Org. v. Winn, 563 U.S. 125, 144 (2011) (“When a potential
jurisdictional defect is neither noted nor discussed in a federal decision, the
decision does not stand for the proposition that no defect existed.”); Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (noting that
“drive-by jurisdictional rulings” have no precedential effect).
For
similar reasons, the Florida Supreme Court’s decision in Baptist Hospital of
Miami, Inc. v. Maler, does not guide us on this issue. 579 So. 2d 97 (Fla.
1991). In Baptist, the supreme court did approve a Third District
decision granting certiorari and halting juror interviews, but it did so
without ever addressing irreparable harm. The jurisdictional prerequisite for
certiorari jurisdiction was not at issue: The court granted review to resolve a
certified interdistrict conflict regarding the applicable standard for
determining whether to allow juror interviews in the first place — an issue
distinct from the irreparable-harm inquiry. See id. at 100 (“We hold
that an inquiry is never permissible unless the moving party has made sworn
factual allegations that, if true, would require a trial court to order a new
trial . . . .”). Indeed, the case creating the certified conflict — Preast
v. Amica Mutual Insurance Company, 483 So. 2d 83 (Fla. 2d DCA 1986) — was
a direct appeal, not a certiorari proceeding.
similar reasons, the Florida Supreme Court’s decision in Baptist Hospital of
Miami, Inc. v. Maler, does not guide us on this issue. 579 So. 2d 97 (Fla.
1991). In Baptist, the supreme court did approve a Third District
decision granting certiorari and halting juror interviews, but it did so
without ever addressing irreparable harm. The jurisdictional prerequisite for
certiorari jurisdiction was not at issue: The court granted review to resolve a
certified interdistrict conflict regarding the applicable standard for
determining whether to allow juror interviews in the first place — an issue
distinct from the irreparable-harm inquiry. See id. at 100 (“We hold
that an inquiry is never permissible unless the moving party has made sworn
factual allegations that, if true, would require a trial court to order a new
trial . . . .”). Indeed, the case creating the certified conflict — Preast
v. Amica Mutual Insurance Company, 483 So. 2d 83 (Fla. 2d DCA 1986) — was
a direct appeal, not a certiorari proceeding.
It
is perhaps tempting to view the Florida Supreme Court’s Baptist decision
as creating a special exception to the irreparable-harm-to-the-petitioner
requirement, essentially eliminating it in juror-interview cases. The court
did, after all, approve a decision that granted certiorari, without breathing a
word about such harm. But long before Baptist, the Florida Supreme Court
established an exacting standard for certiorari review, always requiring
irreparable harm to the petitioner. See, e.g., Chambers v. St. Johns
County, 114 So. 526, 527 (Fla. 1927) (“The proceedings complained of do not
show such vital irregularity with irremediable injury to the petitioners as to
justify the issuing of a writ of certiorari.”); Am. Ry. Express Co. v.
Weatherford, 93 So. 740, 742 (Fla. 1922) (“Generally stated, a writ of
certiorari may, in the discretion of the court, be issued where it is duly made
to appear, at least prima facie, that the record of a lower court shows that
the proceedings in a cause have violated established principles of law, or that
the adjudication in the case is a palpable miscarriage of justice, and that the
result is a substantial injury to the petitioner, who has no other remedy, and
seeks a writ of certiorari.”). And the court has consistently reminded lower
courts and litigants that it does not overrule itself without saying so. See
Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002) (“[T]his Court does not
intentionally overrule itself sub silentio.”); see also Roberts v. Brown,
43 So. 3d 673, 683 (Fla. 2010) (“Had we intended to overrule our prior
declaration . . ., we would have done so in a more definite and express
manner.”). We therefore cannot interpret Baptist to modify longstanding
precedent it did not address.
is perhaps tempting to view the Florida Supreme Court’s Baptist decision
as creating a special exception to the irreparable-harm-to-the-petitioner
requirement, essentially eliminating it in juror-interview cases. The court
did, after all, approve a decision that granted certiorari, without breathing a
word about such harm. But long before Baptist, the Florida Supreme Court
established an exacting standard for certiorari review, always requiring
irreparable harm to the petitioner. See, e.g., Chambers v. St. Johns
County, 114 So. 526, 527 (Fla. 1927) (“The proceedings complained of do not
show such vital irregularity with irremediable injury to the petitioners as to
justify the issuing of a writ of certiorari.”); Am. Ry. Express Co. v.
