IN THE SUPREME COURT OF THE STATE OF FLORIDA. ELIAS AND DAHLIA MORALES, Appellants, Case No.: SC DCA Case No.: 5D vs.

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA ELIAS AND DAHLIA MORALES, Appellants, Case No.: SC DCA Case No.: 5D vs. LETICIA J. MARQUES, Appellee. / APPEAL FROM THE FIFTH DISTRICT COURT OF APPEAL, STATE OF FLORIDA ANSWER BRIEF OF APPELLEE AS TO JURISDICTION WILLIAM J. McCLELLAN, ESQ. Florida Bar No Law Office of William J. McClellan, P.A. 601 N. Magnolia Avenue, Suite 300 Orlando, Florida (407) ATTORNEY FOR APPELLEE

2 TABLE OF CONTENTS TABLE OF CONTENTS...ii TABLE OF CITATIONS...iii STATEMENT OF FACTS AND CASE...1 SUMMARY OF ARGUMENT...3 ARGUMENT THE FLORIDA SUPREME COURT DOES NOT HAVE JURISDICTION IN THIS MATTER SINCE THE FIFTH DISTRICT COURT OF APPEAL S OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OR OF THE SUPREME COURT ON THE SAME QUESTION OF LAW...4 CONCLUSION...7 CERTIFICATE OF COMPLIANCE...8 CERTIFICATE OF SERVICE...8 ii

3 TABLE OF CITATIONS CASES PAGE Arango v. Alvarez, 585 So.2d 1131 (Fla. 3 rd DCA 1991) 6 Biermann v. Cook, 619 So.2d 1029 (Fla. 2 nd DCA 1993) 5, 6 Brooks v. South Seminole Community Hospital, 710 So.2d 1048 (Fla. 5 th DCA 1998).6 Hold v. Manzini, 736 So.2d 138 (Fla. 3 rd DCA 1999)...4, 5 Security National Servicing Corp. v. Law Office of David J. Stern, 916 So.2d 934 (Fla. 4 th DCA 2005).5 Silvestrone v. Edell, 721 So.2d 1173 (Fla. 1998) 4, 5 TABLE OF STATUTES AND RULES STATUTE/RULE PAGE Rule 9.030, Rules of Appellate Procedure 4 Rule 9.030(2)(A)(vi), Rules of Appellate Procedure 4 iii

4 STATEMENT OF FACTS AND CASE The Appellants initiated a cause of action against Denny s Restaurants for discrimination. The Appellee was retained by Appellants for this purpose. The Appellant was not satisfied with the progression of his claim, and as a result, filed an initial complaint against the Appellee for legal malpractice and subsequently amended his complaint on May 16, The Appellee responded timely by filing a Motion to Dismiss alleging the complaint was frivolous for failing to state a cause of action. A hearing was held on July 14, 2005, before the local magistrate on the Appellee s Motion to Dismiss. The magistrate found that the complaint failed to state a cause of action and recommended the dismissal of the complaint pursuant to Appellee s motion in its July 29, 2005 Order. Appellant filed his objections to the Magistrate s Order and a hearing was held before the Circuit Court Judge on or about September 25, After the completion of the hearing, the Circuit Court entered its Order confirming the magistrate s Findings and Recommendations and dismissing Appellant s complaint. Appellant filed paperwork with the Fifth District Court of Appeal which the Court accepted as a Notice of Appeal and Initial Brief. 1

5 The Appellee filed an Answer Brief as proscribed by the Rules of Appellate Procedure. The Fifth District Court, having reviewed the Briefs, rendered its opinion. The Appellant has filed a Notice of Appeal with the Florida Supreme Court which this court has held as a Petition asking the Court to invoke its discretionary jurisdiction in this matter. The Appellee submits this brief on the issue of the court s jurisdiction in this cause. 2

6 SUMMARY OF ARGUMENT Petitioner has failed to cite to any decisions by the other district courts of appeal or the Florida Supreme Court that expressly and directly conflict with the ruling by the Fifth District Court of Appeal. 3

