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Fla. L. Weekly D858bTop of Form
Fla. L. Weekly D858bTop of Form
Torts
— Premises liability — Slip and fall — Juror interview — Trial court abused
discretion by denying defendant’s motion for post-trial interview of juror who
misrepresented that she had been involved in no past civil or criminal
litigation although post-trial investigation revealed that she had been
involved in extensive civil and criminal litigation — Trial court is to
reconsider defendant’s motion for new trial following juror interview
— Premises liability — Slip and fall — Juror interview — Trial court abused
discretion by denying defendant’s motion for post-trial interview of juror who
misrepresented that she had been involved in no past civil or criminal
litigation although post-trial investigation revealed that she had been
involved in extensive civil and criminal litigation — Trial court is to
reconsider defendant’s motion for new trial following juror interview
WESTGATE
PALACE, LLC, Appellant, v. KRISTEN PARR and THOMAS PARR, Appellees. 5th
District. Case No. 5D16-1503. Opinion filed April 13, 2017. Appeal from the
Circuit Court for Orange County, Janet C. Thorpe, Judge. Counsel: Art C. Young,
Isaac R. Ruiz-Carus and Meredith M. Stephens, of Rissman, Barrett, Hurt,
Donahue, McLain & Mangan, P.A., Orlando, for Appellant. Sage Morris-Webster
and Ronald S. Webster, of Webster Law Group, Orlando, for Appellees.
PALACE, LLC, Appellant, v. KRISTEN PARR and THOMAS PARR, Appellees. 5th
District. Case No. 5D16-1503. Opinion filed April 13, 2017. Appeal from the
Circuit Court for Orange County, Janet C. Thorpe, Judge. Counsel: Art C. Young,
Isaac R. Ruiz-Carus and Meredith M. Stephens, of Rissman, Barrett, Hurt,
Donahue, McLain & Mangan, P.A., Orlando, for Appellant. Sage Morris-Webster
and Ronald S. Webster, of Webster Law Group, Orlando, for Appellees.
(WALLIS,
J.) Westgate Palace, LLC (“Westgate”), appeals the final judgment rendered in
favor of Kristen Parr and Thomas Parr following a jury trial. After trial, the
trial court denied Westgate’s motions seeking a juror interview and a new
trial. We reverse the trial court’s order denying Westgate’s motion to
interview a juror. We also reverse the trial court’s order denying Westgate’s
motion for a new trial with instructions to reconsider that motion following
the juror interview.
J.) Westgate Palace, LLC (“Westgate”), appeals the final judgment rendered in
favor of Kristen Parr and Thomas Parr following a jury trial. After trial, the
trial court denied Westgate’s motions seeking a juror interview and a new
trial. We reverse the trial court’s order denying Westgate’s motion to
interview a juror. We also reverse the trial court’s order denying Westgate’s
motion for a new trial with instructions to reconsider that motion following
the juror interview.
In
June 2012, Mrs. Parr traveled to Orlando to attend a convention at the Orange
County Convention Center. Mrs. Parr was staying at the Westgate Palace Hotel, a
facility owned and operated by Westgate. At approximately 7:30 p.m. on June 6,
Mrs. Parr left her hotel room and was walking through the lobby towards the
main exit when she slipped in a puddle of water and fell. X-rays later showed
that Mrs. Parr fractured her kneecap in the fall. Mrs. Parr underwent surgery,
which required the placement of several screws in her knee. The Parrs then
filed a complaint against Westgate for negligence and loss of consortium.
June 2012, Mrs. Parr traveled to Orlando to attend a convention at the Orange
County Convention Center. Mrs. Parr was staying at the Westgate Palace Hotel, a
facility owned and operated by Westgate. At approximately 7:30 p.m. on June 6,
Mrs. Parr left her hotel room and was walking through the lobby towards the
main exit when she slipped in a puddle of water and fell. X-rays later showed
that Mrs. Parr fractured her kneecap in the fall. Mrs. Parr underwent surgery,
which required the placement of several screws in her knee. The Parrs then
filed a complaint against Westgate for negligence and loss of consortium.
The
case proceeded to a jury trial on February 29, 2016. Before participating in
the voir dire process, each member of the venire filled out a juror
questionnaire. When voir dire began, the venire-members took an oath to tell
the truth, and the trial court gave each potential juror the option of
providing their answers privately. The questionnaire included the following two
questions that are relevant to this appeal:
case proceeded to a jury trial on February 29, 2016. Before participating in
the voir dire process, each member of the venire filled out a juror
questionnaire. When voir dire began, the venire-members took an oath to tell
the truth, and the trial court gave each potential juror the option of
providing their answers privately. The questionnaire included the following two
questions that are relevant to this appeal:
Have you or any member of
your immediate family been party to any law suit?
your immediate family been party to any law suit?
