OCTAVIA JENKINS, APPELLANT,
v.
HUMANA OF FLORIDA, INC. ETC., ET AL., APPELLEES
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Octavia Jenkins, as personal representative of an estate, appealed an adverse jury verdict in what appears to be a wrongful death case. The key issue was whether the trial court erred in denying her challenges for cause against jurors who expressed reservations about awarding high damages, particularly in cases involving deceased victims.
The court affirmed the lower court judgment but clarified the controlling standard: a party who exhausts peremptory challenges on jurors who should have been excused for cause need not request additional peremptory challenges to preserve error, overruling the prior Auriemme precedent to the extent it conflicted with Hill v. State.
[1] A party must seek additional peremptory challenges after exhausting their initial challenges to preserve an appeal based on the erroneous denial of a challenge for cause.
[2] Jurors who express reservations about awarding "high" or "excessive" monetary damages, particularly for pain and suffering in cases where the victim subsequently died, ma…
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Join FLexlaw to unlock all legal intelligence“a party, who has exhausted his peremptory challenges, need not seek additional challenges in order to preserve error resulting from a trial court's improper refusal to grant a challenge for cause”
The court's holding in Auriemme, which it ultimately receded from to adopt the Hill standard
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Join FLexlaw to unlock all legal intelligenceFour jurors expressed reservations about granting 'high' or 'excessive' monetary awards, especially for pain and suffering in cases where the victim d…
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PER CURIAM.
Appellant, Octavia Jenkins, (Jenkins) as personal representative of the estate of Catherine Hendricks, appeals an adverse final judgment entered after jury verdict. Jenkins contends the trial court erred in failing to excuse certain jurors whom she challenged for cause. The record shows that the four challenged jurors voiced reservations about granting “high” or “excessive” monetary awards, especially for pain and suffering, in cases where the victim subsequently died. Additionally, two jurors indicated that the plaintiff might have a more difficult time or “uphill burden” in convincing them to award large amounts of money to someone other than the person injured. At the conclusion of voir dire, Jenkins challenged each of the four jurors for cause. When the court denied the challenge to three of the jurors, Jenkins exhausted her peremptory challenges to strike them from the panel.1 She did not request additional challenges. In Auriemme v. State, 501 So. 2d 41 (Fla. 5th DCA 1986) review denied, 506 So. 2d 1043 (Fla.1987), we held that a party, who has exhausted his peremptory challenges, need not seek additional challenges in order to preserve error resulting from a trial court’s improper refusal to grant a challenge for cause.
Auriemme is in direct conflict with Hill v. State, 477 So. 2d 553 (Fla.1985). Hill says it is reversible error 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. This rule requires the trial court be given an opportunity to rule on a request for additional peremptory challenges in order to preserve error resulting from an erroneous denial of a challenge for cause. Hill, supra; Moore v. State, 525 So. 2d 870 (Fla.1988).
We recede from Auriemme to the extent it is in conflict with .this decision.
AFFIRMED.
DANIEL, C.J., and DAUKSCH, SHARP, COWART and GOSHORN, JJ., concur. COBB, J., concurs specially with opinion.
. Before receiving a ruling, Jenkins utilized a peremptory challenge to excuse the fourth juror. Thus, the objection to this juror was not preserved for appeal. Tiesco v. Metropolitan Dade County, 426 So. 2d 1156 (Fla. 3d DCA), rev. denied, 440 So. 2d 353 (Fla.1983).
COBB, Judge,
concurring specially.
I concur with the instant result based upon the Florida Supreme Court’s opinion in Moore v. State, 525 So. 2d 870 (Fla.1988). In Moore the court reiterated prior dictum that it is necessary to seek an additional challenge in order to preserve for appellate review an erroneous refusal to excuse a challenged juror for cause. In Auriemme v. State, 501 So. 2d 41 (Fla. 5th DCA 1986), review denied, 506 So. 2d 1043 (Fla.1987), we questioned dictum in Hill v. State, 477 So. 2d 553 (1985), that seemed to impose such a requirement on the basis that the eight cases cited in Hill as support for that requirement failed to provide such support. Moore, however, has now repeated this dictum and apparently it represents the position of the Florida Supreme Court in this respect.
The “direct conflict” between Auriemme and Hill, asserted by the majority, apparently was not so readily discernible to the Florida Supreme Court in 1987 when, by a 4-1 vote, it denied the state’s timely petition for certiorari review of our opinion in Auriemme.
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Gootee v. Sidney Clevinger, M.D., 778 So. 2d 1005 (Fla. 5th DCA 2000)…2000); Straw v. Associated Doctors Health and Life, 728 So. 2d 354, 355 (Fla. 5th DCA 1999); Massad v. State, 703 So. 2d 1134 (Fla. 5th DCA 1997); Tizon v. Royal Caribbean Cruise Line, 645 So. 2d 504, 505 (Fla. 3d DCA 1994); Jenkins v. Humana, Inc., 553 So. 2d 201 (Fla. 5th DCA 1989); Club West, Inc. v. Tropigas, Inc., 514 So. 2d 426 (Fla. 3d DCA 1987). When any reasonable doubt exists as to whether a juror possesses the state of mind necessary to render an impartial verdict based solely on the evidence subm…
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Bulkmatic Transp. Co. v. Taylor, 860 So. 2d 436 (Fla. 1st DCA 2003)…austion of all peremptory challenges and a denial of a request for additional challenges and affirming the final judgment because the appellant failed to make a specific request for additional peremptory challenges); Jenkins v. Humana of Fla., Inc., 553 So. 2d 201, 202 (Fla. 5th DCA 1989) (holding that its previous decision in Auriemme v. State, 501 So. 2d 41 (Fla. 5th DCA 1986), wherein the court held that a party need not seek additional challenges in order to preserve the error resulting from a trial court…
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Dobek v. ANS, 560 So. 2d 328 (Fla. 4th DCA 1990)…ntly exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.” Id. at 556. See also Reilly v. State, 557 So. 2d 1365 (Fla.1990); Moore v. State, 525 So. 2d 870 (Fla.1988); Jenkins v. Humana of Florida, Inc., 553 So. 2d 201 (Fla. 5th DCA 1989) (en banc). In Longshore v. Fronrath Chevrolet, Inc., 527 So. 2d 922 (Fla. 4th DCA 1988), we held that the appellants preserved the issue, despite their failure to request additional challenges because counsel stated on the recor…
Authorities Cited
- Hill v. State, 477 So. 2d 553 (Fla. 1985)
- Alton Moore v. State, 525 So. 2d 870 (Fla. 1988)
- Auriemme v. State, 501 So. 2d 41 (Fla. 5th DCA 1986)
- Tieso v. Metro. Dade Cnty. & William Kearse, 426 So. 2d 1156 (Fla. 3d DCA 1983)