7 ARGUMENT THE FLORIDA SUPREME COURT DOES NOT HAVE JURISDICTION IN THIS MATTER SINCE THE FIFTH DISTRICT COURT OF APPEALS OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OR OF THE SUPREME COURT ON THE SAME QUESTION OF LAW In order for the Petitioner to have this cause heard by the Florida Supreme Court, they must show some sort of discretionary jurisdiction under Rule 9.030, Rules of Appellate Procedure. The Petitioner has alleged that the opinion of the Fifth District Court of Appeal in this cause expressly and directly conflicts with a decision of another district court of appeal or of the Supreme Court on the same question of law. See Rule 9.030(2)(A)(vi), Rules of Appellate Procedure. The Petitioner alleges that the conflict exists on two grounds: (1) the Fifth District Court s finding the complaint frivolous and without merit and (2) the awarding appellate attorney s fees. No such conflict exists as to either claim. As pointed out by the Fifth District Court of Appeal, in a legal malpractice claim, citing to a decision by this court, it is clear that damages in such a claim cannot accrue until the underlying law suit is concluded and it can then be determined if a party suffered damages as a result of the alleged malpractice. Silverstone v. Edell, 721 So.2d 1173, 1175 (Fla. 1998). Without a conclusion to the case, damages are speculative since the claim is then only hypothetical. Hold 4

8 v. Manzini, 736 So.2d 138 (Fla. 3 rd DCA 1999); Security National Servicing Corp. v. Law Office of David J. Stern, P.A., 916 So.2d 934 (Fla. 4 th DCA 2005). The appellate court clearly had enough evidence to conclude that the finding by the trial court as to this cause being frivolous and without merit was correct. The court referred to the above-cited cases for that premise. The Petitioner has cited to no cases that conflict with either this court s conclusion in Silverstone or the Third and Fourth District Courts of Appeals conclusions in Hold and Security National Servicing Corp. The Fifth District Court of Appeal also ruled appropriately on the question of appellate attorney s fees. While the Fifth District Court of Appeal did state its sister courts questioned its ability to assess attorney s fees in situations concerning pro se litigants, citing to Biermann v. Cook, 619 So.2d 1029 (Fla. 2 nd DCA 1993), it found this cause worthy of such an award. The purpose in the courts not allowing for attorney s fees against pro se litigants is so not to discourage or in any way limit one s constitutional right to access the courts. However, this right is to be weighed against the frivolity of law suits and the misuse of the system. In Biermann at 1031, the court left open the right to assess attorney s fees against pro se litigants in those instances where such claims are frivolous, in bad faith and are solely meant to harass the opposing party. 5

9 Other district courts have also left open assessing attorney s fees against pro se litigants when situations occur that warrant such actions by the court. See Brooks v. South Seminole Community Hospital, 710 So.2d 1048 (Fla. 5 th DCA 1998); Arango v. Alvarez, 585 So.2d 1131 (Fla. 3 rd DCA 1991). The Fifth District Court of Appeal found that the actions by the Petitioners warranted the assessment of attorney s fees. They found Petitioners had accessed the court before on a malpractice claim. Having done such, they were very aware of the issues involved in succeeding in such a case. Also, the court found, that the Respondent was required to answer and defend herself to the court in this frivolous action when all could have been avoided had the Petitioners simply found other counsel to carry on their claim. Again, the Petitioners have failed to provide any case law showing any conflicts with the decision made by the Fifth District Court of Appeal and any other courts of Florida on the issue of appellate attorney s fees. 6

10 CONCLUSION The Petitioners have failed to make any showing that the decision made by the Fifth District Court of Appeal conflicts with any decisions by this court or the other district courts of appeal. Without such a showing, this court does not have discretionary jurisdiction to hear the merits of this matter. 7

11 CERTIFICATE OF COMPLIANCE The undersigned counsel hereby certifies that this brief complies with the font requirements of Rule 9.210(a)(2), Florida Rules of Appellate Procedure. The undersigned counsel also certifies that this brief is/has been submitted in electronic form pursuant to AOSC WILLIAM J. McCLELLAN CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by mail/hand delivery to Elias and Dahlia Morales, P.O. Box 882, Windermere, Florida, , this the day of August, WILLIAM J. McCLELLAN Florida Bar No Law Office of William J. McClellan, P.A. 601 N. Magnolia Avenue, Suite 300 Orlando, Florida (407) ATTORNEY FOR APPELLEE 8