James Seadler v. Marina Bay Resort Condominium Association, Inc.

          Supreme Court of Florida
                              ____________

                           No. SC2022-0984
                             ____________

                          JAMES SEADLER,
                             Petitioner,

                                   vs.

  MARINA BAY RESORT CONDOMINIUM ASSOCIATION, INC.,
                     Respondent.

                          December 21, 2023

SASSO, J.

     We have for review Seadler v. Marina Bay Resort Condominium

Ass’n, Inc., 

 (Fla. 1st DCA 2021), reh’g denied (June

29, 2022), in which the First District Court of Appeal rejected

Seadler’s claim that he was automatically entitled to a new trial

because the trial court erred in denying his cause challenge to a

potential juror, an error he properly preserved. Realizing its

conclusion conflicted with several other district courts’

characterization of the same type of error as one that constitutes a

“per se” reversible error, the First District certified conflict. We
accepted jurisdiction based on that certification. See art. V, §

3(b)(4), Fla. Const.

     In resolving the conflict, we agree with the First District that

the harmless error standard applies. Nonetheless, we quash the

decision of the First District because, applying the proper harmless

error standard here, Marina Bay cannot meet its burden of

demonstrating that the error did not contribute to the verdict. We

therefore remand for a new trial.

                                    I

     This case arises from injuries Seadler sustained at Marina Bay

Resort when a pool chair he attempted to sit in collapsed. The case

ultimately proceeded to a jury trial where the parties used a

common jury selection methodology intended to produce a panel of

six jurors. The First District described it in detail:

     The parties were to select six jurors and two alternates
     from a venire, but the trial court had the parties address
     ten randomly selected venirepersons at a time. The first
     six randomly selected from the venire would be put “in
     the box” as a panel of presumptive principal jurors. The
     next two would be a panel of presumptive alternates.
     And the final two would be “on deck.” To pick the
     principal jurors, for-cause and peremptory strikes would
     be exercised just on those six venirepersons “in the box”
     at the time. When a party would strike a presumptive
     juror from this principal panel, a venireperson from the


                                  -2-
     alternate panel would move in, and the resulting empty
     slot on the alternate panel would be filled by someone
     from the “on-deck” panel.
            ...
     This process . . . would continue until the parties have no
     further for-cause challenges and each has either
     exhausted the allotted three peremptory challenges or
     tendered the principal panel as acceptable.
            At this point, the parties would turn to the
     presumptive alternates, and each party could move to
     strike only from the alternate panel, based on cause, or
     use the single peremptory challenge the party is allowed
     by rule for this part of the process. If one of the parties
     strikes a presumptive alternate from the panel, then each
     venireperson behind that stricken alternate juror would
     move up to fill the vacated spot to the left.
             ...
     Once the parties have exhausted their alternate strikes,
     or tendered the alternates as acceptable, the presumptive
     principal jurors [and alternates] would be sworn in. The
     trial then would commence.

Seadler, 341 So. 3d at 1147-50.

     During this selection process, Juror 16 (one of the

presumptive principal jurors) answered in the affirmative when

Seadler’s counsel asked him whether Seadler had a “strike against

him” before the trial even began based on Juror 16’s feelings

regarding frivolous lawsuits. Based on this answer, Juror 16 was

questioned separately out of concern that he would taint the entire

venire.




                                  -3-
     When questioned separately, Juror 16 again expressed doubt

about his ability to remain fair and impartial in the case. Even so,

when the court presented the jury instruction on pain and suffering

to Juror 16, he indicated he would follow it. But directly following

his exchange with the court, Juror 16 again equivocated, stating:

“[I]f evidence is presented to me, strictly evidence, I would be fair.

But if you or another lawyer presented it with emotion, then I

couldn’t be. Because I-- facts. I don’t . . . .”

     At that point, Seadler asserted bias and asked that Juror 16

be excused for cause. The trial court refused Seadler’s request

without explanation, so Seadler used the first of his three

peremptory challenges to remove Juror 16 instead.

