IN THE SUPREME COURT OF FLORIDA CASE NO. Second District Court of Appeal Case Number: 2D L.T. No. 05-CA Parrot Cove Marina, LLC

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. Second District Court of Appeal Case Number: 2D L.T. No. 05-CA-2397 Parrot Cove Marina, LLC Petitioner, vs. Duncan Seawall Dock & Boatlift, Inc. Respondent. BRIEF AND APPENDIX ON JURISDICTION OF PETITIONER, PARROT COVE MARINA ON DISCRETIONARY REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL GRIMES GOEBEL GRIMES HAWKINS GLADFELTER & GALVANO, P.L. John D. Hawkins, Esquire Florida Bar No.: Sacha Ross, Esquire Florida Bar No.: Derin Parks, Esquire Florida Bar No.: Post Office Box 1550 Bradenton, Florida (941) Attorneys for Petitioner

2 IN THE SUPREME COURT OF FLORIDA CASE NO. Second District Court of Appeal Case Number: 2D L.T. No. 05-CA-2397 Parrot Cove Marina, LLC Petitioner, vs. Duncan Seawall Dock & Boatlift, Inc. Respondent. BRIEF AND APPENDIX ON JURISDICTION OF PETITIONER, PARROT COVE MARINA ON DISCRETIONARY REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL GRIMES GOEBEL GRIMES HAWKINS GLADFELTER & GALVANO, P.L. John D. Hawkins, Esquire Florida Bar No.: Sacha Ross, Esquire Florida Bar No.: Derin Parks, Esquire Florida Bar No.: Post Office Box 1550 Bradenton, Florida (941) Attorneys for Petitioner

3 TABLE OF CONTENTS STATEMENT OF THE CASE AND FACTS... 1 JURISDICTIONAL STATEMENT... 4 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 6 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE APPENDIX INDEX TO APPENDIX... 14

4 TABLE OF AUTHORITIES CASES Epps v. Hartley, 495 So.2d 921 (Fla. 4 th DCA 1986) Zingale v. Powell, 885 So.2d 277 (Fla. 2004) OTHER AUTHORITIES Art. I, 9, Fla. Const , 9 Article V, 3(b)(3), Fla. Const Fla. R. App. P (a)(2)(A)(ii)... 10

5 STATEMENT OF THE CASE AND FACTS On June 22, 2006, the circuit court conducted a trial without proper notice to the Petitioner and, due to the lack of proper notice, the Petitioner did not attend the trial. On May 4, 2005, Respondent filed suit against Petitioner for (a) breach of contract and (b) foreclosure of a construction lien (the Lien ), including recording of a lis pendens on the Property. On November 18, 2005, Petitioner served a consolidated Amended Motion for Summary Judgment and Motion to Determine Bond Amount (the Consolidated Motion ). While the substance of the underlying proceeding is more appropriately brought before this Court in the substantive briefs, an evaluation of the bond hearing at the trial level provides vital insight as to the injustice of the ultimate decision rendered in the case. The initial amount of the lien placed on the Petitioner s property by the Respondent was $88, On December 15, 2005, the circuit court heard argument of counsel and took testimony and other evidence with respect to the Petitioner s (a) Amended Motion for Partial Summary Judgment, (2) Motion for Section and Attorney s Fees and Costs, and (3) Motion to Determine/Reduce Amount of Bond. On January 10, 2006, the Honorable Marc B. Gilner entered an Order on the Consolidated Motion (the Bond Order ). Florida lien law requires that a lienor be adequately protected by the bond; however, the relevant lien statutes also allow for 1

