IN THE SUPREME COURT OF FLORIDA. v. Case No: SC03-26 Lower Tribunal No: 2D DAVID C. McNEIL, RESPONDENT S BRIEF ON JURISDICTION

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1 IN THE SUPREME COURT OF FLORIDA CSX TRANSPORTATION, INC., Petitioner/Defendant. v. Case No: SC03-26 Lower Tribunal No: 2D DAVID C. McNEIL, Respondent/Plaintiff. / RESPONDENT S BRIEF ON JURISDICTION JOSEPH R. BRYANT, ESQUIRE Florida Bar # Joseph R. Bryant, P.A. 202 South Moody Avenue Tampa, FL (813) Attorney for Respondent

2 TABLE OF CONTENTS Page No: Table of Citations ii Statement of Case and Facts 1 Issue Presented for Review 2 Summary of the Argument 3 Argument 4 Conclusion 7 Certificate of Service 8 Certificate of Compliance 9 -i-

3 TABLE OF CITATIONS Page No: Art. V, Section 3(b)(3), Fla. Const. 5 Rule 9.330, Fla.R.App.P. (2002) 6 Bates v. Cook, Inc., 509 So.2d 1112 (Fla. 1987) 4, 5 Florida Star v. B.J.F., 530 So.2d 286, 288 (Fla. 1988) 5 Jones v. Cook, 587 So.2d 570 (Fla. 1 st DCA 1991) 5, 6 Little v. State, 206 So.2d 9 (Fla. 1968) 6 McNeil v. CSX Transportation, Inc., No. 2D (Fla. 2 nd DCA Dec. 4, 2002) 4 Mezroub v. Capella, 702 So.2d 562 (Fla. 2nd DCA 1997) 4, 6 Persaud v. State, No. SC (Fla. Jan. 23, 2003) 5 Reaves v. State, 485 So.2d 829 (Fla. 1986) 5 -ii-

4 STATEMENT OF THE CASE AND FACTS Respondent accepts Petitioner s statement of the case and facts as a substantially accurate, albeit brief, description of the facts below. -1-

5 ISSUE PRESENTED FOR REVIEW WHETHER THE DISTRICT COURT S DECISION REVERSING THE SUMMARY JUDGMENT FOR CSX TRANSPORTATION, INC., UNDER FLORIDA S BORROWING STATUTE IS IN EXPRESS AND DIRECT CONFLICT WITH A DECISION OF THE SUPREME COURT AND WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL ON THE SAME QUESTION OF LAW. -2-

6 SUMMARY OF THE ARGUMENT The Second District s opinion sub judice does not expressly or directly conflict with a decision of this Court, or a decision in another district court of appeal. Rather, the instant decision is in harmony with prior decisions of this Court, and the Second District on the same issue of law. -3-

7 ARGUMENT Respondent contends that McNeil v. CSX Transportation, Inc., No. 2D (Fla. 2 nd DCA Dec. 4, 2002), conflicts with the decisions of this Court and other district courts of appeal on the same question of law. Respondent s contention is frivolous and unavailing. The instant case involves the question of whether Florida or South Carolina law applies to the application of Respondent s statute of limitations defense. In the present case, Respondent, a Florida resident, purchased a round-trip train ticket from Lakeland, Florida, to Philadelphia, Pennsylvania, returning to Lakeland, Florida. On the return leg of the journey, the train upon which Respondent was a passenger collided with a semi tractor-trailer struck on the railroad tracks in Sycamore, South Carolina. The Second District applied the significant relationships test as espoused by this Court in Bates v. Cook, 509 So.2d 1112 (Fla. 1987), and is progeny. In applying the significant relationship test, the Second District utilized its prior analysis in Mezroub v. Capella, 702 So.2d 562 (Fla. 2 nd DCA 1997), and reiterated that if parties are residents of the same state, and that state s court will resolve their dispute, -4-

8 then that state s statute of limitations should apply. The Second District found that since Respondent s principal place of business is in Jacksonville, Florida (and the complaint alleges negligence at the decision-making level), then Florida is the appropriate forum. In deciding for Respondent on this issue, the Second District s opinion neither expressly nor directly conflicts with any decision of this Court or any other district court of appeal on the same issue of law. Therefore, discretionary jurisdiction does not lie with this Court pursuant to Art. V, Section 3(b)(3), Florida Constitution. In order for this Court to exercise its discretionary jurisdiction, the conflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority opinion. See, Reaves v. State, 485 So.2d 829 (Fla. 1986). Further, there can be no actual conflict discernible in an opinion containing only a citation to other case law unless one of the cases cited as controlling authority is pending before this Court, or has been reversed on appeal or review, or receded from by this Court, or unless a citation explicitly notes a contrary holding of another district court or of this Court. Florida Star v. B.J.F., 530 So.2d 286, 288 (Fla. 1988); Persaud v. State, No. SC (Fla. Jan. 23, 2003). Since the decision in Bates, ante, is still controlling authority on the significant relationships test, then Petitioner s assertion of conflict is unavailing. -5-

9 Petitioner next attempts to show some interdistrict conflict by citing Jones v. Cook, 587 So.2d 570 (Fla. 1 st DCA 1991). Petitioner, however, failed to cite or argue Jones in its answer brief below. Thus, Petitioner is procedurally barred from relying on Jones herein. Petitioner is further procedurally barred from relying on Jones, as Petitioner failed to move for rehearing below pursuant to Rule 9.330, Fla.R.App.P. (2002). Lastly, Petitioner apparently contends that the instant decision conflicts with the Second District s prior decision in Mezroub, ante. Petitioner is again procedurally barred from bringing this petition on this ground, as conflict between the instant district court of appeal decision and a previous decision in the same court presents no basis for conflict of jurisdiction in the Supreme Court. See, Little v. State, 206 So.2d 9 (Fla. 1968). In conclusion, where as here, the instant decision cites no case law as controlling authority which is pending before this Court, or has been reversed on appeal or review, or is receded from by this Court, or otherwise conflicts with any decision by this Court or another district court of appeal, then discretionary jurisdiction herein does not lie. Accordingly, the instant petition to invoke discretionary jurisdiction must be dismissed. -6-

10 CONCLUSION Based on the foregoing arguments and citations of authority, Petitioner s petition must be dismissed. -7-

11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Mr. Daniel J. Fleming, Melkus & Fleming, 410 Ware Boulevard, Suite 1101, Tampa, FL on January 31, JOSEPH R. BRYANT, ESQUIRE Florida Bar # Joseph R. Bryant, P.A. 202 South Moody Avenue Tampa, FL / Attorney for Appellant T:\BRIEFS\Briefs - pdf'd\03-26_jurisans.wpd -8-

12 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing brief conforms to the requirements of Rule 9.120(d) and Rule 9.210(a) of the Florida Rules of Appellate Procedure. JOSEPH R. BRYANT, ESQUIRE Florida Bar # Joseph R. Bryant, P.A. 202 South Moody Avenue Tampa, FL / Attorney for Appellant T:\BRIEFS\Briefs - pdf'd\03-26_jurisans.wpd -9-