Weatherford, 93 So. 740, 742 (Fla. 1922) (“Generally stated, a writ of
certiorari may, in the discretion of the court, be issued where it is duly made
to appear, at least prima facie, that the record of a lower court shows that
the proceedings in a cause have violated established principles of law, or that
the adjudication in the case is a palpable miscarriage of justice, and that the
result is a substantial injury to the petitioner, who has no other remedy, and
seeks a writ of certiorari.”). And the court has consistently reminded lower
courts and litigants that it does not overrule itself without saying so. See
Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002) (“[T]his Court does not
intentionally overrule itself sub silentio.”); see also Roberts v. Brown,
43 So. 3d 673, 683 (Fla. 2010) (“Had we intended to overrule our prior
declaration . . ., we would have done so in a more definite and express
manner.”). We therefore cannot interpret Baptist to modify longstanding
precedent it did not address.
III.
Finally,
Laycock argues that there are substantial policy benefits of our having
interlocutory review of orders like the one at issue. But “the writ of
certiorari cannot be used simply because strong policy reasons support
interlocutory review.” San Perdido Ass’n, 104 So. 3d at 353. Instead,
policy matters are considered when the supreme court — not this court —
determines which categories of non-final orders warrant immediate review under
rule 9.130. Id. at 348 (noting that Florida Supreme Court “weighs the
importance of having interlocutory review in light of potential drawbacks, such
as increased appellate workload and concomitant delay in the resolution of the
case”); cf. also Keck v. Eminisor, 104 So. 3d 359, 366 (Fla.
2012) (rejecting expansion of certiorari review for denials of individual
immunity but ordering change to rule 9.130 to allow appeal of those non-final
orders). Certiorari “should not be used to circumvent the interlocutory appeal
rule,” which the supreme court has carefully limited. Martin-Johnson, Inc.
v. Savage, 509 So. 2d 1097, 1098 (Fla. 1987), superseded by statute on
other grounds, as stated in Williams v. Oken, 62 So. 3d 1129, 1134
(Fla. 2011); see also San Perdido Ass’n, 104 So. 3d at 348
(noting that list of appealable non-final orders is “carefully created”).
Laycock argues that there are substantial policy benefits of our having
interlocutory review of orders like the one at issue. But “the writ of
certiorari cannot be used simply because strong policy reasons support
interlocutory review.” San Perdido Ass’n, 104 So. 3d at 353. Instead,
policy matters are considered when the supreme court — not this court —
determines which categories of non-final orders warrant immediate review under
rule 9.130. Id. at 348 (noting that Florida Supreme Court “weighs the
importance of having interlocutory review in light of potential drawbacks, such
as increased appellate workload and concomitant delay in the resolution of the
case”); cf. also Keck v. Eminisor, 104 So. 3d 359, 366 (Fla.
2012) (rejecting expansion of certiorari review for denials of individual
immunity but ordering change to rule 9.130 to allow appeal of those non-final
orders). Certiorari “should not be used to circumvent the interlocutory appeal
rule,” which the supreme court has carefully limited. Martin-Johnson, Inc.
v. Savage, 509 So. 2d 1097, 1098 (Fla. 1987), superseded by statute on
other grounds, as stated in Williams v. Oken, 62 So. 3d 1129, 1134
(Fla. 2011); see also San Perdido Ass’n, 104 So. 3d at 348
(noting that list of appealable non-final orders is “carefully created”).