6 judicial discretion to avoid overreaching claims. After reviewing the evidence, Judge Gilner set the bond amount at $2, and ordered the lien removed. This result speaks volumes with respect to the merits of the substantive claims of the Respondent. In contrast, when the trial was conducted without the benefit of appearance, testimony, or evidence presented by the Petitioner, a judgment was entered in the amount of $98, on the mechanic s lien count only (the Judgment Amount ). There is an inherent conflict in the two results. Because due process was not afforded, the absurd result set forth above was reached, solely because the Petitioner was not provided notice of the trial prior to conclusion of the same. On January 17, 2006, the Court entered the standard Order Scheduling the Case for Non-Jury Trial (the Standby Order ). The Standby Order provides in pertinent part as follows: 1. Trial Date. This cause is hereby set for non-jury trial during the one (1) week trial period beginning June 19, All counsel and pro se parties will be ready for trial at 8:30 a.m. on the first day of said trial period and will remain on standby status for the entire trial term until further notice by the Court. (A:7) The Standby Order used in Manatee County, and other Counties of the State of Florida, does not provide a litigant (1) notice of the trial date, (2) notice of the time of trial, or (3) any directions on when to appear at the Courthouse to learn the date and time for trial. The Standby Order does expressly state that the Court will provide further notice of the same. 2

7 The Standby Order fails to define standby or give any direction on compliance with the same. In practice, judicial assistants routinely call the attorneys and inform them of the day and time they will be called before the court. While this is the practice, it is not contemplated by the Standby Order, and in fact, originated solely due to the ambiguity of the Standby Order. On June 19, 2006, the judicial assistant for the Honorable Peter A. Dubensky provided further notice by sending a letter (the Letter ) by regular United States Mail to Petitioner, which stated as follows: This letter is to inform you that the above-styled cause will be called for non-jury trial before the Honorable Peter A. Dubensky, this Thursday, June 22, 2006 at 8:00 a.m. in Courtroom D, 3 rd Floor, Manatee County Courthouse, 1115 Manatee Avenue West, Bradenton, Florida Please call my office at ( ) to confirm that you received this notice (Emphasis supplied). ( the Trial Notice ). It is undisputed and indisputable that the Petitioner did not receive this correspondence until after the conclusion of the trial. Immediately upon receipt of the same, the Petitioner prepared correspondence advising the Court that it had not appeared as it did not receive the Trial Notice, and that it was prepared for the same. The Petitioner hand delivered this correspondence to the Court on Friday, June 23, Due exclusively to the lack of notice of the trial, the Petitioner did not attend the trial. On the same date as the trial, Final Judgment (the Judgment ) was 3

8 entered foreclosing the Lien in the Judgment Amount and setting a foreclosure sale for August 8, The Lien which was foreclosed is the same Lien released earlier under the Bond Order. On June 28, 2006, Petitioner, through counsel, filed a timely Motion for Rehearing and an uncontroverted affidavit in support thereof. The Motion contained a comprehensive and accurate statement of the facts detailing Petitioner s lack of notice of the trial and an affidavit of a representative of the Petitioner corroborating the facts recited therein. The Motion for Rehearing was denied without hearing, argument, testimony or other evidence. JURISDICTIONAL STATEMENT This honorable Court has discretionary jurisdiction to review the Second District Court of Appeal s (the Second DCA ) decision because it: (1) expressly and directly conflicts with the Fourth District Court of Appeal s (the Fourth DCA ) decision on the same question of law; and (2) expressly construes Article I, 9, Fla. Const. SUMMARY OF THE ARGUMENT This case falls squarely within the discretionary jurisdiction of this honorable Court. The Second DCA s opinion expressly and directly conflicts with the Fourth DCA s decision on the same question of law as set forth in Epps v. Hartley, 495 So.2d 921 (Fla. 4 th DCA 1986). Specifically, in Epps, the Fourth 4

9 DCA holds that it is an abuse of discretion and far too severe a punishment for a trial court to deny a standby litigant any and all relief when that party fails to be in court because they had been on standby and the definite trial time had only been determined shortly before the actual trial date. Id. at 921. By contrast, the Second DCA holds that a trial court has the unfettered discretion to deny a standby litigant any and all relief from an order or judgment even though that party s absence from the trial is a direct result of the fact that the party was on standby and had no actual notice of the definite trial time until several hours after the conclusion of the trial. Consequently, there is an express and direct conflict between the holdings of the Fourth DCA in Epps and the Second DCA in this case, which warrants review by this honorable Court. Furthermore, in rendering its opinion, the Second DCA expressly construes Article I, 9, Fla. Const. Specifically, the Second DCA holds that the right to procedural due process set forth in Article 1, Section 9 of the Florida Constitution does not obligate a trial court to provide litigants on standby status during a week-long trial term with any notice of the exact day during the one week period when the case will be tried. For these reasons, this honorable Court has discretionary jurisdiction to review this matter and the Petitioner respectfully urges this Court to exercise its discretionary jurisdiction in this case to review the Second DCA s decision, reverse that decision, and direct the Second DCA to remand this 5

