IN THE DISTRICT COURT OF THE STATE OF FLORIDA FOURTH DISTRICT

Transcription

1 E-Copy Received Oct 14, :55 PM IN THE DISTRICT COURT OF THE STATE OF FLORIDA FOURTH DISTRICT JAMES N. HENDRIX and PATTIE W. HENDRIX, Case No.: 4D Appellants, v. PIPER S LANDING, INC., Appellee. / ANSWER BRIEF OF APPELLEE, PIPER S LANDING, INC. On Appeal from the Circuit Court of the Nineteenth Judicial Circuit in and for Martin County, Florida COLE SCOTT & KISSANE, P.A. Scott A. Cole Daniel M. Schwarz Attorneys for Appellee, Piper s Landing, Inc S. Dadeland Blvd., Suite 1400 Miami, FL Telephone: (305) Facsimile: (305)

2 TABLE OF CONTENTS Page TABLE OF CONTENTS... i TABLE OF AUTHORITIES... iii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS Statement of the Case Mr. Hurchalla s Immaterial Prior Court System Involvement Voir Dire: The Hendrixes Fail to Squarely Ask for Juror Hurchalla s Prior Court System Involvement and to Exercise Due Diligence The Facts Introduced into Evidence at Trial of the Hendrixes Counterclaims Against Piper s Landing Procedural Background: The Trial Court s Denial of the Hendrixes Motion for New Trial and for Juror Interviews STANDARD OF REVIEW...16 SUMMARY OF THE ARGUMENT...16 ARGUMENT...19 THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING PLAINTIFFS MOTION FOR NEW TRIAL AND TO INTERVIEW MR. HURCHALLA WHERE MR. HURCHALLA S PREVIOUS COURT SYSTEM INVOLVEMENT WAS NOT MATERIAL TO THE HENDRIXES COUNTERCLAIMS, MR. HURCHALLA DID NOT CLEARLY CONCEAL THE PRIOR CASES, AND THE HENDRIXES FAILED TO EXERCISE DUE DILIGENCE...19 A. The Trial Court Correctly Determined, Based on the Facts of this Particular Case and the Hendrixes Considerable Resources, that the - i -

3 Hendrixes Failed to Exercise Due Diligence by Neglecting to Search the Public Records at the time of Voir Dire or Trial...20 B. The Hendrixes Failed to Exercise Due Diligence in their Questioning and to Adequately Demonstrate that Mr. Hurchalla Concealed his Prior Court System Involvement...31 C. The Hendrixes Failed to Demonstrate that Mr. Hurchalla s Status as a Respondent in the Two Previous Requests for Restraining Orders Was Material to his Service as a Juror in this Case...35 CONCLUSION...43 CERTIFICATE OF SERVICE...44 CERTIFICATE OF COMPLIANCE ii -

4 TABLE OF AUTHORITIES Case No.: 4D Page Cases Applegate v. Barnett Bank of Tallhassee, 377 So. 2d 1150, 1152 (Fla. 1979)...30 Beyel Bros., Inc. v. Lemeze, 720 So. 2d 556, 557 (Fla. 4th DCA 1998)...20 Birch v. Albert, 761 So. 2d 355, 358 (Fla. 3d DCA 2000)...33 Borroto v. Garcia, 103 So. 3d 186, 188 (Fla. 3d DCA 2012)... 25, 29 De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995)... passim Funk v. United States, 290 U.S. 371, (1933)...24 Gamsen v. State Farm Fire & Cas. Co., 68 So. 3d 290, 293 (Fla. 4th DCA 2011)... 36, 37 Garnett v. McClellan, 767 So. 2d 1229, 1231 (Fla. 5th DCA 2000)... 37, 42 Hillsboro Management, LLC v. Pagono, 112 So. 3d 620, 623 (Fla. 4th DCA 2013),... passim Hoang Dinh Duong v. Ziadie, 125 So. 3d 225, 227 (Fla. 4th DCA 2013)... passim Hood v. Valle, 979 So. 2d 961, 964 (Fla. 3d DCA 2008) iii -

5 Kelly v. Cmty. Hosp. of Palm Beaches, Inc., 818 So. 2d 469, 476 (Fla. 2002)...22 McCauslin v. O Conner, 985 So. 2d 558, (Fla. 5th DCA 2008)... 32, 34, 36 Morgan v. Milton, 105 So. 3d 545 (Fla. 1st DCA 2012)... 36, 39, 40, 41 Murphy v. Hurst, 881 So. 2d 1157, 1162 (Fla. 5th DCA 2004)... 37, 42 Parra v. Cruz, 59 So. 3d 211 (Fla. 3d DCA 2011)...36 Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 429 n.6 (Fla. 4th DCA 2014)...23 Pub. Health Trust of Miami-Dade Cnty. v. Metellus, 948 So. 2d 4, 5 (Fla. 3d DCA 2006)...36 Roberts v. Tejada, 814 So. 2d 334, 345 (Fla. 2002)... passim Rodgers v. After School Programs, Inc., 78 So. 3d 42, 44 (Fla. 4th DCA 2012)... 31, 33 State Farm Fire & Cas. Co. v. Levine, 837 So. 2d 363, 365 (Fla. 2002)... 26, 30 Sterling v. Feldbaum, 980 So. 2d 596, 598 (Fla. 4th DCA 2008)...44 Tran v. Smith, 823 So. 2d 210, 213 n.1 (Fla. 5th DCA 2002)... 33, 36 Tricam Indus., Inc. v. Coba, 100 So. 3d 105, 114 (Fla. 3d DCA 2012)... 17, 27, 28, 29 - iv -

