Westgate Palace, LLC v. Parr , 2017 Fla. App. LEXIS 5109 ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
WESTGATE PALACE, LLC,
Appellant,
v. Case No. 5D16-1503
KRISTEN PARR and THOMAS PARR,
Appellees.
__________________________________/
Opinion filed April 13, 2017
Appeal from the Circuit Court
for Orange County,
Janet C. Thorpe, Judge.
Art C. Young, Isaac R. Ruiz-Carus and
Meredith M. Stephens, of Rissman,
Barrett, Hurt, Donahue, McLain & Mangan,
P.A., Orlando, for Appellant.
Sage Morris-Webster and Ronald S.
Webster, of Webster Law Group, Orlando,
for Appellees.
WALLIS, J.
Westgate Palace, LLC ("Westgate"), appeals the final judgment rendered in favor
of Kristen Parr and Thomas Parr following a jury trial. After trial, the trial court denied
Westgate's motions seeking a juror interview and a new trial. We reverse the trial court's
order denying Westgate's motion to interview a juror. We also reverse the trial court's
order denying Westgate's motion for a new trial with instructions to reconsider that motion
following the juror interview.
In June 2012, Mrs. Parr traveled to Orlando to attend a convention at the Orange
County Convention Center. Mrs. Parr was staying at the Westgate Palace Hotel, a facility
owned and operated by Westgate. At approximately 7:30 p.m. on June 6, Mrs. Parr left
her hotel room and was walking through the lobby towards the main exit when she slipped
in a puddle of water and fell. X-rays later showed that Mrs. Parr fractured her kneecap in
the fall. Mrs. Parr underwent surgery, which required the placement of several screws in
her knee. The Parrs then filed a complaint against Westgate for negligence and loss of
consortium.
The case proceeded to a jury trial on February 29, 2016. Before participating in the
voir dire process, each member of the venire filled out a juror questionnaire. When voir
dire began, the venire-members took an oath to tell the truth, and the trial court gave each
potential juror the option of providing their answers privately. The questionnaire included
the following two questions that are relevant to this appeal:
Have you or any member of your immediate family been party
to any law suit?
Have you or any member of your family been accused, a
complainant, or a witness in a criminal case?
Juror 121 answered "no" to both questions. During questioning, some of the potential
jurors, but not Juror 121, were asked if they had been involved in any prior lawsuits. Juror
121 was also the only juror who admitted to being excited about receiving the jury duty
notice, stating:
2
Trial courts apply a three-part test when ruling on a motion to interview a juror:
First, the complaining party must establish that the information
is relevant and material to jury service in the case. Second,
that the juror concealed the information during questioning.
Lastly, that the failure to disclose the information was not
attributable to the complaining party's lack of diligence.
De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995) (citing Skiles v. Ryder Truck
Lines, Inc., 267 So. 2d 379, 380 (Fla. 2d DCA 1972)). Materiality means that "the omission
of the information prevented counsel from making an informed judgment—which would
in all likelihood have resulted in a peremptory challenge." Barrios, 166 So. 3d at 865
(quoting Duong v. Ziadie, 125 So. 3d 225, 227 (Fla. 4th DCA 2013)). Although all litigation
history is relevant, materiality and remoteness depend on the facts of each case. Egitto,
980 So. 2d at 1240; Leavitt v. Krogen, 752 So. 2d 730, 733 (Fla. 3d DCA 2000).
We find that the trial court abused its discretion in denying Westgate's motion to
interview Juror 121. Westgate's post-trial research allegedly revealed twenty criminal
cases against Juror 121; seven resulted in convictions, of which four resulted in a period
of her incarceration. Juror 121's alleged concealment of her past, combined with her
enthusiasm to serve as a juror, deprived Westgate of the opportunity to make an informed
judgment about its use of a peremptory challenge. See De La Rosa, 659 So. 2d at 241;
Leavitt, 752 So. 2d at 732-33. Furthermore, unlike Egitto, where the party questioned the
juror on some, but not all, of the juror's litigation history, Westgate had no indication that
Juror 121 had any litigation history, and thus it had no reason to question her regarding
her attitude towards the courts or her concept of justice. Cf. 980 So. 2d at 1240.
