IN THE SUPREME COURT OF FLORIDA
FLORIDA PANTHERS HOCKEY CLUB, CASE NO. 4D04-2381 INC., a Florida corporation; FLORIDA PANTHERS HOCKEY CLUB, LTD., a Florida partnership; FLORIDA PANTHERS HOCKEY CLUB ENTERPRISES, INC., etc., et al.,
Defendants/Petitioners,
v.
JOSEPHINE A. CARVER,
Plaintiff/Respondent. ______
PETITIONERS’ AMENDED JURISDICTIONAL BRIEF
ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT STATE OF FLORIDA
ANTHONY P. STRASIUS Florida Bar No. 988715 MARLISA R. HARRISON Florida Bar No. 642851 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Attorneys for Appellees 3800 Bank of America Tower 100 S.E. Second Street Miami, Florida 33131 Telephone: (305) 374-4400 Facsimile: (305) 579-0261
208698.1 TABLE OF CONTENTS
Table of Citations iii
Statement of the Case and Facts 1
Summary of the Argument 3
Jurisdictional Statement 4
Argument 4
The Decision of the Fourth District Court of Appeal Expressly and Directly Conflicts with the Second and Third District Courts of Appeal as to the Trial Court’s Discretion to Impose time Restrictions on Voir Dire.
Conclusion 9
Certificate of Service 11
208698.1 ii TABLE OF CITATIONS
CASES
Allen c. Se-Go Industries, Inc., 510 So.2d 1097 (Fla. 3d DCA 1987) 7, 8
Carver v. Neidermayer, et al., 920 So.2d 123 (Fla. 4th DCA 2006) 3
Rodriguez v. State, 675 So.2d 189, 191 (Fla. 3d DCA 1996) 7
Watson v. State of Florida , 693 SO. 2D 69 (Fla. 2d DCA 1997) 6, 7
OTHER
Fla. Const Art. V. §3(b)(3) 4
Fla.R.App.P. 9.030(a)(2)(A)(iv) 4
Fla. R. Civ. P. 1.431. 8
208698.1 iii STATEMENT OF THE CASE AND OF THE FACTS
The underlying case involves the injury to a spectator as the result of an airborne hockey puck, during a National Hockey League game on April 9, 1997, between the New Jersey Devils and the Florida Panthers. After years of litigation, the case was tried, resulting in a defense jury verdict for the
Defendants/Petitioners, on May 3, 2004.
Prior to the trial, the court provided each party with a “Notice to Counsel” which stated that each party would have thirty minutes to conduct voir dire of the jury pool, subsequent to the trial court’s one hour voir dire. Trial counsel for the
Plaintiff/Respondent, Josephine A. Carver (“Carver”), did not file any motions objecting to this limitation in advance of the trial. However, counsel verbally discussed this issue with the trial court. Subsequently, the trial court increased each party’s time limit to forty-five minutes.
The trial court conducted its own voir dire for more than an hour to commence the process. Trial counsel for the Respondent received just over forty- five minutes for voir dire, and defense counsel spent approximately thirty minutes in voir dire. However, the process did not end there. Separate and apart from the time spent by the trial court and counsel for the parties, the trial court permitted individual voir dire sessions for four separate jurors, who, at the time, were deemed to have raised issues warranting such separate sessions.
208698.1 1 Trial counsel for Carver did not make one objection for cause as against any of the six jurors that ultimately comprised the final panel. In fact, trial counsel for
Carver argued against a motion to strike for cause by trial counsel for the
Appellees as to Juror Bomentre, who became the jury’s forewoman.
Of all of the jurors that ultimately comprised the final panel, the only one which trial counsel for Carver had an issue with was the very last juror to emerge from the pool of potential jurors, Juror Walmsley. Trial counsel for Carver did not ask one single question of this juror, nor was this juror the subject of a motion to strike for cause. Trial counsel for Appellant subsequently attempted to exclude her from the panel by peremptory strike, which it did not have.
Trial counsel for Carver specifically stated that he would accept the jury panel, with the exception of the juror to which he objected, at the conclusion of the voir dire process. Trial counsel vehemently argued in favor of the majority of the jurors that comprised the final panel. Trial counsel made other challenges for cause, indicating that it had enough time to realize that such jurors were not ideal in the eyes of Carver, such that any time limitations ultimately proved to be irrelevant.