6 Villalobos v. State, 143 So. 3d 1042, 1047 (Fla. 3d DCA 2014)... 32, 37 Wiggins v. Sadow, 925 So. 2d 1152, 1154 (Fla. 4th DCA 2006)... 16, 32 Statutes Chapter 720, Florida Statutes v -

7 INTRODUCTION After an eight-day trial on the Appellants, James and Pattie Hendrix (the Hendrixes ) counterclaims against Appellee, Piper s Landing, Inc., a 302- residence homeowner s association organized under Chapter 720, Florida Statutes, for violation of the Florida Fair Housing Act, breach of Piper s Landing s governing documents, breach of fiduciary duty, and promissory estoppel, the jury rendered a verdict in favor of Piper s Landing in all respects. This appeal is taken by the Hendrixes from the trial court s Order Denying their Motion for New Trial and for Juror Interview (the Order ). Because the Hendrixes cannot satisfy any of the three prongs of De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995), with respect to juror Robert Hurchalla s nondisclosure of prior court system involvement, the trial court did not abuse its discretion in denying the post-trial motion and this Court should affirm the Order. In this Answer Brief, references to the Record on Appeal shall be denoted as R. [volume number], [page number]. References to the transcript of the trial, which appears on this Court s docket as Supplemental Records filed on July 28, 2014, shall be denoted as T. [volume number], [page number]. References to the documents contained in the Hendrixes Index to Appellants Motion to Supplement the Record shall be denoted as S.R. [page number]

8 STATEMENT OF THE CASE AND FACTS 1. Statement of the Case Case No.: 4D This prolonged litigation began five years after the Hendrixes brought two unauthorized Doberman Pinscher dogs to Piper s Landing, when Piper s Landing requested injunctive relief to have the dogs removed as in violation of its rules and regulations. (R. V1, 10-88). The Hendrixes alleged counterclaims against Piper s Landing for breach of contract in connection with Piper s Landing s suspension of the Hendrixes use of recreational facilities for their pet rule violation, breach of fiduciary duty for failing to provide a reasonable accommodation, promissory estoppel, for a violation of the Florida Fair Housing Act, and for a declaratory judgment stating that Piper s Landing s pet rule was invalid or ambiguous. (R. V7, ). Only the Hendrixes counterclaims, except their counterclaim for declaratory relief, were tried by jury. After eight days of trial, 1 the jury found that Piper s Landing did not discriminate against the Hendrixes, did not breach its rules or fiduciary duty, and did not make any representation upon which the Hendrixes reasonably relied that caused damage. (T. V16, 10833). Despite having a renowned jury consultant and three attorneys present during the unlimited, two-day voir dire, after the jury returned its verdict, the 1 The trial below was the second trial, as a mistrial occurred at the first trial. (T. V5, 740)

9 Hendrixes filed a Motion for New Trial and to Interview Jurors on the ground that juror Robert Hurchalla did not disclose his involvement in two prior actions where restraining orders were sought against him. (R. V40, ). Judge George Shahood denied the motion because the Hendrixes did not exercise due diligence as counsel could have and should have searched for Mr. Hurchalla s prior court involvement during voir dire, based on the facts of this particular case. In considering the timing of the search as part of its due diligence inquiry, the trial court did not abuse its discretion, particularly in light of this Court s recent decision in Hillsboro Management, LLC v. Pagono, 112 So. 3d 620, 623 (Fla. 4th DCA 2013), and approval of analyses similar to the trial court s by recent decisions of the Third District Court of Appeal. Moreover, the Hendrixes failed to establish that Mr. Hurchalla s prior court involvement was material, that counsel exercised due diligence separate from their failure to search the public records during voir dire or trial, or even that Mr. Hurchalla necessarily concealed information, as they were required to do under De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995). Accordingly, Piper s Landing requests this Court to affirm the Order

10 2. Mr. Hurchalla s Immaterial Prior Court System Involvement In April 2005, a Temporary Injunction for Protection Against Repeat Violence 2 was entered against Mr. Hurchalla without notice. (S.R. 8). The petitioners allegations stemmed from apparently non-violent interactions between them and Mr. Hurchalla at a Martin County skate park. (S.R , 49). On May 3, 2005, a Final Judgment of Injunction for Protection Against Repeat Violence was entered against Mr. Hurchalla. (S.R. 13). The final judgment ordered Mr. Hurchalla not to have contact with the petitioners, prohibited him from going within 500 feet of the skate park, and ordered Mr. Hurchalla to attend a mental health evaluation. (S.R. 15). The trial court ordered Mr. Hurchalla to file proof of the mental health evaluation. (S.R. 41). Mr. Hurchalla later moved to modify the injunction to attend a benefit contest at the skate park that the injunction prohibited him from visiting. (S.R ). A hearing was held on Mr. Hurchalla s motion to modify injunction on December 9, (S.R. 25). The motion was denied. (S.R. 34). 2 The Initial Brief is liberal in its use of language such as repeat violence. (I.B. 7). However, to the extent disclosed by the Supplemental Record, neither the allegations in the petitions against Mr. Hurchalla nor Mr. Hurchalla s attempts to modify the injunctions reflect that Mr. Hurchalla ever acted violently toward another. Repeat violence is merely included in the title in the form petitions and orders. (S.R. 7, 13)

