IN THE SUPREME COURT OF FLORIDA Case No. SC Fifth DCA Case No. 5D10-19, Lake County

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1 IN THE SUPREME COURT OF FLORIDA Case No. SC Fifth DCA Case No. 5D10-19, Lake County Upon Petition for Discretionary Review Of A Decision of the Fifth District Court of Appeal CARDIOVASCULAR ASSOCIATES OF LAKE COUNTY, P.A. Petitioner, v. ANGELA SZYMANSKI, DWAYNE E. SZYMANSKI, her husband, individually and as Parents and Natural Guardians of ALYSSA K. SZYMANSKI, a minor, and JOSIAH R. SZYMANSKI, a minor Respondents PETITIONER, CARDIOVASCULAR ASSOCIATES OF LAKE COUNTY, P.A. S BRIEF ON JURISDICTION RISSMAN, BARRETT, HURT, DONAHUE & McLAIN, P.A. JENNINGS L. HURT III, ESQ. HENRY W. JEWETT, II, ESQ. CHRISTINE V. ZHAROVA, ESQ. 201 E. Pine Street, 15th Floor Post Office Box 4940 Orlando, Florida (407) Counsel for Petitioner

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENT STANDARD OF REVIEW ARGUMENT I. THIS COURT HAS JURISDICTION TO REVIEW 5TH DCA S DECISION IN SZYMANSKI BECAUSE IT EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION OF THE 3D DCA ON THE SAME POINT OF LAW CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPEFACE COMPLIANCE INDEX TO APPENDIX i

3 TABLE OF AUTHORITIES CASES Page(s) Szymanski v. Cardiovascular Associates of Lake County, P.A. 36 Fla. L. Weekly D694 (Fla. 5th DCA April 1, 2011) Gonzalez v. Martinez 897 So. 2d 525 (Fla. 3d DCA 2005) Sun Ins. Co. v. Boyd 105 So. 2d 574, 575 (Fla. 1958) ii

4 STATEMENT OF THE CASE AND FACTS Petitioner, CARDIOVASCULAR ASSOCIATES OF LAKE COUNTY, P.A. (hereinafter referred to as CARDIOVASCULAR ASSOCIATES ), pursuant to Fla. R. App. Pro , seeks discretionary review by the Florida Supreme Court of the 5th DCA s decision in Szymanski v. Cardiovascular Associates of Lake County, P.A., 36 Fla. L. Weekly D694 (Fla. 5th DCA April 1, 2011). [A 1]. CARDIOVASCULAR ASSOCIATES respectfully submits that the 5th DCA s ruling is in express and direct conflict with the 3d DCA s decision in Gonzalez v. Martinez, 897 So. 2d 525 (Fla. 3d DCA 2005). Respondents, ANGELA SZYMANSKI, DWAYNE E. SZYMANSKI, her husband, individually and as Parents and Natural Guardians of ALYSSA K. SZYMANSKI, a minor, and JOSIAH R. SZYMANSKI, a minor, Plaintiffs below, ( SZYMANSKI ), appealed to the 5th DCA a jury verdict and final judgment in favor of CARDIOVASCULAR ASSOCIATES and the trial court s denial of SZYMANSKI s Motion for New Trial. See Szymanski v. Cardiovascular Associates of Lake County, P.A., 36 Fla. L. Weekly D694 (Fla. 5th DCA April 1, 2011). On appeal to the 5th DCA, SZYMANSKI argued that the trial court had erred by not allowing them to use their remaining peremptory challenges to backstrike into the main panel after the original six jurors were selected. [A 1 at D694]. 1

