FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 23

CASES FROM THE WEEK OF JUNE 8, 2018

TRIAL COURT ERRED IN DENYING DEFENDANT INSURER’S COUNSEL’S GENUINE ASSERTION OF HIS PEREMPTORY CHALLENGE OF AFRICAN-AMERICAN FEMALE JUROR, FINDING ON THE GROUND OF RACE-NEUTRAL REASON FOR THE STRIKE (THAT THE JUROR WAS INATTENTIVE), WAS BORNE OUT BY THE RECORD.

Traveler’s Home and Marine Insurance Co. v. Gallo, 43 Fla. L. Weekly D1220 (Fla. 5th DCA June 1, 2018):

The court began its analysis by reminding us that a peremptory challenge is one of the primary tools by which a party removes an unfavorable juror from the jury panel. Traditionally, peremptory challenges which are limited in number, have been exercised “according to a party’s unfettered discretion,” with the only limitation being that they are not to be used to purposely discriminate against members of the distinctive group by excluding them from jury service.

In this case, following voir dire, the insurance company defendant used a peremptory challenge to strike an African-American female. Consistent with step 1 of Melbourne, plaintiff’s trial counsel timely objected, and placed on the record that the venire person was a member of a distinct racial group, and then requested a race-neutral reason for the strike. At that point, in an effort to comply with step 2, defense counsel explained that based upon his personal observations of the prospective juror, he was striking her because she was inattentive and did not appear engaged in the process thus giving him concern that she would not be focused, pay attention and consider the evidence.

At that point, without requesting a response from the plaintiff’s counsel, the trial court determined that the explanation was legally insufficient. However, this was incorrect because a juror’s lack of interest and attentiveness or other non-verbal behavior, can constitute a race-neutral reason for a peremptory strike.

Immediately after the trial court found the strike to be legally insufficient, plaintiff’s counsel placed on the record his observations which he said were completely opposite of defense counsel’s. When parties disagree as to the existence of non-verbal behavior proffered on the basis for a peremptory challenge, the only way the proponent of the strike can satisfy the burden of production of its race-neutral reason under Melbourne’s second step is if the behavior is observed by the trial court, or has otherwise record support.

Importantly, if this burden of production is satisfied, then the proponent of the strike is entitled to the presumption that the proffered race-neutral reason based on non-verbal behavior is genuine. Conversely, if the potential juror’s non-verbal behavior is disputed by opposing counsel and not observed by the trial court then the non-verbal behavior is not a proper basis under step 2 of Melbourne, needed to sustain a challenge as genuinely race-neutral.

In this case, after plaintiff’s counsel disagreed with defense counsel’s assessment of the prospective juror’s non-verbal behavior, the trial court commented that the juror was not particularly different from other introverted venire persons, but specifically agreed with defense counsel’s observation that the juror was not particularly engaged. Thus, the defendant was entitled to the presumption that the proffered reason was genuine.

In fact, the trial court believed that defense counsel’s strike was well-intentioned, and did not believe the strike was race-based. Still, the trial court reaffirmed the ruling that the reason for the strike was legally insufficient, including that an introverted personality is not a sufficient race-neutral reason.

The Fifth District reversed for a new trial. It concluded that the trial court misapplied and conflated the Melbourne analysis, and erred in disallowing the strike. The court began with the premise and reminded that peremptory challenges are presumed to be exercised in a non-discriminatory manner, and that the burden of persuasion never leaves the opponent of the strike to prove the purposeful racial discrimination.

In this case, the trial court never altered its original observation consistent with that of Traveler’s counsel regarding the juror not being particularly engaged. That determination should have triggered the trial court’s obligation to undertake step 3 on genuineness, prior to disallowing this juror’s strike and swearing in the jury.

The court admitted that it did not do this, nor did it find a reason to do this because it concluded that the race-neutral reason proffered by the defendant was legally insufficient. Moreover, the step 3 genuineness analysis under Melbourne focuses not only on the proffered reason for the strike, but on the credibility of the attorney or party proffering the reason.

