IN THE SUPREME COURT OF FLORIDA. Case No. SC ORCHID ISLAND PROPERTIES, INC., et al., Petitioners

Transcription

1 IN THE SUPREME COURT OF FLORIDA Case No. SC ORCHID ISLAND PROPERTIES, INC., et al., Petitioners W. G. MILLS, INC. OF BRADENTON, UNITED STATES FIDELITY AND GUARANTY COMPANY, and O DONNELL, NACCARATO & MIGNOGNA, INC., Respondents AMENDED ANSWERING JURISDICTIONAL BRIEF OF RESPONDENTS W.G. MILLS OF BRADENTON AND UNITED STATES FIDELITY AND GUARANTY COMPANY B Lower Tribunal: Fourth District Court Of Appeal Case No. 4D Filing Date: 2/4/05 BROWN & MORGAN, A PROFESSIONAL ASSOCIATION 1800 Second Street, Suite 806 Sarasota, Florida Telephone (941) Facsimile (941) Daryl J. Brown, Esquire Florida Bar No.: Attorneys for Answering Respondents

2 TABLE OF CONTENTS I. Statement Of The Case And Facts... 1 II. Summary of Argument III. Argument... 2 A. Judge Hawley s Order Was Final And Appealable, A Legal Fact Not Present In The Miller Case Entire Case Finality Self-Executing Finality... 4 B. By Failing To Timely Appeal, OIP Forfeited Its Right Of Appeal... 7 C. For These Reasons, The Fourth District s Decision Does Not Expressly And Directly Conflict With Miller... 8 D. There Is No Other Basis For Discretionary Jurisdiction IV. Conclusion CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 TABLE OF AUTHORITIES Cases Page Alfaya Square Associates, Ltd. v. Great Western Bank, So.2d 39, 40 (Fla. 5 th DCA 1998) Allstate Insurance Company v. Collier, So.2d 311, 312 (Fla. 4 th DCA 1981) Am. Auto. Ass'n v. C.D.S. Towing & Recovery Inc., So.2d 1064, 1065 (Fla. 3d DCA 2002) (quoting Tyler v. State, Governor Chiles, 718 So.2d 811, 812 (Fla. 2d DCA 1997) Ammons v. Keechobee County, So. 2d 641, 643 (Fla. 4 th DCA 1998) Board of Commissioners of Madison County v. Grice, So.2d 392, 394 (Fla. 1983) Friedman v. Friedman, 825 So.2d 1010, (Fla. 4 th DCA 2002) 5 Geico Financial Services v. Kramer, So.2d 1345, 1346 (4 th DCA 1991) Gries Investment Company v. Chelton, So.2d 1281, 1282 (Fla. 3 rd DCA 1980) Hoffman v. Hall, 817 So.2d 1057, 1058 (Fla. 1 st DCA 2002) 5, 6 McQuaig v. Wal-Mart Stores, Inc., So.2d 1215, 1216 (Fla. 1 st DCA 2001) Mang v. Country Comfort Inn, Inc., 559 So.2d 672, 673 (3 rd DCA 1990) 7 Mendez v. West Flagler Family Association, Inc., So.2d 1, 4-5 (Fla. 1974) ii

4 Mekertin v. Winn Dixie Stores, Inc., 869 So.2d 1286, 1288 (4 th DCA 2004) 8 Miller v. Nelson, 550 So.2d 1193, 1194 (Fla. 5 th DCA 1989) 1, 2, 7, 8, 9, 10 Monticello Insurance Company v. Thompson, So.2d 1215, 1216 (Fla. 1 st DCA 1999) Quintana v. Barad, 529 So.2d 1300, 1302, n. 5 (3 rd DCA 1988) 10 Salasky v. Humana Hospital Kissimmee Auxiliary, So.2d 428 at 428 (Fla. 5 th DCA 1985) State Farm Mutual Automobile Insurance Co. v. Open MRI Of Orlando, 5,6 780 So.2d 339, 341 (Fla. 5 th DCA 2001) Trotter v. Ford Motor Credit Corporation, So.2d 593, 594 [2 nd DCA 2004) Tunstall v. Folsom, 616 So.2d 1123 at 1123 (Fla. 1 st DCA 1993) 6 Tyler v. State, Governor Chiles, 718 So.2d 811, 812 (Fla. 2d DCA 1997) 8 Rules Fed. R. Civ. P Fla. R. App. P (a)(2)(A)(iv) 8, 10 Fla. R. App. P (b)(1)(A) 3,6 Fla. R. App. P (b) 7 Fla. R. App. P (k) 1, 3,4,7 Articles Putnam, Florida s Partial Final Judgment Rule: Problems and Solutions, 17 Fla. St. U. L. Rev. 749 (1990) 5 Putnam, 17 Fla. St. U. L. Rev. at 750 n. 25 5,7 Putnam, 17 Fla. St. U. L. Rev. at iii

