Ter Keurst v. Miami Elevator Co.

• Decision Date: 27 February 1986
• Docket Number: No. 65731,65731
• Citation: 486 So.2d 547,11 Fla. L. Weekly 77
• Parties: 11 Fla. L. Weekly 77 James TER KEURST and Cecilia Ter Keurst, Petitioners, v. MIAMI ELEVATOR COMPANY and Centaur Insurance Company, Respondents.
• Court: Florida Supreme Court

Page 547

486 So.2d 547

11 Fla. L. Weekly 77

James TER KEURST and Cecilia Ter Keurst, Petitioners, v. MIAMI ELEVATOR COMPANY and Centaur Insurance Company, Respondents.

No. 65731.

Supreme Court of Florida.

Feb. 27, 1986.

Rehearing Denied May 5, 1986.

Michael P. Maguire of Maguire & Friend, Coral Gables, for petitioners.

Ann Thomas and G.J. Godfrey of Schwartz, Godfrey & Volpe, for respondents.

McDONALD, Justice.

The Third District Court of Appeal, after affirming a defendant's judgment predicated on a jury's defense verdict, has certified its decision approving the method of jury selection as one of great public importance. ¹ The question as phrased by the district court is:

May a trial court require the parties to exercise all of their peremptory challenges simultaneously in writing where the original panel has been thoroughly examined and challenges for cause exercised, and there remain sufficient members to comprise a jury after all peremptory challenges have been exhausted?

Ter Keurst v. Miami Elevator Co., 453 So.2d 501, 501 (Fla. 3d DCA 1984). We answer the certified question in the negative.

In this case sixteen prospective jurors were called. The judge required collective examination of them all. She also stated that the first six called would be the jury to try the case unless excused or discharged, in which case replacements would move over in sequence. Hence, if juror number 2 were excused, juror number 7 would be a member of the jury until excused.

At the conclusion of voir dire the trial judge required the lawyers to designate in writing simultaneously the names of those prospective jurors the respective parties sought to challenge, without knowing those challenged by the other side. The number 2 juror had been excused for cause. Plaintiff's counsel selected numbers 4, 5, and 10 to be excused; defendant's counsel chose numbers 1, 6, and 10. The jury, therefore, consisted of numbers 3, 7, 8, 9, 11, and 12. The Ter Keursts' counsel objected to the system directed by the judge and urged that he should not have to exercise his challenges in this manner and that numbers 14 through 16 should have been excused before the parties exercised their peremptories. He did not, however, object to the jury ultimately sworn or indicate any desire to challenge any of those persons remaining. Moreover, he neither urged nor suggested that different people would have been peremptorily challenged if a different system had been utilized.

Until recent years the traditional way of selecting a six-person jury was to call six persons to the box. After questioning, the plaintiff would exercise his peremptory challenges. Sometimes, because of the custom of calling jurors in sequence, he would know the identity of the next juror to be called, but in another courtroom a judge might direct the calling of the next jury by lottery and he would not know. Plaintiff's counsel would proceed until satisfied with the jury. Defense counsel would then inquire and exercise a peremptory. Some judges would require the plaintiff to proceed anew while others would direct the defendant to exercise his intended peremptories before requiring the plaintiff to proceed, but nearly all required the plaintiff to first "tender the jury" as a whole.

Rule 1.431, Florida Rules of Civil Procedure, deals with trial jury and its selection. Present paragraph (e), added in 1976, established a procedure for challenging jurors without members of the panel knowing the source of the challenge to avoid prejudice. After the addition of paragraph (e), many trial courts modified the above-outlined procedure to calling a sufficient number of jurors to allow the selection of all jurors plus an adequate number to cover peremptories and challenges for cause. These people are questioned collectively, thus allowing counsel to know about all potential jurors. Counsel know who will be serving if not excused. The exercise of challenges is done quietly at the bench. Generally, counsel are allowed to alternate in the exercise of challenges, but this is not required. Some trial judges require one side, usually the plaintiff, to exercise his challenges first. Frequently counsel "saves" a challenge, but, nevertheless, acting in good faith in exercising one's challenges is expected. Counsel usually are aware of the challenges that the other party has utilized. This knowledge was absent in the case at hand.

Counsel cannot be deprived of the use of all their peremptories nor can their right to use them be curtailed until the jury is sworn. Florida Rock Industries, Inc. v. United Building Systems, Inc., 408 So.2d 630 (Fla. 5th DCA), dismissed, 417 So.2d 331 (Fla.1982). Within those limitations, the procedure for jury selection has traditionally been a discretionary function of the trial judge. ² We find, however, that an abuse of discretion occurred here.

By selecting three prospective jurors, each party evidenced the intent to use all allowable challenges. When both sides challenged the same person (number 10), however, the judge thwarted this intent by excusing only five, rather than the allowable six, prospective jurors. The procedure used by the trial court, therefore, denied one of the parties the right to exercise one of its peremptories. The only fair scheme is to allow the parties to exercise their challenges singularly, alternately, and orally so that, before a party exercises a peremptory challenge, he has before him the full panel from which the challenge is to be made.

This leads to a second infirmity in the instant procedure. After excusing one person for cause, fifteen prospective jurors remained. Allowing for six peremptories left nine jurors. Only six, however, could serve. There is no way that numbers 14, 15, or 16 could have served, and, as plaintiffs' counsel pointed out, they should have been excused. After challenges for cause are made, those excess persons over the number of needed jurors plus the number of allowable peremptories should be excused so that counsel may know who will serve if not excused.

Both the trial and district courts relied on Eastern Air Lines, Inc. v. Gellert, 438 So.2d 923 (Fla. 3d DCA 1983), in using and approving the method of jury selection at issue here. As Judge Baskin pointed out in dissent, 453 So.2d at 501, Gellert concerned the inability to exercise all allowable peremptories when fewer than six prospective jurors remained in the box. In Gellert the district court described the exercise of peremptories as follows: "whereupon, apparently in accordance with the customary practice of the court, counsel for both parties submitted slips of paper bearing the names of the three prospective jurors whom each challenged peremptorily." 438 So.2d at 930. We disapprove the district and trial courts' seizing on the above-quoted language to conduct and approve the method of jury selection used in this case.

Although we quash the district court's affirmance of the jury selection, we approve the result. The Ter Keursts' counsel did not object to the jury as finally composed; he evidenced no dissatisfaction with the jurors who sat, even though obviously dissatisfied with the method of selection. We do not find this case to present fundamental error and, therefore, hold that the contemporaneous objection rule applies. The Ter Keursts would have had to object to the jury as finally composed to prevail on appeal.

We...