Florida Judicial - COMMUNICATION
Judge erred in relying on informal, post-trial, ex parte discussion with some jurors to set aside jury’s verdict and enter amended verdict and final judgment. [Added 5/17/19]
Delk sued Orange Springs for breach of his employment agreement. Orange Springs counterclaimed, alleging Delk breached the company’s operating agreement. The case was tried. The jury returned a verdict finding that: (1) Orange Springs breached the employment contract, resulting in $181,106 damages to Delk; (2) Delk mitigated his damages in the amount of $313,399; and (3) Delk did not breach the company’s operating agreement.
When the judge was thanking the jurors for their service, the jury foreman asked how much money Delk would get. “Supposedly, when the judge advised them that Delk would get nothing because the verdict’s mitigation figure was larger than the compensatory damages figure, one or more of the jurors told the judge that they were confused as they had intended for Delk to be compensated for the breach of contract. None of the jurors were formally interviewed and none testified about this off-the-record, informal, ex parte conversation with the judge.” The judge asked counsel to “submit briefs addressing the situation.” Ultimately the judge entered order noting that the verdict form was “confusing” and amending the verdict. Judgment based on the amended verdict was entered for Delk in the amount of $181,106. Orange Springs appealed.
The Fifth DCA reversed for reinstatement of the original verdict, finding that the trial court abused its discretion. “If it appears that jurors have ‘misunderstood the effect of their verdict,’ the judge should notify counsel and ‘entertain a motion to interview jurors.’” (Citation omitted.) But the court cannot correct the verdict if it is the result of jury misconceptions about the facts and law involved, or confusion, and does not reflect the jury’s true intent. “Here, nothing in the verdict itself suggests that the jury had any alternative intent. Nor was the jury formally interviewed. Instead, the ‘different intent’ was derived solely from the judge’s posttrial, informal, ex parte, off-the-record conversation with some of the jurors.” This was improper. “[A] a trial judge has no authority at all to conduct post-discharge, informal, ex parte, off-the-record interviews of jurors nor can he rely upon information thus gathered as a factual basis for deciding a motion for remittitur or for new trial.” Orange Springs Specialty Water and Beverage Co., LLC v. Delk, __ So.3d __ (Fla. 5th DCA, No. 5D18-2014, 5/3/2019), 2019 WL 1967744.
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Judge ethically may not speak to judges' conference about case now on appeal that was presided over by judge. [Added 11/4/11] -- Judicial Ethics Advisory Opinion 2011-16.
Judge engaged in improper ex parte communications by obtaining court reporter's help in determining contents of audio recording. [Added 8/8/11] -- H.L.D. v. State, 83 So.3d 750 (Fla. 5th DCA 2011).
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Judge may create and maintain a website designed primarily to focus high school students on college or trade school preparation. [Added 2/3/11] -- Judicial Ethics Advisory Opinion 2011-01.