IN THE SUPREME COURT OF FLORIDA CASE NO. SC STEVEN PAVONE, Petitioner, vs. ROYAL CARIBBEAN CRUISES, LTD., Respondent.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC STEVEN PAVONE, Petitioner, vs. ROYAL CARIBBEAN CRUISES, LTD., Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT CASE NOS. 3D , 3D , & 3D RESPONDENT, ROYAL CARIBBEAN CRUISES, LTD.'S ANSWER BRIEF ON JURISDICTION RODRIGUEZ SCHOOLEY LAW FIRM, LLC 2121 Ponce de Leon Blvd, Suite 730 Miami, FL Phone: (305) Facsimile: (305) HICKS, PORTER, EBENFELD & STEIN, P.A. 799 Brickell Plaza, 9 th Floor Miami, FL Phone: (305) Facsimile: (305) Counsel for Respondent Royal Caribbean Cruises, Ltd.

2 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES... ii-iii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 9 i

3 TABLE OF AUTHORITIES PAGE Bernal v. Lipp, 580 So. 2d 315 (Fla. 3d DCA 1991)...4, 7 Davis v. Cohen, 816 So. 2d 671 (Fla. 3d DCA 2002)... 7 De La Rosa v. Zequera, 659 So. 2d 239 (Fla. 1995)... 3, 4, 7 Dep't of Rev. v. Johnston, 442 So. 2d 950 (Fla. 1983)... 7 James v. State, 751 So. 2d 682 (Fla. 5th DCA 2000)...6, 7 Lugo v. State, 2 So. 3d 1 (Fla. 2008)...6, 7 Mancini v. State, 312 So. 2d 732 (Fla. 1975)... 3 Murphy v. Hurst, 881 So. 2d 1157 (Fla. 5th DCA 2004)... 7 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 5 Roberts v. Tejada, 814 So. 2d 334 (Fla. 2002)... 4, 6, 7 Seibert v. State, 64 So. 3d 67 (Fla. 2010)... 8 State Farm Fire & Cas. Co. v. Levine, 837 So. 2d 363 (Fla. 2002)... 5 ii

4 Tai A. Pham v. State, 70 So. 3d 485 (Fla. 2011)... 8 iii

5 INTRODUCTION Petitioner seeks discretionary review of a decision that was determined on the facts of this case and does not raise any issues of conflict. As shown by the four corners of the decision below, the Third District Court of Appeal reversed the trial court's denial of Respondent's motion for new trial based on an application of the law to the circumstances. Petitioner fails to demonstrate that the opinion is in express and direct conflict with a decision of this Court or another district court, and therefore this Court should decline to exercise jurisdiction. STATEMENT OF THE CASE AND FACTS Petitioner, Steven Pavone ("Pavone"), a trumpet player in a cruise ship orchestra, filed a personal injury action against Respondent, Royal Caribbean Cruises, Ltd. ("Royal Caribbean"). (Op. 2). After a trial, the jury rendered a verdict in favor of Pavone. Id. Royal Caribbean subsequently moved for a new trial based on juror misconduct during voir dire. Id. As described in the opinion of the Third District Court of Appeal: The record conclusively demonstrates that a member of the jury which rendered a substantial plaintiff's verdict in this seaman's personal injury action flat out lied, both in writing in an answer to the jury questionnaire and in open court by his failure to respond to the court's and counsel's specific questions on the point, when he denied personal involvement in any other litigation. In fact, as was revealed shortly after the verdict, he was then the plaintiff in a personal injury action pending in the circuit court which was set for trial a short time thereafter. 1

6 (Op. 2). The trial court denied Royal Caribbean's motion for new trial. Id. On appeal, the Third District panel unanimously reversed for a new trial, stating that: This case represents a classic instance of the proper application of the rule which invalidates verdicts which are tainted by juror misconduct during voir dire. In these circumstances, we find no basis for the trial court's failure to grant a new trial based on that juror's misconduct. The appellee's defensive contentions to the contrary are without merit. (Op. 2). Plaintiff's petition followed. SUMMARY OF ARGUMENT The Third District decided to reverse the trial court's denial of Royal Caribbean's motion for new trial based on the specific facts and circumstances of this case. No conflict was certified or even suggested in the opinion, much less an express and direct conflict necessary for this Court to accept jurisdiction. Petitioner has further failed to identify any other express and direct conflict upon which jurisdiction should be granted. Specifically, based on the facts and authorities cited to in the opinion, it is readily apparent that the Third District applied the correct test in its review of the trial court's ruling. The opinion further makes clear that the panel considered the arguments raised by the Petitioner, but concluded that these "defensive contentions" had no merit. There is no conflict, and this Court should decline to exercise jurisdiction. 2

