Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2457 _____________________________ TALLAHASSEE HOUSING AUTHORITY, Appellant, v. KENNETH PRATHER, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Charles W. Dodson, Judge. October 13, 2020 PER CURIAM. The appellant/defendant, Tallahassee Housing Authority (THA), appeals an order granting a motion for new trial filed by the appellee/plaintiff Kenneth Prather. We agree with THA that the decision to grant a new trial was based on an incorrect reading of Carver v. Niedermayer, 920 So. 2d 123 (Fla. 4th DCA 2006), and reverse. 1 Facts 1 Because we are reversing on Issue I, we find it unnecessary to address Issues II and III. Prather was the plaintiff in a civil trial below in which he alleged to have suffered an ankle injury on property owned and controlled by THA. The parties entered a pretrial stipulation wherein they agreed to three hours of voir dire examination per side. At the beginning of jury selection, the trial court advised the parties he was going to limit jury questioning to one hour per side stating, “This is not a case that needs all day to pick a jury.” Prather’s counsel objected stating, “Not arguing with you in any way. I just want to put on the record that I do object to being limited by time. I filed a trial brief and memo of law on that point.” 2 The trial court replied, “We are going to try to stick with that one hour per side. There is no reason to take all day to pick this jury.” During voir dire, Prather’s counsel asked each prospective juror to rate their feelings regarding personal injury lawsuits. He asked questions regarding damages and their attitudes towards economic and noneconomic damages. He explored their views regarding pain and suffering. He asked if they had any feelings about the law firm representing Prather. At that time, Prather’s counsel asked the trial court how much time he had left, and the court replied he had “about another 20 minutes.” Counsel continued questioning, asking the prospective jurors their views on witnesses with felony convictions. Counsel then stated he was going to switch gears and do something that was “a little bit more fun” and ask questions in a manner he analogized to “kind of rapid fire on TV shows where there are only a couple minutes left where they are asking the questions.” Counsel proceeded to ask each of the prospective jurors if they were a talker or a listener; if they were more of a “stick-to-your-guns kind of person or a person who tries to find compromises”; if they listened to talk radio; where they got their news; and if they had a favorite social media platform. He continued with individual questions until the court advised that he was “a little bit over your time” and that he needed to “do the best you can to wrap it up in two minutes.” Counsel did not 2 The memorandum of law discussed the need for extensive and thorough jury questioning to reveal any implicit juror bias against personal injury cases. 2 object to the time limit and finished with an open-ended question about whether there was anything about the jurors that they would want to know if they were the lawyer. After the jury returned a verdict for THA, Prather’s counsel moved for a new trial arguing, in part, the trial court erroneously limited him to one hour of voir dire time. The same trial judge initially denied the motion without prejudice, stating that the one- hour voir dire time limit had not been strictly imposed and that Prather’s counsel had closer to one-and one-half hours of voir dire time. The judge observed Prather’s counsel did not request more time and, had such a request been made, he would have granted the request. The judge stated if Prather’s counsel filed a transcript of jury selection showing only one hour was taken and a request for more time was made at the conclusion of jury selection, he would reconsider the ruling. Prather’s counsel moved for reconsideration and filed a certified, time-stamped excerpt of his jury selection. The timestamp showed he had sixty-eight minutes of voir dire time. After a case management conference on the motion, the same trial judge entered an order granting a new trial. The order stated, “Upon review of the trial transcript from the jury selection in this case, as well as review of Carver v. Niedermayer, 920 So. 2d 123 (Fla. 4th DCA 2006), this Court is bound to grant a new trial.” This appeal followed. Standard of Review The trial court’s decision to grant a new trial is reviewed for an abuse of discretion. Linzy v. Rayburn, 58 So. 3d 424, 426 (Fla. 1st DCA 2011). The trial court has the inherent authority to control the scope of voir dire examination so that the trial may “progress in an orderly and expeditious manner.” Mizell v. New Kingsley Beach, Inc., 122 So. 2d 225, 227 (Fla. 1st DCA 1960). Analysis The trial court granted a new trial because it incorrectly believed itself “bound” by the decision in Carver. In Carver, the court advised the plaintiff’s counsel at the beginning of jury 3 selection that he would limit counsel’s questioning to a total of thirty minutes. 920 So. 2d at 123. Counsel initially objected that he needed more time to explore prospective juror’s feelings on personal injury lawsuits and that the allotted time would only amount to one and a half minutes per juror. Id. After several prospective jurors said they were nurses, counsel again objected that he needed more time to conduct sufficient questioning, and the court gave him forty-five more minutes. Id. at 124. Once counsel used up that time and requested more time, the court “iced his protest” by stating, “this is a personal injury case.” Id. at 123- 24. The Fourth District reversed for a new trial, concluding the trial court abused its discretion in limiting voir dire because the time limit imposed was arbitrary; counsel only had two to three minutes per juror; there was no showing counsel’s questioning was repetitive or cumulative; and the court’s limitation deprived counsel of a fair opportunity to identify prospective jurors for challenge. Id. at 124. The court also found it an abuse of discretion to only advise counsel of the limitation right before jury selection. Id. Here, the trial court incorrectly believed itself bound by Carver. Carver is distinguishable from the instant case because Carver’s counsel routinely objected to the time limit with specificity. Prather’s counsel initially objected to the time limit; however, he did not repeatedly object. Prather’s counsel agreed to wrap up his questioning without asking for more time or explaining why more time was needed. Further, the trial court recognized that had such a request been made, it would have been granted. Carver does not create a bright-line rule about limiting voir dire. Rather, it enforces the general theory that control of voir dire is largely within the trial court’s discretion unless a party demonstrates that discretion has been abused. In Carver, the Fourth District found an abuse of discretion based on the particular facts of that case. Clearly, no abuse of discretion could be found if the circumstances supported a limitation on voir dire. See e.g., Allen v. Se-Go Indus., Inc., 510 So. 2d 1097 (Fla. 3d DCA 1987) (affirming order denying motion for new trial and finding appellant failed to carry her burden of demonstrating the trial court abused its discretion resulting in harmful error when it 4 limited her voir dire time to twenty minutes); Leamon v. Punales, 582 So. 2d 8 (Fla. 3d DCA 1991) (finding trial court did not abuse its discretion in limiting voir dire where appellant’s proffer of proposed questions failed to demonstrate he was precluded from pursuing any important theory). Prather failed to demonstrate he was prejudiced by the voir dire time limit. See King v. State, 790 So. 2d 1253, 1255 (Fla. 5th DCA 2001) (“Rulings of the court restricting the examination of jurors on voir dire will not be invalidated by a claim of prejudice grounded solely upon speculation or conjecture.”) (citing Mizell, 122 So. 2d at 227)). Because the trial court’s decision to grant a new trial was based on an incorrect reading of Carver, the order is REVERSED. ROBERTS, OSTERHAUS, and M.K. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Larry K. White of Law Offices of Larry K. White LLC, Tallahassee, and Jack L. McLean Jr. of Law Offices of Jack L. McLean Jr. & Company LLC, Tallahassee, for Appellant. James G. Biggart, II, of Morgan & Morgan, Gainesville, for Appellee. 5