5 In its decision, the 5th DCA reversed the defense judgment, ruling that the trial court had improperly impaired SZYMANSKI s right to backstrike. Id. at D696. The 5th DCA further found that SZYMANSKI had preserved this issue for appeal by generally objecting to the panel as a whole after the two alternate jurors were selected. Id. However, SZYMANSKI had not specifically identified by name the juror(s) on the main panel upon whom they would have exercised their remaining peremptory challenges. Id. CARDIOVASCULAR ASSOCIATES argued before the 5th DCA that SZYMANSKI had failed to preserve the backstriking issue for appeal because SZYMANSKI had not specifically identified by name the juror(s) on the main panel they would have stricken. Id. CARDIOVASCULAR ASSOCIATES cited several cases, including Gonzalez v. Martinez, 897 So. 2d 525 (Fla. 3d DCA 2005) in support of its argument. In Gonzalez, the 3d DCA held that if a party believes its right to backstrike jurors has been improperly impaired, the only way the issue is properly preserved for appeal is for that party to clearly identify the juror or jurors it would have backstricken had backstriking been permitted by the lower court. Gonzalez, 897 So. 2d at 528. Notably, the trial court in Gonzalez, similar to the trial court in Szymanski, had employed a procedure which ultimately had impaired the complaining party s right to backstrike. Id. However, the 3d DCA refused to rule that an impairment of a 2

6 party s right to backstrike is per se reversible error. Id. Instead, the 3d DCA held that the party must properly preserve the issue for appeal by specifically identifying the particular juror that the party would have backstricken had it been permitted to do so. Id. In Szymanski, the 5th DCA ruled that Gonzalez did not apply because the lower court had adopted a procedure that deprived... [SZYMANSKI] of a valuable right by offering them only two choices, neither of which was proper. [A 1 at D697]. In Szymanski, the 5th DCA stated that Gonzalez had no application to the case, although it did not set forth why Gonzalez was not applicable. Id. On June 3, 2011, the 5th DCA issued its denial of Petitioner s Motion for Rehearing, Re-Hearing En Banc, Clarification and Certification. This Petition seeking this Court s discretionary review based on direct and express conflict with the 3d DCA s decision in Gonzalez has been timely filed. SUMMARY OF ARGUMENT The Court has jurisdiction pursuant to Fla. R. App. Pro to review the 5th DCA s decision in Szymanski because it expressly and directly conflicts with the 3d DCA s decision in Gonzalez on the same issue of law. The issue is whether a party has failed to properly preserve for appellate review an alleged 3

7 impairment of the party s right to backstrike when the party does not specifically identify by name the juror or jurors who the party would have backstricken had it been allowed to do so. The 3d DCA held in Gonzalez that to preserve the backstriking issue for appeal, the party must timely object and clearly and positively identify the juror or jurors the party would have backstricken had the trial court permitted backstriking. Gonzalez, 897 So. 2d at The 3d DCA in Gonzalez very clearly ruled that the party seeking appellate review must have clearly and specifically identified the particular juror who the party would have stricken in the trial court record. Id. at 528. A vague statement to the court made for the record and couched in probabilities does not properly preserve this issue for appeal. Id. at 527. The 5th DCA s decision in Szymankski expressly and directly conflicts with the decision of the 3d DCA in Gonzalez on the issue of preserving this backstriking issue for appeal. In Szymanski, the 5th DCA has unequivocally ruled the party is not required to clearly identify the specific juror or jurors the party would have backstricken to preserve the issue for appeal. Obviously, this is an issue of great importance to the trial courts of this State. A party s right to backstrike is clear and well established. However, a mere technical impairment of a party s right to backstrike should not be 4