The Respondent filed an appeal raising multiple issues. Among those issues were the trial court’s decisions to deny motions to strike possible jurors for cause during voir dire; the denial to counsel for plaintiff of a second additional
208698.1 2 peremptory challenge; admitting the disclaimer printed on the hockey ticket for the game at which the subject incident took place; and excluding an alleged safety expert after that expert had already been withdrawn by the plaintiff. Out of all of the issues raised by Appellants on appeal, the sole issue addressed by the Fourth
District Court of Appeal was that of the time restrictions imposed by the trial court for voir dire.
Ultimately, the Fourth District Court of Appeal issued a reversal of the jury verdict, on the grounds that the trial court did not provide appropriate notice to trial counsel of time limits within which to conduct voir dire, and further, that the trial court improperly restricted counsel during voir dire by virtue of the time limitations it imposed. The case has been remanded for a new trial. A motion seeking rehearing was denied on March 2, 2006 and the Petitioner’s notice to invoke this Court’s discretionary jurisdiction was timely filed on April 3, 2006.
SUMMARY OF ARGUMENT
The Fourth District’s decision in the case at bar, Carver v. Neidermayer and
Meadowlanders, Inc., 920 So.2d 123 (Fla. 4th DCA 2006) is in conflict with case law in the Second and Third Districts, as to a trial court’s discretion to impose time restrictions on voir dire. The Fourth District’s decision improperly restricts and impinges upon the trial court’s ability to place parameters on voir dire, even when
208698.1 3 the parties are given advance notice of time restrictions. Such parameters are necessary, and the Fourth District’s decision establishes a conflicting and ambiguous precedent that will lead to countless new appeals in any case in which jury selection lasts less than a day. This Court should exercise its discretionary jurisdiction over the case at bar to address the issue of trial court discretion in controlling allotted time for voir dire, and to resolve the conflict with the Second and Third District case law on this issue.
JURISDICTIONAL STATEMENT
This Court has discretionary jurisdiction to review the decision of the Fourth
District Court of Appeal below, which expressly and directly conflicts with decisions of this Court and another court of appeal on the same point of law. Art.
V. §3(b)(3), Fla. Const.; Fla.R.App.P. 9.030(a)(2)(A)(iv)1.
ARGUMENT
The Decision of the Fourth District Court of Appeal Expressly and
Directly Conflicts with the Second and Third District Courts of Appeal as to the Trial Court’s Discretion to Impose time Restrictions on Voir Dire.
1 The Notice to Invoke Discretionary Jurisdiction filed with the Fourth District Court of Appeal on April 3, 2006, asserts that one of the grounds upon which the Supreme Court should invoke discretionary jurisdiction is that (continued . . . )
208698.1 4 I. INTRODUCTION
This Court should exercise its discretionary jurisdiction to address the ability and extent to which the trial court can regulate voir dire and establish time parameters. This Court should allow time restrictions to be imposed by the trial court, particularly where notice has been given in advance, and not let stand a decision that conflicts with prior established precedent. Furthermore, the decision by the Fourth District here will lead to ambiguity, confusion and uncertainty in future appeals or trial decisions relating to voir dire time limitations.
In the case at bar, the trial court notified the parties of its time limitation in a
Notice to Counsel at the commencement of trial on April 26, 2004. After a verbal discussion with the trial court, each party’s time limit was increased to forty-five minutes. Of all of the jurors that ultimately comprised the final panel, the only one the respondent had an issue with was the very last juror to emerge from the pool of potential jurors. The Respondent did not ask one single question of this juror, nor was this juror the subject of a motion to strike for cause. Respondent subsequently attempted to exclude this juror from the panel by peremptory strike, which she did not have. Although Respondent had more than adequate time to ask questions of this juror, she did not. At the conclusion of the voir dire process, the Respondent
( . . . continued) of a certified question. This assertion was made in error. Petitioners do not argue that the basis of the Supreme Court’s discretionary jurisdiction is that of a certified question, as no question has been certified in this matter.
208698.1 5 specifically stated that she would accept the jury panel, with the exception of this one juror.
The Respondent argues that she was unable to discover certain areas of inquiry due to the time restrictions imposed by the trial court and that the trial court’s restriction of forty-five minutes was an unreasonable restriction on her voir dire examination, which was tantamount to an abuse of discretion. In the case at bar, the Fourth District held that it was an abuse of discretion for the trial court
“not to advise counsel of any limits on juror selection until the beginning of juror examination.” This ruling conflicts with the case law of the Second and Third
Districts.
II. CONFLICT WITH THE SECOND AND THIRD DISTRICT COURTS OF APPEAL
This issue before the Fourth District was whether the time allotted for voir dire permitted the parties to “conduct a reasonable examination of each juror”. Fla.