If
the interviews go forward and lead to an order granting a new trial, then
Laycock can appeal that order. See Fla. R. App. P. 9.110(a)(3)
(authorizing appeal of order granting new trial). That makes his harm (if any)
quite reparable.3 Because Laycock has not shown
irreparable harm to himself, and because we cannot base our jurisdiction on
harm to the “sanctity of jury deliberations,” Pesci, 672 So. 2d at 585,
we lack jurisdiction. We therefore dismiss the petition without reaching the
merits, but we certify conflict with Pesci v. Maistrellis, 672 So. 2d
583 (Fla. 2d DCA 1996).
the interviews go forward and lead to an order granting a new trial, then
Laycock can appeal that order. See Fla. R. App. P. 9.110(a)(3)
(authorizing appeal of order granting new trial). That makes his harm (if any)
quite reparable.3 Because Laycock has not shown
irreparable harm to himself, and because we cannot base our jurisdiction on
harm to the “sanctity of jury deliberations,” Pesci, 672 So. 2d at 585,
we lack jurisdiction. We therefore dismiss the petition without reaching the
merits, but we certify conflict with Pesci v. Maistrellis, 672 So. 2d
583 (Fla. 2d DCA 1996).
DISMISSED;
CONFLICT CERTIFIED. (OSTERHAUS, J., concurs; MAKAR, J., concurs in part and
dissents in part with opinion.)
CONFLICT CERTIFIED. (OSTERHAUS, J., concurs; MAKAR, J., concurs in part and
dissents in part with opinion.)
__________________
(MAKAR,
J., concurring in part, dissenting in part.) For at least twenty years, Florida
trial and appellate courts have followed the principle that because
post-verdict interviews of jurors are potentially disruptive of the secrecy and
sanctity of juror deliberations, immediate appellate review via a writ of
certiorari is available to protect the decision-making process from unwarranted
meddling. See Pesci v. Maistrellis, 672 So. 2d 583, 585-86 (Fla.
2d DCA 1996) (Florida appellate courts “have traditionally utilized the writ of
certiorari to review the propriety of a trial court order granting a motion for
jury interview to ensure that such an order will not result in a breach of the
sanctity of jury deliberations.”); see also State v.
Monserrate-Jacobs, 89 So. 3d 294, 296 (Fla. 5th DCA 2012) (“In recognition
of this sound public policy [against invasion of the privacy of jury
deliberations], Florida courts have traditionally utilized the writ of
certiorari to review the propriety of a trial court order granting a motion for
juror interview, so as to ensure that such an order will not result in a breach
of the sanctity of jury deliberations.”).4
J., concurring in part, dissenting in part.) For at least twenty years, Florida
trial and appellate courts have followed the principle that because
post-verdict interviews of jurors are potentially disruptive of the secrecy and
sanctity of juror deliberations, immediate appellate review via a writ of
certiorari is available to protect the decision-making process from unwarranted
meddling. See Pesci v. Maistrellis, 672 So. 2d 583, 585-86 (Fla.
2d DCA 1996) (Florida appellate courts “have traditionally utilized the writ of
certiorari to review the propriety of a trial court order granting a motion for
jury interview to ensure that such an order will not result in a breach of the
sanctity of jury deliberations.”); see also State v.
Monserrate-Jacobs, 89 So. 3d 294, 296 (Fla. 5th DCA 2012) (“In recognition
of this sound public policy [against invasion of the privacy of jury
deliberations], Florida courts have traditionally utilized the writ of
certiorari to review the propriety of a trial court order granting a motion for
juror interview, so as to ensure that such an order will not result in a breach
of the sanctity of jury deliberations.”).4
The
writ of certiorari has been deemed a necessary exercise of judicial power to
protect the long-standing public policy of shielding juries from unchecked and
unwarranted inquiries into their deliberations. As the Second District said in Pesci,
if review of a trial court’s order allowing a jury interview had to await
direct appeal, it:
writ of certiorari has been deemed a necessary exercise of judicial power to
protect the long-standing public policy of shielding juries from unchecked and
unwarranted inquiries into their deliberations. As the Second District said in Pesci,
if review of a trial court’s order allowing a jury interview had to await
direct appeal, it:
would mean that an appellate
court would be powerless to prevent a trial court . . . from abusing its
discretion by conducting an unwarranted intrusion into the private thought
processes of jurors to determine what motivated them to return their verdict.