Have you or any member of
your family been accused, a complainant, or a witness in a criminal case?
your family been accused, a complainant, or a witness in a criminal case?
Juror
121 answered “no” to both questions. During questioning, some of the potential
jurors, but not Juror 121, were asked if they had been involved in any prior
lawsuits. Juror 121 was also the only juror who admitted to being excited about
receiving the jury duty notice, stating:
121 answered “no” to both questions. During questioning, some of the potential
jurors, but not Juror 121, were asked if they had been involved in any prior
lawsuits. Juror 121 was also the only juror who admitted to being excited about
receiving the jury duty notice, stating:
[Juror 121]: First, thing, I
only see this on TV and it’s great to serve, you know, just to be a servant and
do something to help.
only see this on TV and it’s great to serve, you know, just to be a servant and
do something to help.
[The Parrs’ Counsel]: That’s
wonderful.
wonderful.
[Juror 121]: Whatever you
need, you know, it’s just a part that I just always wanted to be a part of,
yeah.
need, you know, it’s just a part that I just always wanted to be a part of,
yeah.
Juror
121 also acknowledged that she had lived in Dallas, Texas, and had resided in
Orange County, Florida for only the last five years. Ultimately, the parties
picked a six-member jury, which included Juror 121.
121 also acknowledged that she had lived in Dallas, Texas, and had resided in
Orange County, Florida for only the last five years. Ultimately, the parties
picked a six-member jury, which included Juror 121.
The
jury found Westgate forty-five percent negligent and Mrs. Parr fifty-five
percent negligent. The jury awarded Mrs. Parr a total of $396,725.62, including
$10,000 for past lost earnings, $61,726.62 in past medical expenses, $125,000
in future medical expenses, $150,000 for past pain and suffering, and $50,000
for future pain and suffering. The jury awarded Mr. Parr $7500, including $3750
in past loss of consortium and $3750 in future loss of consortium.
jury found Westgate forty-five percent negligent and Mrs. Parr fifty-five
percent negligent. The jury awarded Mrs. Parr a total of $396,725.62, including
$10,000 for past lost earnings, $61,726.62 in past medical expenses, $125,000
in future medical expenses, $150,000 for past pain and suffering, and $50,000
for future pain and suffering. The jury awarded Mr. Parr $7500, including $3750
in past loss of consortium and $3750 in future loss of consortium.
After
trial, Westgate filed motions to interview Juror 121 and for a new trial. In
its motion to interview Juror 121, Westgate noted that the jurors swore an oath
to fill out the juror questionnaire and answer voir dire questions truthfully,
and that Juror 121 did not raise her hand during voir dire when the panel was
asked whether they had been involved in any civil or criminal cases. Westgate
alleged that its post-trial investigation revealed an extensive legal history
for Juror 121, including twenty felony and misdemeanor charges for various drug
possession and theft offenses dating from 1977 through 1995, a 1999 civil
traffic infraction, and a 2004 Kansas tax warrant. Westgate alleged that Juror
121 had been convicted on seven criminal charges, four of which resulted in her
incarceration. Westgate also alleged that Juror 121 filed for bankruptcy in
2005 and was involved in a divorce case in Kansas in 2004.1 Finally, Westgate claimed that Juror
121 dishonestly stated in her questionnaire that she had lived in Orange
County, Florida for only five years when she had actually resided there from
1977 through 1999, before returning in 2005 and filing for bankruptcy. Westgate
argued that Juror 121’s concealment of her past criminal and civil litigation
prevented it from making an informed decision as to whether to exercise a
peremptory challenge. Westgate also claimed that Juror 121 neglected to correct
her questionnaire despite being given the opportunity. Attempting to link Juror
121’s alleged concealment with the merits of its case, Westgate noted that a
major theme of its case concerned alleged false representations by Mrs. Parr
about her cellphone usage at the time of the slip and fall incident. The trial
court denied Westgate’s motions to interview Juror 121 and for a new trial.