10 cause for entry of an order granting the Petitioner s motion for rehearing and relief from final judgment. ARGUMENT I. THIS COURT HAS DISCRETIONARY JURISDICTION TO REVIEW THE DISTRICT COURT S DECISION BECAUSE IT EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION OF THE FOURTH DCA ON THE SAME QUESTION OF LAW. The Second DCA s opinion expressly and directly conflicts with the Fourth DCA s decision in Epps v. Hartley, 495 So.2d 921 (Fla. 4 th DCA 1986). In Epps, the trial judge issued an order on December 13, 1985 setting a case for a two-week trial period beginning Monday, January 20, On Thursday, January 23, 1986, the trial judge s office called the plaintiff s attorney to advise him that the court was commencing another case before the plaintiff s case. Consequently, the plaintiff was directed to remain on standby status. At 11:00 a.m. on Friday, January 24, 1986, the trial court called plaintiff s counsel and advised him that the trial would begin at 1:30 p.m. that same afternoon. Although plaintiff s counsel was present for the trial, the plaintiff did not appear. The plaintiff s counsel, believing it would be imprudent to proceed without his client, moved for a continuance. The trial court denied the motion for a continuance and the plaintiff s attorney thereafter refused to proceed with the trial of the case without his client present. Subsequently, the trial court issued an order dismissing the plaintiff s case with prejudice. After the plaintiff timely appealed the trial court s order, the 6

11 Fourth DCA held that the trial court did not abuse its discretion when it refused to continue the trial and dismissed the case. However, the Fourth DCA expressly held that the dismissal of the plaintiff s case with prejudice was an abuse of discretion, because this was far too severe a punishment for the trial court to impose for the plaintiff s failure to be in court when the plaintiff had been on standby and the definite trial time had only been set a few hours earlier (emphasis added). Id. at 922. If the Petitioner s appeal had been brought before the Fourth DCA, the Court would have held that the circuit court was within its right to enter a judgment against the Petitioner, but would also have held that because the Petitioner was on standby status and was not notified of the actual trial date until several hours after the definite trial time had already concluded, the circuit court abused its discretion when it denied the Petitioner s motion for rehearing and request for relief from judgment. Unfortunately for the Petitioner, its cause of action was brought before the Second DCA. Rather than following the longstanding and well established rule of law espoused in Epps (i.e. that it is an abuse of discretion for a trial court to deny any and all relief to a party who misses its trial because it is on standby status and does not find out about its definite trial date until shortly before trial), the Second DCA created a new precedent that permits trial courts to deny parties on standby status any and all relief from a dismissal and/or 7

12 judgment entered because they failed to appear at a definite trial determined shortly before the actual trial. What is even more troubling is the fact that the Second DCA holds that this unfettered discretion can be exercised by the trial court even if the trial court fails to provide any notice of the definite trial date in advance thereof. It is this express and direct conflict between the Fourth DCA s decision in Epps and the Second DCA s decision in this case that permits this honorable Court to exercise its discretionary jurisdiction to review this case. As the Second DCA judicially noticed, the practice of setting cases for week-long or month-long trial calendars is common in many state and federal courts, including the courts of this State. Consequently, with Florida Court dockets as full as they are, standby litigants will most certainly continue to occasionally miss their trial dates that are set for a definite time only shortly before trial. If the express and direct conflict between the Second DCA s decision and the Fourth DCA s decision is not resolved, standby litigants on the east coast of Florida who inadvertently miss their day in court will be afforded an opportunity to present the merits of their case so long as they timely appeal for relief while standby litigants on Florida s west coast who inadvertently miss their day in court may, in the trial court s unfettered discretion, be denied any and all relief as well as their day in court. In order to guarantee that all citizens of Florida have equal access to Florida s courts and that 8