To accept such a proposition could open up a “Pandora’s box” of unchecked
postverdict jury inquiries based on nothing more than speculation and
conjecture in clear violation of the rule, which, as we have previously noted,
“was not intended to authorize broad hunting expeditions or fishing
excursions.”
court would be powerless to prevent a trial court . . . from abusing its
discretion by conducting an unwarranted intrusion into the private thought
processes of jurors to determine what motivated them to return their verdict.
To accept such a proposition could open up a “Pandora’s box” of unchecked
postverdict jury inquiries based on nothing more than speculation and
conjecture in clear violation of the rule, which, as we have previously noted,
“was not intended to authorize broad hunting expeditions or fishing
excursions.”
672
So. 2d at 585-86 (citation omitted). Thus, as a matter of judicial policy, it
makes sense to allow certiorari review to protect against improper intrusions
into jury deliberations before they occur.
So. 2d at 585-86 (citation omitted). Thus, as a matter of judicial policy, it
makes sense to allow certiorari review to protect against improper intrusions
into jury deliberations before they occur.
Litigants
challenging juror interview orders are not required to pursue immediate
appellate relief, but they oftentimes do so, which may explain why fewer cases
exist where juror interview orders have been reviewed on direct appeal. For
example, in Simon v. Maldonado, 65 So. 3d 8 (Fla. 3d DCA 2011), the
appellant prevailed on direct appeal, establishing that a juror interview
should not have occurred, the Third District stating, the “affidavit submitted
in support of the motion for juror interview was based factually on
speculation, alleging only that there was a ‘possibility’ of juror misconduct.
Such speculation is not sufficient to warrant the trial court to order a juror
interview.” Id. at 11. Had the appellant pursued relief via a certiorari
petition, the result would have been the same, but the intrusive juror
interview would have been avoided. See City of Winter Haven v. Allen,
589 So. 2d 968, 969 (Fla. 2d DCA 1991) (on direct appeal, affirming grant of
new trial where trial court “had a reasonable concern, supported by credible
information, that the jury’s verdict had been influenced by extrinsic factual
matters disclosed in the jury room”); Dover Corp. v. Dean, 473 So. 2d
710 (Fla. 4th DCA 1985) (on direct appeal, reversing grant of new trial where
motion for jury interviews was legally insufficient). The point is that
allowing review of jury interview orders via writ of certiorari or,
alternatively on direct appeal, has not proven to be problematic as a matter of
judicial administration.
challenging juror interview orders are not required to pursue immediate
appellate relief, but they oftentimes do so, which may explain why fewer cases
exist where juror interview orders have been reviewed on direct appeal. For
example, in Simon v. Maldonado, 65 So. 3d 8 (Fla. 3d DCA 2011), the
appellant prevailed on direct appeal, establishing that a juror interview
should not have occurred, the Third District stating, the “affidavit submitted
in support of the motion for juror interview was based factually on
speculation, alleging only that there was a ‘possibility’ of juror misconduct.
Such speculation is not sufficient to warrant the trial court to order a juror
interview.” Id. at 11. Had the appellant pursued relief via a certiorari
petition, the result would have been the same, but the intrusive juror
interview would have been avoided. See City of Winter Haven v. Allen,
589 So. 2d 968, 969 (Fla. 2d DCA 1991) (on direct appeal, affirming grant of
new trial where trial court “had a reasonable concern, supported by credible
information, that the jury’s verdict had been influenced by extrinsic factual
matters disclosed in the jury room”); Dover Corp. v. Dean, 473 So. 2d
710 (Fla. 4th DCA 1985) (on direct appeal, reversing grant of new trial where
motion for jury interviews was legally insufficient). The point is that
allowing review of jury interview orders via writ of certiorari or,
alternatively on direct appeal, has not proven to be problematic as a matter of
judicial administration.
