IN THE SUPREME COURT OF FLORIDA DIGICAST NEW MEDIA, INC., Petitioner, -vs- FIERA.COM, INC., Respondent. APPEAL FROM THE DISTRICT COURT OF APPEAL

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SCO3-418 THIRD DISTRICT CASE NO. 3D LOWER TRIBUNAL NO CA 22 DIGICAST NEW MEDIA, INC., Petitioner, -vs- FIERA.COM, INC., Respondent. APPEAL FROM THE DISTRICT COURT OF APPEAL THIRD DISTRICT PETITIONER S AMENDED BRIEF ON JURISDICTION Martin A. Feigenbaum, Esq. Attorney for Petitioner Florida Bar No West Flagler Street Museum Tower 1565 Miami, Florida Telephone: (305)

2 TABLE OF CONTENTS PAGE TABLE OF CONTENTS...i TABLE OF CITATIONS...ii QUESTION PRESENTED FOR REVIEW...1 STATEMENT OF THE CASE AND THE FACTS...2 SUMMARY OF THE ARGUMENT...4 ARGUMENT...5 CONCLUSION...9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF TYPE SIZE AND STYLE...10

3 i TABLE OF AUTHORITIES PAGE CASES Allstate Insurance Co. v. Ramjit, 788 So.2d 402 (Fla. 3d DCA 2001)...6, 9 Allstate Insurance Co. v. Cruz, 768 So.2d 1138 (Fla. 3d DCA 2000)...8 Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla. 5 th DCA 1983)...6 Cubelo v. Ullman, 571 So.2d 443 (Fla. 1990)...4-6, 8-9 Fiber Crete Homes, Inc. v. Division. of Administration, 315 So.2d 492 (Fla. 4 th DCA 1975)...5 Harrison v. La Placida Comm. Ass n, 665 So.2d 1138 (Fla. 4 th DCA 1996)...6, 9

4 ii QUESTIONS PRESENTED FOR REVIEW I. WHETHER THE THIRD DISTRICT S DECISION DIRECTLY AND EXPRESSLY CONFLICTS WITH A DECISION OF THIS COURT OR OTHER COURT DISTRICT COURTS WHERE: A) THE THIRD DISTRICT REVERSED THE TRIAL COURT S DENIAL OF A RULE MOTION; B) THE THIRD DISTRICT REVERSED BECAUSE THE TRIAL COURT FAILED TO AFFORD THE DEFENDANT A TRIAL ON THE ISSUE OF UNLIQUIDATED DAMAGES; AND, C) THE DEFENDANT HAD AMPLE TIME TO MOVE FOR REHEARING OR FILE A PLENARY APPEAL TO SET ASIDE THE FINAL JUDGMENT FOR DAMAGES BUT INSTEAD ELECTED TO FILE A RULE MOTION FOR THAT SAME RELIEF. 1

5 STATEMENT OF THE CASE AND FACTS A. Course Of Proceedings And Disposition In The Court Below. On October 15, 2001, Petitioner Digicast New Media Group, Inc. ( DIGICAST ) filed a two-count complaint against Respondent Fiera.Com, Inc. ( FIERA ) stating claims for breach of a written agreement and for unjust enrichment. R DIGICAST attached to the complaint as Exhibit 1" a written agreement entered into by the parties ( AGREEMENT ) 2. R-2-4. On November 7, 2001, DIGICAST applied for a clerk s default which was entered on that date. R-8-9. On December 7, 2001, one month later, DIGICAST filed a motion for entry of final judgment for liquidated damages and supported that motion with DIGICAST s affidavit. R On December 7, 2001 The Honorable Gerald D. Hubbart, Circuit Court Judge ( JUDGE ) entered a final judgment in favor of 1 DIGICAST uses the following references to the record on appeal. Volume I contains the entire record on appeal except for the transcript of the January 10, 2002 evidentiary hearing on the Rule motion which is contained in Volume II. References to Volume I are denoted by an R followed by the page number(s). References to Volume II are denoted by TR followed by the page number(s). Trial exhibits may be referred to either by Plt. Exh. or Def. Exh. followed by the number for DIGICAST and FIERA, respectively. R On March 3, 2000 FIERA s representative signed the AGREEMENT. 2

6 DIGICAST. R-10-11, A copy of the final judgment was served on FIERA at that time. R-10-11, On December 10, 2001, DIGICAST filed a motion for garnishment after final judgment. R On January 4, 2002, DIGICAST served a writ of execution on FIERA to levy upon its assets in satisfaction of the final judgment. TR-56. On January 7, 2002, the time expired for FIERA to file a notice of appeal of the final judgment entered on December 7, