IN THE SUPREME COURT OF FLORIDA CASE NO.: SC MIRACLE CENTER ASSOCIATES, Petitioner, vs. SCANDINAVIAN HEALTH SPA, INC. et al. Respondent.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC MIRACLE CENTER ASSOCIATES, Petitioner, vs. SCANDINAVIAN HEALTH SPA, INC. et al Respondent. ON APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT CASE NO. 3D RESPONDENT S BRIEF ON JURISDICTION RICHMAN GREER WEIL BRUMBAUGH MIRABITO & CHRISTENSEN, P.A. ATTORNEYS FOR RESPONDENT 201 S. Biscayne Boulevard, 10 th Floor Miami, FL Phone: (305) Fax: (305) KENNETH J. WEIL Florida Bar No MARK A. ROMANCE Florida Bar No LYLE E. SHAPIRO Florida Bar No

2 TABLE OF CONTENTS TABLE OF CONTENTS...ii TABLE OF CITATIONS...iii STATEMENT OF THE CASE AND THE FACTS...1 SUMMARY OF THE ARGUMENT...3 ARGUMENT...4 CONCLUSION...7 CERTIFICATE OF SERVICE...8 CERTIFICATE OF COMPLIANCE...8 ii

3 TABLE OF CITATIONS Abamar Housing and Development, Inc. v. Lisa Daly Décor, Inc., 698 So. 2d 276 (Fla. 3d DCA 1998)...5 Arbogast v. Bryan, 393 So. 2d 606 (Fla. 4 th DCA 1981)...4, 5 Bishop v. Bishop, 858 So. 2d 1234 (Fla. 5 th DCA 2003)...6 Miracle Center Associates v. Scandinavian Health Spa, Inc., 889 So. 2d 877 (Fla. 3 rd DCA 2004)...1, 2, 3, 4, 5 Singer v. Singer, 442 So. 2d 1020 (Fla. 3d DCA 1984)...3 Somax v. Tourma, 547 So. 2d 1266 (Fla. 4 th DCA 1989)...6, 7 Taylor v. Kenco Chemical & Mfg. Corp., 465 So. 2d 581 (Fla. 1 st DCA 1985)...5, 6 Thomas N. Carlton Estate v. Keller, 52 So. 2d 131, 133 (Fla. 1951)...3 Torres v. K-Site 500 Assocs., 632 So. 2d 110 (Fla. 3d DCA 1994)...3 Zurstrassen v. Stonier, 786 So. 2d 65 (Fla. 4 th DCA 2001)...6 iii

4 Statement of the Case and the Facts The facts of this case are set forth in Miracle Center Associates v. Scandinavian Health Spa, Inc., 889 So. 2d 877, 878 (Fla. 3 rd DCA 2004), as follows: Beginning in 1989, Respondent leased space from Petitioner at the Miracle Center Mall. Under the 30 year lease, Respondent was to pay a fixed monthly rental, plus a proportionate share of annual common area expenses. According to the lease, the proportionate share is the ratio of gross floor area of the Respondent s space to the gross leasable floor area of the entire complex. The procedure for payment of the common area costs is set forth in section 6.05 of the lease agreement. Petitioner was required to give Respondent a written estimate of the common area costs prior to each rental period, which amount the Respondent was to pay in equal monthly installments. Within 90 days after the end of each calendar year, Petitioner was to furnish Respondent a statement detailing the actual costs for the preceding year at which time adjustments were to be made if necessary. Each calendar year from 1989 through 1999, Petitioner delivered to Respondent written estimates of the latters proportionate share of common area costs showing the gross floor area of the Respondent s space at 27,935 square feet, and the total leasable floor area of the center as 182,072 square 1

5 feet. In accordance with the ratio formula set forth in the lease, Respondent s proportionate share of the common area costs was calculated at 15.34%. In 2000, Respondent filed suit against Petitioner claiming it was due a refund for certain incorrectly charged common area costs for the years Petitioner counterclaimed alleging that from , due to a computergenerated error, it had inadvertently failed to include 31,941 square feet more in the proportionate share calculations. Petitioner claimed that the correct proportionate share of common area costs for the Respondent for the eleven years ( ) should have been 27.99% and, therefore, Petitioner was entitled to recover a substantial sum from the Respondent. During the course of the non-jury trial, the parties settled Respondent s claim against Petitioner, leaving only the counterclaim to be resolved. The trial court s resolution after a non-jury trial was the Petitioner take nothing by its counterclaim. On December 1, 2004, the Third District Court of Appeal affirmed the trial court s final judgment holding that the trial court concluded that Petitioner s conduct qualified as a waiver and that it had no reason to disagree. Miracle Center Associates, at

6 Summary of the Argument The Petitioner complains that the Third District s holding in this case conflicts with decisions of other District Courts of Appeal. The complaint is misplaced. Petitioner cites several cases in an attempt to establish conflict jurisdiction. The Third District s opinion, however, relies on longstanding tenets of waiver law, and therefore no conflict exists. As the Third District explained in its opinion, the doctrine of waiver encompasses not only the intentional or voluntary relinquishment of a known right, but also conduct that warrants an inference of a relinquishment of a known right. Id. at 878, citing Singer v. Singer, 442 So. 2d 1020, 1022 (Fla. 3d DCA 1984) and Torres v. K-Site 500 Assocs., 632 So. 2d 110, 112 (Fla. 3d DCA 1994). The Third District, citing this Court s opinion in Thomas N. Carlton Estate v. Keller, 52 So. 2d 131, 133 (Fla. 1951), also correctly explained that waiver may be inferred from conduct or acts putting one off guard and leading it to believe that a right has been waived. Id. The Third District s affirmance of the trial court s factual finding of a waiver based on Petitioner s conduct, is consistent with the decisions cited in the opinion as well as the decisions of the other District Courts of Appeal cited by Petitioner. As such, there is no basis for conflict jurisdiction and the Court should deny Petitioner s 3

7 Petition for Review. 1 Argument 1. Petitioner fails to establish that the decision of the Third District Court of Appeal in this case expressly and directly conflicts with the decisions of other District Courts of Appeal The trial court concluded that Petitioner s conduct qualified as a waiver. 2 The Third District s holding that there was no reason to reverse the trial court s factual finding in this regard is not inconsistent with any of the cases cited by Petitioner. In the first case cited by Petitioner, Arbogast v. Bryan, 393 So. 2d 606 (Fla. 4 th DCA 1981), the Court found a waiver as a matter of law as a result of Bryan s admission that he had knowledge of the complained of reductions for six years, but intentionally voiced no objection thereto. However, Arbogast certainly does not stand for the proposition that absent an express admission that there is an intent to relinquish a right, there can be no waiver. Indeed, the Arbogast court expressly 1 Petitioner states in passing that the Third District also ignored an anti-waiver provision in the lease. In fact, the Third District did not consider this argument because the argument was not raised in the trial court and not raised in Petitioner s briefs in its appeal. In any event, Petitioner is not seeking discretionary jurisdiction based on the existence of the anti-waiver provision. 2 As stated in the trial court s final judgment, there was evidence at trial that Petitioner intended all along not to include the additional space in Respondent s proportionate share calculation. Miracle Center Associates at

8 reiterated the long established rule that waiver is the intentional or voluntary relinquishment of a known right or conduct which warrants an inference of the relinquishment of a known right. Id. at 607. Abamar Housing and Development, Inc. v. Lisa Daly Décor, Inc., 698 So. 2d 276 (Fla. 3d DCA 1998) 3, another case relied on by Petitioner, involved the inadvertent disclosure of attorney-client privileged documents in connection with the production of 21 boxes of documents. Abamar at 278. Counsel for the party that produced the documents promptly requested that the documents be returned. Id. The Court found no waiver because in view of counsel s prompt demand, there was no conduct on behalf of the producing party which possibly could warrant an inference of the relinquishment of a known right. The party s prompt demand in Abamar is certainly distinguishable from Petitioner s conduct in the instant case. Taylor v. Kenco Chemical & Mfg. Corp., 465 So. 2d 581 (Fla. 1 st DCA 1985) was a summary judgment case, which is obviously is not analogous to the instant case where the trial court conducted a trial and made a factual finding of waiver. Petitioner relies on a portion of the Taylor opinion, to wit: we are of the opinion that Taylor s conduct does not make out a requisite clear case which would 3 Because Abamar and Miracle Center Associates are both Third District cases, Abamar cannot serve a basis for discretionary jurisdiction. 5

9 show that he intended to relinquish his right to reformation. That statement of the Court, of course, only stands for the proposition that in order to be entitled to a summary judgment on the issue of waiver, there must be a clear case of intent because inferences should not be resolved on summary judgment. Such a holding is in no way inconsistent with the Third District s affirmance of the trial court s factual findings following the trial in the instant case. Zurstrassen v. Stonier, 786 So. 2d 65 (Fla. 4 th DCA 2001) was another summary judgment case. In Zurstrassen, the Fourth District reversed a summary judgment that was granted based on waiver because there was an issue of fact as to whether the conduct of the party defending the summary judgment acted diligently in discovering the forgery. Id. at 70. Like in Taylor, the holding in Zurstrassen is entirely consistent with the Third District s affirmance of the trial court s factual finding of waiver following trial. In Bishop v. Bishop, 858 So. 2d 1234 (Fla. 5 th DCA 2003), the Fifth District stated that [t]here is nothing in this record to establish that Former Wife intended to relinquish her right to collect child support arrearages. Here, on the other hand, both the trial court and the appellate court found sufficient evidence to establish that a waiver occurred. Thus, the Bishop case is inapposite. The case of Somax v. Tourma, 547 So. 2d 1266 (Fla. 4 th DCA 1989) is also consistent with the Third District s opinion. Indeed, in that case, the Fourth 6

10 District reaffirmed the well established rule that conduct may imply waiver and held that based on the purchaser s conduct, it waived its right to claim a breach of contract by the seller as a result of the seller s failure to give written notice of the extension of the time for closing. As in the instant case, the Court in Somax found a waiver based on conduct which could have reasonably inferred that a right had been waived. Id. at The Third District in this case was correct in affirming the trial court s final judgment that Petitioner s conduct qualified as a waiver. The decision does not expressly or directly conflict with any other decisions of the District Courts of Appeal. Therefore, this Court should decline to exercise its discretionary jurisdiction over this case. Conclusion For the foregoing reasons, this Court should decline Petitioner s request that the Court exercise its discretionary jurisdiction in this case. 7

11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. Mail this day of June, 2005 to: Richard J. Lee, Esquire, 2655 Le Jeune Road, Fifth Floor, Coral Gables, Florida Mark A. Romance CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief was prepared in Times New Roman, 14-point font. Mark A. Romance 8