11 On January 19, 2006, the court set for hearing an Evaluation of Mental Health Report. (S.R. 42). 3 On January 14, 2008, Mr. Hurchalla moved to modify the injunction to be able to drop off his nephew at Stuart Middle School. (S.R ). On January 18, 2008, the court modified the injunction to allow Mr. Hurchalla to do so, as one of the petitioners no longer attended school there. (S.R. 63). A previous petition for injunction had been filed against Mr. Hurchalla by the county Supervisor of Skateparks. (S.R. 48, 53). That case was dismissed as a result of the petitioner s failure to appear. (R. V40, 7915). That is the extent of Mr. Hurchalla s involvement with the court system at issue here. In the present case, the juror questionnaire asked the prospective jurors whether a claim for personal injuries or other money damages had ever been made against him or her or a member of his or her immediate family. (S.R. 3). Mr. Hurchalla answered Yes. (S.R. 3). Mr. Hurchalla left blank the question inquiring whether he has ever been a party to any lawsuit. (S.R. 3). 3 An excerpt of Mr. Hurchalla s mental health evaluation, containing Mr. Hurchalla s explanation of events at the skate park, appears in the Supplemental Record. (S.R. 57). The pages of the social worker s report in the Supplemental Record indicate Mr. Hurchalla s awareness of appropriate social expectations and norms and that he is a social mature individual. (S.R. 57)

12 3. Voir Dire: The Hendrixes Fail to Squarely Ask for Juror Hurchalla s Prior Court System Involvement and to Exercise Due Diligence Jury selection in the instant case lasted two full days. (T. V1, 8006 V4, 8645). Counsel for the Hendrixes hired Betty Dunkum, Esq., 4 a jury consultant, who was present at counsel table during the entirety of voir dire and looked up case law during jury selection. (T. V1, 8006; T. V4, 8658). Three attorneys for the Hendrixes were also present throughout voir dire and trial: George W. Bush, Jr., Esq. (who conducted voir dire), J. Henry Cartwright, Esq., and Shelly Stirrat, Esq. (T. V1, 8006; T. V.16, 10828). The courtroom had free wireless internet access. 5 Initially, Mr. Hurchalla told the trial court that he could be fair and impartial. 6 (T. V1, 8090). Shortly into Mr. Bush s voir dire examination, Mr. Bush began to ask the remaining prospective jurors about their previous answers with regard to their involvement in lawsuits on their juror questionnaires. (T. V2, ). Mr. Bush said that the word lawsuit can encompass actions such as collections of debt, maybe you owe money, maybe somebody owed you money, breach of contract, you may have a deal with somebody that fell through and 4 The transcript s reference to Ms. Dunkum as Ms. Duncan is a transcription error. 5 Nineteenth Judicial Circuit, Courtroom Wireless Internet Access, 6 Mr. Hurchalla stated he was not a fan of keeping animals as pets except as genuine working animals. (T. V1, 8090)

13 somebody you know, a fight with somebody else in court, evictions, foreclosures, restraining orders, assault and battery, those sorts of things. (T. V2, 8185). Mr. Bush did not, at that time, ask members of the venire to raise their hands if they had ever been involved in a lawsuit. (T. V2, ). Instead, Mr. Bush asked the venire whether anybody had any lawsuits against homeowners associations or homeowners associations against you. (T. V2, 8186). During Mr. Bush s questions to the venire about their experience in the legal field, Mr. Hurchalla stated that his aunt was formerly New York Attorney General. (T. V2, ). Mr. Bush asked the venire members whether they or someone close to them had any training or experience in civil rights laws or programs and about their experience in the medical field. (T. V2, , , ). Mr. Bush later asked about the venire members business experiences, and in connection therewith, whether they had been involved in any lawsuits. (T. V2, ). Mr. Bush proceeded to ask the venire members views on putting caps on lawsuits. (T. V2, ). Mr. Hurchalla expressed his opinion that there should only be caps on liability where individuals participate in a high-risk activity. (T. V2, )

14 Mr. Bush continued his voir dire examination the next day, continuing to inquire about caps on damages and whether the venire members felt that pain and suffering damages should be limited by a certain number. (T. V3, 8356, ). Mr. Bush discussed the applicable burdens of proof and whether pro-plaintiff verdicts result in higher insurance premiums. (T. V3, , 8391). When Mr. Bush asked whether the venire understood what he meant by deep pockets, Mr. Hurchalla responded No, but I don t understand whether you mean all lawsuits or some lawsuits and asked for clarification as to whether Mr. Bush meant all, some, or too many. (T. V3, ). Mr. Bush said he wanted to ask the venire a little bit about involvement in lawsuits. (T. V3, 8421). He stated involvement in lawsuits would include issues with collections of debts or breach of contracts, eviction, foreclosure, restraining orders, assault and battery, things like that. (T. V3, 8421). There were no hands raised when Mr. Bush said is there anybody that wants to add anything to what they wrote down when they first came in? (T. V3, 8422). The most direct questioning of Mr. Bush to Mr. Hurchalla regarding his involvement in prior lawsuits is contained in the following colloquy: MR. BUSH: Mr. Hurchalla, sir, you are are you a defendant in a lawsuit sir? MR. HURCHALLA: No

15 MR. BUSH: A family member? MR. HURCHALLA: Yes. MR. BUSH. And were any of those related to any kind of personal injury or dispute with a homeowners association? MR. HURCHALLA: No. MR. BUSH: They would have been in the newspaper, right? MR. HURCHALLA: Right. MR. BUSH: Yes, sir. Okay. And there has never been made a claim against you, correct? MR. HURCHALLA: No. MR. BUSH: Okay, sir. Thank you. (T. V3, ) (emphases added). At the conclusion of this line of questioning with the venire, Mr. Bush asked, Anyone else have any lawsuits they didn t talk about? All right. (T. V3, 8438). Before lunch, the trial court asked Mr. Bush how much longer he had. (T. V3, 8481). Mr. Bush responded, I ve tried to cut out a lot. I want to still ask, sir (T. V3, 8481). The trial court stated, I m not going to limit you. You know that. (T. V3, 8481). Similarly, later, the trial court told Mr. Bush that he could ask the venire the question[s] all [he] wish[es]. (T. V3, 8521). Mr. Bush concluded his voir dire examination at approximately 3:00 P.M. on the second day of voir dire. (T. V4, 8593). Jury selection continued and trial began the next day; thus, - 9 -