     The First District described the relevant remainder of the

selection process:

          As the selection process continued, the trial court
     excused other presumptive principal jurors for cause,
     and Seadler used his remaining two peremptory
     challenges. After Marina Bay tendered the six
     presumptive principals, Seadler asked for a fourth
     peremptory challenge. He already had exhausted his
     peremptory challenges (he used the third one to strike
     Juror 8), and he wanted to strike Juror 22. By the very
     nature of a peremptory challenge, Seadler did not have to
     explain why Juror 22 was objectionable, and he did not
     do so. The trial court denied the request.


                                   -4-
Id. at 1151.

     Thereafter, the trial court elected to seat two alternate

jurors and provided the parties with one additional peremptory

challenge to use solely on the presumptive alternate jurors.

Seadler’s counsel asserted cause challenges as to two

prospective alternates, which the trial court granted. He then

used his sole peremptory challenge available for alternate

jurors on Juror 12.

     With the presumptive primary panel and alternates in

place, but before the jury was sworn, Seadler renewed his

request to strike Juror 22. Acknowledging that his objection

to Juror 22 was not for cause, he nonetheless claimed that he

would not receive a fair trial with Juror 22 on the jury. The

trial court once again denied Seadler’s request, and Juror 22

was sworn in as a principal juror.

     After the jury was empaneled, the trial proceeded, and Seadler

presented evidence that he had incurred $154,435.04 in past

medical expenses. Ultimately, the jury returned a verdict of

$50,000.00 for past medical expenses and $10,000.00 to



                                 -5-
compensate for past pain and suffering. Following setoffs, the trial

court entered a final judgment in favor of Seadler in the amount of

$14,504.50.

     Seadler appealed the final judgment to the First District where

he argued that the judgment should be reversed because the trial

court abused its discretion in denying his motion to strike Juror 16

for cause. Seadler contended he was entitled to a new trial

“because the failure to grant a cause challenge cannot be harmless

as a matter of law.”

     The First District rejected Seadler’s arguments and affirmed

the final judgment. In doing so, the First District did not reach a

decision as to the issue raised by Seadler: whether or not the trial

court abused its discretion in denying the cause challenge. Instead,

the First District reasoned that, even if the trial court had erred,

Seadler was not entitled to a new trial because “one way or another

. . . Seadler was going to be stuck with a juror that he otherwise

wished to strike peremptorily.” Seadler, 341 So. 3d at 1156.

     In support of its conclusion, the First District’s opinion

attempted to play out an alternative scenario in which Seadler was

permitted to use a peremptory strike on Juror 22. The First District


                                 -6-
concluded that had Seadler been permitted to do so, Juror 12,

whom Seadler also found objectionable, would have ended up on

the presumptive principal panel rather than the presumptive

alternate panel. In that scenario, Seadler would have been without

an additional peremptory to strike Juror 12. So, while

acknowledging that a party might use a different “tactical calculus”

when exercising peremptory challenges on the main panel as

opposed to the alternate panel, the First District concluded that a

subjectively objectionable juror would have sat on the jury

regardless of whether the trial court erred. For this reason, the

First District held that Seadler could not demonstrate a

“miscarriage of justice,” as required by section 59.041, Florida

Statutes, and therefore, it had no authority to reverse the judgment

or grant a new trial.

     In a motion for rehearing, Seadler raised two points that

ultimately led to supplemental opinions and the certified conflict

giving rise to this Court’s jurisdiction. First, Seadler argued that

the First District’s analysis was contrary to precedent

characterizing a preserved, erroneous denial of a cause challenge as

“per se” reversible. Second, Seadler argued that the First District’s


                                 -7-
opinion “employs a harmless error analysis not previously adopted

by the Florida Supreme Court or any of the five district courts of

appeal.”

     The First District denied rehearing, but certified conflict with

several other district court decisions. 1 Seadler petitioned this Court

for review of the First District’s decision and the certified conflict.

This Court accepted jurisdiction to resolve this conflict.


