In the Supreme Court of Florida

Transcription

1 Filing # Electronically Filed 11/24/ :24:13 AM RECEIVED, 11/24/ :28:44, John A. Tomasino, Clerk, Supreme Court In the Supreme Court of Florida CASE NO. SC LOWER TRIBUNAL CASE NO. 4D PORT ST. LUCIE MGT, LLC d/b/a EMERALD HEALTH CARE CENTER, Petitioner, - v. - GLORIA ANN STRATTON, Respondent. BRIEF ON JURISDICTION OF PORT ST. LUCIE MGT, LLC ON DISCRETIONARY REVIEW FROM A DECISION OF THE FOURTH DISTRICT COURT OF APPEAL James H. Wyman Florida Bar No HINSHAW & CULBERTSON LLP 2525 Ponce de Leon Blvd. 4th Floor Coral Gables, Florida Telephone: (305) rkammer@hinshawlaw.com jwyman@hinshawlaw.com Counsel for Port St. Lucie Mgt, LLC

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 STATEMENT OF JURISDICTION... 3 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 A. The Decision of the District Court Expressly and Directly Conflicts with Decisions of Other District Courts The Decision Expressly Conflicts with Decisions from Other Districts Finding That Section (7) Is Intended to Apply to Contract Cases The Decision Misapplies Controlling Precedent Requiring a Strict Construction of Statutes in Derogation of the Common Law B. The Court Should Exercise Its Discretion to Hear This Case CONCLUSION... 8 CERTIFICATE OF COMPLIANCE... 9 CERTIFICATE OF SERVICE... 9 ii

3 TABLE OF AUTHORITIES Cases County Waste, Inc. v. Pub. Storage Mgmt., Inc., 582 So. 2d 87 (Fla. 3d DCA 1991)... 3, 4, 5 Florida Hurricane Prot. & Awning, Inc. v. Pastina, 43 So. 3d 893 (Fla. 4th DCA 2010)... 2, 6, 7 Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981)... 4 Robertson v. State, 829 So. 2d 901 (Fla. 2002)... 4 Walls v. Quick & Reilly, Inc., 824 So. 2d 1016 (Fla. 5th DCA 2002)...3, 4 Willis Shaw Express, Inc. v. Hillyer Sod, Inc., 849 So. 2d 276 (Fla. 2003)...3, 5 Statutes (7), Fla. Stat. (2008)...4, 6 Treatises Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction (7th ed. 2008)... 5 Constitutional Provisions Art. V, 3(b)(3), Fla. Const.... 3, 5, 7 Session Laws Ch , Laws of Fla iii

4 INTRODUCTION The petitioner seeks review of a Fourth District decision that, in contravention of this Court s precedent, liberally construed section (7), Florida Statutes, to find entitlement to attorney s fees. The decision further applied section (7) in a pure tort action, thus expressly and directly conflicting with decisions from other district courts that have held the statute was intended to apply in contract cases. STATEMENT OF THE CASE AND FACTS The petitioner, Port St. Lucie Mgt, LLC d/b/a Emerald Health Care Center ( Emerald ), operates a nursing home facility. (A.1.) 1 The respondent, Gloria Ann Stratton, was admitted to Emerald s facility under an Admission Agreement pursuant to which she consented to care and treatment at the facility. (A.1.) The agreement referred to Emerald being obligated to use reasonable care toward Stratton. (A.1.) The agreement further provided for arbitration and for attorney s fees and costs to be awarded to Emerald in any legal action or proceeding in which Emerald was found to have committed no wrongdoing. (A.1-2.) Stratton brought a negligence claim against Emerald, and the parties proceeded to arbitration. (A.2.) Stratton then filed an amended petition in the 1 Citation to the Fourth District s decision contained in the attached Appendix shall be A.[page number]. 1