16 there was an additional day for the Hendrixes other counsel or jury consultant to search Martin County s public records between the conclusion of voir dire and the start of trial. (T. V5, ). 4. The Facts Introduced into Evidence at Trial of the Hendrixes Counterclaims Against Piper s Landing. To assist the Court in reviewing the materiality of Mr. Hurchalla s alleged undisclosed prior court involvement, Piper s Landing submits the following abridged facts relating to the underlying dispute. The Hendrixes purchased a villa at Piper s Landing in December 1999 and applied for membership. (T. V5, 8866). Before closing, Mr. Hendrix signed a letter stating he would not bring his Dobermans to the community. (T. V9, 9469, R. V23, , 4473). In 2003, the Hendrixes brought the Dobermans to Piper s Landing. (T. V9, ). At that time, the breed, size, and disposition of pets was subject to Board approval. (R. V23, 4478). Complaints were made, and in December 2003, Piper s Landing requested the Hendrixes to remove them. (R. V23, 4454, 4473; T. V9, ). Following a 2004 board meeting, Piper s Landing agreed to allow the Hendrixes to keep those Dobermans until they died. (R. V23, 4452, 4480; T. V9, ). Throughout the litigation, the Hendrixes incorrectly argued that this 2004 action constituted an accommodation or agreement by Piper s Landing to allow the Hendrixes to have any two Dobermans,

17 Case No.: 4D ever. Those Dobermans were never called emotional support, service, or therapy animals and passed away in 2005 and (T. V9, , ). In 2005, Piper s Landing implemented new pet rules explicitly prohibiting, inter alia, Dobermans. (T. V9, ; R. V23, 4489). The Hendrixes brought two new Dobermans to Piper s Landing in September In November 2007, Piper s Landing suspended the Hendrixes privileges because the Hendrixes had not complied with an October 2007 request to remove the Dobermans from the community within 30 days. (R. V11, 2158). The Board unanimously found a pet rule violation in December (R. V23, 4505; V25, 5003). The Hendrixes did not remove the dogs. (R. V23, 4345). It was not until February 2009, after Piper s Landing filed suit for injunctive relief, that Dr. Eric Hall wrote a letter to Piper s Landing opining that Mrs. Hendrix has benefited medically from the dogs. (R. V23, 4378). No evidence of disability was provided to Piper s Landing or appears in the record prior to Dr. Hall s initial letter. In March 2009, Mrs. Hendrix began writing letters to Piper s Landing requesting a reasonable accommodation. (R. V23, 4386, 4390). On August 31, 2009, Dr. Hall opined that Mrs. Hendrix was disabled under the Fair Housing Act and required the dogs for her health and function and in December 2009, Dr. Hall stated that Mrs. Hendrix was disabled under the Americans with Disabilities Act. (R. V23, ).

18 Case No.: 4D In 2010, one of Mrs. Hendrixes dogs passed away. (R. V23, 4412). In September 2010, Piper s Landing granted Mrs. Hendrix an accommodation, allowing her to keep the remaining Doberman until it died. (R. V23, 4416). As pled, Mrs. Hendrix s alleged emotional disabilities entitling her to the dogs as a reasonable accommodation stem primarily from her status as a breast cancer survivor. (R. V7, 1383, 1390, T. V9, 9559). Piper s Landing defended against the Hendrixes counterclaims on the grounds that Mrs. Hendrix never alleged that she had a disability or a need for a reasonable accommodation until well after the Hendrixes had already violated Piper s Landing rules by obtaining the two new Doberman Pinschers, and, following Piper s Landing s claim for injunctive relief, involved lawyers in the case nine years after the Hendrixes first moved in and had unsuccessfully sought to have the pets through other attempted avenues, as detailed above. (T. V5, ). The jury rendered a verdict in favor of Piper s Landing in all respects, finding that Piper s Landing did not discriminate against the Hendrixes, that Piper s did not breach its contract with the Hendrixes, breach its fiduciary duty, and no proof of the elements of promissory estoppel. (R. V20, ). As of February 2014, Piper s Landing is no longer the Hendrixes primary residence, and the Hendrixes filed a suggestion of mootness as to Piper s Landing s remaining claim for injunctive relief. (R. V42, ).

19 5. Procedural Background: The Trial Court s Denial of the Hendrixes Motion for New Trial and for Juror Interviews. After the jury verdict, the Hendrixes filed their motion for new trial and to interview jurors. (R. V40, ). The Hendrixes asserted they were entitled to a new trial on the ground that Mr. Hurchalla failed to disclose his extensive involvement with the legal system in Martin County. (R. V40, 7879). The Hendrixes attempted to link Mrs. Hendrixes alleged post-traumatic stress disorder with the allegations of repeat violence (despite that there were not actually allegations of violence ) in Mr. Hurchalla s prior cases. (R. V40, 7889). The Hendrixes sought to support their motion with the affidavit of Mr. Bush, who claimed he would have exercised a peremptory challenge as to Mr. Hurchalla, had Mr. Hurchalla disclosed the two prior cases. 7 (R. V40, ). Piper s Landing argued in response that Mr. Bush s method of conducting voir dire demonstrated that he would not have exercised a peremptory challenge on Mr. Hurchalla, and that the Hendrixes had not shown Mr. Hurchalla s prior court history to be relevant to his partiality or suggest bias or prejudice in this case. (R. V41, ). Piper s Landing argued that to the extent the record potentially 7 Although Piper s Landing did not believe a valid basis existed to object to the Hendrixes Motion to Supplement the Record with the documentation specifying Juror Hurchalla s prior court experience in this appeal, Piper s Landing nevertheless points out that the Hendrixes did not attach these court documents to their motion for new trial or otherwise actually file them into the record