trial, Westgate filed motions to interview Juror 121 and for a new trial. In
its motion to interview Juror 121, Westgate noted that the jurors swore an oath
to fill out the juror questionnaire and answer voir dire questions truthfully,
and that Juror 121 did not raise her hand during voir dire when the panel was
asked whether they had been involved in any civil or criminal cases. Westgate
alleged that its post-trial investigation revealed an extensive legal history
for Juror 121, including twenty felony and misdemeanor charges for various drug
possession and theft offenses dating from 1977 through 1995, a 1999 civil
traffic infraction, and a 2004 Kansas tax warrant. Westgate alleged that Juror
121 had been convicted on seven criminal charges, four of which resulted in her
incarceration. Westgate also alleged that Juror 121 filed for bankruptcy in
2005 and was involved in a divorce case in Kansas in 2004.1 Finally, Westgate claimed that Juror
121 dishonestly stated in her questionnaire that she had lived in Orange
County, Florida for only five years when she had actually resided there from
1977 through 1999, before returning in 2005 and filing for bankruptcy. Westgate
argued that Juror 121’s concealment of her past criminal and civil litigation
prevented it from making an informed decision as to whether to exercise a
peremptory challenge. Westgate also claimed that Juror 121 neglected to correct
her questionnaire despite being given the opportunity. Attempting to link Juror
121’s alleged concealment with the merits of its case, Westgate noted that a
major theme of its case concerned alleged false representations by Mrs. Parr
about her cellphone usage at the time of the slip and fall incident. The trial
court denied Westgate’s motions to interview Juror 121 and for a new trial.
We
review orders rendered by the trial court disposing of motions for juror
interviews for an abuse of discretion. Barrios v. Locastro, 166 So. 3d
863, 865 (Fla. 4th DCA 2015). Florida Rule of Civil Procedure 1.431(h) permits
a party to request an interview with a juror within ten days after the verdict
if the party believes there are grounds for a legal challenge to the verdict. A
trial court should grant a juror interview only when the motion contains sworn
factual allegations that, if proven, would warrant a new trial. Egitto v.
Wittman, 980 So. 2d 1238, 1240 (Fla. 4th DCA 2008). “While trial courts
should be hesitant to grant motions for post-trial juror interviews, ‘[w]here
there are reasonable grounds to believe concealment of a material fact has
taken place, a party is entitled to conduct a jury interview.’ ” Barrios,
166 So. 3d at 865 (alteration in original) (quoting Sterling v. Feldbaum,
980 So. 2d 596, 598 (Fla. 4th DCA 2008)).
review orders rendered by the trial court disposing of motions for juror
interviews for an abuse of discretion. Barrios v. Locastro, 166 So. 3d
863, 865 (Fla. 4th DCA 2015). Florida Rule of Civil Procedure 1.431(h) permits
a party to request an interview with a juror within ten days after the verdict
if the party believes there are grounds for a legal challenge to the verdict. A
trial court should grant a juror interview only when the motion contains sworn
factual allegations that, if proven, would warrant a new trial. Egitto v.
Wittman, 980 So. 2d 1238, 1240 (Fla. 4th DCA 2008). “While trial courts
should be hesitant to grant motions for post-trial juror interviews, ‘[w]here
there are reasonable grounds to believe concealment of a material fact has
taken place, a party is entitled to conduct a jury interview.’ ” Barrios,
166 So. 3d at 865 (alteration in original) (quoting Sterling v. Feldbaum,
980 So. 2d 596, 598 (Fla. 4th DCA 2008)).
Trial
courts apply a three-part test when ruling on a motion to interview a juror:
courts apply a three-part test when ruling on a motion to interview a juror:
First, the complaining party
must establish that the information is relevant and material to jury service in
the case. Second, that the juror concealed the information during questioning.
Lastly, that the failure to disclose the information was not attributable to
the complaining party’s lack of diligence.
must establish that the information is relevant and material to jury service in
the case. Second, that the juror concealed the information during questioning.
Lastly, that the failure to disclose the information was not attributable to
the complaining party’s lack of diligence.
De
La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995)
(citing Skiles v. Ryder Truck Lines, Inc., 267 So. 2d 379, 380 (Fla. 2d
DCA 1972)). Materiality means that “the omission of the information prevented
counsel from making an informed judgment — which would in all likelihood have
resulted in a peremptory challenge.” Barrios, 166 So. 3d at 865 (quoting
Duong v. Ziadie, 125 So. 3d 225, 227 (Fla. 4th DCA 2013)). Although all
litigation history is relevant, materiality and remoteness depend on the facts
of each case. Egitto, 980 So. 2d at 1240; Leavitt v. Krogen, 752
So. 2d 730, 733 (Fla. 3d DCA 2000).
