Juror Goes on Social Media Rant – No New Trial

I once had a case where a prospective juror went on Facebook during  a break in voir dire to make some rather colorful comments about the process. That juror was dismissed. This is a post about a juror whose social media posts were not uncovered until after the trial. Warning – a few of the tweets feature obscene language.

In this car accident case, the juror – Juror 5 – waited until the middle of the trial to go on a twitter rant. Several of the tweets are cited in the opinion, but it turns out they are still up on Twitter and make for classic insight into the mind of a juror:

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“After conducting two hearings, the trial court granted the motion for juror interview. During the interview, Juror 5 admitted that the Twitter account in question, although titled under a pseudonym, was his and that he posted all of the tweets at issue. The trial court asked Juror 5 about his understanding of the court’s instruction to not communicate about the case or his jury service on social media. Juror 5 responded that he thought the instruction “pretty much” meant “don’t talk about the case.” Juror 5 testified that he did not tweet while sitting in the courtroom during the trial and that he did not intentionally or deliberately disobey the court’s order regarding the use of social media. Finally, Juror 5 denied telling anyone else his views about the case at any time prior to the commencement of deliberations.”

The Plaintiff moved for a new trial, pursuant to Rule 1.530, and the trial court ultimately denied the motion.

On appeal, the Fourth DCA reviewed the Motion for New Trial using an abuse of discretion standard. The Fourth DCa noted that (1) “the trial court necessarily credited and accepted Juror 5’s explanation that this misconduct was neither intentional nor willful, and that none of his tweets related specifically to this case”; (2) “There is no evidence that any of the other jurors saw, or had any discussions about, Juror 5’s tweets”; and (3) “nothing in the plain language of Juror 5’s tweets discusses any facts specific to this case or the parties involved.”

The Plaintiff also alleged that the tweet “[e]veryone is so money hungry that they’ll do anything for it” implied the juror was biased. However, the Fourth DCA notes that the juror expressed similar opinions during voir dire, such as: some people sue “just for the money” or for “dumb reasons.”

Ultimately, the Fourth DCA upheld the trial court’s denial of Plaintiff’s Motion for New Trial finding that the trial court did not abuse its discretion in denying the motion.

This case is also notable for including a definition of Twitter:

“Twitter is a real-time information network that lets people share and discuss what is happening at a particular moment in time through the use of ‘tweets,’ updates composed of 140 characters or less. The service allows users either to Direct Message (DM) specific individuals or to use ‘twitter posts’ accessible to the public. The process of posting messages on Twitter is commonly referred to as ‘tweeting.’ ” Dimas-Martinez v. State, 385 S.W. 3d 238, 243 n.3 (Ark. 2011) (citation omitted).

MICHELE L. MURPHY v. MICHAEL B. ROTH, Case No. 4D14-4830 (Fla. 4th DCA Oct 5, 2016)

New Trial As a Result of Inflammatory Closing Argument

In this case, the defendant made a closing argument to the jury that shifted the focus of the case from compensating the plaintiff to punishing the defendant, “to make the defendant care, ‘take responsibility,’ or say it was sorry.”  The appellate court reversed, holding, “The closing argument was designed to inflame the emotions of the jury rather than prompt a logical analysis of the evidence in light of the applicable law.”

Hill v. New Horizons Of The Treasure Coast, Inc., 39 Fla. L. Weekly D2311a (Fla 4th DCA Nov. 5, 2014).

 

 

 

 

 

 

Dismissal with Prejudice Not an Option for Failure to Serve Process Within 120 Days

In this breach of contract case, the trial court sua sponte dismissed a complaint “with prejudice” for failure to serve it within 120 days, after the court entered an order requiring service within 120 days.  The appellate court reversed for two reasons: the trial court should have provided notice and an opportunity to be heard before dismissal, and should not have dismissed the complaint with prejudice, reasoning that “Rule 1.070(j) states that a trial court may act on its own initiative; however, the court may only act “on its own initiative after notice.”   Further, “the trial court also erred in dismissing Carter’s complaint with prejudice. That action was not one of the options available to it under rule 1.070(j). See Fla. R. Civ. P. 1.070(j) (emphasis added) (“[T]he court . . . shall dismiss the action without prejudice or drop that defendant.”).”

Carter v. Mendez, 39 Fla. L. Weekly D1229a (Fla. 4th DCA June 11, 2014)

 

 

Person responding to subpoena entitled to costs of production

In this case, the trial court ordered a third party to produce documents that were alleged to be confidential, and denied the third party its costs in providing the production.  The appellate court affirmed on the confidentiality issue, but reversed on the costs issue, holding, “The failure to make provision for the cost to a non-party to produce subpoenaed documents constitutes a departure from the essential requirement of law.”

First Call Ventures, LLC v. Nationwide Relocation Services, Inc., 38 Fla. L. Wkly D2431a (Fla. 4th DCA Nov. 20, 2013)

 

After One Year, Judgment Can Only Be Set Aside for Extrinsic Fraud

On February 25, 2010, an agreed final judgment of foreclosure was entered pursuant to a settlement agreement between the original lender and the defendants/appellees. On August 31, 2012, the defendants filed an objection to the sale and a rule 1.540(b) motion to vacate the February 2010 final judgment of foreclosure.  The trial court denied the defendants’ motion.

The Fourth DCA ruled that a trial court loses jurisdiction to entertain a motion to vacate a final judgment under Florida Rule of Civil Procedure 1.540 (b) after one year, including motions for “fraud on the court,” and upheld the trial court’s ruling. Only “extrinsic fraud,” i.e., that fraud which is outside and collateral to the issues tried in the case, may be raised beyond the one year period.