20 Case No.: 4D showed concealment by Mr. Hurchalla, it was attributable to the Hendrixes lack of due diligence, as Mr. Bush s questions regarding the panel s prior litigation histories were limited. (R. V41, 8047, 8050). Lastly, Piper s Landing argued that Mr. Hurchalla s court involvement was available to the Hendrixes at the time of jury selection and throughout trial. (T. V41, 8048). Piper s Landing pointed out that jury selection took two days, included several breaks, and that changes in technology since 2002 have allowed the public to access public court records online in seconds and at anytime. (T. V41, , 8051). At the conclusion of the hearing on the motion, the trial court denied the Hendrixes motion for new trial and for juror interviews. (R. V42, 8209, ). Specifically, Judge Shahood determined that 1) counsel for the Hendrixes had not been sufficiently clear in defining lawsuits as it pertained to the injunctions against Mr. Hurchalla, and 2) that, based on the facts of this particular case, the Hendrixes should have discovered Mr. Hurchalla s prior court involvement during the lengthy and unlimited voir dire: THE COURT: Thank you. You know, the Court reviewed all of these documents and the motions and the response pretty closely and the Court considered De La Rosa and the other cases provided, Roberts and the like. Initially I thought it was a slam dunk granted for a new trial. However, I will I will rule well, before I rule, I ll make a couple comments. Number one, jurors quite often, it s been my experience, when you ask Have you ever been involved in a lawsuit?

21 No, and then someone says No, but I was divorced or No, but you then find out they re divorced. Well, that s a lawsuit, obviously. People just aren t aware quite often of the distinction between an injunction and a restraining order. I m going to deny the motion, specifically finding under the circumstances of this particular case notwithstanding the Supreme Court case of De La Rosa, that the... Counter-Plaintiff should have been aware using due diligence to determine that at the time of Voir Dire or at the time of the trial. And as y all know, the Court extended every courtesy to both sides, I granted unlimited time, I stopped the trial many times when y all asked me to. If you had asked me the jury consultant had discovered something immediately after she left at the end of Voir Dire. If she had discovered something right away, I certainly would have considered it at that time. Might have considered it differently, I don t know. Nevertheless, I think it was incumbent on the Plaintiff in this particular case, notwithstanding De La Rosa, to make a motion at that time. So accordingly, the motion for a new trial, being the same is hereby denied. (R. V42, ).The trial court entered an Order denying the Hendrixes motion and a final judgment on the Hendrixes counterclaims. (R. V42, 8209, ). The trial court found in favor of Piper s Landing on the Hendrixes claim for declaratory relief. Piper s Landing s claim for injunctive relief remains pending. (R. V42, ). The Hendrixes now appeal the Order

22 STANDARD OF REVIEW Piper s Landing agrees that a trial court s order on a motion for new trial grounded on juror concealment is reviewed for an abuse of discretion. Wiggins v. Sadow, 925 So. 2d 1152, 1154 (Fla. 4th DCA 2006). The standard is not met where reasonable people could differ as to the propriety of the trial court s ruling. Hoang Dinh Duong v. Ziadie, 125 So. 3d 225, 227 (Fla. 4th DCA 2013). As articulated by the court in Roberts v. Tejada, 814 So. 2d 334, 345 (Fla. 2002), due deference is to be granted to the trial judge because it is at the trial level that the dynamics and context of the entire trial process can best be evaluated. Id. SUMMARY OF THE ARGUMENT Under the three-prong test of De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995), the trial court did not abuse its broad discretion in denying the Hendrixes motion for new trial and for juror interviews. The Hendrixes failed to establish that they exercised due diligence, and the trial court s stated determination that the Hendrixes should have searched the public records during voir dire is consistent with this Court s recent pronouncements in Hillsboro Management, LLC v. Pagono, 112 So. 3d 620, 623 (Fla. 4th DCA 2013). While, under Roberts, the due diligence prong does not require the complaining party to perform its records check before the verdict is returned, id., this does not preclude a trial court from taking into account the facts of a particular case in assessing the

23 Case No.: 4D timeliness of the search, particular in this age of readily available online public records that is vastly different from the technological landscape that existed in 2002 and expressly formed the basis for Roberts. Here, the trial court did not contravene Roberts by stating that the law required the Hendrixes to perform their search before the jury verdict; rather, it properly took into account the circumstances of this case in that the Hendrixes had a renowned a jury consultant present throughout voir dire and three attorneys present throughout trial, and its explicit imposition of no time limit on voir dire. See, e.g., Tricam Indus., Inc. v. Coba, 100 So. 3d 105, 114 (Fla. 3d DCA 2012). In light of the Hendrixes resources and the unlimited time provided for voir dire, it cannot even be presumed that the Hendrixes did not discover Mr. Hurchalla s prior cases if Roberts applies in the categorical manner the Hendrixes would like it to, there is nothing to prevent a litigant with substantial resources (not a sole practitioner litigating a two-day trial) from actually discovering a juror s undisclosed prior court involvement and holding it in his or her pocket, without notice, as a free trial card. Even if Mr. Hurchalla concealed information within the meaning of Florida law, which Piper s Landing denies because the only questions he even arguably should have disclosed the cases in response to were non-specific, quick questions to the entire venire, Mr. Hurchalla s involvement in two remote prior actions for restraining orders was not material to the Hendrixes counterclaims against Piper s