La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995)
(citing Skiles v. Ryder Truck Lines, Inc., 267 So. 2d 379, 380 (Fla. 2d
DCA 1972)). Materiality means that “the omission of the information prevented
counsel from making an informed judgment — which would in all likelihood have
resulted in a peremptory challenge.” Barrios, 166 So. 3d at 865 (quoting
Duong v. Ziadie, 125 So. 3d 225, 227 (Fla. 4th DCA 2013)). Although all
litigation history is relevant, materiality and remoteness depend on the facts
of each case. Egitto, 980 So. 2d at 1240; Leavitt v. Krogen, 752
So. 2d 730, 733 (Fla. 3d DCA 2000).
We
find that the trial court abused its discretion in denying Westgate’s motion to
interview Juror 121. Westgate’s post-trial research allegedly revealed twenty
criminal cases against Juror 121; seven resulted in convictions, of which four
resulted in a period of her incarceration. Juror 121’s alleged concealment of
her past, combined with her enthusiasm to serve as a juror, deprived Westgate
of the opportunity to make an informed judgment about its use of a peremptory
challenge. See De La Rosa, 659 So. 2d at 241; Leavitt, 752 So. 2d
at 732-33. Furthermore, unlike Egitto, where the party questioned the
juror on some, but not all, of the juror’s litigation history, Westgate had no
indication that Juror 121 had any litigation history, and thus it had no reason
to question her regarding her attitude towards the courts or her concept of
justice. Cf. 980 So. 2d at 1240.
find that the trial court abused its discretion in denying Westgate’s motion to
interview Juror 121. Westgate’s post-trial research allegedly revealed twenty
criminal cases against Juror 121; seven resulted in convictions, of which four
resulted in a period of her incarceration. Juror 121’s alleged concealment of
her past, combined with her enthusiasm to serve as a juror, deprived Westgate
of the opportunity to make an informed judgment about its use of a peremptory
challenge. See De La Rosa, 659 So. 2d at 241; Leavitt, 752 So. 2d
at 732-33. Furthermore, unlike Egitto, where the party questioned the
juror on some, but not all, of the juror’s litigation history, Westgate had no
indication that Juror 121 had any litigation history, and thus it had no reason
to question her regarding her attitude towards the courts or her concept of
justice. Cf. 980 So. 2d at 1240.
We
reject the Parrs’ argument that Westgate did not exercise diligence during voir
dire because its questions were too imprecise to elicit a response from Juror
121. We find that this argument lacks merit because Juror 121’s questionnaire
and her responses during jury selection gave Westgate’s attorney no reason to
delve further into her litigation or criminal history. See Taylor v. Magana,
911 So. 2d 1263, 1270 (Fla. 4th DCA 2005). The trial court informed the
potential jurors that they should answer questions posed to others if those
questions were relevant to them as well. Westgate’s counsel had nothing to work
with regarding past litigation or criminal history for Juror 121.
reject the Parrs’ argument that Westgate did not exercise diligence during voir
dire because its questions were too imprecise to elicit a response from Juror
121. We find that this argument lacks merit because Juror 121’s questionnaire
and her responses during jury selection gave Westgate’s attorney no reason to
delve further into her litigation or criminal history. See Taylor v. Magana,
911 So. 2d 1263, 1270 (Fla. 4th DCA 2005). The trial court informed the
potential jurors that they should answer questions posed to others if those
questions were relevant to them as well. Westgate’s counsel had nothing to work
with regarding past litigation or criminal history for Juror 121.
We
reverse the trial court’s order denying Westgate’s motion to interview Juror
121 and remand with instructions to conduct the requested interview.
Thereafter, the trial court must apply the De La Rosa factors to
determine whether Westgate is entitled to a new trial. Because the trial court
may ultimately award a new trial in this case, we find it premature to rule on
the remaining issues. Accordingly, we stress that our reversal is without
prejudice to Westgate re-raising those issues in the event that the trial court
does not award Westgate a new trial.
reverse the trial court’s order denying Westgate’s motion to interview Juror
121 and remand with instructions to conduct the requested interview.
Thereafter, the trial court must apply the De La Rosa factors to
determine whether Westgate is entitled to a new trial. Because the trial court
may ultimately award a new trial in this case, we find it premature to rule on
the remaining issues. Accordingly, we stress that our reversal is without
prejudice to Westgate re-raising those issues in the event that the trial court
does not award Westgate a new trial.
REVERSED
and REMANDED with Instructions. (TORPY and LAMBERT, JJ., concur.)
and REMANDED with Instructions. (TORPY and LAMBERT, JJ., concur.)
__________________
1Juror
121 disclosed her divorce on the juror questionnaire.
121 disclosed her divorce on the juror questionnaire.
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