Estate of Youngblood v. Halifax Convalescent Center, Ltd.

• Decision Date: 23 January 2004
• Docket Number: No. 5D02-1957.,5D02-1957.
• Parties: ESTATE OF Gertie Mae YOUNGBLOOD, et al., Appellants/Cross-Appellees, v. HALIFAX CONVALESCENT CENTER, LTD., etc., et al., Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

874 So.2d 596

ESTATE OF Gertie Mae YOUNGBLOOD, et al., Appellants/Cross-Appellees, v. HALIFAX CONVALESCENT CENTER, LTD., etc., et al., Appellees/Cross-Appellants.

No. 5D02-1957.

District Court of Appeal of Florida, Fifth District.

January 23, 2004.

Rehearing Denied June 10, 2004.

Bennie Lazzara, Jr., Susan B. Morrison, and John R. Cummings of Wilkes & McHugh, P.A., Tampa, for Appellant/Cross-Appellee.

Scott A. Mager, Elaine J. LaFlamme, and Mager Shafer, Ft. Lauderdale, and Stephen B. Sambol of Alvarez, Sambol, Winthrop and Madson, P.A., Orlando, for Appellee/Cross-Appellant.

SHARP, W., J.

Rosa Abner, the daughter of Gertie Mae Youngblood, appeals from a final judgment in favor of Delta Health Group ("Delta"). On July 7, 1998, Abner filed suit against Halifax Convalescent Center, Ltd. and Halifax Convalescent Center, Inc. (collectively referred to hereafter as "Halifax"), in her capacity as guardian of Youngblood. Abner sought damages for the alleged negligent treatment and care of Youngblood, and deprivation of her nursing home rights established by Chapter 400, which Youngblood experienced while she was a resident of the nursing home owned and operated by Halifax. On February 1, 1998, the nursing home where Youngblood resided was sold and Delta assumed its operation. Youngblood remained a resident of the nursing home under Delta's care until July 8, 1998, when Abner transferred her to another nursing facility because she was not satisfied with the care her mother was receiving.

After Youngblood died on January 18, 2000, Abner continued the litigation as her mother's personal representative and joined Delta in the lawsuit, asserting common law negligence claims and deprivation of Youngblood's Chapter 400 rights for the time Youngblood was a resident while Delta operated the nursing home. Abner added a claim that deprivation of Youngblood's Chapter 400 rights caused her mother's death, and she sought punitive damages.¹

Prior to trial, Abner settled with Halifax. Delta filed a motion for summary judgment as to the Chapter 400 claims, because there was no evidence (as Abner admitted) that a violation of Youngblood's Chapter 400 rights caused her death. The trial court granted summary judgment as to the Chapter 400 claims, relying on Beverly Enterprises-Florida, Inc. v. Knowles, 766 So.2d 335 (Fla. 4th DCA 2000). The case proceeded against Delta solely on the common law negligence claims. At the close of the evidence, the trial judge directed a verdict against Abner on punitive damages, and the jury returned a verdict for Delta on the common law negligence claims.

Abner argues on appeal that the trial court abused its discretion in allowing Delta to peremptorily challenge the only two African-American persons on the venire. Abner and Youngblood are of African-American descent. Abner also argues that Beverly Enterprises-Florida, Inc., was decided incorrectly and that this court should reject the holding in that case. We agree on both grounds.

Delta cross appeals the trial court's denial of its motion for attorney's fees pursuant to section 57.105, Florida Statutes. We affirm, finding that this lawsuit was not one for which section 57.105 fees should have been awarded, under either the 2001 version of the statute or the prior version, whichever may be applicable. Delta also cross appeals the trial court's refusal to include Halifax on the verdict form as a Fabre defendant.² We also affirm that ruling. The record discloses that this case was tried with a clear time line demarcation of liability between Halifax and Delta. Delta took the position that it was the successive operator of the nursing home, following Halifax's operations, and any defects or failures of Halifax's treatment of Youngblood occurred before and were separate from any activities undertaken by Delta. Delta's briefs filed in this cause also assert that any negligence which occurred, happened while Halifax was operating the nursing home and that it was responsible only for operation of the nursing home activities after it assumed control. Thus, any claim or theory that Delta may have had as a joint tortfeasor with Halifax has been waived.