5 Texts Vance and Piccard, Direct Appeal Jurisdiction of 4 Florida s District Courts Of Appeal, 33 Stetson L. Rev.153 (2003) Vance and Piccard, 33 Stetson L. Rev. at 159 n Vance and Piccard, 33 Stetson L. Rev. at 160 n Vance and Piccard, 33 Stetson L. Rev. at 162 4, 6 Vance and Piccard, 33 Stetson L. Rev., at P. Padovano, Florida Practice Series, Appellate Practice, (2005) 4 2 P. Padovano, P. Padovano, P. Padovano, P. Padovano, , 7 Legislative Materials Committee Notes to Rule iv

6 RESPONDENTS AMENDED ANSWERING JURISDICTIONAL BRIEF I. Statement Of The Case And Facts Respondents W. G. MILLS, INC., OF BRADENTON [ Mills ] and UNITED STATES FIDELITY AND GUARANTY COMPANY [ USF&G ] accept the Statement Of The Facts And Case submitted by Petitioner ORCHID ISLAND PROPERTIES, INC. ( OIP ) with one significant correction. OIP states in its opening paragraph that [t]he trial court [the Hon. A. Robert Hawley] entered a non-final order that effectively doomed OIP s case against its general contractor... [Brief p. 1 (emphasis supplied)]. That is OIP s mistake, its error, and its undoing. As discussed below, Judge Hawley s order was final and appealable. OIP did not appeal within 30 days of the entry of that order (or ever) and thereby forfeited its right of appeal. Its Petition is therefore moot, as OIP does not have any right of appeal to be protected by mandamus. This differentiates the present case from Miller v. Nelson, 550 So.2d 1193 (Fla. 5 th DCA 1989), in which there was an existing right of appeal. II. Summary Of Argument Judge Hawley entered an order on December 28, 2003, enforcing the Mediated Settlement Agreement ( MSA ). This order ( the Enforcement Order ) was final and appealable under the second sentence of Fla. R. App. P (k) because it...dispose[d] of the entire case... as between OIP and Mills and USF&G. It was also final and appealable because it was self-executing, not only granting Mills 1

7 and USF&G s motion to enforce the MSA but also granting the requested relief and ordering the parties to perform. Under either rule of appellate law, OIP had 30 days from the date of entry in which to appeal. This time limit is jurisdictional; and when OIP did not file an appeal within that time limit, it forfeited its right of appeal. For this reason, there is no conflict between the Fourth District s decision in the present case and Miller. In Miller, the Fifth District assumed that the mandamus petitioner had an existing, unexpired right of appeal which needed protection. No such right exists in the present case; and OIP s Petition is therefore moot: as there is no right of appeal to protect, there is no reason to mandamus the trial judge. A further reason why the Fourth District s decision does not conflict with Miller is that the Fourth District decided this case on a different point of mandamus law, not mentioned or discussed in Miller namely, that a mandamus petitioner must show a clear entitlement to the relief requested. In the present case, the relief requested by OIP is the entry of a final judgment. Yet, unlike Miller, the parties had in the present case settled. The MSA called for the entry of a voluntary dismissal by OIP, not the entry of a final judgment. This being so, the Fourth District denied OIP s Petition on the ground not present in Miller--that OIP did not have a clear entitlement to entry of a final judgment. III. Argument A. Judge Hawley s Order Was Final And Appealable, A Legal Fact Not Present In The Miller Case 2

8 On December 28, 2003, Judge Hawley granted the motion [to enforce the MSA] and ordered OIP to comply... [A-1 (emphasis supplied)]. OIP s mandamus petition is predicated on the assumption that Judge Hawley s Enforcement Order was not appealable and that therefore, as in Miller, a final judgment must first be entered before OIP can appeal. OIP is very wrong. Judge Hawley s Enforcement Order was final and appealable under two separate appellate rules of finality: (1) the disposal of the entire case rule codified in the second sentence of Fla. R. App. P (k); and (2) the rule that self-executing judgements or orders are final and appealable under Fla. R. App. P (b)(1)(A). Both of these rules require that the appeal be filed within 30 days of entry of the order, or be forfeited. 1. Entire Case Finality. Subparagraph (k) to Fla. R. App. P , which this Court added to the appellate rules in 1984, contains two separate sentences, providing as follows: (k) Review of Partial Final Judgments. Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition. [emphasis and underscoring supplied]. The first sentence cured the Mendez Trap 1 (an issue not presented in the 1 The Mendez Trap resulted from this Court s decision in Mendez v. West Flagler Family Association, Inc., 303 So.2d 1, 4-5 (Fla. 1974), holding that an order dismissing a distinct and separate count which was not interrelated to other counts in the complaint was final and must be immediately appealed, within 30 days of entry. The cure for the conundrum of Mendez which plagued lawyers for the next 10 years, was to give lawyers a choice of when to appeal, which this Court did 3

9 case at bar). The second sentence deals with an entirely different issue namely whether, as it reads, a partial final judgment 2 totally disposes of an entire case as to any party... If so, the second sentence continues,...it must be appealed within 30 days of rendition [emphasis supplied]. The second sentence, then, works a forfeiture if the appeal is not taken immediately. There is no Mendez choice of when to appeal if the order in question disposes of an entire case as to any party. Judge Hawley s Enforcement Order disposed of the entire case as between OIP and Mills and USF&G. Therefore, under the second sentence of Rule 9.110(k), OIP had to take its appeal within 30 days. OIP did not do so and thereby forfeited its right of appeal. 2. Self-Executing Finality. The district courts have appellate jurisdiction over final orders of trial courts [Fla. R. App. P (b)(1)(A)]. The test of finality...is whether the order in question marks the end of judicial labor in the case... 2 P. Padovano, Florida Practice Series, Appellate Practice, 21.2 (2005) 3 The formerly essential in the first sentence of subparagraph (k). See Committee Notes to Rule discussing the 1984 Amendment; Vance and Piccard, Direct Appeal Jurisdiction of Florida s District Courts Of Appeal, 33 Stetson L. Rev.153, 159 n. 56 (2003); 2 P. Padovano, Florida Practice Series, Appellate Practice, 21.5 (2005) 2 The courts hold that Rule 9.110(k) covers either judgments or orders. Vance and Piccard, 33 Stetson L. Rev., supra, at 160 n. 60 and cases there cited; 2 Padovano, Florida Practice Series, Appellate Practice, supra, 21.6 and cases there cited. 3 See also Geico Financial Services v. Kramer, 575 So.2d 1345, 1346 (4 th DCA 1991) (...a judgment is final where nothing further remains to be done to fully 4

10 traditional words of finality, 4 sometimes called the magic words, 5 are no longer necessary to make a judgment or order final and appealable. 6 If an order merely grants the relief moved for, without more, it is not final and appealable because judicial labor is not over. There remains one more judicial act namely, the signing of one more piece of paper (usually a judgment) which orders that relief. 7 However, there is no requirement in Florida that there be a separate judgment, as there is under the federal rules (see Fed. R. Civ. P. 58 providing that [e]very judgment shall be set forth on a separate document ). effectuate termination of the cause between the parties directly affected except enforcement by execution or otherwise ). 4 In practice, orders and judgments are usually sprinkled with [w]ords and phrases...includ[ing] the following: for which let execution issue; plaintiff shall take nothing by this action ; and plaintiff shall go hence without day. Vance and Piccard, 33 Stetson L. Rev., supra, at 162 [footnotes omitted]. 5 See, e.g., Allstate Insurance Company v. Collier, 405 So.2d 311, 312 (Fla. 4 th DCA 1981) [ magic words demonstrating finality ]. 6 Friedman v. Friedman, 825 So.2d 1010, (Fla. 4 th DCA 2002); State Farm Mutual Automobile Insurance Co. v. Open MRI Of Orlando, 780 So.2d 339, 341 (Fla. 5 th DCA 2001); McQuaig v. Wal-Mart Stores, Inc., 789 So.2d 1215, 1216 (Fla. 1 st DCA 2001); Hoffman v. Hall, 817 So.2d 1057, 1058 (Fla. 1 st DCA 2002). 7 Thus if a litigant moves for summary judgment dismissing a complaint, and the court grants the motion, then, without more, that order is not final; rather, there must be a judgment actually dismissing the complaint. Such cases are legion. See, e.g., Gries Investment Company v. Chelton, 388 So.2d 1281, 1282 (Fla. 3 rd DCA 1980) (referring to the long and unsullied line of Florida authorities holding that an order which merely grants a motion for summary judgment and does not enter the judgment itself is not final [citations omitted]); Putnam, Florida s Partial Final Judgment Rule: Problems and Solutions, 17 Fla. St. U. L. Rev. 749, 750 n. 25 (1990); Vance and Piccard, 33 Stetson L. Rev., supra, at 162; 2 P. Padovano, Florida Practice Series, Appellate Practice, supra,

