Environmental activist Maggy Hurchalla can no longer hope for a mistrial.
The Fourth District Court of Appeal rejected the longtime former county commissioner's complaints July 3 about the foreman of the Martin County jury that awarded $4.3 million to Lake Point Restoration for Hurchalla's interference in its contracts with Martin County and the South Florida Water Management District.
Hurchalla, one of Martin County's most prominent citizens, had claimed the jury foreman, Steven Hursh of Hobe Sound, was not a Martin County resident, as required by law.
Her attorney, Virginia Sherlock, asked that the appellate court return the case to the Martin County Circuit Court, which would have determined if grounds existed for a mistrial.
Jurisdiction over the case will remain with the Fourth District Court, which is currently considering Hurchalla's final appeal filed April 20.
Sherlock's motion filed June 18 for a change in jurisdiction was based on comments made in a personal letter from Hursh brought to Hurchalla's attention in March by an unnamed “tipster,” alleging Hursh was a resident of Highlands Ranch in Colorado, where Hursh owns a business.
Court records revealed, however, that Hursh owns a homesteaded residence in Martin County. He also surrendered his Colorado driver's license in 2004 and was issued a Florida driver's license, which he has since maintained.
Jurors are randomly selected from lists of Martin County residents provided by the Department of Motor Vehicles.
The tipster's letter was received by a homeowner's association (HOA), in which Hursh reportedly compared the HOA officers' decisions to the “fraudulent” actions of Hurchalla, according to Sherlock's motion.
Hurchalla also claimed that Hursh had concealed two citations by the Florida Fish and Wildlife Conservation Commission Law Enforcement Division in 2006 for carrying a spear gun during lobster season in Monroe County, which had been adjudicated. Hursh paid a $695 fine; however, Sherlock claimed that Hursh had concealed the citations during juror interviews, indicating a possible bias toward environmentalists.
Lake Point attorney Michael Labbee argued that Hursh's juror questionnaire revealed he had answered “yes” to the question as to whether he or a member of his immediate family had been arrested for any criminal offense -- as did three other jurors.
Hursh had not been questioned further by Hurchalla's attorneys during the vetting process, or after the trial concluded, according to court records, thus the citations had not been “concealed,” said Lake Point attorneys.
Hursh also had indicated during the Hurchalla defense team's questioning of potential jurors that he considered environmental damage as grounds for canceling a contract, thus undermining Hurchalla's claim of juror bias, according to court records.
The trial jury rendered a unanimous verdict against Hurchalla on Feb. 14, 2018. Thus, the deadline to serve a motion for juror interviews was March 1, according to court records. The question about residency raised by the tipster could have been resolved with an hour's search of Martin County public records, according to Lake Point's response.
The tipster had not commented about the FWC complaints, which also are public record; however, the motion to change jurisdiction as a result of juror misconduct was not filed with the appellate court for two months, during which time Hurchalla's defense team researched Hursh's background.
“Public policy is not served by routinely exposing jurors to the type of scrutiny that Mr. Hursh has undergone here and the even further scrutiny to which Hurchalla requests to subject him,” Labbee wrote. “To the contrary, doing so would only discourage individuals from performing their Constitutional duty to serve on a jury.”
Bumpy start to Hurchalla's appeal
The Fourth District Court of Appeal has denied or dismissed most of Hurchalla's motions since she first appealed the trial court's decisions March 8, including a previous request for a new trial.
Lake Point attorney Ethan Loeb said the mining and water restoration project had initially filed suit against Hurchalla in order to clear Lake Point's name. In their lawsuit for tortious interference, Lake Point alleged Hurchalla had lied to county commissioners about destroying wetlands on their property in western Martin County to convince the county to end its contract with SFWMD.
Hurchalla denies she lied about the destruction of wetlands, and has continued to insist that Lake Point's lawsuit against her was a Strategic Lawsuit Against Public Participation (SLAPP suit). Four times she requested that the civil case against her be dismissed on those grounds, which was denied by three circuit court judges.
The case took five years to get to trial. After eight days of testimony, the jury took 90 minutes to conclude that Lake Point's business had been damaged by Hurchalla's actions. They awarded Lake Point $4,391,708.
Some of the most damaging evidence, according to jurors, was the correspondence from Hurchalla to Commissioner Ed Fielding telling him not to worry about the environment, just to cancel the SFWMD contract responsible for the Lake Point water restoration project.
The message was revealed in a Hurchalla email recovered from Fielding's personal computer.
Fielding, who is not seeking re-election to his District 2 seat, will stand trial in December 2018 for not allowing inspection of his email correspondence with Hurchalla regarding the Lake Point project, as will former commissioner Anne Scott.
Both public officials allegedly did not comply with Lake Point's public records requests and were indicted by a Martin County grand jury on public records law violations.
Commissioner Sarah Heard, who has filed for re-election to her District 4 seat, also was indicted and will stand trial for public records violations pertaining to the Lake Point case some time in August. Her defense will try to convince a jury that her email correspondence with Hurchalla disappeared from her personal computer as the result of a computer hacking.
Heard, Fielding and Scott all sought Fifth Amendment protections during Hurchalla's trial, thus Lake Point attorneys relied on videotaped depositions of the commissioners.
Hurchalla's first request for a new trial came during the first day of testimony in February's civil trial. She asked Circuit Court Judge William Roby to recuse himself or to declare a mistrial, based on her claim the judge was biased. Roby denied her request.
Hurchalla asked again for a new trial March 23, which was denied, then again when the case reached the appellate court.
Sherlock requested a final appeal April 20 of Hurchalla's trial court verdict, and a ruling is expected sometime this summer.
Nearly $2 million in cash and assets owned by Hurchalla have been attached by Lake Point attorneys. A hearing is set for July 31 in Martin County Circuit Court to determine which of those assets are exempt from fulfilling the jury's award.
Barbara Clowdus is editor and publisher of Martin County Currents.