                                    II

     This is the first case in which this Court has addressed the

implications of an erroneous denial of a cause challenge in the

context of civil cases. 2 However, in the certified conflict cases, the


     1. See Seadler, 341 So. 3d at 1156 (citing Kochalka v.
Bourgeois, 

 (Fla. 2d DCA 2015); Tizon v.
Royal Caribbean Cruise Line, 

 (Fla. 3d DCA 1994);
Weinstein Design Grp., Inc. v. Fielder, 

 (Fla. 4th DCA
2004); Gootee v. Clevinger, 

 (Fla. 5th DCA 2000)).

     2. Although the issue was not resolved in the First District’s
decision, we agree with Seadler that the trial court abused its
discretion in denying his challenge to Juror 16 for cause. See Hill v.
State, 

 (Fla. 1985) (“A juror is not impartial
when one side must overcome a preconceived opinion in order to
prevail.”). And we note that while Seadler addressed this issue in
his briefing in this Court, Marina Bay did not present argument to
the contrary.



                                  -8-
Second, Third, Fourth, and Fifth District Courts of Appeal have

extrapolated from this Court’s precedent in the criminal context a

“per se reversible error” rule that requires automatic reversal in civil

cases when an erroneous denial of a cause challenge is properly

preserved. See, e.g., R.J. Reynolds Tobacco Co. v. Gloger, 

, 980 (Fla. 3d DCA 2022) (noting holding in Matarranz v. State,

 (Fla. 2013), that it is reversible error for a

court to force a party to use peremptory challenges on persons who

should have been excused for cause); Gootee, 

-

10 (citing Hill v. State, 

 (Fla. 1985), for the

proposition that “[i]t is reversible error [in a civil case] to force a

party to use peremptory challenges on persons who should have

been excused for cause, provided the party subsequently exhausts

all of his or her peremptory challenges and an additional challenge

is sought and denied.”). Given this backdrop, both Seadler and

Marina Bay spill significant ink over the applicability of this Court’s

precedent in the criminal context to this case. For his part, Seadler

argues the outcome in this case is “controlled” by longstanding

precedent, including Hill and Trotter v. State, 

 (Fla.




                                   -9-
1990). 3 The State appears to agree and urges this Court to recede

from Hill. Marina Bay, on the other hand, argues the distinctions

between criminal and civil cases render Hill and its progeny

inapplicable here.

     On this point, we agree with Marina Bay that this Court’s

precedent regarding the effect of erroneously denied cause

challenges in criminal cases does not apply with equal force in civil

cases. Hill referred to an accused’s “right” to peremptory

challenges. 

. In Smith v. State, 

(Fla. 2011), we recognized that although peremptory challenges are

not themselves constitutionally guaranteed at either the state or

federal level, they are “nonetheless ‘one of the most important rights

secured to the accused.’ ” 

 at 1111 (citing Busby v. State, 

 (Fla. 2004)). And in Matarranz v. State, 

. In Trotter, this Court held that in order to preserve the
denial of a challenge for cause for review, the complaining party
must exhaust peremptory challenges, request an additional
peremptory challenge, and identify an objectionable juror who
would not have been seated if a peremptory challenge had been
available. 

.



                                - 10 -
473, 484 (Fla. 2013), we tied our analysis to a criminal defendant’s

“due process right to a fair and impartial jury.”

     Because this Court’s analysis in the criminal context has

specifically relied on the rights of criminal defendants, we consider

the issue presented here one of first impression and limit our

holding to civil cases.

                                   III

     We now turn to resolving the conflict presented by this case:

whether a trial court’s error in denying a cause challenge is “per se”

reversible error so long as the error is properly preserved,4 or

whether a harmless error analysis applies.

     As we explained in Davis v. State, 

 (Fla. 2022),

in determining whether a “per se” or a harmless error standard

applies, this Court defaults to the harmless error test, reserving the

“per se” rule “only for those errors that always vitiate the right to a




     4. The logic of Trotter’s preservation requirement applies in
both criminal and civil cases. Neither criminal nor civil litigants
can “stand by silently while an objectionable juror is seated and
then, if the verdict is adverse, obtain a new trial.” Trotter, 

.



