DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STEPHANIE AQUILA, individually and as parent, natural guardian and 

next friend of MACKENZIE AQUILA, a minor child,

Appellant,

v.

BRISK TRANSPORTATION, L.P., STEVEN MELANCON, JOHN 

VIDOUREK, KENNETH FAHY, JOHN FAHY, and KATHLEEN FAHY,

Appellees.

No. 4D12-4498

[July 29, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Patti Englander Henning, Judge; L.T. Case No. 06-16601 

CACE.

Jeanne C. Brady and Frank R. Brady of Brady & Brady, P.A., Boca 

Raton, and Arvid J. Peterson, III, Boca Raton, for appellant.

Andrea Caro of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, H. Lane 

Young of Hawkins Parnell Thackston & Young, LLP, Atlanta, Georgia, and 

Robert B. Gilbreath of Hawkins Parnell Thackston & Young, LLP, Dallas, 

Texas, for appellees Brisk Transportation, L.P. and Steven Melancon.

William M. Martin of Peterson Bernard, Fort Lauderdale, for appellee 

John Vidourek.

WARNER, J.

Stephanie Aquila, individually and as mother and guardian of her 

minor child, appeals from a jury verdict finding of no liability against any 

of the defendants in a suit for personal injuries in a multi-vehicle crash 

which paralyzed the child and severely injured the mother. She raises 

multiple claims of error which were not preserved for appellate review. The 

only properly preserved claim involved a defendant which has 

subsequently settled, and the issue is now moot. We write, however, to 
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address an issue of backstriking in jury selection, because, although it 

was error, the plaintiff’s counsel failed to preserve the issue.1

During jury selection, the parties tentatively accepted six jurors, with 

further selection of alternates. The court dismissed the twenty-three other 

potential jurors. Before the six jurors were sworn, one of them indicated 

that he could not serve because of interference with a pre-paid vacation. 

The court dismissed that juror. The defense counsel then moved for 

mistrial because the dynamics of the jury had changed. The parties and 

the judge discussed several ways to remedy the problem. They centered 

on moving the first proposed alternate into the jury panel, but when both 

plaintiff and defendant wanted the right to backstrike jurors, the court 

adamantly refused to allow any backstriking. After a recess, appellant 

insisted on the right to backstrike, without naming any particular juror on 

the selected panel that was subject to backstriking after moving the 

alternate onto the jury panel. Although one of the parties had moved for 

a mistrial, plaintiff’s counsel did not agree to a mistrial but continued to 

insist on the right to backstrike as jury selection continued. The court 

denied the backstriking and then swore in the five selected jurors, with 

plaintiff’s counsel noting his objection to the denial of backstriking.

Jury selection continued for the rest of the day. At the end, the parties 

selected two additional alternates, with the first alternate moving into the 

jury panel. The plaintiff’s counsel did not request to backstrike a member 

of the panel that had been sworn. He accepted the jury without 

mentioning his prior objection to the disallowance of backstriking.

Although the trial court erred in refusing to allow backstriking of the 

panel originally selected, the issue is not preserved. In Tedder v. Video 

Electronics, Inc., 491 So. 2d 533 (Fla. 1986), the supreme court clearly held 

that the right to the unfettered exercise of a peremptory challenge includes 

the right to view the panel as a whole before the jury was sworn. “[A] trial 

judge may not selectively swear individual jurors prior to the opportunity 

of counsel to view as a whole the entire panel from which challenges are 

1 The electronic record in this case consists of over 16,000 pages. This is because 

the appellant’s directions to the clerk required the inclusion of every docket entry. 

Not only is this very expensive to the party, it makes it difficult for this court to 

review. Electronic documents are not segmented into volumes, and scrolling 

through notices of hearings, notices of depositions, subpoenas and the like is 

frustrating and counterproductive to a careful review by this court. We would 

request that all parties be intentional in the creation of the record on appeal and 

provide only those documents essential to the review of the issues which they 

expect to raise.
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to be made.” Id. at 535. See also Lottimer v. N. Broward Hosp. Dist., 889 

So. 2d 165, 167 (Fla. 4th DCA 2004) (a party may exercise an unused 

peremptory challenge at any time prior to the jury being sworn; this is so 

even if the main panel has been accepted, the parties are selecting 

alternates, and one party chooses to exercise an unused peremptory to a 

juror on the main panel).

But Tedder also provides how the error must be preserved. There, a 

trial court had sworn in four jurors and had prohibited backstriking, much 

like the trial court did in this case. In that case, however, counsel had not 

only voiced an objection but also sought to backstrike one of the sworn 

jurors. The supreme court found that the issue was preserved:

Respondents preserved the issue on appeal by appropriate 

objections at trial and by the attempted use of their last 

peremptory challenge on one of the sworn jurors. By 

attempting to backstrike and not being allowed to use their 

peremptory challenge to do so, respondents have shown 

prejudice and the point has been properly preserved for 

appeal.

Tedder, 491 So. 2dat 534. The purpose of requiring the opponent of the 

prohibition of backstriking to identify a juror on the panel upon which an 

available peremptory challenge would have been used, had backstriking 

been allowed, is to alert the trial court that the party is not satisfied with 

the panel as it stands. This requirement is similar to the preservation 

requirement for the improper denial of a challenge for cause, in which the 

defendant must not only exhaust all of his peremptory challenges and 

request additional peremptories, but also identify a specific juror on the 

prospective panel on whom a peremptory challenge would have been 

exercised, if allowed. See Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990). 

The reason is simple: unless the trial court is advised that there is still an 

objectionable juror on the panel, the trial court has the right to assume 

that by accepting the jury, the party is satisfied with the panel members.

Here, after an additional three hours of jury selection, the plaintiff’s 

attorney voiced no further objection to any of the jurors and accepted the 

jury. Therefore, the trial court, and we, can assume that he was satisfied 

with the panel members. Consequently, the issue was not preserved.

Affirmed.

GROSS and CONNER, JJ., concur.
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* * *

Not final until disposition of timely filed motion for rehearing.