Lottimer v. North Broward Hospital District, Case No. 4D03-1576 (FL 10/27/2004), Case No. 4D03-1576.

• Decision Date: 27 October 2004
• Docket Number: Case No. 4D03-1576.
• Parties: ANDREW LOTTIMER, individually, Appellant, v. NORTH BROWARD HOSPITAL DISTRICT, d/b/a CORAL SPRINGS MEDICAL CENTER, etc., et al., Appellee.
• Court: Florida Supreme Court

Page 1

ANDREW LOTTIMER, individually, Appellant, v. NORTH BROWARD HOSPITAL DISTRICT, d/b/a CORAL SPRINGS MEDICAL CENTER, etc., et al., Appellee.

Case No. 4D03-1576.

District Court of Appeal of Florida, Fourth District.

Opinion filed October 27, 2004.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Allen Kornblum, Judge, L.T. Case No. 99-19829 08.

Dan Cytryn of Cytryn & Santana, P.A., Tamarac and Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach, for appellant.

Marlene S. Reiss and Cory W. Eichhorn of Stephens Lynn Klein La Cava Hoffman & Puya, P.A., Miami, for appellee.

WARNER, J.

We reluctantly reverse the final judgment in this case because the trial court refused to permit plaintiff to exercise a peremptory challenge to a juror prior to the jury being sworn. Despite our feeling that plaintiff's attorney took advantage of the situation with respect to the exercise of challenges, the rule is absolutely clear that a party may exercise peremptory challenges until the jury is sworn.

A panel of six jurors had been selected, with plaintiff having unused peremptory challenges.¹ Although one of the defendants suggested swearing in the panel before alternates were selected, the court declined to do so. Each defendant received one additional strike for the alternate jurors, while plaintiff received two, both of which plaintiff exercised. Two alternate jurors were selected. Before the trial court brought the jury in to be sworn, the court warned counsel not to exercise any backstrikes after the jury came in. Despite this warning, when the jury was about to be sworn, plaintiff's counsel made it known that he intended to exercise another strike to the main panel, for which he had peremptory strikes remaining. The trial court denied the backstrike, concluding that plaintiff would indirectly be allowed eight strikes to the main panel instead of the permitted six strikes.

While "the time and manner of challenging and swearing jurors have traditionally rested within the sound discretion of the trial court," Tedder v. Video Elecs., Inc., 491 So. 2d 533, 534 (Fla. 1986), a trial court does not have the discretion "to infringe upon a party's right to challenge any juror, either peremptorily or for cause, prior to the time the jury is sworn." Jackson v. State, 464 So. 2d 1181, 1183 (Fla. 1985). A party may exercise an unused peremptory challenge at any time prior to the jury being sworn. Fla. Rock Indust., Inc. v. United Bldg. Sys., Inc., 408 So. 2d 630, 632 (Fla. 5th DCA 1981); Dobek v. Ans, 475 So. 2d 1266, 1266-67 (Fla. 4th DCA 1985). This is so even if the main panel has been accepted, the parties are selecting alternates, and one party chooses to exercise an unused peremptory to a juror on the main panel. See Van Sickle v. Zimmer, 807 So. 2d 182 (Fla. 2d DCA 2002); Peacher v. Cohn, 786 So. 2d 1282 (Fla. 5th DCA 2001).

Appellees seek to distinguish the instant appeal because plaintiff had...