Vanderbilt Inn on the Beach v. Pfenninger
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
VANDERBILT INN ON THE GULF
d/b/a VANDERBILT-BEACH
ASSOCIATES LIMITED
PARTNERSHIP, TIMEMED LABELING
SYSTEMS, JERRY NERAD and
VAN-DEV, INC.,
Appellants,
v.
SHERRI PFENNINGER,
Appellee.
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Case No. 2D01-1097
Opinion filed February 8, 2002.
Appeal from the Circuit Court for Collier
County; Hugh D. Hayes, Judge.
Angela C. Flowers of Kubicki Draper,
Miami, for Appellants.
Michael R.N. McDonnell of McDonnell
Green Trial Lawyers, Naples, for Appellee.
COVINGTON, Judge.
The appellants, Vanderbilt Inn on the Gulf d/b/a Vanderbilt-Beach
Associates Limited Partnership, Timemed Labeling Systems, Jerry Nerad and Van-Dev,
Inc. (the defendants in the trial court), seek reversal of an order granting a new trial in
favor of the appellee, Sherri Pfenninger (the plaintiff in the trial court). A new trial was
granted based upon Juror John Allen's failure to disclose his past involvement in
litigation. We reverse.
This case arises from an accident that occurred at the Vanderbilt Inn,
where Pfenninger fell through a broken chair near the appellants' outdoor bar. As a
result, she brought a premises liability action. Pfenninger alleged damages for injuries
resulting from the appellants' failure to correct a dangerous condition. A trial of the
case was conducted in October and November 2000.
During voir dire, Pfenninger asked the venire, "Have any of you ever had
any prior litigation that you have been involved in, any lawsuits of any sort?" Four
prospective jurors stated that they had, while Juror Allen failed to so indicate.
After the conclusion of the trial, on November 1, 2000, the jury returned
a verdict in the appellants' favor. On November 13, 2000, Pfenninger moved for a new
trial on the basis of, inter alia, juror misconduct. As grounds for the motion, Pfenninger
asserted that after the verdict, "a records check was performed regarding Juror Allen."
According to that check, Juror Allen was a defendant in two lawsuits and might have
been involved in numerous other lawsuits.
Approximately two months later, Pfenninger filed a supplemental motion.
In that motion, she asserted that she had discovered seven other undisclosed instances
of litigation involving Juror Allen and/or his wife. Two of the lawsuits involved only Juror
Allen's wife. In two of the other five proceedings, both Juror Allen and his wife were
defendants. One such case was a civil action filed in 1993 involving a contract dispute
for $1157, and another was a 1997 civil suit involving $3000. It was also revealed that,
in 1993, both Juror Allen and his wife filed for bankruptcy. Juror Allen, alone, was a
party in a 1995 domestic relations action in Pennsylvania, as well as a contempt of
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court proceeding concerning child support enforcement. On April 10, 2000, an order
entered in that cause was registered in Collier County, Florida.
In De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995), the Florida
Supreme Court explained:
In determining whether a juror's nondisclosure of information during voir dire warrants a new trial, courts have
generally utilized a three-part test. First, the complaining
party must establish that the information is relevant and
material to jury service in the case. Second, that the juror
concealed the information during questioning. Lastly, that
the failure to disclose information was not attributable to the
complaining party's lack of diligence.
De La Rosa, 659 So. 2d at 241 (citations omitted).
In the instant case, it is unnecessary to address the first two prongs of De
La Rosa. As to the due diligence prong, however, we note that the eight-day trial in this
case took place in Collier County. This cause was thus tried in the very same county
where the aforementioned Pennsylvania order pertaining to Juror Allen was registered.
During the two-week period in which the instant trial took place, Pfenninger easily could
have checked the public records of Collier County and been alerted to the Pennsylvania
litigation involving Juror Allen. Armed with that information, Pfenninger could have
addressed the issue of juror misconduct with the trial court before deliberations were
held and, if necessary, had an alternate juror seated. Rather, Pfenninger waited for the
jury to return its unfavorable verdict before investigating and/or raising the issue.
As quite articulately stated in Birch v. Albert, 761 So. 2d 355, 359 (Fla. 3d
DCA 2000) (Sorondo, J., concurring), "The issue of jury non-disclosure has become the
losing litigant's trump card to be played immediately after the return of a trial jury's
adverse verdict." Here, Pfenninger had ample opportunity to check the Collier County
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public records before the jury rendered its verdict; yet, she failed to do so. Thus,
because she has failed to meet the due diligence requirement of De La Rosa, she
cannot now attempt to set aside an unfavorable verdict. See also Tejada v. Roberts,
760 So. 2d 960, 966 (Fla. 3d DCA), review granted, 786 So. 2d 1188 (Fla. 2000)
(holding that "the time to check the jurors' names against the clerk's lawsuit index is at
the conclusion of jury selection"); Silva v. Lazar, 766 So. 2d 341, 343 (Fla. 4th DCA
2000) (finding that "[f]ailure to make such a timely search [of the clerk's lawsuit index]
where it would have uncovered the offending information, rather than waiting to do so
after the verdict, may be at least some evidence of a lack of diligence"); Bornemann v.
Ure, 778 So. 2d 1077, 1079 (Fla. 4th DCA 2001) (finding no abuse of discretion in
court's denial of a motion for new trial where "trial lasted over two weeks, and the
lawsuit index at the courthouse could have been checked in a matter of minutes").
For the reasons stated herein, we reverse the order granting Pfenninger a
new trial and remand with directions to reinstate the jury verdict.
Reversed and remanded.
WHATLEY and SILBERMAN, JJ., Concur.
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