5 proceeding seeking attorney s fees and costs under the Admission Agreement. (A.2.) The parties stipulated that the term wrongdoing in the agreement s fee provision meant negligence. (A.2.) After the arbitrators found in her favor on the negligence claim, Stratton sought attorney s fees in the circuit court. (A.1, 3.) The trial court denied fees, and Stratton appealed the denial to the Fourth District. (A.1.) On appeal, Stratton contended that she was entitled to fees as a prevailing party under section (7), Florida Statutes (2008), because her claim for attorney s fees and costs ar[ose] out of a contract allowing fees to Emerald if Emerald had prevailed in the same underlying action. (A.1.) The Fourth District panel acknowledged that section (7) was to be strictly construed. (A.2.) Citing its 6-5 en banc decision in Florida Hurricane Protection & Awning, Inc. v. Pastina, 43 So. 3d 893 (Fla. 4th DCA 2010), the panel placed Stratton s contention within the following framework: The contractual provision between the parties allowing fees is the key to determining whether the party claiming fees has an enforceable right under section (7); the parties are entitled to no more than allowable under the contract and, correspondingly, no less[.] (A.2.) Ignoring that Stratton had brought a negligence action, the panel found that Stratton was enforcing the same type of finding in the same type of action that would have allowed attorney s fees to Emerald. (A.3.) The panel found that because the attorney s fees provision would have allowed Emerald to recover 2

6 attorney s fees if the arbitrators findings had been in its favor, under the agreement, Stratton also is entitled to her attorney s fees and costs. (A.3.) STATEMENT OF JURISDICTION The district court s decision creates express and direct conflict with Walls v. Quick & Reilly, Inc., 824 So. 2d 1016 (Fla. 5th DCA 2002), and County Waste, Inc. v. Public Storage Management, Inc., 582 So. 2d 87 (Fla. 3d DCA 1991), thereby giving the Court jurisdiction to review this case. Art. V, 3(b)(3), Fla. Const. Additionally, the Court has jurisdiction to review this case based upon the district court s misapplication of Willis Shaw Express, Inc. v. Hillyer Sod, Inc., 849 So. 2d 276 (Fla. 2003), which creates express and direct conflict as well. Art. V, 3(b)(3), Fla. Const. SUMMARY OF ARGUMENT The Fourth District s decision permitting application of section (7) in a pure tort action conflicts with decisions of the Third and Fifth Districts which have held that the statute was intended to apply to contract cases. The decision further misapplies controlling precedent from this Court requiring that statutes awarding attorney s fees be strictly construed because they are in derogation of the common law. Given the decision s potential for expanding the cost of tort litigation between parties who have an underlying contractual relationship, and for creating uncertainty in such tort litigation, the Court should grant review. 3

7 ARGUMENT A. The Decision of the District Court Expressly and Directly Conflicts with Decisions of Other District Courts. Express decisional conflict may be created simply by a discussion of legal principles appearing on the face of the decision. Ford Motor Co. v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981). It may also be created when a decision misapplies an opinion of this Court. E.g., Robertson v. State, 829 So. 2d 901, 904 (Fla. 2002). provides: 1. The Decision Expressly Conflicts with Decisions from Other Districts Finding That Section (7) Is Intended to Apply to Contract Cases. Enacted in 1988, see ch , 1, Laws of Fla., section (7) If a contract contains a provision allowing attorney s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract (7), Fla. Stat. (2008). Applying this statute for the first time in 1991, the Third District held that it was evident that the intent of subsection [(7)] is to provide mutuality of attorney s fee remedy in contract cases. County Waste, Inc. v. Pub. Storage Mgmt., Inc., 582 So. 2d 87, 87 (Fla. 3d DCA 1991) (emphasis added). The Fifth District has agreed with this proposition. See Walls v. Quick & Reilly, Inc., 824 So. 2d 1016, 1019 (Fla. 5th DCA 2002) ( In Florida, the public policy 4

8 consideration underlying section [(7)] is to provide mutuality of attorney s fee remedy in contract cases. ) (emphasis added) (quoting County Waste, 582 So. 2d at 87). The decision of the Fourth District expressly and directly conflicts with these two decisions because it applied section (7) to provide for mutuality of attorney s fees in a tort case. By finding that the mutuality of attorney s fees remedy in section (7) applies in a negligence case, the Fourth District s decision expressly and directly conflicts with the point of law in County Waste and Wall that section (7) provides mutuality of attorney s fee remedy in contract cases. This Court therefore has discretionary jurisdiction to review this case. Art. V, 3(b)(3), Fla. Const. 2. The Decision Misapplies Controlling Precedent Requiring a Strict Construction of Statutes in Derogation of the Common Law. This Court has long held that statutes awarding attorney s fees must be strictly construed because they are in derogation of the common law rule that each party pay its own fees. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003) (citations omitted). The general operation of this rule is fairly straightforward: No statute should be construed to alter the common law farther than its word indicates, and no statute is construed to make any innovation upon the common law which it does not fairly express. 3 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction 61:2 (7th ed. 2008). The 5

