Seadler v. Marina Bay Resort Condo. Ass'n

Decision Date29 June 2022
Docket Number1D19-0850
PartiesJames Seadler, Appellant, v. Marina Bay Resort Condominium Association, Inc., d/b/a Marina Bay Resort, Appellee.
CourtFlorida District Court of Appeals

James Seadler, Appellant,
v.

Marina Bay Resort Condominium Association, Inc., d/b/a Marina Bay Resort, Appellee.

No. 1D19-0850

Florida Court of Appeals, First District

June 29, 2022


On appeal from the Circuit Court for Okaloosa County. William F. Stone, Judge.

ON APPELLANT'S MOTION FOR REHEARING OR, IN THE ALTERNATIVE, FOR CERTIFICATION TO THE SUPREME COURT

Charles F. Beall, Jr., and Haley J. VanFleteren of Moore, Hill &Westmoreland, P.A., Pensacola, for Appellant.

Lissette Gonzalez of Cole, Scott &Kissane, P.A., Miami, for Appellee.

PER CURIAM.

We deny the motion. However, on our own, we certify conflict between our decision in this case and the following decisions of other district courts: Kochalka v. Bourgeois, 162 So.3d 1122, 1126 (Fla. 2d DCA 2015) (characterizing jury selection errors in a civil case as "per se errors" that "are not subject to any harmful error analysis and instead require a new trial whenever there is a

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showing that an error occurred"); Tizon v. Royal Caribbean Cruise Line, 645 So.2d 504, 506 (Fla. 3d DCA 1994) ("It is reversible error [in a civil case] to deny a challenge for cause, thereby forcing a party to 'waste' a peremptory challenge to remove an objectionable juror and forcing him to keep another objectionable juror on the panel because all of the challenges were used."); Weinstein Design Grp., Inc. v. Fielder, 884 So.2d 990, 996 (Fla. 4th DCA 2004) (adopting principle in civil case that "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 abridging the right to exercise peremptory challenges," such that if the party "makes a request for additional peremptory challenges which is denied ... an appellate court will reverse and grant a new trial"); Gootee v. Clevinger, 778 So.2d 1005, 1009-10 (Fla. 5th DCA 2000) ("It is reversible error [in a civil case] to force a party to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.").

Motion DENIED; CONFLICT CERTIFIED.

OSTERHAUS and JAY, JJ, concur; TANENBAUM, J, concurs with opinion

TANENBAUM, J, concurring.

James Seadler of course disagrees with the reasoning behind our disposition of his appeal. We rejected his contention that he automatically was entitled to a new trial because he had to use a peremptory challenge to remove a potential juror that he thought should have been removed for cause (an issue he then "preserved" by exhausting the remainder of his peremptories). In doing so, we did not just reflexively look at whether there was cause to strike the potential juror such that the trial court would have harmfully erred by failing to. We recognized that the arguably biased juror did not serve on the jury anyway, so we looked instead at the specific circumstances of the jury selection to determine whether the trial court's failure to strike the potential juror for cause "resulted in a miscarriage of justice." § 59.041, Fla. Stat. We affirmed, holding that even if the juror should have been stricken

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for cause, there was no miscarriage of justice because Seadler still would have had a juror he wished to exclude serving on the jury regardless of whether the cause challenge was denied.

The main premise underlying Seadler's request for rehearing is that a party's being forced to "waste" a peremptory challenge on a potential juror who should have been stricken for cause is itself a miscarriage of justice-provided the party otherwise exhausts his allotment of challenges, requests another one, and has that request denied. As the argument goes, a trial court's erroneous failure to strike a potential juror for cause cannot be harmless because it effectively reduces the number of peremptory challenges that have been made available to the party. Seadler contends that his having to use a peremptory challenge to remove the objectionable juror discussed in our disposition opinion-rather than on another potential juror that he did not want for reasons known only to Seadler-standing alone should have been enough to get him a new trial.

This principle, however, finds its home in criminal law jurisprudence. Seadler relies on a line of cases that ends most recently with Matarranz v. State, 133 So.3d 473 (Fla. 2013), and traces back through those like Busby v. State, 894 So.2d 88 (Fla. 2004), and Hill v. State, 477 So.2d 553 (Fla. 1985). From this line, the other district courts have extrapolated concepts relating to the right to a fair and impartial jury in a criminal case, and based on those concepts, found that in a civil case, an improper denial of a for-cause challenge necessarily results in the denial of a similar right related to the availability of peremptory challenges to remove potential jurors other than for cause.

In affirming the underlying judgment and now denying Seadler's request for rehearing, this court reaches a different conclusion. Our conclusion is what the written law requires, but it also is consistent with the common-law usage of peremptory challenges as they were understood at the time the Florida Constitution was adopted. I write separately to emphasize how there is no historical support for finding an equivalency between the peremptory challenge made available in a Florida criminal trial and one available in a civil trial. In fact, the approach reflected in the decisions of the other district courts misses the

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unique historical purpose and role behind the peremptory challenge in the criminal context. The challenge does not have the same historical roots-in fact, the challenge did not exist at all- at English common law for civil trials. That history cabins to criminal trials alone the special treatment the Florida Supreme Court has given to peremptory challenges. Equally important is this point: In Florida there is a substantive right to peremptory challenges in criminal trials (established by statute); no similar right exists for civil trials. Given the lack of an historical basis for the peremptory challenge in a civil trial context, and absent a constitutional or statutory right to such a challenge, we could not say that having to "waste" a challenge provided merely by procedural rule provides a legal basis to find a miscarriage of justice.

I.

Let me start by stating that there is no question both of the parties to the underlying civil suit were entitled to an impartial jury. For everyone, "[t]he right of trial by jury shall be secure to all and remain inviolate." Art. I, § 22, Fla. Const. The supreme court has said that "[t]he tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community." State v. Silva, 259 So.2d 153, 160 (Fla. 1972). "[A]nything less than an impartial jury is the functional equivalent of no jury at all." R.J. Reynolds Tobacco Co. v. Allen ex rel. Allen, 228 So.3d 684, 693 (Fla. 1st DCA 2017) (Osterhaus, J., dissenting) (quoting City of Miami v. Cornett, 463 So.2d 399, 402 (Fla. 3d DCA 1985), dismissed, 469 So.2d 748 (Fla. 1985)).

Seadler's main argument for a new trial in this case, though, does not turn on whether one of the jurors on the panel was not impartial. He used one of his peremptories to strike the juror he challenged for cause, so that potential juror never served at his trial. Rather, Seadler's argument turns on the significance of a peremptory challenge in a civil trial, asserting that the right to peremptory challenges is critically important to effectuate the right to an impartial jury. Seadler bases his motion for rehearing on the following from the supreme court:

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Given that the requirements of preservation were satisfied, Matarranz would suffer a violation of his due process rights if the Juror should have been, but was not, removed for cause. "Florida ... adhere[s] to the general rule that it is reversible error for a court to force a party to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied." Hill, 477 So.2d at 556. "The value of peremptory challenges is that they are intended and can be used when defense counsel cannot surmount the standard for a cause challenge." Busby v. State, 894 So.2d 88, 100 (Fla.2004). This value is destroyed if counsel is forced to use a peremptory challenge on a juror who should have been removed for cause. See Hill, 477 So.2d at 556 (noting that "such error cannot be harmless because it
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