Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-850 _____________________________ JAMES SEADLER, Appellant, v. MARINA BAY RESORT CONDOMINIUM ASSOCIATION, INC. d/b/a MARINA BAY RESORT, Appellee. _____________________________ On appeal from the Circuit Court for Okaloosa County. William F. Stone, Judge. April 26, 2021 TANENBAUM, J. James Seadler sued to recover damages for an injury he sustained when his pool chair collapsed as he vacationed at Marina Bay. He won. The jury found Marina Bay liable and awarded Seadler $50,000 in past medical expenses and $10,000 in non- economic damages. Because of collateral set-offs, the trial court rendered a final judgment in Seadler’s favor for $14,504.50. Seadler appeals the final judgment and asks for a new trial. Seadler offers one basis for relief. He contends that the trial court erred when it denied his for-cause challenge of Juror 16 during jury selection. Seadler argues strenuously that Juror 16 was biased and could not be impartial. Perhaps. Juror 16, however, did not serve on Seadler’s jury. Seadler nonetheless contends that he had to use a peremptory challenge to strike Juror 16, which left him without a challenge later in the process to strike a juror he found subjectively objectionable. This, according to Seadler, denied him a fair trial. A review of the selection process, however, reveals that there would have been someone that Seadler found subjectively objectionable serving on his jury regardless of whether the trial court had allowed Juror 16 to be stricken for cause. Because Seadler fails to demonstrate any miscarriage of justice that ensued from the remainder of the jury selection process, we affirm. I. Florida law provides for various juror disqualifications. See § 40.013, Fla. Stat.; cf. Art. I, § 22, Fla. Const. (providing that the “qualifications and the number of jurors, not fewer than six, shall be fixed by law”). By rule, meanwhile, a party may ask that a potential juror be replaced for any of several objections “for cause,” which include that a potential juror is biased or “does not stand indifferent to the action.” Fla. R. Civ. P. 1.431(c) (“Challenge for Cause”). The same rule allows each party to make three peremptory challenges to remove potential jurors from a panel without any legal cause at all. See Fla. R. Civ. P. 1.431(d); cf. ch. 73-333, § 24, Laws of Fla. (repealing section 53.011, Fla. Stat., which had given each party the substantive right to make three peremptory challenges to potential jurors). If there are going to be alternate jurors empaneled with the principal jurors, those alternates must be selected in the same manner. Fla. R. Civ. P. 1.431(g). During selection of these alternates, the rule allows each party one peremptory challenge, to “be used only against the alternate jurors.” Id. An unused peremptory challenge available for the principal jurors may not be used against the alternates. Id. The trial court used a common methodology for jury selection in this case. 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 2 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 alternate panel would move in, and the resulting empty slot on the alternate panel would be filled by someone from the “on-deck” panel. We diagram the process in the following way, starting with ten hypothetical potential jurors randomly selected from the venire at large and labeled Jurors A through J: Presumptive Principal Jurors Juror A Juror B Juror C Juror D Juror E Juror F Presumptive Alternates Juror G Juror H On Deck Juror I Juror J Let us say a party strikes Juror D. Then the juror behind Juror D (here, Juror E) would move up to fill the slot vacated by Juror D. Juror F would advance to fill the slot where Juror E had been, Juror G would move up “into the box,” and so on. A new potential juror, Juror K—selected at random from the venire— would be brought in to fill the second position on the panel that 3 was “on deck.” That position of course would have been left open when Juror J moved over to fill Juror I’s slot on the same panel. Here is what the three different panels at this point would look like: Presumptive Principal Jurors Juror A Juror B Juror C Juror D Juror F Juror G Juror E Presumptive Alternates Juror H Juror I On Deck Juror J Juror K We see here that Jurors E and F have moved to the left (because Juror D has been stricken), which opened up the sixth spot on the presumptive principal juror panel. Juror G has moved from the alternate juror panel to fill that sixth position “in the box” on the principal juror panel. Juror I has moved from the “on-deck” panel to the second position on the presumptive alternate panel. Juror K, shown in underline, now will be one of the ten venirepersons under consideration. This process, with the focus on six at a time “in the box” as presumptive principal jurors, 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. 