9 Fourth District s decision correctly stated the rule in its decision. 2 However, apparently overlooking the nature of both the action and the attorney s fees provision at issue, it then proceeded to construe section (5) far beyond and, indeed, in contravention of its plain language. Section (7) contains two requirements that must be met before it is applicable. First, the contract must contain a provision allowing attorney s fees to a party when he or she is required to take any action to enforce the contract (7), Florida Statutes (2008). Second, the other party that seeks fees under the provision by way of the statute must have prevailed against the first party in an any action... with respect to the contract. Id. The attorney s fees provision at issue allowed Emerald to recover attorney s fees and costs for any legal action or proceeding if Emerald was found to have committed no wrongdoing. This is plainly not a provision allowing attorney s fees to a party when he or she is required to take any action to enforce the contract. It is a provision allowing fees to a party in an action when it has been found not liable in tort. Further, Stratton prevailed against Emerald on a claim for negligence. She did not prevail in an action... with respect to the contract. A 2 While the court cited its earlier decision in Florida Hurricane Protection & Awning, Inc. v. Pastina, 43 So. 3d 893 (Fla. 4th DCA 2010), as support for the rule, Florida Hurricane cited this Court s decision in Willis Shaw. 6

10 negligence action does not become an action... with respect to the contract simply because a party has invoked an attorney s fee provision in an underlying contract between the parties. By finding that the mutuality of attorney s fees remedy in section (7) applies to both this case and the no wrongdoing attorney s fee provision in the Admission Agreement, the Fourth District s decision has misapplied this Court s controlling precedent in Willis Shaw Express requiring that statutes awarding attorney s fees be strictly construed. This Court therefore has discretionary jurisdiction to review this case. Art. V, 3(b)(3), Fla. Const. B. The Court Should Exercise Its Discretion to Hear This Case. No decision of this Court has directly addressed the application of section (7) since its enactment in Application in the district courts has not been without some struggle, as evidenced by the Fourth District s 6-5 en banc decision in Florida Hurricane Protection & Awning, Inc. v. Pastina, 43 So. 3d 893 (Fla. 4th DCA 2010), and its decision in this case. Expanding the applicability of section (7) to tort actions, as the Fourth District s decision does here, has the very real potential of making what might otherwise be simple tort litigation more costly to both plaintiffs and defendants. If the parties to a tort action have an underlying contractual relationship a not uncommon scenario throughout Florida a prevailing party attorney s fee 7

11 provision in the contract could be used as a basis for seeking fees in that tort action, even though originally intended as a basis for fees only in actions on the contract. Tort litigation would become inherently unpredictable in such circumstances because the parties would be uncertain as to whether the fee provision (and its wording) falls within a section (7) that is now no longer strictly limited to contract cases. Having explored the interplay between actions in contract and actions in tort for the benefit of the Fourth District below, the petitioner is well situated to assist the Court in analyzing and resolving the problem created by the Fourth District s decision. CONCLUSION For the foregoing reasons, the Court should grant review. Respectfully submitted, s/james H. Wyman James H. Wyman, Esq. Florida Bar No HINSHAW & CULBERTSON LLP 2525 Ponce de Leon Blvd. 4th Floor Coral Gables, Florida Telephone: (305) jwyman@hinshawlaw.com pvarela@hinshawlaw.com 8

12 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). s/james H. Wyman James H. Wyman CERTIFICATE OF SERVICE I certify that on November 24, 2014, a copy hereof has been furnished by e- mail service via the Florida Courts E-Filing Portal to Jeffrey C. Fulford, Esq., Jeffrey C. Fulford, P.A., 32 Southeast Osceola Street, Suite A, Stuart, Florida 34994, at jeff@fulfordlaw.com and betty@fulfordlaw.com. s/james H. Wyman James H. Wyman v