13 citizens on Florida s west coast and Florida s east coast are treated fairly by the state courts, this honorable Court should exercise its discretionary jurisdiction and resolve the express and direct conflict between the Fourth DCA and the Second DCA. II. THIS COURT HAS DISCRETIONARY JURISDICTION TO REVIEW THE DISTRICT COURT S DECISION BECAUSE IT ALSO EXPRESSLY CONSTRUES A PROVISION OF THE STATE CONSTITUTION Article 1, 9 Fla. Const. states, No person shall be deprived of life, liberty or property without due process of law In its initial brief to the Second DCA, the Petitioner argued that the failure of a trial court to notify a standby litigant of the definite trial date amounts to an unconstitutional deprivation of a litigant s fundamental right to due process. Specifically, the Petitioner argued that a litigant on standby status during a week long trial period should be afforded a second notice (either written or verbal) providing the litigant with reasonable notice of the exact date during the one week standby period when the case will be tried. The Second DCA considered this due process argument, but ultimately expressly, reject[ed Petitioner s due process] argument that the scheduling order s directions that the parties be on standby status during the week-long trial term until further notice by the court should be construed to require the trial court to issue a second notice with the exact day during that one week when the case would be tried (emphasis added; A:8). Although the Petitioner believes that the Second DCA 9

14 misconstrued the due process clause of the Florida Constitution in reaching this result, there is no doubt that the Second DCA expressly construed the due process clause of the Florida Constitution in denying the Petitioner s request for relief. Consequently, this honorable Court has jurisdiction pursuant to Art. V, 3(b)(3), Fla. Const. See Zingale v. Powell, 885 So.2d 277 (Fla. 2004), rehearing denied; Fla. R. App. P (a)(2)(A)(ii). CONCLUSION The Second DCA s decision expressly and directly conflicts with the Fourth DCA s decision on the same question of law. Furthermore, in reaching its decision the Second DCA expressly construed the fundaments rights set forth in the due process clause of the Florida Constitution. Accordingly, the Petitioner respectfully requests that this Court exercise its discretionary jurisdiction to review the substance of the matter. GRIMES GOEBEL GRIMES HAWKINS GLADFELTER & GALVANO, P.L. Sacha Ross, Esquire Florida Bar No.: Derin Parks, Esquire Florida Bar No.: Post Office Box 1550 Bradenton, Florida (941) (941) facsimile For Parrot Cove Marina, LLC 10

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished via facsimile and first class U.S. Mail, postage pre-paid, to Douglas R. Bald, Esquire, Ferguson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A., 1515 Ringling Boulevard, 10 th Floor, Sarasota, FL this 27 th day of March GRIMES GOEBEL GRIMES HAWKINS GLADFELTER & GALVANO, P.L. Sacha Ross, Esquire Florida Bar No.: Derin Parks, Esquire Florida Bar No.: Post Office Box 1550 Bradenton, Florida (941) (941) facsimile For Parrot Cove Marina, LLC 11

16 CERTIFICATE OF COMPLIANCE In accordance with Rule 9.210(a)(2), Florida Rules of Appellate Procedure, Petitioner has used 14 point Times New Roman font throughout this Notice to Invoke Discretionary Jurisdiction. GRIMES GOEBEL GRIMES HAWKINS GLADFELTER & GALVANO, P.L. Sacha Ross, Esquire Florida Bar No.: Derin Parks, Esquire Florida Bar No.: Post Office Box 1550 Bradenton, Florida (941) (941) facsimile For Parrot Cove Marina, LLC 12

17 13 APPENDIX

18 INDEX TO APPENDIX Opinion, District Court of Appeal, Second District Dated February 20, 2008 A-1 U:\Sacha\Active Clients\Parrot Cove Holdings, LLC\JURISDICTIONAL BRIEF - FINAL.doc 14