11 Florida courts can therefore enter orders which both grant the motion and provide for the requested relief [e.g., the motion is granted, and the complaint is dismissed ]. 8 Courts refer to such orders as self-executing and therefore final and appealable. 9 Numerous cases now hold that when the order grants the motion and also provides that the relief requested is ordered, such an order is final and appealable. 10 State Farm, supra, 780 So.2d at , is a perfect example. There the court said: We hold the county court s [first] order...was an appealable final order. [Plaintiff] had 30 days within which to seek appellate review. In that order, the county court explicitly ruled Final Summary Judgment is hereby entered...this quoted language is selfexecuting...[numerous citations omitted].*** Because the notice of appeal in the instant case was untimely, the circuit court lacks jurisdiction to entertain [plaintiff s] appeal... [italics in original; underscoring supplied]. 8 Board of Commissioners of Madison County v. Grice, 438 So.2d 392, 394 (Fla. 1983) (...an order on a motion to dismiss may not be final, but an order which actually dismisses the complaint is [citation omitted; emphasis supplied]); Tunstall v. Folsom, 616 So.2d 1123 at 1123 (Fla. 1 st DCA 1993) (...the...order states that it is hereby ordered and adjudged that the petition for writ of mandamus is dismissed [emphasis supplied]; held, [t]his language is clearly sufficient to mark the order as a final order...pursuant to...rule (b)(1)(A) ). 9 Geico Financial Services v. Kramer, supra, 575 So.2d at 1346; State Farm Mutual Automobile Insurance Co. v. Open MRI Of Orlando, supra, 780 So.2d at 341; Hoffman v. Hall, 817 So.2d 1057, 1058 (Fla. 1 st DCA 2002). 10 In addition to the State Farm and Hoffman cases just cited, see also Monticello Insurance Company v. Thompson, 743 So.2d 1215, 1216 (Fla. 1 st DCA 1999); Salasky v. Humana Hospital Kissimmee Auxiliary, 478 So.2d 428 at 428 (Fla. 5 th DCA 1985); and Tunstall v. Folsom, supra, 616 So.2d 1123 at 1123; and see generally Vance and Piccard, 33 Stetson L. Rev., supra, at

12 This illustrative case is also the reason why OIP s summary judgment analogy [Brief pp. 2, 6, 8] fails because the present case is not one in which the trial court merely granted a motion without more [see n. 7 supra]. There was something more namely, the grant, in addition, of the requested relief. Accordingly, the extra piece of paper which OIP seeks is unnecessary surplusage. Judge Hawley both granted Mills motion to enforce the MSA and ordered the parties to comply... [A.1 (emphasis supplied)]. His order was selfexecuting and immediately triggered the 30 day appeal period. B. By Failing To Timely Appeal, OIP Forfeited Its Right Of Appeal As OIP did not file a notice of appeal during the 30 day period following entry of the Enforcement Order, its right of appeal was long ago forfeited and is irrevocably gone. This is the result of entire case finality under Rule 9.110(k); and the district courts uniformly hold that the right of appeal is forfeited if it is not filed within 30 days. 11 The same result is reached when a judgment or order is self-executing. The appeal is mandatory; and if it is not taken within 30 days, it is forfeited. As the 11 Ammons v. Keechobee County, 710 So. 2d 641, 643 (Fla. 4 th DCA 1998); Trotter v. Ford Motor Credit Corporation, 868 So.2d 593, 594 [2 nd DCA 2004); Mang v. Country Comfort Inn, Inc., 559 So.2d 672, 673 (3 rd DCA 1990); Alfaya Square Associates, Ltd. v. Great Western Bank, 706 So.2d 39, 40 (Fla. 5 th DCA 1998); see generally, Putnam, 17 Fla. St. U. L. Rev., supra, at 750; Vance and Piccard, 33 Stetson L. Rev., supra, at 164; 2 P. Padovano, Florida Practice Series, supra, Appellate Practice, 21.6 [ immediate appeal is required ]. 7