24 Landing. The Hendrixes argument that the non-disclosure was material boils down to the overly simplistic contention that this case partially involved Mrs. Hendrix s mental health and Mr. Hurchalla was ordered to attend a mental health evaluation. However, counsel s conduct during voir dire and jury selection indicates he would not have peremptorily challenged Mr. Hurchalla. Counsel did not strike jurors with litigation histories, a juror whose husband had a relationship with counsel for Piper s Landing, a juror with extensive experience evaluating assertions of disability, and jurors who had been bitten by dogs. The Hendrixes merely argue that Mr. Hurchalla s court involvement is suggestive of a lack of partiality and a bias against litigation. (I.B ). Since counsel only peremptorily struck one juror, neither was sufficient to show materiality as it pertained to Mr. Hurchalla s service in this case. The record does not genuinely suggest any reason as to why Mr. Hurchalla s prior cases involving restraining orders would have caused him to favor Piper s Landing over the Hendrixes. This case centered around the extensive interactions between the Hendrixes and Piper s Landing over ten years, not simply whether Mrs. Hendrix had a disability under the Fair Housing Act

25 ARGUMENT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING PLAINTIFFS MOTION FOR NEW TRIAL AND TO INTERVIEW MR. HURCHALLA WHERE MR. HURCHALLA S PREVIOUS COURT SYSTEM INVOLVEMENT WAS NOT MATERIAL TO THE HENDRIXES COUNTERCLAIMS, MR. HURCHALLA DID NOT CLEARLY CONCEAL THE PRIOR CASES, AND THE HENDRIXES FAILED TO EXERCISE DUE DILIGENCE The Hendrixes failed to establish entitlement to a new trial or a juror interview under the three prongs of De La Rosa, and this Court should accordingly affirm the trial court s discretionary decision to deny their motion. The trial court correctly found that, in this particular case, the Hendrixes failed to act diligently by waiting until the conclusion of trial to search readily available public records. The trial court did not conclude that the Hendrixes were required to do so as a blanket rule, and therefore, did not misapply Roberts. Further, the record does not clearly reflect blatant concealment of information by Mr. Hurchalla. Mr. Hurchalla did not conceal information in the most direct colloquy with counsel on the issue of prior litigation, and Piper s Landing suggests that his silence in the face of general questions to the entire venire is insufficient. Finally, Mr. Hurchalla s remote, isolated prior court involvement was not material to his service in this case. Piper s Landing agrees that the applicable standard is that set forth in De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995). Under De La Rosa, the party

26 seeking a new trial on the basis of juror nondisclosure has the burden of establishing entitlement to it. Beyel Bros., Inc. v. Lemeze, 720 So. 2d 556, 557 (Fla. 4th DCA 1998). De La Rosa sets forth three prongs that the complaining party must establish to warrant a juror interview or a new trial. De La Rosa, 659 So. 2d at 241. First, the moving party must demonstrate that the information is relevant and material to jury service in the case. Id. Second, that the juror concealed the information during questioning. Id. (emphasis added). Third, that the failure to disclose the information was not attributable to the complaining party s lack of diligence. Piper s Landing begins with the due diligence prong due to its importance here. A. The Trial Court Correctly Determined, Based on the Facts of this Particular Case and the Hendrixes Considerable Resources, that the Hendrixes Failed to Exercise Due Diligence by Neglecting to Search the Public Records at the time of Voir Dire or Trial There are two reasons why Roberts does not control. First, as recognized by this Court in Hillsboro Management, LLC v. Pagono, 112 So. 3d 620, 623 (Fla. 4th DCA 2013), the sophistication of today s technology, contrasted with 2002 s technology, renders the rationale for the Roberts court s holding obsolete. Indeed, here, records of Mr. Hurchalla s prior Martin County cases were available online, accessible in minutes, for the Hendrixes to find during voir dire or trial. Second, as intimated, Roberts only rejected the categorical rule that the due diligence inquiry

27 Case No.: 4D was required to be conducted pre-verdict. However, Roberts did not prohibit trial courts from analyzing the timing of a search, as applied in a particular case, as part of a due diligence inquiry. Here, the trial court made case-specific determinations as to why the Hendrixes did not exercise due diligence the unlimited time provided for voir dire, and their use of a jury consultant (as well as two other lawyers) present throughout voir dire. As such, in this case, the trial court did not abuse its discretion in finding that the Hendrixes did not exercise due diligence. In Roberts, the Third District held that trial counsel is required to conduct an investigation of the venire during trial, i.e., that public records must be consulted at the time of jury selection. 814 So. 2d at 344. The Florida Supreme Court disapproved of this holding due to its vulnerability... in the context of present reality. Id. The supreme court s analysis focused on why, in light of the absence of uniform accessibility of public court records in 2002, the rule announced by the Third District was too rigid, and importantly, contains several temporally qualifying phrases. Id. at ( [S]uch circumstances do not presently exist and the diversity of resources available in our vast and diverse state to accomplish the task as ordered at this time creates an unacceptable burden that cannot have uniform application.... [U]ntil our system can uniformly provide the facts required for the formulation of informed decisions which are necessary in the jury process, the rigid rule announced below, while well-intended and a laudable

28 goal to be attained, cannot be implemented at this time. ) (emphases added). See also Kelly v. Cmty. Hosp. of Palm Beaches, Inc., 818 So. 2d 469, 476 (Fla. 2002) (stating that Roberts rule was dictated by current resources ). Consistent with these express time-based limitations, this Court has recognized that Roberts expressly based its conclusion that a search for prior juror litigation information did not have to be conducted during voir dire on the state of the relevant technology in In Hillsboro Management, this Court explained exactly how public access to prior litigation records has changed since Roberts: We have seen a growth of post-trial juror interview requests based upon juror non-disclosure of prior litigation information. In Roberts, the court specifically disapproved of the Third District s holding that public records must be consulted at the time of jury selection or the issue of juror non-disclosure of litigation history would be waived. Roberts, 814 So. 2d at 344. The supreme court did so, because the technology was not present in 2002 to search the public records and pull the files. However, it did suggest that [w]here possible, trial judges should allow counsel to check records, if such a request is made, and it can be done without unwarranted delay. Certainly a small delay at the beginning of a trial would be better than having to do a retrial of a case after it has been concluded. Roberts, 814 So. 2d at 345. Our technology has come a long way in the past ten years since Roberts was decided. All counties now have their official public records online, and court files are also online. A paralegal in the courtroom can most likely search the public records of each juror as the juror is called during voir dire. While such searches are not perfect and would be able to pull records only in the county in which the case is being tried, it could result in catching obvious non-disclosures, such as the case here. The time may have come to rethink how the courts handle juror non-disclosure so as to prevent