4 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. That would open up the tenth spot (the second “on-deck” position) again, which would be filled by another venireperson randomly selected from the venire at large. Going back to our diagram, if Jurors A, B, C, E, F, and G were accepted as the principal jury, and one party then strikes Juror H as a presumptive alternate, the lineup would appear as follows on our diagram: Presumptive Jurors Juror A Juror B Juror C Juror E Juror F Juror G Presumptive Alternates Juror H Juror J Juror I On Deck Juror K Juror L Notice that Juror J would fill the second alternate juror position, and Juror L (underlined) would then come from the larger venire pool to fill the second position on the “on-deck” panel. Once 5 the parties have exhausted their alternate strikes, or tendered the alternates as acceptable, the presumptive principal jurors (Jurors A, B, C, E, F, and G) and the presumptive alternates (Jurors I and J) would be sworn in. The trial then would commence. Next, we will use this diagram to explain what occurred at jury selection in this case and why Seadler’s claimed error could not have resulted in a miscarriage of justice. II. A. Juror 16 appeared amongst the first six “in the box” at the start of the selection process. That is, Juror 16 was a presumptive principal juror from the very beginning. Based on certain statements that Juror 16 made in response to questions during voir dire, Seadler asserted that Juror 16 was biased against his case and asked that the juror be excused for cause. The trial court refused that request, and Seadler used the first of his three peremptory challenges to remove Juror 16 as a potential juror. To be clear here, Juror 16 did not serve on the jury at the trial of Seadler’s case. 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. When Seadler later objected to Juror 22 serving on his jury and renewed his request to strike (notably, after the venire had been excused, but before the jury had been sworn), he acknowledged that his objection to Juror 22 was not for cause. Nonetheless, he claimed, without elaboration, that he would not receive a fair trial with Juror 22 on the jury. The trial court once 6 again denied Seadler’s request, and Juror 22 was sworn in as a principal juror. Seadler now wants a new trial because he had no peremptory challenges left to strike Juror 22, and he was stuck going to trial with someone on his jury who was subjectively objectionable to him. Even if Seadler could have stricken Juror 22 with an extra peremptory, though, that would have led to another juror who Seadler found subjectively objectionable—Juror 12—serving as a principal juror at his trial. By law, an appellant in a civil case is not entitled to have a judgment set aside or reversed, or to be granted a new trial, unless he can show that an error has “resulted in a miscarriage of justice.” § 59.041, Fla. Stat. Any error in the trial court’s refusal to strike Juror 8 for cause did not prejudice Seadler, because he would have had a subjectively objectionable principal juror sitting at his trial one way or another. In our view, there was not a miscarriage of justice under the circumstances of this case. A diagram like the one we used above shows why. B. For the purpose of this discussion, we join the selection process at the point when Seadler exercised his third peremptory challenge. We will use the jurors’ actual numbers, with the two jurors that Seadler found to be subjectively objectionable—Jurors 22 and 12—shown in bolded text because their respective movement in our diagram will be relevant to the analysis. Recall that Seadler exercised his first peremptory challenge on Juror 16; he exercised his third peremptory challenge on Juror 8. Our diagram illustrates what the lineup would have looked like at that point: Presumptive Principal Jurors Juror 25 Juror 8 Juror 13 Juror 27 Juror 22 Juror 10 7 Presumptive Alternates Juror 17 Juror 19 On Deck Juror 12 Juror 2 As indicated by the strikethrough, Seadler’s exercise of his third peremptory struck Juror 8 from the panel of six presumptive principal jurors. Juror 22 was in the fifth position on the presumptive principal juror panel. As a result of Seadler’s striking of Juror 8, Juror 22 moved to the fourth position (with Juror 10 of course moving over one position as well). This opened the sixth position on the principal panel, which Juror 17 filled by moving from the alternate juror panel. Seadler was out of strikes, and Marina Bay tendered the principal panel. The principal juror panel then would have looked like so on our diagram: Presumptive Principal Jurors Juror 25 Juror 13 Juror 27 Juror 22 Juror 10 Juror 17 The parties then turned to the presumptive alternates. Here is what that panel would have looked like at this point: 8 Presumptive Alternates Juror 19 Juror 12 Juror 12 was in the second position on this panel, having come from the “on-deck” panel following Juror 19’s move over to fill the first position, vacated by Juror 17. Meanwhile, Juror 20 filled the empty second slot on the “on-deck” panel because of Juror 2’s move to the first slot on the panel, vacated by Juror 12. We can diagram this as follows: On Deck Juror 2 Juror 20 The trial court allowed a for-cause strike of Juror 19, and after Juror 2 moved into the second position on the presumptive alternate panel, the trial court allowed a for-cause strike of that juror, too. That