13 Fourth District held in Mekertin v. Winn Dixie Stores, Inc., 869 So.2d 1286, 1288 (4 th DCA 2004): The time for taking an appeal is a jurisdictional requirement established by Florida Rule of Appellate Procedure 9.110(b). Where the notice of appeal is not filed within thirty days of rendition, the appellate court is precluded from exercising jurisdiction over the appeal. Am. Auto. Ass'n v. C.D.S. Towing & Recovery Inc., 805 So.2d 1064, 1065 (Fla. 3d DCA 2002 (quoting Tyler v. State, Governor Chiles, 718 So.2d 811, 812 (Fla. 2d DCA 1997)) Accordingly, there can be no question that 30 days after December 28, 2003, OIP, failing to file an appeal, forfeited its right of appeal. C. For These Reasons, The Fourth District s Decision Does Not Expressly And Directly Conflict With Miller. The Fourth District s decision in the present case does not, as required by Fla. R. App. P (a)(2)(A)(iv), expressly and directly conflict with the Fifth District s very brief decision in Miller. This is for several reasons. First, the Fourth District did not cite, refer to, or discuss Miller which would seem to be necessary for any conflict to be express as well as direct. Second, the assumption made by the Miller court was that there was an existing, unexpired right of appeal, which needed a final judgment in order to be taken. This is clearly implicit in the Miller court s holding that [t]he writ is issued, and the trial judge is directed to enter a final judgment, thereby enabling the petitioner to pursue his appeal. Miller, 550 So.2d at 1194 (emphasis supplied). In Miller the order in question, from which the mandamus petitioner wished to appeal, was an order for costs, which of course was not a final order. 8

14 If there is no right of appeal to protect if that right has been forfeited as in the present case there is no reason to mandamus the trial judge. This renders OIP s petition for mandamus moot. If Judge Hawley did enter a final judgment, any appeal then taken by OIP would have to be dismissed or quashed on motion. This was not so in Miller, where (it must be assumed) there was an existing right of appeal. Third, the Fourth District decided the present case on a different point of mandamus law, not presented or mentioned in Miller. Unlike Miller, there was a settlement in the present case, one provision of which required OIP to file a voluntary dismissal of its lawsuit against Mills and USF&G. Thus the MSA expressly provided, not for the entry of a final judgment by the trial court, but for the entry of a voluntary dismissal by OIP. The Fourth District s reason for denying mandamus, as set forth in the majority opinion of Judges May and Taylor, was that: [t]o obtain mandamus relief, OIP must establish a clear entitlement to the performance of a ministerial duty by the trial court [citation omitted]. The MSA required OIP to file a voluntary dismissal. It did not require entry of a judgment of dismissal by the trial court. Thus, OIP does not have a clear entitlement to a courtordered judgment of dismissal. A-2 (emphasis supplied) 12 Miller did not raise or discuss the clear entitlement rule; and in these circumstances there can be no express or direct conflict. The two cases were 12 Judge Gross, concurring specially, agreed with this rationale: [ ] I agree with the majority that the petition for mandamus should be denied. There is no clear entitlement to a writ of mandamus... [A-2 (emphasis supplied)] 9

15 decided on different grounds. 13 D. There Is No Other Basis For Discretionary Jurisdiction OIP also argues that this Court should take jurisdiction because: (1) the Fourth District has cast OIP into a procedural netherworld [Brief p. 1]; (2) nothing less than the fundamental right of appellate review is at stake in this case [Brief pp. 1, 4]; and (3) this Court can utilize this case as an opportunity to clear up the conflict and confusion which exists among the district courts on the question whether an order granting or denying enforcement of a settlement agreement is or is not appealable per se [Brief pp. 4, 10]. These are not grounds for discretionary jurisdiction under Rule 9.030(a)(2)(A)(iv). They must therefore be ignored. The nub of the matter is that OIP shot itself in the foot by failing to appeal when it had to. The Fourth District s decision did not cast OIP into a netherworld. OIP got there by itself. The fundamental right of appeal is not involved as it was long ago forfeited. IV. Conclusion For all the foregoing reasons, the Petition must be denied. 13 OIP also claims that the Fourth District s decision conflicts with another case, Quintana v. Barad, 529 So.2d 1300, 1302, n. 5 (3 rd DCA 1988) [Brief p. 8 n. 2]. This is not so. In Quintana, the settlement agreement, in contradistinction to the MSA in the present case, specifically provided for the entry of an adverse final judgment against defendant tortfeasor [528 So.2d at 1301], which the trial court refused to enter. There was no issue whatsoever in Quintana concerning the right of appeal. Therefore nothing in Quintana expressly and directly conflicts with the Fourth District s decision in the present case. 10

16 DATED: this day of April, BROWN & MORGAN, A PROFESSIONAL ASSOCIATION 1800 Second Street, Suite 806 Sarasota, Florida Telephone (941) Facsimile (941) Daryl J. Brown, Esquire Florida Bar No.: Attorneys for Respondents: W.G. MILLS, INC. OF BRADENTON, and, UNITED STATES FIDELITY AND GUARANTY COMPANY 11

17 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by regular U. S. Mail this day of April, 2005, to: 1. The Honorable Robert A. Hawley Circuit Court Judge th Avenue, Suite 383 Courtroom 6 Vero Beach FL all counsel of record pursuant to the attached Certificate of Service List 3. Fourth District Court of Appeal, P.O. Box 3315, West Palm Beach, Florida original to Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida BROWN & MORGAN, A PROFESSIONAL ASSOCIATION 1800 Second Street, Suite 806 Sarasota, Florida Telephone (941) Facsimile (941) Daryl J. Brown, Esquire Florida Bar No.: Michael L. Morgan, Esq. Florida Bar No Attorneys for Respondents W.G. MILLS, INC. OF BRADENTON, and, UNITED STATES FIDELITY AND GUARANTY COMPANY 12

18 CERTIFICATE OF SERVICE LIST Eli H. Subin, Esquire Holland & Knight 200 South Orange Avenue, Suite 2600 Orlando, Florida Counsel for Orchid Island Properties, Inc. Tel: (407) Fax: (407) Steven L. Brannock, Esquire Holland & Knight 100 North Tampa Street, Suite 4100 Tampa, Florida Counsel for Orchid Island Properties, Inc. Tel: (813) Fax: (813) John H. Dannecker, Esquire Shutts & Bowen, LLP 300 South Orange Avenue Orlando, FL Counsel for Orchid Island Properties, Inc. Tel: (407) Fax: (407) William Marell, Esquire Glickman, Witters, Marell & Jamieson 1601 Forum Place, Suite 1101 West Palm Beach, FL Counsel for: Pace Roofing, Inc. Preferred National Insurance Company; Walter Millet; Altec Roofing Phone: (561) Fax: (561) Thomas A. Berge r, Esquire Flanagan, Maniotis, Berger & Ryan, P. A Forest Hill Blvd. West Palm Beach, FL Counsel for: R. B. Plastering and Stucco, Inc. and Rodney Hopkins Phone: (561) Fax: (561) John A. Lurvey, Esquire Conroy, Simberg, Ganon, Krevans & Abel, P. A Centrepark Drive East, Suite 200 West Palm Beach, FL Counsel for Lucas Waterproofing, Inc. and Robert Lucas -and- Counsel for Pate Construction Phone: (561) Fax: (561) Michael J. Kennedy, Esquire Boose, Casey, Ciklin, Lubitz, Martens, McBane & O Connell Northbridge Center - 19 th Floor 515 North Flagler Drive P.O. Box 4626 West Palm Beach, FL Counsel for Odonnell, Nacarrata & Mignogna, Inc. Phone: (561) Fax: (561) David V. King, Esq. George Hartz, P. A. 319 Clematis Street Suite 1000 West Palm Beach, FL Counsel for Fireside Distributors, Inc. and Lyn Meyers Phone: (561) Fax: (561) Kenneth Moffet, Esq. 884 U.S. Hwy. 1 North Palm Beach, Florida Counsel for Paint Doctor Painting Contractors, Inc. and Peter Anderson Phone: (561) Fax: (561)

19 CERTIFICATE OF COMPLIANCE We do hereby certify that the foregoing brief was prepared in Times New Roman 14 point type, in compliance with Fla. R. App. P (l) and 9.210(a)(2). BROWN & MORGAN, A PROFESSIONAL ASSOCIATION 1800 Second Street, Suite 806 Sarasota, Florida Telephone (941) Facsimile (941) Daryl J. Brown, Esquire Florida Bar No.: Michael L. Morgan, Esq. Florida Bar No Attorneys for Respondents W.G. MILLS, INC. OF BRADENTON, and, UNITED STATES FIDELITY AND GUARANTY COMPANY 14