FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 34

CASES FROM THE WEEK OF AUGUST 24, 2018

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO EXCUSE FOR CAUSE A JUROR WHO WORKED AS A PROSECUTOR FOR STATE ATTORNEY’S OFFICE 27 YEARS EARLIER AND WHOSE HUSBAND WAS AN INVESTIGATOR FOR THAT OFFICE WHEN JUROR STATED UNEQUIVOCALLY THAT NOTHING ABOUT HER EXPERIENCE AS A PROSECUTOR, OR HER HUSBAND’S EMPLOYMENT AS AN INVESTIGATOR, WOULD AFFECT HER ABILITY TO BE FAIR AND IMPARTIAL.

Williams v. State, 43 Fla. L. Weekly D1904 (Fla. 1st DCA August 16, 2018):

During voir dire in a case involving the defendant’s possession of illegal drugs and knowingly driving while his license was suspended, a juror stated that she had been an attorney for 37 years and that her husband worked for the state attorney’s office. In response to questions from the state, the juror stated that she currently was working as a family law attorney, and had been a prosecutor for eight years in the state attorney’s office followed by doing criminal defense work for two or three years. The juror stated that nothing about her experience as a prosecutor, or her husband’s employment in the state attorney’s office, would affect her ability to be fair and impartial.

The defendant moved to strike the juror for cause based on her past relationship with the state attorney’s office, and her husband’s current employment with it.

The state argued that the juror indicated she could be fair and impartial, and additionally argued that she had also been a criminal defense attorney for two or three years. The trial court denied the defendant’s motion to strike. Because the defendant had already exhausted six peremptory strikes (he had requested an additional strike which the trial court denied), he could not strike the juror peremptorily.

Noting that the standard of review of a trial court’s ruling on a cause challenge is “abuse of discretion,” the court reminded us that the test for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instruction on the law given. Where the record demonstrates any reasonable doubt about a juror’s ability to be impartial, it is an abuse of discretion to deny the cause challenge.

The Florida Supreme Court has repeatedly rejected the argument that persons in law enforcement positions are inherently “disabled” from serving as fair and impartial jurors.

Here, the juror made no equivocal statements about her ability to be fair and impartial. Additionally, she had worked at the state attorney’s office 27 years earlier, and her husband’s employment as an investigator standing on its own was not enough to establish that the juror was partial to the state.

The court also found that the juror’s unequivocal statements that she would not be biased by any connection to the state attorney’s office, were sufficient to remove any reasonable doubt as to her impartiality.

The defendant also argued that the court abandoned its role as a neutral arbiter by stating that he knew the juror and that she had been a respected attorney for many years. The court did not find that that statement was suggestive of bias and the court ruled there was no abuse of discretion in denying the cause challenge as to the juror.

One judge did dissent, finding that the defendant’s challenge for cause should have been granted, opining that the trial court impermissibly utilized its own personal knowledge of the prospective juror to determine lack of bias.

Noting that the prospective juror’s husband was an investigator in the office prosecuting the criminal case, and further observing that due to the special relationship between spouses, the husband’s conflicting employment related to this case created an appearance of unfairness and partiality. The appearance of unfairness was then further bolstered by the judge effectively becoming a witness in support of the juror’s ability to be impartial.

The dissenter would have reversed and granted defendant’s motion for new trial.

PROPOSAL FOR SETTLEMENT SUBMITTED WITH AN UNSIGNED CERTIFICATE OF SERVICE DOES NOT RENDER THE PROPOSAL INVALID.

Valle v. Flory, 43 Fla. L. Weekly D1852 (Fla. 2nd DCA August 15, 2018):

The plaintiff lost his auto accident case at trial. The defendant had served a proposal for settlement. There was no dispute that the plaintiff’s counsel timely received the proposal via certified mail. However, there was also no dispute that the certificate of service that accompanied the proposal was not signed by defendant’s counsel, apparently through oversight.