I. Peremptory Challenge

Abner argues that the trial court failed to evaluate the reasonableness, accuracy and genuineness of the reasons given by Delta for peremptorily challenging the only two African-American venire persons in this case, pursuant to the directives of Melbourne v. State, 679 So.2d 759 (Fla. 1996). Melbourne sets out a three-step process for determining whether a party is exercising a peremptory challenge against a juror for unconstitutional and improper (here race-based) reasons. This case involves the third step.³

In Melbourne, the court said that in undertaking the third step, the trial court should consider the circumstances surrounding the strike, to determine the genuineness and credibility of the reasons given for the strike. The reasonableness of the grounds given may be a part of this consideration.

Relevant circumstances may include— but are not limited to—the following: the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror, or singling the challenged juror out for special treatment.

679 So.2d at 764, n. 8. In this case, the record demonstrates that all of the factors mentioned in Melbourne for a step-three determination indicate at least one African-American venire person in this case was struck for pretextual reasons.

Delta exercised a peremptory challenge against juror Number 12, Irvin, one of the only two African-American persons on the venire. Counsel for Abner raised a Neil objection.⁴ Delta's counsel cited Irvin's work and experience in health care. Irvin had worked in a doctor's office who practiced urology, and had helped to position patients during various procedures, including those using foley catheters. Part of the evidence in this case of Delta's mistreatment of Youngblood was that a foley catheter was improperly removed, thereby causing Youngblood severe pain. Counsel also said Irwin made various facial gestures or nods during voir dire questioning, which indicated a bias in favor of the plaintiff.

These physical gestures are not documented on the record.⁵ But we note that the trial judge accepted Delta's counsel's statements and we as appellate judges cannot deny that they occurred. Counsel for Delta also noted that Delta had accepted another African-American woman, Morris, on the jury to bolster his assertion that the strike was race-neutral. Based on this record, we affirm the trial court's decision to allow the peremptory challenge as to Irvin. See Young v. State, 744 So.2d 1077, 1084 (Fla.1999)

; Greene v. State, 718 So.2d 334, 335 (Fla. 3d DCA 1998).

Later in the jury selection process, the trial judge asked Delta's counsel if he had any other strikes. He said he was going to exercise a peremptory challenge on Morris, the African-American woman he had earlier accepted as a jury member. This left the venire without any African-American members. Counsel for Abner objected and demanded a race-neutral reason, because striking Morris would leave the venire without an African-American. The trial judge asked for reasons. Delta's counsel said:

She had a family history of having a grandfather who had a stroke resulting in neurologic deficits that included right-sided weakness. The plaintiff also had a stroke, suffered from the same neurologic deficits. It may be too close. (emphasis supplied).

The court asked him to repeat this and Delta's counsel said:

Her grandfather who had a stroke very similar to the stroke that was suffered by Gertie Youngblood. And we're just not comfortable with having a juror who's going to basically be hearing about an individual who had the same deficits, the same problems as the stroke victim, just like her grandfather was, who apparently she was very close to. (emphasis supplied).

Counsel for Abner pointed out that the reasons given by Delta's counsel were not supported by what Morris had said, and that they in fact applied more accurately to another juror, Sholes (a Caucasian female), who was not challenged and who ended up serving on the jury. In an effort to distinguish why he struck Morris and not Sholes, the attorney for Delta said Sholes' grandmother had a "different stroke and it did not result in a significant deficit." The trial court accepted the strike against Morris without further inquiry. However, an examination of the record discloses that both counsel and the trial judge may have been confused about the responses of the two jurors.

The record discloses that, during voire dire, Morris said that when she was seven years old her grandfather had a stroke and was paralyzed on his left side. His speech was not affected. Morris did not describe his neurological deficits and said nothing about visiting him often or being "close" to him. The stroke had occurred some 20 years earlier and Morris was a mature, married woman with a post graduate degree, who was employed as a high school math teacher at the time of the trial.

During voir dire, Sholes said that six or seven years ago her grandmother had a stroke, and was in two nursing homes over a three-year period. Thereafter, she visited her grandmother every few weeks, traveling to Dade County. The grandmother was unable to care for herself. She eventually died of old age. Sholes did not describe what kind of stroke her grandmother suffered or what her neurological deficits were.

Florida courts have repeatedly held it is racially discriminatory to exercise a peremptory challenge against a person who is a member of a minority group where the proffered race-neutral reasons apply equally to a juror of another racial group, who has not been challenged. See Hall v. Daee, 602 So.2d 512 (Fla.1992)

; Fleming v. State, 825 So.2d 1027, 1029 (Fla. 1st DCA 2002); Smith v....