8 reversible error per se and should not result in the reversal of otherwise properly obtained verdicts and judgments. Parties should be required to show on appeal how they were actually harmed by the technical impairment. This requires the party to specifically identify the juror or jurors who would have been backstricken. At this time, the 3d DCA and the 5th DCA are in conflict on this very important issue. STANDARD OF REVIEW The Florida Supreme Court s decisions on discretionary jurisdiction are a matter of de novo review. Sun Ins. Co. v. Boyd, 105 So. 2d 574, 575 (Fla. 1958). ARGUMENT I. THIS COURT HAS JURISDICTION TO REVIEW 5TH DCA S DECISION IN SZYMANSKI BECAUSE IT EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION OF THE 3D DCA ON THE SAME POINT OF LAW. The specific issue of law for which there is an express and direct conflict between the 5th DCA in Szymanski and the 3d DCA in Gonzalez is how the issue of an alleged impairment of a party s right to backstrike is properly preserved for appeal. In Gonzalez, the 3d DCA held that the complaining party must clearly and specifically identify the particular juror or jurors the party would have backstricken had it been allowed to do so. Gonzalez, 897 So. 2d at 528. On the other hand, in Szymanski, the 5th DCA held that a general objection to the panel is sufficient and that the party 5

9 does not have to specifically identify the juror or jurors it would have backstricken. [A 1 at D697]. Thus, pursuant to Fla. R. App. Pro , this Court has jurisdiction to review the 5th DCA s decision in Szymanski on this very important issue. In Gonzalez, the 3d DCA ruled that plaintiffs had not properly preserved their argument that their right to backstrike had been impaired by the trial court. Gonzalez, 897 So. 2d at 528. Further, the 3d DCA declined the plaintiffs invitation to create a per se reversible error absent the proper preservation of the backstriking issue. Id. According to the 3d DCA s opinion, in Gonzalez six jurors had been selected and the court was ready to proceed with choosing alternate jurors. Id. At 527. At that point, before the jury was sworn, defense counsel sought to backstrike one of the six prospective jurors. Id. The trial court refused to allow the defense to backstrike into the panel and accused defense counsel of playing games. Id. Plaintiffs counsel also complained that the defense had not specified which juror it would have backstricken. Id. In response, the defense proffered the identity of the juror it would have stricken. Id. In response, plaintiffs counsel was equivocal as to whom he would have backstricken had the defense stricken the juror it identified. Id. Plaintiffs 6

10 counsel essentially stated that he might have exercised a strike on the first six jurors, but I might not have. Id. Plaintiffs raised the backstriking issue on appeal, but the 3d DCA ruled that it had not been properly preserved for appellate review. Id. at The 3d DCA acknowledged that parties have the right to challenge any juror, either peremptorily or for cause, before a jury is sworn. Id. However, to preserve the issue for appellate review, any objections to the voir dire process must be raised and renewed before the jury is sworn and the specific juror who the party would have backstricken must be identified. Id. In rejecting plaintiffs argument, the 3d DCA characterized plaintiffs as attempting to piggyback on the defense s attempt to backstrike a particular juror, without plaintiffs specifically identifying who they would have stricken. Id. The 3d DCA did not find the piggyback attempt to be sufficient to preserve the backstriking issue for appeal and declined plaintiffs invitation to create a per se reversible error under the circumstances. Id. at 528. Thus, in Gonzalez, the 3d DCA ruled that not only were plaintiffs required to renew their objection on the backstriking issue before the jury was sworn, but they were also required to identify the particular juror they would have backstricken had they been given the opportunity to do so. Id. 7

11 The 5th DCA s decision in Szymanski expressly and directly conflicts with the 3d DCA s decision in Gonzalez on the exact same issue. As set forth in the 5th DCA s opinion, CARDIOVASCULAR ASSOCIATES argued on appeal that SZYMANSKI had not properly preserved the backstriking issue for appeal, relying on the 3d DCA s decision in Gonzalez. [A 1 at D697]. The 5th DCA stated that Gonzalez had no application to a case like Szymanski but it did not describe how Gonzalez was not applicable. Id. The 5th DCA ultimately concluded that SZYMANSKI was not required to specifically identify the juror(s) they would have backstricken and that the issue was properly preserved by SZYMANSKI s general objection to the process used to select the entire panel. Id. It appears that the 5th DCA s rationale for ruling that Gonzalez was not applicable was its conclusion that the Szymanski trial court had adopted a procedure that deprived... [SZYMANSKI] of a valuable right by offering them only two choices, neither one of which was proper. Id. However, the procedure adopted by the trial court in Gonzalez was no different than the procedure adopted by the trial court in Szymanski. The trial court in Gonzalez clearly did not offer either party any acceptable or proper choice when it prohibited backstriking into the main panel. Despite the trial court s implementation of this improper procedure, the 3d DCA in Gonzalez 8

