Weinstein Design Group, Inc. v. Fielder

• Decision Date: 29 September 2004
• Docket Number: No. 4D03-3750.,4D03-3750.
• Citation: 884 So.2d 990
• Parties: WEINSTEIN DESIGN GROUP, INC., a Florida corporation, and Robert S. Weinstein, individually, Appellants, v. Cecil FIELDER, Appellee.
• Court: Florida District Court of Appeals

884 So.2d 990

WEINSTEIN DESIGN GROUP, INC., a Florida corporation, and Robert S. Weinstein, individually, Appellants, v. Cecil FIELDER, Appellee.

No. 4D03-3750.

District Court of Appeal of Florida, Fourth District.

September 29, 2004.

Rehearing Denied November 16, 2004.

Gaunt, Pratt, Radford & Methe, P.A., West Palm Beach, and Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, for appellants.

Daniel S. Rosenbaum and John R. Sheppard, Jr., of Becker & Poliakoff, P.A., West Palm Beach, for appellee.

POLEN, J.

This appeal arises from a final money judgment in a jury trial in favor of Appellee, Cecil Fielder, awarding Fielder compensatory damages of $300,000 and punitive damages of $15,000 for using Fielder's name for commercial and/or advertising purposes without his permission. We affirm in part and reverse in part.

Appellant Weinstein Design entered into a contract with Stacey Fielder (wife of former professional baseball player Cecil Fielder) on November 6, 1996 to provide interior decorating services for the Fielders' home. At some time in 1998, the Fielders stopped paying Weinstein's invoices, leading to a lawsuit that eventually concluded by arbitration. In August of 1999, while the arbitration dispute was pending, Fielder brought the instant suit against Weinstein and the Weinstein Design Group (collectively Weinstein) seeking injunctive relief and damages based on Weinstein's use of Fielder's name for commercial purposes without his authorization, in violation of section 540.08, Florida Statutes, and for the common law tort of name misappropriation.

Pre-trial, Weinstein stipulated to the entry of a permanent injunction, prohibiting Weinstein from future use of Fielder's name and he admitted to using Fielder's name without his consent in violation of section 540.08, Florida Statutes, and to committing common law name appropriation. Therefore, the main issues of fact for trial were (1) whether the article printed in Florida Design magazine about Robert Weinstein was an exception to liability under section 540.08(3); (2) whether Weinstein was liable under section 540.08 for a set of allegedly undistributed brochures; (3) the amount of compensatory damages, if any; and (4) the amount of punitive damages, if any.

1. Weinstein's challenges for cause

During jury selection, Weinstein challenged prospective jurors Porcelli, Dagostino, Rendelman, and Kearns for cause, claiming they were predisposed to favor Fielder. The trial judge denied the challenges as to all four, explaining that he believed that the prospective jurors' allegedly biased answers during voir dire merely reflected that they "felt a tinge of injustice" because they were previously read the pretrial stipulation, in which Weinstein admitted to using the name without permission. The trial judge did, however, grant the challenge as to Kearns for other reasons.

The trial judge then turned to peremptory challenges, first allowing three per side. Weinstein used his three peremptory challenges to strike the three jurors who he failed to convince the judge to excuse for cause. Weinstein then renewed his challenges for cause as to those three jurors and requested additional challenges. The trial judge eventually gave each side two more challenges but denied Weinstein's request for a third additional challenge, for which Weinstein stated he wished to strike prospective juror Lizardi. Lizardi was then seated on the jury. Weinstein again in renewed his motion for an additional challenge to strike Lizardi, which the trial judge denied. The trial judge then read the jury panel's names into the record, whereupon Weinstein stated that he did not accept the panel. Weinstein appeals the trial judge's denials of his challenges for cause and refusals to grant sufficient additional peremptory charges.

The first issue Weinstein raises on appeal is that the trial court abused its discretion by denying his challenges for cause as to prospective jurors. We agree, and therefore we reverse the trial court's denial of Weinstein's challenges for cause and remand the case with directions that the judgment entered below be vacated and a new trial conducted.

Generally, because a trial court has a unique vantage point to determine juror bias, its determination of whether a challenge for cause is proper is a mixed question of law and fact that will not be overturned on appeal in the absence of manifest error. Smith v. State, 699 So.2d 629, 635-36 (Fla.1997). The Florida Supreme Court set forth the standard for determining juror bias in Smith:

The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court. A juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind.