7 ARGUMENT This Court's conflict jurisdiction may be invoked only upon "(1) the announcement of a rule of law which conflicts with a rule previously announced by this court or another district, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same facts as a prior case." Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975). As described below, Petitioner fails to identify any portion of the Third District's opinion that expressly and directly conflicts with a previous decision by announcing a conflicting rule of law, and does not identify any previous case reaching a conflicting decision on substantially similar facts. There is no indication in the opinion that the panel applied an incorrect test in reviewing the trial court's ruling. This Court has approved a three-part test for whether a juror's nondisclosure during voir dire warrants a new trial: that the nondisclosed information was "relevant and material to jury service in the case"; that the juror "concealed information during questioning"; and that the failure to disclose "was not attributable to the complaining party's lack of diligence." De La Rosa v. Zequera, 659 So. 2d 239, 241 (Fla. 1995). The Third District's opinion cites to De La Rosa and other cases applying this three-prong test. Despite this express indication to the contrary, Petitioner claims that the Third District's opinion demonstrates that the appellate court solely considered the 3

8 second prong, concealment. This argument fails to acknowledge that the Third District's opinion does not directly address any of the three prongs, but instead states the facts and circumstances that the appellate court found relevant and sufficient to establish all three prongs of the De La Rosa test. Regarding materiality, the Third District stated that the juror was currently involved in a lawsuit, that the juror's lawsuit was also one for personal injury and was about to go to trial, and that the juror was the plaintiff in that lawsuit. (Op. 2); citing Roberts v. Tejada, 814 So. 2d 334, 342 (Fla. 2002) (identifying factors for materiality including remoteness in time, the character and extensiveness of the litigation, and the juror's posture in the litigation); Bernal v. Lipp, 580 So. 2d 315, 316 (Fla. 3d DCA 1991) ("For a plaintiff in a personal injury case, the failure of a juror to disclose that he had been a defendant in a personal injury case one year previously would be material."). Regarding due diligence, the Third District stated that the juror failed to respond "to the court's and counsels' specific questions on the point." (Op. 2) 1 citing Roberts, 814 So. 2d at 342 ("The 'due diligence' test requires that counsel provide a sufficient explanation of the type of information which potential jurors are asked to disclose."). It is manifest that the Third District correctly applied this test in its review of 1 All emphasis herein is supplied unless otherwise noted. 4

9 the trial court's ruling. Petitioner's claim that the Third District solely addressed and relied on the concealment prong is without merit, and does not constitute an express and direct conflict. Petitioner's contention that the Third District deemed such concealments to be per se material is similarly without merit. The panel stated that it reviewed the record of the case and concluded that: "In these circumstances, we find no basis for the trial court's failure to grant a new trial based on that juror's misconduct." (Op. 2). The opinion therefore embodies the proper "case-by-case" determination of materiality. See State Farm Fire & Cas. Co. v. Levine, 837 So. 2d 363, 366 n.2 (Fla. 2002). Nothing in the Third District's opinion indicates that it applied any sort of "bright-line" rule regarding materiality or in any way deemed the concealment to be per se material. Recognizing this, the Petitioner merely raises this argument "[t]o the extent that the Third District took it upon itself to deem the concealment here per se material," without referring any particular statement in the opinion. This argument is improper; because the Third District in no way stated that it considered the juror's concealment to be "per se material," any basis for Petitioner's argument would necessarily be extraneous to the opinion. See Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986) ("Conflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority 5

10 decision."). Nor does the Third District opinion conflict with a purported rule of law announced by this Court in Roberts v. Tejada, 814 So. 2d 334 (Fla. 2002) and Lugo v. State, 2 So. 3d 1 (Fla. 2008), "that the dynamics and context of the entire process are pertinent to the materiality and due diligence prongs of the analysis." See (Pet. Jur. Br. at p. 5) (also citing James v. State, 751 So. 2d 682 (Fla. 5th DCA 2000)). None of these cited cases stand for this purported "rule of law." In Roberts, this Court stated that the materiality determination is best made primarily at the trial level, because "it is there that dynamics and context of the entire trial process can best be evaluated," although the opinion also acknowledged that "[t]here may certainly be instances where such determination may be made as a matter of law" on appellate review. Roberts, 814 So. 2d at 345. Regarding due diligence, the Court stated that the "analysis of a single question or series of questions may or may not provide an answer." Id. at 346. These statements hardly constitute a rule of law establishing that the "dynamics and context of the entire process" are per se pertinent to materiality and due diligence in every case. Lugo and James are merely examples where courts have found a broad examination of the voir dire process to be relevant, based on the particular facts of the case. Nothing in either of these opinions announces a universally-applicable rule of law that the entire voir dire process is pertinent to materiality or due 6