                                 - 11 -
fair trial and therefore are always harmful.” 

 at 323 (quoting

State v. Schopp, 

 (Fla. 1995)). “Per se” errors

therefore fall into two categories: first, cases where “application of

the harmless error test to the type of error involved will always

result in a finding that the error is harmful . . . . [and second,] cases

where the appellate court is unable to conduct a harmless error

analysis because it would have to engage in pure speculation in

order to attempt to determine the potential effect of the error on the

jury.” See id. at 324 (internal citations omitted).

     Neither of those categories properly encompass the erroneous

denial of a cause challenge. We can conceive of, and amici have

identified, scenarios where even a properly preserved error denying

a cause challenge may result in harmless error. For example, the

denial of a cause challenge would be harmless when the juror

whom a party would have otherwise struck peremptorily did not

ultimately deliberate or when no reasonable jury could have

permissibly granted the appellant more relief than he received. In

these and other scenarios, the application of the harmless error test

would neither always result in a finding that the error is harmful




                                 - 12 -
nor require speculation in order to determine the potential effect of

the error.

     For these reasons, we cannot say that the erroneous denial of

a cause challenge is always harmful and so vitiates the right to a

fair trial that it is “per se” reversible error. We therefore agree with

the First District’s conclusion that harmless error is the appropriate

standard for reviewing the erroneous denial of a properly preserved

cause challenge. And we resolve the conflict in favor of the First

District to the extent it is consistent with this opinion.

                                   IV

     This conclusion does not end our inquiry, though. Here, we

are presented with the common scenario where the error impacted

the identity of the six jurors who rendered a verdict that was at

least partially adverse to the appellant. Our next step then is to ask

whether the error in this case was harmless.

     The First District appeared to ask the same question, but it

did not apply nor address this Court’s harmless error standard as

required by Special v. West Boca Medical Center, 

(Fla. 2014). That standard places the burden on the beneficiary of

the error to prove “beyond a reasonable doubt that the error


                                 - 13 -
complained of did not contribute to the verdict or, alternatively

stated, that there is no reasonable possibility that the error

contributed to the [verdict].” 

 at 1256 (quoting State v. DiGuilio,

 (Fla. 1986)). 5 And we said in Special that

test “is consistent with the harmless error rule codified in section

59.041, and the Legislature’s intent that relief be granted only in

the event of ‘a miscarriage of justice.’ ” 

.

     Instead of applying this Court’s precedent though, the First

District ostensibly went straight to section 59.041 and applied its

own “miscarriage of justice” test without acknowledging our

analysis and holding in Special. In doing so, the First District

inverted the standard and denied Seadler’s requested relief because

of “the absence of a demonstration by Seadler that a miscarriage of

justice stemmed from the asserted error by the trial court.”

Seadler, 341 So. 3d at 1156. In that respect, the First District

erred.




     5. Neither party has argued that this Court’s decision in
Special was erroneously decided.


                                 - 14 -
     As a result, for the first time over the course of the

proceedings in this case, Marina Bay is asked whether it can satisfy

its burden of demonstrating beyond a reasonable doubt that the

error complained of did not contribute to the verdict. Marina Bay

argues it can satisfy this burden, reasoning that even if Seadler

struck Juror 22, another subjectively objectionable juror (Juror 12)

would have made the jury. Adopting the First District’s analysis,

Marina Bay therefore posits that regardless of the trial court’s error,

Seadler would have had an objectionable juror participating.

Assuming arguendo that were the case, Marina Bay cannot square

that argument with this Court’s harmless error standard as

announced in Special.

     Florida Rule of Civil Procedure 1.431(d) entitles parties to

peremptory challenges and is structured to establish parity as to

the number of peremptory challenges granted to each side of a case.

Because of established precedent relating to preservation of error,

the erroneous denial of a cause challenge necessarily results in the

loss of one of these peremptory challenges. Here, had Seadler not

expended the peremptory challenge on Juror 16, his claim of error

would have been barred from review. Because he was forced to use


                                - 15 -
the peremptory challenge in this manner, he therefore lacked the

ability to strike Juror 22. And Marina Bay cannot, and has not

attempted to, demonstrate there is no reasonable possibility that

Juror 22 did not contribute to the verdict. Its theory to the contrary

is predicated on its argument that jurors are fungible (i.e., that

there is no difference between the subjectively objectionable Jurors

12 and 22) and does not account for the tactical latitude afforded to

parties in exercising peremptory challenges.

     For this reason, under the facts of this case, we cannot say

beyond a reasonable doubt that the loss of a peremptory challenge

did not contribute to the verdict. Thus, applying the appropriate

harmless error standard, Seadler is entitled to a new trial, and we

quash the First District’s opinion holding to the contrary.

                                   V

     Two final observations. First, given our holding today,

informed readers will recognize that our application of the harmless

error standard in this case will apply similarly to a large subset of

cases involving the erroneous denial of a cause challenge. We

agree. Even so, for the reasons explained above, this error is not

properly characterized as a “per se” reversible error. Thus, rather


                                - 16 -
than reflexively reversing in every case that presents this type of

error, parties will need to advance, and courts will need to apply, a

fact-specific harmless error analysis.

     We also note that in reaching our decision today, we have

rejected the State’s suggestion that this Court align itself with

federal courts and other state courts that have concluded that any

error in denying a cause challenge is cured, and therefore not

reversible error, when a party removes the juror utilizing a

peremptory challenge. Neither the federal courts nor the other state

courts adopting that standard apply both Florida’s unique

preservation rules in this context and our harmless error standard

as announced in Special.

                                   VI

     In conclusion, we resolve the certified conflict in favor of the

First District to the extent it is consistent with this opinion.

However, applying the proper harmless error standard here, we

conclude that Marina Bay has not demonstrated that the trial

court’s error did not contribute to the verdict. We therefore quash

the decision of the First District to the extent that it concluded

there was no harmful error in this case and remand for a new trial.


                                 - 17 -
     It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, FRANCIS, JJ., concur.
GROSSHANS, J., concurs with an opinion.
LABARGA, J., concurs in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

GROSSHANS, J., concurring.

     I agree with the majority that errors in refusing to grant for-

cause challenges in civil cases are subject to harmless error review

and that Marina Bay has not met the standard we adopted in

Special. See Special v. W. Boca Med. Ctr., 

(Fla. 2014) (“Although the test for harmless error as stated in

DiGuilio applies to criminal appeals, we conclude that this test, with

slight modification to accommodate the civil context, is also the

appropriate test for harmless error in civil appeals.”). As noted by

the majority, the State asked us to consider a different standard,

one not compatible with Special’s harmless error test. Because no

party has demonstrated a basis, at this time, for receding from

Special, we are bound to apply that standard in this case.

Application for Review of the Decision of the District Court of Appeal
     Certified Direct Conflict of Decisions

     First District - Case No. 1D19-850


                                - 18 -
     (Okaloosa County)

Charles F. Beall, Jr. and Jessica L. Scholl of Moore, Hill &
Westmoreland, P.A., Pensacola, Florida,

     for Petitioner

Lissette Gonzalez of Cole, Scott & Kissane, P.A., Miami, Florida,

     for Respondent

Carlos J. Martinez, Public Defender, and John Eddy Morrison
Assistant Public Defender, Eleventh Judicial Circuit of Florida,
Miami, Florida; Carey Haughwout, Public Defender, and Benjamin
Eisenberg, Assistant Public Defender, Fifteenth Judicial Circuit of
Florida, West Palm Beach, Florida; and Jessica J. Yeary, Public
Defender, and Justin F. Karpf, Assistant Public Defender, Second
Judicial Circuit of Florida, Tallahassee, Florida,

     for Amicus Curiae Florida Public Defender Association, Inc.

Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, Florida; and
John S. Mills of Bishop & Mills, PLLC, Jacksonville, Florida,

     for Amicus Curiae Florida Justice Association

P. Raúl Alvarez, Jr. of Alvarez, Winthrop, Thompson & Smoak, P.A.,
Orlando, Florida,

     for Amicus Curiae Florida Chapters of the American Board of
     Trial Advocates

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor
General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General, and
David M. Costello, Deputy Solicitor General, Office of the Attorney
General, Tallahassee, Florida,

     for Amicus Curiae State of Florida


                                - 19 -