After final judgment was rendered in favor of the defendant, the defendant moved for an award of attorney’s fees pursuant to the unaccepted proposal. The trial court denied the motion solely on the basis that the proposal was invalid because the certificate of service that had accompanied it was not signed, which the court found rendered the proposal non-compliant with the requirements of rule 1.442(c)(2)(G).

Rule 1.442(c)(2) lists the requirements for the form and content of a proposal for settlement. When the proposal at issue was served in 2014, subsection (2)(G) required that the proposal include a certificate of service in the form required by rule 1.080.

Rule 1.080(a) provides that every pleading subsequent to the initial pleading and every other document filed in the action must be served in conformity with the requirements of the Florida Rule of Judicial Administration 2.516. The applicable version of that rule prescribed the required form of a certificate of service to include the signature of the attorney.

In the case of Boatright v. Philip Morris, 218 So.3d 962 (Fla. 2nd DCA 2017), the Second District had also addressed the question of whether the language of rule 1.442(c)(2)(G) requires compliance with all of the provisions of rule 2.516. In concluding that it did not, the Second District noted that while that rule required compliance with rule 1.080(a), (requiring service be compliant with rule 2.516 when a document is filed), because proposals under 1.442 are not filed, they do not have to comply with those portions of 2.516 dealing with service. Boatright made clear that the only portion of rule 2.516 relevant to proposals for settlement is the form the certificate of service as identified in rule 2.516(f).

No one argued that the certificate of service that accompanied the defendant’s proposal had not complied with the form prescribed by the rule. Instead, the certificate of service, plaintiff argued, had to be signed pursuant to rule 2.515, which requires that every document of a party represented by an attorney shall be signed by at least one attorney of record.

However, applying the logic of Boatright that the portions of rule 2.516 not specifically referenced in rule 1.442 are not relevant to the issue of when a proposal for settlement complies with that rule, it is clear that the provisions of rule 2.515--a completely separate rule not referenced at all in rule 1.442--are not relevant to the issue either.

The court found that even if the rule were to apply, the text of rule 2.515 demonstrates that it does not apply to proposals for settlement. Rule 2.515 requires that a “document” be signed by the attorney of record, but the rule did not define the term “document.” Instead, the definition of the term “document” is found in rule 2.520 which defines “documents” as “pleadings, motions, petitions, memoranda, notices, briefs, exhibits, declarations, affidavits, orders, judgments, decrees, writs, opinions and any paper or writing submitted to a court.” (Emphasis added).

The proposal for settlement does not fall into any of those enumerated categories of documents, nor does it fall into the catch-all provision, because proposals for settlement are not “submitted to a court” when served. Thus, even if the signing requirements of rule 2.515 apply generally to rule 1.442, that requirement would nevertheless not apply to the initial service of proposals for settlement on the opposing party, because proposals are not “documents.”

For all of those reasons--perhaps a bit of a complicated and tortured analysis--the trial court erred in determining that the proposal was invalid based on the service not being in compliance with rule 2.515.

In reaching the conclusion, the court wrote that it did not condone or encourage a practice of failing to sign certificates of service, noting that signed certificates of service can have legal significance if questions were to arise about whether a document was timely served. Also, the importance of attorneys’ signatures on documents is underscored by the fact that rule 2.515(a)(4) contains a sanctions provision that permits unsigned documents to be stricken.

IN THE EVENT THAT THE TRIAL TRANSCRIPT IS LOST FOR SOME REASON, APPELLANT HAS AN OBLIGATION TO TRY TO COMPLY WITH FLORIDA RULE OF APPELLATE PROCEDURE 9.200(b)(4) WHICH SETS FORTH THE PROCEDURE FOR ATTEMPTING TO RECONSTRUCT AN UNAVAILABLE TRANSCRIPT.

Miranda v. RBS Citizens, 43 Fla. L. Weekly D1868 (Fla. 3rd DCA August 15, 2018).