11 diligence in every case. Further, the Third District's opinion contains no indication that the voir dire questions asked of other jurors in this case would be relevant to the appellate court's ruling. See Dep't of Rev. v. Johnston, 442 So. 2d 950, (Fla. 1983) (conflict jurisdiction does not lie where facts of opinions are not analytically the same). The opinions of the courts in Roberts, Lugo, and James recognize that whether all or part of the voir dire process is pertinent to materiality or due diligence is determined on a case-by-case basis. There is no conflict. Moreover, the cases cited in support of the panel's determination make clear that the panel correctly applied the abuse of discretion standard. See, e.g., Murphy v. Hurst, 881 So. 2d 1157, 1160 (Fla. 5th DCA 2004) ("The standard of review of a trial court's application of the De La Rosa test is abuse of discretion."). In fact, other appellate opinions cited in the Third District's opinion also do not explicitly state a standard of review. See Davis v. Cohen, 816 So. 2d 671 (Fla. 3d DCA 2002); Bernal, 580 So. 2d 315. Petitioner incorrectly claims that the panel "effectively held that a trial judge has no choice but to grant a new trial when a juror has not disclosed his or her involvement in a pending lawsuit." (Pet. Jur. Br. p. 6). Rather, the Third District stated that "[t]his case represents a classic instance of the proper application of the rule which invalidates verdicts which are tainted by juror misconduct during voir 7

12 dire. In these circumstances, we find no basis for the trial court's failure to grant a new trial based on that juror's misconduct." (Op. 2). Far from announcing a new rule of law in conflict with established precedent, the Third District in this case merely applied existing law to the facts of the case under review. Petitioner has not established any conflict. 2 CONCLUSION Based on the foregoing, Respondent, Royal Caribbean Cruises, Ltd., respectfully submits that this Court should deny Petitioner Steven Pavone's petition for discretionary jurisdiction. Respectfully submitted, RODRIGUEZ SCHOOLEY LAW FIRM, LLC Domingo Rodriguez (FBN# ) Sarah D. Schooley (FBN# 10083) 2121 Ponce de Leon Blvd Suite 730 Miami, FL Phone: (305) Facsimile: (305) domingo@rslawmiami.com sarah@rslawmiami.com Counsel for Appellant HICKS, PORTER, EBENFELD & STEIN, P.A. Mark Hicks (FBN# ) Dinah Stein (FBN# 98272) Jedidiah Vander Klok (FBN# ) 799 Brickell Plaza, Suite 900 Miami, Florida Phone: (305) Facsimile: (305) mhicks@mhickslaw.com dstein@mhickslaw.com jvanderklok@mhickslaw.com Co-Counsel for Appellant 2 In fact, two of the cases cited by Petitioner, Tai A. Pham v. State, 70 So. 3d 485 (Fla. 2011) and Seibert v. State, 64 So. 3d 67 (Fla. 2010), are completely inapposite, as neither addresses a motion for new trial on the basis of juror misconduct. 8

13 BY: /s/dinah Stein DINAH STEIN Florida Bar No.: CERTIFICATE OF SERVICE I CERTIFY that on October 9, 2012, a copy of the foregoing was sent via e- mail and overnight mail to the Supreme Court of Florida and via to the following counsel: Luis A. Perez LAW OFFICES OF LUIS A. PEREZ, P.A. Alfred I. Dupont Building 169 East Flagler Street, Suite 721 Miami, Florida lap@perezlaw.net Trial Counsel for Petitioner Susan S. Lerner Elizabeth K. Russo RUSSO APPELLATE FIRM, P.A SW 76 Street Miami, Florida ssl@russoappeals.com ekr@russoappeals.com yvonne@russoappeals.com Appellate Counsel for Petitioner BY: /s/dinah Stein DINAH STEIN Florida Bar No.: CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing answer brief on jurisdiction complies with the font requirements of Rule 9.210(a)(2). It is typed in Times New Roman 14- point font. BY: /s/dinah Stein DINAH STEIN Florida Bar No.: