Nissan Motor Corp. in U.S.A. v. Padilla, 87-3036

• Decision Date: 03 January 1989
• Docket Number: No. 87-3036,87-3036
• Parties: 14 Fla. L. Weekly 145 NISSAN MOTOR CORPORATION IN U.S.A., a California corporation; Nissan Motor Company, Ltd., a foreign corporation; Datsun Boulton Motors, Inc., a Florida corporation; and Florida Insurance Guaranty Association, a Florida statutory entity, Appellants, v. Ada Margarita PADILLA f/k/a Ada Martinez, individually and through Maria Falgiatore, as guardian of the property of Ada Padilla, Appellee.
• Court: Florida District Court of Appeals

Page 274

545 So.2d 274

14 Fla. L. Weekly 145

NISSAN MOTOR CORPORATION IN U.S.A., a California corporation; Nissan Motor Company, Ltd., a foreign corporation; Datsun Boulton Motors, Inc., a Florida corporation; and Florida Insurance Guaranty Association, a Florida statutory entity, Appellants, v. Ada Margarita PADILLA f/k/a Ada Martinez, individually and through Maria Falgiatore, as guardian of the property of Ada Padilla, Appellee.

No. 87-3036.

District Court of Appeal of Florida,

Third District.

Jan. 3, 1989.

Kimbrell & Hamann and W. Sam Holland and R.L. Edwards, Mershon, Sawyer, Johnston, Dunwody & Cole and Edward T. O'Donnell and Maurice J. Baumgarten, Miami, Stephen A. Lending, Gardena, Cal., for appellants.

Anderson Moss Russo & Cohen, Daniels and Hicks, Mark Hicks and Bambi G. Blum, Miami, for appellee.

Before SCHWARTZ, C.J., and HUBBART, FERGUSON, JJ.

PER CURIAM.

The appellants raise several issues on appeal. The main issue is whether a judge's communication with the jury in the absence of attorneys, after the jury has retired to deliberate, requires a new trial where the attorney for the losing party had knowledge of the communication but failed to object until after the verdict was returned. We hold that under the circumstances the complaining party's right to a new trial was waived.

The trial judge in this case made two improper contacts with the jury. The first one was after the jury was charged and counsel for both sides had left the courtroom where the jury remained to deliberate. The judge stayed in the courtroom and, without conversation, selected his lunch from a box of sandwiches which had been sent in for the judge and jury.

It is generally agreed that the mere presence of the judge, unaccompanied by counsel, in the same room as the jury after they have retired to deliberate, constitutes a communication notwithstanding that there was no conversation between them. See Wiles v. Stowe, 236 S.W.2d 21 (Mo.App.1951). See generally Annotation, Prejudicial Effect, in Civil Cases, of Communications Between Court Officials or Attendants and Jurors, 41 A.L.R.2d 288, 290 (1955). Such a communication is improper. See Hernandez v. Virgin, 505 So.2d 1369 (Fla. 3d DCA 1987) (where trial judge enters room of deliberating jury without permission of parties, prejudice will be presumed regardless of nature of communication). Nevertheless, when counsel for Nissan returned and saw the judge selecting his lunch in the courtroom, he did not object to the fact that the judge was alone with the jurors.

The second improper contact occurred one and one-half hours later when the jury summoned the judge with a question on damages. The attorneys were contacted, but before they returned, the judge entered the courtroom and engaged in a brief conversation with the jurors. Nissan's counsel returned and saw the judge emerging from the courtroom with the jury's question. The judge and the lawyers for both sides then discussed the jury's request for further instructions on damages. During this conversation the judge explained that while he was in the courtroom on the second occasion the jurors had asked him several general questions. He then related to the attorneys the contents of the conversation. ¹ Nissan's counsel asked the judge whether he had any conversation with the jury during the time he was retrieving his sandwich. The judge replied that nothing had been said. Nissan then dropped the matter without an objection or a request for a mistrial. Not until ten days later, after the unfavorable verdict was returned, did defense counsel complain that the judge's contact with the jury required a mistrial. The judge denied the post-trial motion, ruling that any error had been waived.

The general rule is that misconduct by a judge in connection with a deliberating jury, even if of the nature that would require setting aside the verdict if timely brought to the court's attention, is not a post-trial ground for a new trial where...