ALEJANDRA RIVAS v. ALICIA SANDOVAL

A
       Third District Court of Appeal
                                State of Florida

                           Opinion filed May 5, 2021.
        Not final until disposition of timely filed motion for rehearing.

                             ________________

                              No. 3D19-2402
                        Lower Tribunal No. 16-15528
                           ________________


                              Alejandra Rivas,
                                 Appellant,

                                      vs.

                               Alicia Sandoval,
                                   Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Martin
Zilber, Judge.

     Philip D. Parrish, P.A., and Philip D. Parrish; The Gutierrez Firm, and
Jorge P. Gutierrez, Jr.; Nuñez Law, PL, and Bobby Nuñez, for appellant.

     Wicker Smith O’Hara McCoy & Ford, P.A., and Alyssa M. Reiter (Fort
Lauderdale), for appellee.


Before LOGUE, HENDON, and GORDO, JJ.

     LOGUE, J.
      Alejandra Rivas appeals from a final judgment entered in favor of

Alicia Sandoval in this personal injury case. Rivas asserts the trial court

erred by denying her mid-trial motion for mistrial and her motion for new

trial following a defense verdict. We find that the trial court erred in not

excluding a properly challenged venireperson. Because this error forced

Rivas to use a peremptory challenge against this venireperson and the trial

court later denied Rivas’ request for an additional peremptory challenge

against a prospective juror over whom she expressed concern, we reverse

and remand for a new trial.

                       Facts and Procedural History

      Rivas was travelling south on US-1 in South Miami when she turned

left and was struck by Sandoval. After the collision, Rivas received

emergency medical attention for shattered glass in her eyes, lacerations to

her legs, and a contusion to her knee. After being discharged, she

experienced neck and back pain, sought medical attention, and was

diagnosed with injuries to her neck and back.

      Rivas sued Sandoval and the case proceeded to trial. When the

venire was asked whether any member had a personal or indirect

experience being involved in a car accident, juror number five responded

affirmatively. Juror five explained that his son had been in a similar collision


                                       2
with his car and both had been sued. He explained that the plaintiff in his

son’s case was never taken to the hospital for neck and back injuries, and

that based on this he did not believe the plaintiff was sufficiently injured to

receive his $100,000 insurance policy limits. The juror further explained

that he was threatened by a law firm claiming it would put a lien on his

house if he refused the policy limits on his insurance.

      Rivas’ counsel asked the juror if the instant case was one “where you

can’t be fair and impartial and look at both cases equally using the analogy

fairly and equally at the beginning, right?” The juror responded, “Yes.”

Sandoval’s counsel further questioned the juror, “Are you open-minded in

terms of this case . . .” The juror responded, “Yes. Like I mention, every

case is different so.”

      At the conclusion of voir dire, Rivas moved to exclude juror five for

cause “because he had been a defendant, because he had issues with the

insurance company, he was sympathizing with the defendant. He said that

as a defendant he was treated unfairly.” The trial court denied the motion to

strike. Rivas initially accepted juror five but later used a peremptory

challenge against the juror “based upon the denial of the motion for cause.”

Later, and after Rivas had exhausted all her peremptory challenges, Rivas

was asked to accept juror fifteen, who had previously worked for several


                                      3
insurance companies. Rivas’ counsel responded saying, “I would ask for an

additional peremptory challenge based upon the fact that the court denied

the cause challenges on [Jurors] Number Three and Five, and I would ask

the court for an additional peremptory.” The trial court denied the request

for an additional peremptory. Rivas’ counsel responded, “Just note my

objection then, Your Honor, that I would have used one of the peremptory

challenges had the court granted one of the prior cause challenges under

[Jurors] Three and Five.” Rivas tendered the jury, including juror fifteen, but

maintained her previous objections. At the conclusion of trial, the jury

returned a verdict for Sandoval.

                                   Analysis

      We review a trial court’s decision to deny a challenge for cause to a

potential juror for an abuse of discretion. McKay v. State, 

61 So. 3d 1178

,

1180 (Fla. 3d DCA 2011). “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 instructions on the law given by

the court.” Busby v. State, 

894 So. 2d 88

, 95 (Fla. 2004). While the trial

court has significant discretion in determining a juror’s competency, “[a]

juror must be excused for cause if any reasonable doubt exists as to




                                      4
whether the juror possesses an impartial state of mind.” Kopsho v. State,

959 So. 2d 168

, 170 (Fla. 2007).

      Juror five’s answers to questions from Rivas’ counsel evinced a bias

which called into question his ability to “render an impartial verdict based

solely on the evidence submitted and the law announced at the trial.”1

Matarranz v. State, 

133 So. 3d 473

, 484 (Fla. 2013) (citations omitted). An

evaluation of a juror’s ability to render a verdict based solely on the

evidence and law must take into account “all of the questions and answers

posed to or received from the juror.”

Id.

Juror five specifically

stated that his previous experience made it

difficult to remain impartial in his evaluation of the facts and evidence in this

case. He stated that he did not believe the plaintiff in his son’s case was

injured enough to claim the $100,000 policy limits. For support of his

statement, the juror interrupted counsel’s questions to say that the plaintiff

in his son’s case “was never taken to the hospital in an ambulance.” In a

case involving a plaintiff who did not immediately receive medical treatment

for her most severe long-term injuries, juror five’s statements evinced a

1
   Rivas’ counsel successfully navigated the sometimes challenging
procedure to preserve this issue for appellate review. Florida law requires
that to preserve this issue a litigant must “expend a curative peremptory
challenge, exhaust the remaining peremptories, and identify a seated juror
whom the [litigant] otherwise would have peremptorily excused according
to established law.” 

Busby, 894 So. 2d at 103

.

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bias in favor of the defendant and against the plaintiff by insinuating a

preference for limited damages. The trial court’s failure to excuse the juror

based on these answers was, therefore, error.

     As a result of the trial court’s failure to strike juror five for cause,

Rivas was forced to use a peremptory challenge to strike him “and then

had to accept [juror fifteen], an objectionable juror, because [she] had

exhausted [her] peremptory challenges.” Rodriguez v. Lagomasino, 

972

So. 2d 1050

, 1053 (Fla. 3d DCA 2008). “This court has consistently held

that ‘it is error for a court to force a party to exhaust his peremptory

challenges on persons who should be excused for cause since it has the

effect of abridging the right to exercise peremptory challenges.’”

Id.

(quoting Tizon v.

Royal Caribbean Cruise Line, 

645 So. 2d 504

, 506 (Fla.

3d DCA 1994)). “[A] failure to ensure that our jury panels are comprised of

only fair and impartial members renders suspect any verdict reached.”

Matarranz, 133 So. 3d at 477

.

     Sandoval contends that juror five’s later answer that he would keep

an open mind because “every case is different,” was sufficient to

rehabilitate the juror. We have previously held that in cases where a juror

“clearly expressed his negative feelings” about a similar type of claim or a

similar type of plaintiff, a later expression that the juror can be fair is


                                     6
“insufficient to indicate unequivocally that he [can] set aside his feelings

and be fair and impartial in this case.” 

Rodriguez, 972 So. 2d at 1052

.

     We therefore reverse and remand for a new trial. Because we

reverse on this issue, we do not reach Rivas’ other claims of error.

     Reversed and remanded for new trial.




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