METROPOLITAN DADE COUNTY, APPELLANT,
v.
SIMS PAVING CORPORATION AND EMPLOYERS INSURANCE OF WAUSAU, APPELLEES
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The court held that the exclusion of an expert's report was proper when the expert was not called to testify, and that the denial of additional peremptory challenges was not reversible error without showing an objectionable juror was accepted.
Dade County contracted with Sims Paving for road construction, with Wausau as surety. Dade County sued Sims and Wausau, alleging breach of contract an…
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PER CURIAM.
Appellant, Metropolitan Dade County (Dade County), appeals from a final judgment in favor of appellees, Sims Paving Corporation (Sims), and Employers Insurance of Wausau (Wausau). We affirm.
Dade County contracted with Sims to build a road. Wausau bonded the performance of Sims. Sims sued Dade County alleging breach of contract. Dade County countersued against Sims. Dade County also sued Wausau on the surety bond.
Dade County contends that the trial court erred: (1) in precluding Dade County from impeaching one of Wausau’s witnesses with a report prepared by a Wausau expert, not called at trial; and (2) in refusing to grant Dade County additional peremptory challenges.
We find that the use by Dade County of the Wausau expert’s report was properly excluded because the expert was never called to testify. See e.g. Mims v. Casade-mont, 464 So. 2d 643 (Fla. 3d DCA 1985).
We also find no merit in Dade County’s second contention. During voir dire, Dade County requested additional peremptory challenges. However, Dade County never objected to any of the jurors ultimately empaneled.
The rule is well settled:
Under Florida law, “(t)o show reversible error, a [party] must show that all per-emptories had been exhausted and that an objectionable juror had to be accepted.”
Trotter v. State, 576 So. 2d 691 (Fla.1990) (quoting Pentecost v. State, 545 So. 2d 861 (Fla.1989)).
In Penn ¶. State, 574 So. 2d 1079 (Fla. 1991), the Florida Supreme Court explained that even where the trial court erroneously refused to excuse prospective jurors, such error was harmless where no prejudice was shown, “i.e. that he had to accept an objectionable juror.” Penn v. State, 574 So. 2d at 1081.
The record here fails to “show that the jury empaneled contained at least one [objectionable] juror ... to [the party], who sought to excuse him peremptorily.” Penn v. State, 574 So. 2d at 1081 (quoting Young v. State, 85 Fla. 348, 96 So. 381 (1923)).
Accordingly, we affirm.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Trotter v. State, 576 So. 2d 691 (Fla. 1990)
- Young v. State, 85 Fla. 348 (Fla. 1923)
- Penn v. State, 574 So. 2d 1079 (Fla. 1991)
- Bell v. State, 545 So. 2d 861 (Fla. 1989)
- Pentecost v. State, 545 So. 2d 861 (Fla. 1989)
- Mims v. A. Carlos Casademont, M.D., 464 So. 2d 643 (Fla. 3d DCA 1985)