NAFH Nat. Bank v. Aristizabal, 2013 WL 3811356 (Fla. 4th DCA 2013).

Source: Real Property and Business Litigation Case Update

Error to Dismiss for Lack of Prosecution at Case Management Conference

After Plaintiff failed to attend a case management conference, the trial court issued an order which stated in its entirety:

Neither plaintiff nor defendant appeared at duly set status conference. Whereas this court hereby dismisses without prejudice the above styled case for lack of prosecution.

Florida Rule of Civil Procedure 1.420(e) allows the court to dismiss a suit for lack of prosecution, but the required procedures for dismissal for lack of prosecution were not met, i.e.: “no record activity for ten months followed by a notice to the parties and a sixty-day opportunity to take action.”

The 4th DCA noted that the trial court could have dismissed the suit under Florida Rule of Civil Procedure 1.200(c), which provides that the court may “dismiss the action” if a party fails to attend a case management or pretrial conference. However, the court would have had to made a finding of fact that the failure to attend the case management hearing was “willful and contumacious.”

Since the court’s order merely stated that Appellant failed to attend the conference and did not set forth any findings establishing that Appellant engaged in “willful and contumacious” behavior, the 4th DCA overturned the trial court’s dismissal.

PETERSEN & HAWTHORNE, P.A. v. EMI ENTERPRISES, INC., et. al.,  Case No. 4D11-3609 (4th DCA June 12, 2013).

Dismissal for Fraud on the Court Not Available to Resolve Jury Questions – Herman v. Silver

In this medical malpractice case, a husband sued after his wife died allegedly from kidney failure after the defendant doctor performed surgery. At the trial, the husband testified about various issues, including his wife’s active lifestyle before the surgery, and date of the onset of kidney problems. After the trial, the husband quarrelled with his daughter, who then advised defense counsel that they both had “lied” while testifiying at the trial regarding issues in the case. She also advised about the existence of a diary that the husband failed to produce in response to a discovery request; the diary, among other things, contradicted the husband’s testimony regarding the onset of the kidney problems. The trial court dismissed the case after an evidentiary hearing. The appellate court reversed, holding: “The evidentiary conflicts regarding Mrs. Herman’s activity levels presented a classic jury question, and hardly amounted to clear and convincing evidence that the plaintiff undertook a scheme calculated to interfere with the judicial system’s ability to impartially adjudicate the matter.”

Herman v. Silver, 38 Fla. L. Weekly D908a (Fla. 4th DCA Apr. 24, 2013).

Defaulted Party Still Entitled to Hearing on Attorneys’ Fees – ZHOU v. CATERPILLAR FINANCIAL SERVICES CORP.

Caterpillar filed a complaint for damages and replevin against three defendants. After service on the defendants, they failed to answer, and Caterpillar secured a clerk’s default against them all. Two of the defendants attempted to set aside the default and Caterpillar filed its motion for final judgment based upon the clerk’s default.

The summary judgment and motions to set aside the default were at the same time. The trial court upheld the entry of the clerk’s default and entered final summary judgment in favor of Caterpillar. The final judgment included the award of attorneys’ fees based on an affidavit filed by Caterpillar.

The Fourth DCA found that the defaulted defendants were still entitled to have an opportunity to contest unliquidated damages, like attorneys’ fees.

Zhou v. Caterpillar Financial Services Corp., 38 Fla. L. Weekly D112a (Fourth DCA Jan 9, 2013)

Rescission of Settlement Agreement for Discovery Misconduct – Garvin v. Tidwell

In this case, the plaintiff was injured when she fell off of a horse, named “Buster,” who had behaved obstreperously while plaintiff tried to ride him.  Defendant claimed that Buster never exhibited any dangerous behavior.  The case settled.  After the settlement, plaintiff’s counsel received an unmarked advertisement quoting the defendant as saying that she decided to give a calming supplement, “Ex Stress, to her horse, Buster, because he ‘can be a little difficult at times.’”  Defendant had not produced this advertisement in response to various discovery requests despite being in possession of the advertisement.  The plaintiff then moved to rescind the settlement agreement based upon these facts.  The trial court denied the motion.  The appellate court reversed, holding, “Since our system of justice depends on truthful discovery, misconduct in discovery must be discouraged by disallowing the settlement which is the fruit of such misconduct.”  The court further held that the plaintiff had further established the elements of unilateral mistake:

“[T]his case involves a plaintiff who entered into a settlement agreement believing that, after conducting discovery, she had all of the material facts in front of her, when in fact she did not. There does not appear to have been any reasonable way for appellant to find out about the advertisement or Buster’s ‘difficult’ behavior other than through the methods she had already employed. Thus, appellant’s mistake lacks inexcusable neglect.”

Garvin v. Tidwell, 37 Fla. L. Wkly D2506a (Fla. 4th DCA Oct. 24, 2012)

 

In camera review required for discovery records protected by constitutional right of privacy – James v. Veneziano

In this car accident case, the plaintiff sought defendant’s medical records for the past 10 years based on the belief that the defendant’s medical problems caused the car accident.  The trial court ordered the defendant to produce the records.  The Defendant objected to producing the records on the basis that he had a right of privacy in the records.  On certiorari review, the appellate court reversed, holding, “We find the order departed from the essential requirements of law because when a party challenges a discovery order concerning material to which the party asserts his or her constitutional right to privacy, the trial court must conduct an in camera examination to determine the relevance of the materials to the issues raised or implicated by the lawsuit.”  Accordingly, the appellate court required the trial court on remand to conduct an in camera inspection and an additional hearing to determine the relevance of the records.

 James v. Veneziano, 37 Fla. L. Weekly D2338a (Fla. 4th DCA Oct. 3, 2012)