12 specifically held that the backstriking issue must be preserved for appeal by a timely objection and by clear and positive identification of the juror or jurors the party would have stricken had the backstriking been permitted. Gonzalez, 897 So. 2d at This is an issue of great importance to the trial courts of this State. As seen in the Gonzalez decision, the mere technical impairment of a party s right to backstrike should not be reversible error per se, and it should not result in reversal of an otherwise properly obtained verdict and judgment. A party should be required to specifically identify the juror or jurors who they would have backstricken to demonstrate on appeal how the party was actually harmed by the technical impairment of the right to backstrike. A ruling on this issue by this Court is necessary because, at this time, the 3d DCA and 5th DCA are in express and direct conflict on this very important issue. CONCLUSION This Court has jurisdiction to review Szymanski because of the express and direct conflict with Gonzalez. This Court should exercise its jurisdiction to resolve the conflict and determine the requirements that must be met to preserve the backstriking issue for appeal. 9

13 Respectfully submitted this _24th day of June, RISSMAN, BARRETT, HURT, DONAHUE & McLAIN, P.A. /s/ Jennings L. Hurt III JENNINGS L. HURT III, ESQ. Florida Bar No.: HENRY W. JEWETT, II, ESQ. Florida Bar No.: CHRISTINE V. ZHAROVA, ESQ. Florida Bar No.: Rissman, Barrett, Hurt, Donahue & McLain, P.A. Post Office Box 4940 Orlando, Florida (407) Attorneys for Appellee/Petitioner, CARDIOVASCULAR ASSOCIATES OF LAKE COUNTY, P.A. 10

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the foregoing, with its appendix, was furnished to counsel of record listed below, by United States mail this 24th day of June, /s/ Jennings L. Hurt III JENNINGS L. HURT III, ESQ. Florida Bar No.: HENRY W. JEWETT, II, ESQ. Florida Bar No.: CHRISTINE V. ZHAROVA, ESQ. Florida Bar No.: Rissman, Barrett, Hurt, Donahue & McLain, P.A. Post Office Box 4940 Orlando, Florida (407) Attorneys for Appellee/Petitioner, CARDIOVASCULAR ASSOCIATES OF LAKE COUNTY, P.A. Counsel for Respondent: Dock A. Blanchard, Esquire P.O. Box 1869 Ocala, FL James W. Clark, Esquire 3407 W. Kennedy Blvd. Tampa, Fl

15 CERTIFICATE OF TYPEFACE COMPLIANCE I HEREBY CERTIFY that this Brief was prepared using Courier New 12-point type, a font that is proportionately spaced and in compliance with Florida Rule of Appellate Procedure 9.100(1). /s/ Jennings L. Hurt III JENNINGS L. HURT III, ESQ. Florida Bar No.: HENRY W. JEWETT, II, ESQ. Florida Bar No.: CHRISTINE V. ZHAROVA, ESQ. Florida Bar No.: Rissman, Barrett, Hurt, Donahue & McLain, P.A. Post Office Box 4940 Orlando, Florida (407) Attorneys for Appellee/Petitioner, CARDIOVASCULAR ASSOCIATES OF LAKE COUNTY, P.A. 12

16 INDEX TO APPENDIX Exhibit A Szymanski v. Cardiovascular Associates of Lake County, P.A., 36 Fla. L. Weekly D694 (Fla. 5th DCA April 1, 2011), together with the June 3, 2011 Order of the Court Denying Motion for Rehearing, Rehearing En Banc, Clarification and Certification 13