Although
it makes some sense to require a showing of irreparable injury to litigants
opposing jury interviews to establish the basis for certiorari review (after
all, that is what cases not involving jury interviews generally say), the
judicial system’s long-standing reverence for protecting juries from
unwarranted, irremediable intrusions is based on sound reasoning and has
created a bright line that trial and appellate courts have followed for
decades. For these reasons, I concur in certifying conflict, but would adopt
the rationale of Pesci and other districts that have permitted review of
jury interview orders via petitions for writs of certiorari.
it makes some sense to require a showing of irreparable injury to litigants
opposing jury interviews to establish the basis for certiorari review (after
all, that is what cases not involving jury interviews generally say), the
judicial system’s long-standing reverence for protecting juries from
unwarranted, irremediable intrusions is based on sound reasoning and has
created a bright line that trial and appellate courts have followed for
decades. For these reasons, I concur in certifying conflict, but would adopt
the rationale of Pesci and other districts that have permitted review of
jury interview orders via petitions for writs of certiorari.
__________________
1This
court stayed the lower court’s order pending resolution of this petition.
court stayed the lower court’s order pending resolution of this petition.
2In San
Perdido Association, Inc., after noting that it had “never held that
requiring a party to continue to defend a lawsuit is irreparable harm for the
purposes of invoking the jurisdiction of an appellate court to issue a common
law writ of certiorari,” the Florida Supreme Court articulated the far-reaching
consequences of an opposite rule: “To hold otherwise would mean that review of
every non-final order could be sought through a petition for writ of
certiorari. Under such a ruling, appellate courts would be inundated with
petitions to review non-final orders and trial court proceedings would be
unduly interrupted.” 104 So. 3d at 353.
Perdido Association, Inc., after noting that it had “never held that
requiring a party to continue to defend a lawsuit is irreparable harm for the
purposes of invoking the jurisdiction of an appellate court to issue a common
law writ of certiorari,” the Florida Supreme Court articulated the far-reaching
consequences of an opposite rule: “To hold otherwise would mean that review of
every non-final order could be sought through a petition for writ of
certiorari. Under such a ruling, appellate courts would be inundated with
petitions to review non-final orders and trial court proceedings would be
unduly interrupted.” 104 So. 3d at 353.
3Direct
appeals frequently address orders that granted juror interviews. See, e.g.,
Simon v. Maldonado, 65 So. 3d 8 (Fla. 3d DCA 2011); Ray Cooke
Enters., Inc. v. Parsons, 627 So. 2d 1267 (Fla. 4th DCA 1993); City of
Winter Haven v. Allen, 589 So. 2d 968 (Fla. 2d DCA 1991); Dover Corp. v.
Dean, 473 So. 2d 710 (Fla. 4th DCA 1985).
appeals frequently address orders that granted juror interviews. See, e.g.,
Simon v. Maldonado, 65 So. 3d 8 (Fla. 3d DCA 2011); Ray Cooke
Enters., Inc. v. Parsons, 627 So. 2d 1267 (Fla. 4th DCA 1993); City of
Winter Haven v. Allen, 589 So. 2d 968 (Fla. 2d DCA 1991); Dover Corp. v.
Dean, 473 So. 2d 710 (Fla. 4th DCA 1985).
4The
Fourth District treats petitions for writs of certiorari as appeals from jury
interview orders. See, e.g., Travent, Ltd. v. Schecter, 678 So.
2d 1345, 1347 (Fla. 4th DCA 1996) (defendant “filed a petition for a writ of
common law certiorari, which we treat as an appeal from the [jury interview]
order”); Ray Cooke Enter., Inc. v. Parsons, 627 So. 2d 1267 (Fla. 4th
DCA 1993) (same).
Fourth District treats petitions for writs of certiorari as appeals from jury
interview orders. See, e.g., Travent, Ltd. v. Schecter, 678 So.
2d 1345, 1347 (Fla. 4th DCA 1996) (defendant “filed a petition for a writ of
common law certiorari, which we treat as an appeal from the [jury interview]
order”); Ray Cooke Enter., Inc. v. Parsons, 627 So. 2d 1267 (Fla. 4th
DCA 1993) (same).
* *
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