R. Civ. P. 1.431. The Fourth District’s decision conflicts with the Second
District’s Watson v. State of Florida, 693 So. 2d 69 (Fla. 2d DCA 1997). In
Watson, a criminal case, the Defendant appealed a judgment that convicted him of aggravated battery, arguing that the trial court abused its discretion in limiting the time for voir dire. At trial, the trial court advised the attorneys prior to the commencement of voir dire that they would each have thirty minutes to question
208698.1 6 prospective jurors. The Defendant’s counsel fully used his allotted thirty minutes conducting his examination of the prospective jurors. Defense counsel then requested additional time and was allotted eight additional minutes. Upon using the additional time, defense counsel made a second request for additional time, which was denied.
On appeal in Watson, the court held that the trial court afforded counsel
“reasonable notice that each side would be limited to thirty minutes in questioning prospective jurors by advising counsel of this limitation before voir dire examination began.” Id. In Watson, the Second District incorporates the majority opinion in Rodriguez v. State, 675 So.2d 189, 191 (Fla. 3d DCA 1996). “The amount of time that is allotted for voir dire depends on the nature of the case and the reasonableness of the use, by the attorneys, of the time allotted by the court for voir dire.” Id. In Watson v. State reviewed the record and considered the manner in which defense counsel utilized his allotted time:
Watson’s counsel made a tactical decision regarding what questions to ask during his voir dire examination. There was no surprise and no unanticipated replies from the prospective jurors that would have opened an area of inquiry which would not have otherwise been anticipated.
The Fourth District’s decision also conflicts with the Third District’s Allen c.
Se-Go Industries, Inc., 510 So.2d 1097 (Fla. 3d DCA 1987). In Allen, a products liability case, the Appellant homeowner sought review of the order which denied
208698.1 7 her motion for a new trial. The Appellant brought an action against the Appellee window manufacturer for damages she sustained when intruders broke into her home through windows manufactured by the Appellee, and sexually assaulted her.
At trial, prior to the start of the voir dire process, the trial court advised that it would conduct an extensive voir dire examination and then allot each side twenty minutes to ask any additional questions. On appeal, the court affirmed the trial court’s decision, holding that “any decision of the trial court with respect to the qualifications and conduct of jurors rested largely within its discretion”. Id at 1098.
The court further explained that the facts in Allen did not meet the “burden of demonstrating a gross abuse of the trial court’s discretion resulting in harmful, prejudicial error.” Id at 1099.
As such, the ruling of the Fourth District in the case at bar expressly and directly conflicts with the rulings of other district courts on this same point of law.
The standard with regard to the notification of counsel of the time allotted for voir dire is simply that the notification takes place prior to the start of the voir dire examination and that the parties are permitted to “conduct a reasonable examination of each juror.” Fla. R. Civ. P. 1.431. This standard is recognized and affirmed by both the Second and Third District Courts of Appeal. The ruling of the Fourth is completely inconsistent with the rulings of these districts.
208698.1 8 III. CONCLUSION
By requiring trial courts to notify counsel of voir dire time limitations “some fair time before trial begins”, the Fourth District has erroneously created a vague standard with regard to how much notice is required for voir dire time restrictions.
The Fourth District has also created a conflict by holding that the time allotted for voir dire in the case at bar was unreasonable, without addressing the issue of the parties’ use of the time allotted and their ability to reasonably examine the potential jurors.
This Court should exercise its jurisdiction to resolve the conflicts addressed in this Brief. Resolving these conflicts should prevent courts from setting arbitrary standards with regard to the trial court’s role in controlling the voir dire process.
Therefore, Petitioner respectfully requests that this Court exercise its discretion to resolve this Appeal on the merits.
208698.1 9 Respectfully submitted,
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP Attorneys for Defendant/Petitioner 3800 Bank of America Tower 100 Southeast Second Street Miami, Florida 33131 Tel: (305) 374-4400 Fax: (305) 579-0261
By: ______ANTHONY P. STRASIUS Florida Bar No.: 988715 MARLISA R. HARRISON Florida Bar No.: 0642851
208698.1 10 CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was sent via U.S. Mail on this ____ day of May 2006 to: Gregg A. Schlesinger,
Esq., Sheldon J. Schlesinger, P.A., 1212 S.E. 3rd Avenue, Fort Lauderdale, Florida
33316 and Edna L. Caruso, Esq., Edna L. Caruso, P.A., 1615 Forum Place, Suite
3-A, West Palm Beach, Florida 33401.
By: ______MARLISA R. HARRISON
208698.1 11 CERTIFICATE OF COMPLIANCE
I hereby certify that this brief was prepared in Time New Roman, 14-point font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate
Procedure.
______MARLISA R. HARRISON
208698.1