29 so much litigation over the issue and so many retrials of cases to the detriment of the entire judicial system. 112 So. 3d at 625 (emphasis added) (parenthetical explanation omitted). In Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 429 n.6 (Fla. 4th DCA 2014), this Court, while noting that the due diligence prong, per Roberts, does not require the complaining party to perform its records check before the verdict is returned, repeated its observation from Hillsboro Management that [t]he time may have come to rethink how the courts handle juror non-disclosure so as to prevent so much litigation over the issue.... Pembroke Lakes, 137 So. 3d at 429 n.6. Thus, firstly, court technology in December 2013 was far superior to its status in In Roberts, in 2002, the Florida Supreme Court specifically reasoned that [o]ften, a search of the index may impose a futile burden, because it may fail to disclose prior litigation history which only a more extensive search of court files (some of which may be located in storage) would uncover. Roberts, 814 So. 2d at 344. As recognized by this Court in Hillsboro, Roberts reasoning is obsolete. Trial counsel no longer need use an index or pore over documents in storage. Rather, Martin County s court files and public records are online. 112 So. 3d at 625. Similarly, in Roberts, the Court based its decision on its finding that [o]ur court system does not yet have the uniform capacity to provide a readily accessible system for undertaking a review of the court index together with ready

30 Case No.: 4D access to the court files. Under present circumstances, the burden of imposing such a prerequisite to a later valid challenge to juror nondisclosure would be onerous So. 2d at 345. All of this is simply no longer true. Especially where, as here, the Hendrixes had three days of voir dire and jury selection, three lawyers present throughout trial, and a jury consultant present throughout voir dire, for any one of them to have conducted a brief online search would not have been onerous. Id. This was not a two-day trial litigated by a sole practitioner. The common law is not so rigid as to require adherence to a pure conclusion, that is explicitly based on a certain set of underlying facts that no longer exist. Put differently, Roberts does not compel reversal in light of the then-existing facts and circumstances that dictated its holding; a determination that Roberts does not require reversal would not be an improper refusal to follow a binding decision of a higher court. Instead, recognizing that Roberts does not apply because of the vast technological differences between 2002 and now (especially given the supreme court s continued use of language such as at this time... ), promotes appropriate, gradual common law development in light of the technologically superseded bases for the Roberts court s reasoning. When circumstances, change, flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law. Funk v. United States, 290 U.S. 371, (1933). Even the Roberts court recognized that [t]he court system... does not have the luxury of

31 allowing jury verdicts to unravel or be subject to attack because of information which could have been reasonably obtained before the trial begins. Id. That remains true now, as then. What has changed, however, is the explicit, yet now outdated, rationale for Roberts holding. The second reason Roberts does not control is because the trial court did not incorrectly conclude, as a matter of law, that the Hendrixes were required to perform their search of Mr. Hurchalla s prior court involvement before the verdict. Rather, the trial court correctly considered the timing of the search as part of its due diligence inquiry in light of the facts of this particular case. In Borroto v. Garcia, 103 So. 3d 186, 188 (Fla. 3d DCA 2012) (Emas, J., concurring specially), Judge Emas, joined by Judge Salter, elaborated on a trial court s ability to conclude that an earlier records search was required in a specific case: I include the entirety of [a] passage [from Roberts] to identify more clearly what the supreme court held (and, more importantly, what it did not hold). The supreme court held only that the diligence prong of De La Rosa cannot be read to uniformly require that a search for a juror s litigation history be conducted before the conclusion of jury selection. In other words, in the absence of a specific pretrial order in an individual case, a party is not barred from seeking a new trial based on juror concealment of litigation history simply because that litigation history search was conducted after the trial. The supreme court rejected the broad proposition that any motion for new trial based upon a juror s concealment of litigation history required (in order to satisfy the diligence prong) that the search be

32 conducted at the conclusion of jury selection rather than at the conclusion of trial. However, the supreme court did not prohibit a trial court, in an individual case and in the proper exercise of its discretion, from imposing a reasonable requirement of conducting a records check at the conclusion of jury selection. [8] For example, in a scheduled three-week trial, where all parties are represented by counsel, where tens of thousands of dollars have been spent investigating and preparing the case for trial over a period of several years, it would appear, consistent with De La Rosa and Tejada, that a trial court could, after giving all parties an opportunity to be heard on the issue, direct the parties to conduct a properly limited public records search..... Such a procedure, under the appropriate circumstances of an individual case, would be consistent with the holding and rationale of the supreme court s decision in Tejada, while serving the equally important interest of avoid the retrial of a case because of an error which could have been discovered and corrected before the formal trial even begins. In light of the extraordinary amount of time, energy and expense that is often required for the modern civil trial, giving trial judges the discretion to impose these common-sense procedures, in the appropriate exercise of their discretion, is not simply reasonable, but laudable..... While it might be true that such a procedure will not be suitable for many cases, a trial court s appropriate exercise of its discretion, even in this limited fashion, surely advances the proper administration of justice. Presently there is a disincentive for attorneys, on their own and in the absence of a court order, to engage in any pretrial search of a juror s litigation history See also State Farm Fire & Cas. Co. v. Levine, 837 So. 2d 363, 365 (Fla. 2002) (describing previous decision in Roberts only as the invalidation of the absolute rule requiring completion of any venire investigations during trial ); State Farm Fire & Cas. Co. v. Levine, 875 So. 2d 663, 665 (Fla. 3d DCA 2004)