699 So.2d at 635 (citations omitted). "Close cases should be resolved in favor of excusing the juror rather than leaving a doubt as to his or her impartiality." Bryant v. State, 765 So.2d 68, 71 (Fla. 4th DCA 2000).

Fielder argues that none of the jurors at issue should have been removed for cause because the trial judge read a stipulation to the jurors, in which Weinstein admitted liability for using Fielder's name without his permission. Fielder argues that the jurors merely expressed a sense of inequity based on Weinstein's admitted liability. In Rolling v. State, 695 So.2d 278, 285 (Fla.1997), the Florida Supreme Court held that a juror is not required to be completely devoid of knowledge of the acts or be devoid of preconceived notions:

To hold that the mere existence of any preconceived notion as to the guilt of the accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Thus, if prospective jurors can assure the court during voir dire that they are impartial despite their extrinsic knowledge, they are qualified to serve on the jury, and a change of venue is not necessary. Although such assurances are not dispositive, they support the presumption of a jury's impartiality.

Fielder also argues that because the challenged jurors did not claim to have a pre-judged dollar amount they would award Fielder and would need to hear testimony and evidence to establish an amount, there were no grounds to challenge them for cause.

We find Fielder's argument unpersuasive as to the bias of the three challenged prospective jurors who expressly admitted their predisposition toward Fielder (Rendelman, Dagostino, and Porcelli) and hold that they should have been excluded for cause. These three jurors manifestly raised reasonable doubts as to their capacity to be impartial, in that each expressed a predisposition for Fielder, and an inability to be certain that the predisposition could be set aside. "A juror is not impartial when one side must overcome a preconceived opinion in order to prevail." Carratelli v. State, 832 So.2d 850, 854 (Fla. 4th DCA 2003). During voir dire, these three panel members confirmed that they could not set aside "the edge" they would give to Fielder. Each of their final answers to Weinstein's counsel's line of questioning on that issue appears below:

[Counsel]: There's some doubt in your mind as to whether you could be fair to both sides starting out even, correct?

[Prospective Juror Rendelman]: I would like to think that I could put it aside and just look at it on an even scale, but it is something that I would be, it would be in my mind, yes.

[Counsel]: Is there some reasonable doubt in your mind about that?

[Prospective Juror Rendelman]: Yes

[Counsel]: Ms. Dagostino, how do you feel about that, are we starting out even or —

[Prospective Juror Dagostino]: I said that there would be an edge and that you would have to catch up to them, but they would go in with the edge.

[Counsel]: Mr., Porcelli, going back to you, edge versus even Steven, is one side starting out ahead of the other in your mind here?

[Prospective Juror Porcelli]: According to what I have heard so far, yeah. I believe the Plaintiff does have a little bit of an edge because of the fact it seems someone has admitted he used his name without his permission.

In Imbimbo v. State, 555 So.2d 954, 955 (Fla. 4th DCA 1990), this court reversed a denial of a challenge for cause, after a juror admitted during voir dire that she "probably" would be prejudiced but "probably" could follow the judge's instructions. Similarly, in Jaffe v. Applebaum, 830 So.2d 136 (Fla. 4th DCA 2002), this court held that it was error not to grant a challenge for cause as to a prospective juror who admitted that plaintiff would be starting out with "a half strike" against her. Here, the three jurors all had difficulties similar to those described above. Furthermore, no further questioning rehabilitated them in any way. This case is similar to Franco v. State, in which a "juror never stated that she could follow the law after expressing her problems with the burden of proof and presumption of innocence. There was no attempt to rehabilitate the juror. Even if she had, it would not have necessarily made her acceptable." 777 So.2d 1138, 1139 (Fla. 4th DCA 2001). Moreover, "[w]here, as in this case, a juror expresses views on [an issue of bias], and there is no subsequent change in those views, the trial court's superior vantage point and discretion are of little consequence." Id.

Finally, we note that any alleged error in failing to dismiss a juror for cause may be cured by granting additional peremptory challenges. Curtis v. State, 767 So.2d 627, 628 (Fla. 3d DCA 2000). However, "it is error for a court to force a party to exhaust his peremptory challenges on persons who should be excused for cause since it has the effect of...