The trial court in this case recognized that the defense counsel’s reason and explanation for the strike was genuine. The presumption that the defendant’s peremptory challenge was genuine could have been rebutted by other relevant factors such as the racial makeup of the venire, prior strikes exercised against the same racial group, a strike based on reason equally applicable to an unchallenged venire person, or the singling out of the venire person for special treatment. Without any indication that the trial court either expressly or impliedly undertook this analysis prior to disallowing the strike, or that plaintiff as opponent of the strike separately made this argument, the court could not entertain it.

SUMMARY JUDGMENT PROPERLY GRANTED WHEN OPPOSING PARTY FAILED TO TIMELY SUBMIT ANY EVIDENCE OR FILINGS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT.

Wolentarski v. Anchor Property and Casualty Insurance Co., 43 Fla. L. Weekly D1212 (Fla. 3rd DCA May 30, 2018):

The trial court granted summary judgment for the defendant, finding that plaintiffs failed to timely submit any evidence or filings in opposition to the motion five days prior to the date of the hearing, nor did they deliver anything “no later than 5:00 p.m. two business days prior to the date of the hearing” pursuant to Rule 1.510(c). The court did not discuss the actual facts in the case, but cited to a case where the trial court’s decision not to consider an untimely affidavit in opposition to a motion for summary judgment was held not to be an abuse of discretion.

ERROR TO DISMISS CAUSE OF ACTION AGAINST DECEASED PARTY, WHERE MOTION TO SUBSTITUTE DECEASED PARTY WITH PERSONAL REPRESENTATIVE OF DECEASED PARTY’S ESTATE WAS FILED WITHIN 90 DAYS OF THE FILING OF THE SUGGESTION OF DEATH--IT IS NOT REQUIRED THAT A NOTICE OF HEARING BE FILED WITH THE MOTION TO SUBSTITUTE.

Stern v. Horwitz, 43 Fla. L. Weekly D1213 (Fla. 2nd DCA May 30, 2018):

On February 16, 2011, plaintiff filed his complaint against the defendant, alleging he had operated his golf cart negligently and caused the plaintiff bodily injury. On August 9, 2016, counsel for the defendant, filed a suggestion of death. On August 22, 2016, the plaintiff who was representing himself at the time, filed a motion to substitute the defendant with the personal representative of the man’s estate, or some other authorized person under Rule 1.260. He did not file a notice of hearing but did so ten months later.

On March 8, 2017, counsel for the defendant filed a motion to dismiss the complaint. The attorney argued that because a notice of hearing was neither filed with the motion to substitute, nor within 90 days of the filing of the suggestion of death, Rule 1.260(a) mandated dismissal of the complaint.

The trial court agreed that Rule 1.260(a) required that a notice of hearing had to be served with the motion to substitute. The Second District did not, however. Instead, it ruled that 1.260(a) is clear and unambiguous on its face and does not require dismissal when a notice of hearing is not served contemporaneously with a motion for substitution.

Analyzing the third sentence of Rule 1.260(a)(1), the court noted that the rule provides a mechanism for the dismissal of a cause of action against a deceased party, if the motion for substitution is not made within 90 days after the party’s death is suggested on the record. The third sentence of the rule (unlike the second sentence) omits any mention of serving a notice of hearing.

The court also stated that a notice of hearing is distinct from a motion for substitution of a deceased party both in form and substance. The substitution motion is concerned primarily with the process of replacing a deceased party with a proper party, if and when that party becomes available to preserve a meritorious action. In contrast, the notice of hearing on a motion for substitution is concerned primarily with safeguarding the due process rights of the affected parties, but only once the proper party exists.

The court reversed the dismissal of plaintiff’s complaint. It also stated that the Fourth District’s interpretation in a case called Metcalf, was short lived, because a year later, the Fourth District clarified its ruling stating that Rule 1.260 requires only that the motion for substitution be made within 90 days, and noted that there was no notice of hearing issue in Metcalf in the first place.