33 Id. at (Emas, J., concurring specially) (bold emphases added). The trial court s ruling is consistent with the concerns of Judges Emas and Salter. In an exercise of its discretion, the trial court determined that the particular facts of this case, i.e., the unlimited time given to the Hendrixes and their considerable resources, did not permit the Hendrixes to wait until the return of the verdict. This was a discretionary function, different from contravening the limited rule of Roberts that only rejected the broad proposition that the search had to be performed before the verdict. In Tricam Indus., Inc. v. Coba, 100 So. 3d 105, 114 (Fla. 3d DCA 2012), the Third District affirmed the denial of a party s motion for a new trial where the record support[ed] the conclusion that [a juror s] failure to disclose his litigation history was attributable to the plaintiff s lack of diligence, and that, consequently, the third prong [of De La Rosa] was not satisfied. Id. at 112. The Third District noted trial counsel s decision to decline the trial court s pre-verdict offer to run the jurors litigation histories. Id. at 114. The court then explained: We acknowledge that the Florida Supreme Court, in Roberts, held that trial counsel are not categorically required to run the jurors litigation histories before the end of trial in order to satisfy the due diligence prong. Roberts, 814 So. 2d at 344. Trial attorneys are, however, permitted to conduct such searches, just as trial courts are permitted to suggest them. Notably, the Florida Supreme Court, in Roberts, did not hold that trial courts cannot, in the appropriate circumstances, consider a trial counsel s refusal to run a juror s

34 litigation history as one of several factors under a due diligence inquiry. Id. The trial court in this case did just what the Third District permitted in Tricam, taking into account, as part of its analysis, the unlimited amount of time given for voir dire and the Hendrixes use of a jury consultant. 9 Voir dire encompassed two full days and on several occasions, the trial court expressly indicated to counsel that the court would not limit voir dire in any way. The court s statements that it extended every courtesy and granted unlimited time to the parties are supported by the record. (T. V3, 8481, 8521; T. V42, 8259). Indeed, this trial court would have given the Hendrixes more time to conduct voir dire or to investigate the jurors had they asked. It took undersigned counsel three minutes to locate evidence of Mr. Hurchalla s two prior cases. Roberts does not prohibit a trial court from referencing the amount of time it provided to a party during voir dire in considering whether the timing of a search was diligent in a particular case. The Hendrixes jury consultant remained in the courtroom during the entire voir dire. (T. V42, 8259). The jury consultant looked up case law during jury selection. (T. V4, 8658). The Hendrixes were represented by three attorneys in the courtroom one performed voir dire examination, while two sat at counsel table. 9 Piper s Landing respectfully submits that in order for this Court to find that the trial court s analysis in this case was in error under Roberts, it would have to certify conflict with these pronouncements in Tricam Industries

35 (T. V1, 8005). Counsel and the jury consultant had free wireless internet access in the courtroom. 10 It is not even genuinely known, and in this particular case, cannot be presumed, that the jury consultant or the two other attorneys at counsel table neglected to check the readily available online Martin County records, given that voir dire and jury selection spanned three days and trial lasted eight days. The trial court properly considered the substantial resources available to the Hendrixes as part of its inquiry which led to the discretionary conclusion, not the use of a wrong legal rule, that the search of the online public records should have been performed sooner in this case. These resources were starkly different from those possessed by the sole practitioners referenced in Roberts as to whom requiring a search before the verdict could be onerous. 814 So. 2d at 345. On the contrary, given the Hendrixes use of a jury consultant, its counsel s ample staffing of this case in court, and the unlimited time for voir dire, the trial court properly considered the late timing of the Hendrixes search as part of its due diligence inquiry in this particular case. Borroto, 103 So. 3d at (Emas, J., concurring specially); Tricam, 100 So. 3d at 114. [T]he court s analysis of the De La Rosa factors... requires the court to weigh all the facts in the case. Hillsboro, 10 Nineteenth Judicial Circuit, Courtroom Wireless Internet Access, ( Wireless Internet is now available in the... Martin... County Courthouse[]. Internet access is provided free to the legal community and to the public. )

36 112 So. 3d at 624. The trial court did so with respect to its resolution of the due diligence factor. In doing so, it did not violate the absolute rule requiring completion of any venire investigations during trial. Levine, 837 So. 2d at 365. The Initial Brief, relying exclusively on Roberts, devotes less than one full page to actually seeking to demonstrate error in the trial court s ruling. 11 (I.B. 13, 35). If the limited rule of Roberts is read as the Hendrixes suggest, there is nothing to prevent a party with substantial resources and unlimited time from locating a juror s undisclosed prior court system involvement during voir dire or trial and holding it in his or her pocket, without notice, as a free trial card. That s not what the supreme court suggested was permissible in Roberts. Here, the trial court was aware of Roberts and did not contravene it. The Initial Brief fails to address the real and important distinction between an impermissible, categorical ruling that the search must be conducted before the verdict, and the permissible use of the timing of the search as part of a due diligence analysis in a particular case. Accordingly, Piper s Landing respectfully requests this Court to find no abuse of discretion and to affirm the denial of the Hendrixes motion for new trial or for juror interviews. 11 It is well-established that a trial court s decision comes to the appellate court clothed with the presumption of correctness and the burden is on the appellant to demonstrate error. Applegate v. Barnett Bank of Tallhassee, 377 So. 2d 1150, 1152 (Fla. 1979)