We reject the Parrs' argument that Westgate did not exercise diligence during voir
dire because its questions were too imprecise to elicit a response from Juror 121. We find
5
divorce case in Kansas in 2004.1 Finally, Westgate claimed that Juror 121 dishonestly
stated in her questionnaire that she had lived in Orange County, Florida for only five years
when she had actually resided there from 1977 through 1999, before returning in 2005
and filing for bankruptcy. Westgate argued that Juror 121's concealment of her past
criminal and civil litigation prevented it from making an informed decision as to whether
to exercise a peremptory challenge. Westgate also claimed that Juror 121 neglected to
correct her questionnaire despite being given the opportunity. Attempting to link Juror
121's alleged concealment with the merits of its case, Westgate noted that a major theme
of its case concerned alleged false representations by Mrs. Parr about her cellphone
usage at the time of the slip and fall incident. The trial court denied Westgate’s motions
to interview Juror 121 and for a new trial.
We review orders rendered by the trial court disposing of motions for juror
interviews for an abuse of discretion. Barrios v. Locastro, 166 So. 3d 863, 865 (Fla. 4th
DCA 2015). Florida Rule of Civil Procedure 1.431(h) permits a party to request an
interview with a juror within ten days after the verdict if the party believes there are
grounds for a legal challenge to the verdict. A trial court should grant a juror interview only
when the motion contains sworn factual allegations that, if proven, would warrant a new
trial. Egitto v. Wittman, 980 So. 2d 1238, 1240 (Fla. 4th DCA 2008). "While trial courts
should be hesitant to grant motions for post-trial juror interviews, '[w]here there are
reasonable grounds to believe concealment of a material fact has taken place, a party is
entitled to conduct a jury interview.'" Barrios, 166 So. 3d at 865 (alteration in original)
(quoting Sterling v. Feldbaum, 980 So. 2d 596, 598 (Fla. 4th DCA 2008)).
1 Juror 121 disclosed her divorce on the juror questionnaire.
4
Trial courts apply a three-part test when ruling on a motion to interview a juror:
First, the complaining party must establish that the information
is relevant and material to jury service in the case. Second,
that the juror concealed the information during questioning.
Lastly, that the failure to disclose the information was not
attributable to the complaining party's lack of diligence.
De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995) (citing Skiles v. Ryder Truck
Lines, Inc., 267 So. 2d 379, 380 (Fla. 2d DCA 1972)). Materiality means that "the omission
of the information prevented counsel from making an informed judgment—which would
in all likelihood have resulted in a peremptory challenge." Barrios, 166 So. 3d at 865
(quoting Duong v. Ziadie, 125 So. 3d 225, 227 (Fla. 4th DCA 2013)). Although all litigation
history is relevant, materiality and remoteness depend on the facts of each case. Egitto,
980 So. 2d at 1240; Leavitt v. Krogen, 752 So. 2d 730, 733 (Fla. 3d DCA 2000).
We find that the trial court abused its discretion in denying Westgate's motion to
interview Juror 121. Westgate's post-trial research allegedly revealed twenty criminal
cases against Juror 121; seven resulted in convictions, of which four resulted in a period
of her incarceration. Juror 121's alleged concealment of her past, combined with her
enthusiasm to serve as a juror, deprived Westgate of the opportunity to make an informed
judgment about its use of a peremptory challenge. See De La Rosa, 659 So. 2d at 241;
Leavitt, 752 So. 2d at 732-33. Furthermore, unlike Egitto, where the party questioned the
juror on some, but not all, of the juror's litigation history, Westgate had no indication that
Juror 121 had any litigation history, and thus it had no reason to question her regarding
her attitude towards the courts or her concept of justice. Cf. 980 So. 2d at 1240.
We reject the Parrs' argument that Westgate did not exercise diligence during voir
dire because its questions were too imprecise to elicit a response from Juror 121. We find
5
that this argument lacks merit because Juror 121's questionnaire and her responses
during jury selection gave Westgate's attorney no reason to delve further into her litigation
or criminal history. See Taylor v. Magana, 911 So. 2d 1263, 1270 (Fla. 4th DCA 2005).
The trial court informed the potential jurors that they should answer questions posed to
others if those questions were relevant to them as well. Westgate's counsel had nothing
to work with regarding past litigation or criminal history for Juror 121.
We reverse the trial court's order denying Westgate's motion to interview Juror 121
and remand with instructions to conduct the requested interview. Thereafter, the trial court
must apply the De La Rosa factors to determine whether Westgate is entitled to a new
trial. Because the trial court may ultimately award a new trial in this case, we find it
premature to rule on the remaining issues. Accordingly, we stress that our reversal is
without prejudice to Westgate re-raising those issues in the event that the trial court does
not award Westgate a new trial.
REVERSED and REMANDED with Instructions.
TORPY and LAMBERT, JJ., concur.
6