left Juror 12 in the first position on the presumptive alternate panel, and because of those for-cause strikes in quick succession, Juror 20 moved from the second position on the “on-deck” panel to the second position on the alternate panel, like so: Presumptive Principal Jurors Juror 25 Juror 13 Juror 27 Juror 22 Juror 10 Juror 17 9 Presumptive Alternates Juror 19 Juror 2 Juror 12 Juror 20 On Deck Juror 26 Juror 1 Seadler at that point exercised his alternate peremptory challenge on Juror 12, so Juror 20 then went in the first alternate slot, and Juror 26 in the second alternate slot. Juror 1 shifted to the first “on-deck” position, with Juror 11 coming from the venire at large to fill in behind Juror 1 in the second “on-deck” position. Both parties tendered (Marina Bay did not use its alternate peremptory challenge), and the final lineup of principal jurors and alternates could be represented as follows: Principal Jurors Juror 25 Juror 13 Juror 27 Juror 22 Juror 10 Juror 17 Alternates Juror 12 Juror 26 Juror 20 Jurors 25, 13, 27, 22, 10, and 17 served as the sworn members of the jury, and there is no indication in the record that any of these 10 six were excused. That means these six together would have rendered a verdict in Seadler’s favor at the end of the trial, with neither alternate being called up. Now look again at the two jurors we put in bolded text—Jurors 22 and 12. Seadler sought to strike both jurors without cause, so we know that Seadler found both subjectively objectionable. Seadler was able to strike Juror 12 only because Juror 12 had not advanced to the presumptive principal panel. And Juror 12 remained on the presumptive alternate panel because Seadler was out of principal peremptory challenges and could not strike Juror 22. Because Juror 12 remained on the alternate panel when the alternate-juror selection process began, the rule allowed Seadler an alternate peremptory that he could use on Juror 12. However, as we play out an alternate scenario, where Seadler is permitted to exercise a fourth peremptory challenge on Juror 22 as he requested, we see from our diagramming that Seadler would not have been able to avoid having a subjectively objectionable juror serve on his jury. Assume the trial court had allowed Seadler to have an additional peremptory challenge to strike Juror 22. From there we can assume, based on what occurred during the alternate-juror selection process, that both Jurors 19 and 2, in quick succession, would have been stricken for cause as they moved into the sixth position on the presumptive principal juror panel (vacated by Juror 17, who would have moved left in the diagram after Juror 22 was stricken through Seadler’s fourth peremptory challenge). In this scenario, Juror 12 would have moved up from the alternate panel to that sixth position on the principal panel, and Seadler would not have been able to strike Juror 12 with his alternate peremptory. Because Seadler would have had no more peremptory challenges and no basis to ask for a fifth during principal-juror selection (and because Marina Bay did not strike Juror 12 with the peremptory challenge it had remaining), Juror 12 undoubtedly would have served on Seadler’s jury instead of Juror 22. This means that one way or another—regardless of whether Seadler could strike Juror 22—Seadler was going to be stuck with a juror that he otherwise wished to strike peremptorily. That is, even if he could have struck Juror 22, Juror 12—whom Seadler also found objectionable—would have served on his jury. Seadler’s 11 theory in the trial court was that having someone serve on his jury that he would have stricken peremptorily denied him a fair trial. As we have seen, though, that would have occurred (with Juror 12 sitting on the jury instead of Juror 22) even if Juror 16 had been stricken for cause. For our analysis here, regardless of whether the trial court erred in its denial of Seadler’s for-cause challenge to Juror 16, Seadler cannot claim that this amounted to the miscarriage of justice he purports to describe. * III. In the absence of a demonstration by Seadler that a miscarriage of justice stemmed from the asserted error by the trial court, we have no authority to reverse the judgment or grant a new trial. See § 59.041, Fla. Stat. AFFIRMED. OSTERHAUS and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ * We acknowledge that a party might employ one tactical calculus for deciding whether to strike a subjectively objectionable juror from the principal panel, and another for deciding whether to strike the same type of objectionable juror from an alternate panel. However, this difference is of no moment when considering whether there was a miscarriage of justice here. Whatever Seadler’s calculus in striking Juror 12 from the alternate panel was, it is a fact that he would not have been able to keep both of the subjectively objectionable jurors from the principal panel even if the error he asserts had not occurred. 12 Charles F. Beall, Jr., and Haley J. VanFleteren of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellant. Lissette Gonzalez of Cole, Scott & Kissane, P.A., Miami, for Appellee. 13