WALGREENS, INC., APPELLANT,
v.
TAMMY NEWCOMB AND WILLIAM NEWCOMB, HER HUSBAND, APPELLEES
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Walgreens appeals a trial court's grant of a new trial in a slip-and-fall case. The appellees' counsel improperly contacted a juror without following required procedures, discovering alleged juror misconduct. The court reversed, holding that a party cannot obtain relief based on information obtained in violation of professional rules when such relief could not be obtained through proper procedures.
The court held that the trial judge should not have entertained the motion for new trial once he discovered that the factual support for the motion was obtained in direct violation of the Rules. A party cannot obtain relief through rule violations when relief could not be obtained through compliance with the Rules.
[1] A party may not obtain relief by violating rules when such relief could not be obtained by complying with the rules.
[2] A request to interview a juror requires more than conjecture and speculation by the movant's counsel.
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Join FLexlaw to unlock all legal intelligence“A party ought not be able to obtain relief by violating the Rules when the relief could not be obtained by compliance with the Rules.”
Establishes the core principle that parties cannot benefit from procedural rule violations to achieve outcomes unavailable through proper procedures.
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Join FLexlaw to unlock all legal intelligenceTammy Newcomb alleged she slipped and fell due to a dangerous condition caused by Windex sprayed on the floor of a Walgreens restaurant. The jury retu…
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SALMON, MICHAEL H., Associate Judge.
Appellee Tammy Newcomb claims she slipped and fell because of a dangerous condition resulting from spraying Windex upon the floor of a Wags restaurant owned by appellant Walgreens; The jury reached a verdict in favor of Walgreens. The trial judge granted the Newcombs a new trial. We reverse.
After the verdict was received, Newcombs’ counsel, who essentially be lieved that the Newcombs should have won the case, concluded that she ought to speak to a juror and find out what went wrong. She randomly selected a juror, and contacted her by telephone. At the time, counsel had no grounds upon which to make a legal challenge to the verdict, nor support a motion to interview jurors. A request to interview a juror requires something more than conjecture and speculation by mov-ant’s counsel. Dover Corp. v. Dean, 473 So. 2d 710 (Fla. 4th DCA 1985) (Hurley, J., dissenting), pet. for review denied, 475 So. 2d 693 (Fla.1985).1
In making that telephone call, counsel violated two rules. Florida Rule of Civil Procedure 1.431(h) provides the procedure to be followed if a party believes that grounds for legal challenge to a verdict exist, and wants to interview a juror. The rule requires an order of the trial judge after notice and hearing.
Rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar provides that even if a lawyer believes that grounds exist to challenge a verdict, no interview of a juror may take place unless before the interview, the lawyer files notices of intention to interview a juror, and delivers copies to opposing counsel and the trial judge. None of these procedures were complied with.
Nonetheless, the interview of the juror, conducted in violation of the Rules, produced results. Based upon what she learned, the attorney concluded that two members of the jury conducted an experiment outside of court using Windex, and communicated their findings to other members of the jury. Ultimately, the trial judge found that the jury may have been influenced by these matters, and he ordered a new trial.
Ordinarily, the grant or denial of a motion for new trial lies within the sound discretion of the trial judge. The usual test is whether or not reasonable persons could differ as to the propriety of the action taken by the trial court. Baptist Memorial Hosp., Inc. v. Bell, 384 So. 2d 145 (Fla.1980). But here we are faced with the question of whether or not the trial judge should have considered the motion at all once he discovered that the information upon which it was based was obtained in direct violation of existing rules. The trial judge was presented with a motion to interview jurors which contained allegations of the out-of-court experiment.
However, the facts supporting those allegations were obtained in violation of the Rules. A party ought not be able to obtain relief by violating the Rules when the relief could not be obtained by compliance with the Rules.
Once the trial judge found out the method by which the facts supporting the motions for interview and new trial were obtained, he should not have entertained the motions any further. Reversed and remanded with directions to vacate the order granting a new trial, and enter judgment in accordance with the verdict.
GLICKSTEIN, C.J., and GUNTHER, J., concur. . Dover addressed itself to cases in which an attack is made based upon matters inherent in the verdict. Cf. Baptist Hospital of Miami, Inc. v. Maler, 579 So. 2d 97 (Fla.1991); and State v. Hamilton, 574 So. 2d 124 (Fla.1991).
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Citator
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Johnston v. State, 841 So. 2d 349 (Fla. 2002)…made by the judge from the bench while the jury was seated in the jury room and also when seated in the jury box.” Clearly that allegation, without more, amounts to an insufficient basis for a jury interview. The case of Walgreens, Inc. v. Newcomb, 603 So. 2d 5, 6 (Fla. 4th DCA 1992), involved a situation where the trial court denied a request for juror interviews after counsel violated the rules prohibiting contact with jurors in gathering facts to support an allegation of misconduct. There is no indicati…1 / 2
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Naugle v. Philip Morris USA, Inc., 133 So. 3d 1235 (Fla. 4th DCA 2014)…the court to reveal misconduct. The rule is a shield to prevent disgruntled parties and attorneys from harassing jurors after a verdict. In a civil case, a party seeking to contact a juror must file a 1.431(h) motion. See Walgreens, Inc. v. Newcomb, 603 So. 2d 5, 6 (Fla. 4th DCA 1992) (reversing order granting new trial where evidence of juror misconduct was obtained by lawyer in violation of the rule); see also R. Reg. Fla. Bar 4-3.5(d)(4) (prohibiting lawyers from initiating communications with jurors pos…
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Seymour v. Solomon, 683 So. 2d 167 (Fla. 3d DCA 1996)…when the plaintiffs’ attorney contacted the jurors without a motion, without notice and hearing, and without an order permitting such contact. The question here is, as it was before the Fourth District Court of Appeal in Walgreens, Inc. v. Newcomb, 603 So. 2d 5 (Fla. 4th DCA 1992), rev. denied, 613 So. 2d 7 (Fla.1993), whether the trial court should consider at all the motion for new trial (in-eluding convening the hearing to interview the juror) once it discovered that the information on which the motion…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baptist Mem'l Hosp., Inc. v. Bell, 384 So. 2d 145 (Fla. 1980)
- Baptist Hosp. OF Miami, Inc. v. Maler, 579 So. 2d 97 (Fla. 1991)
- State v. Thewell Eugene Hamilton, 574 So. 2d 124 (Fla. 1991)
- Dover Corp. v. Dean, 473 So. 2d 710 (Fla. 4th DCA 1985)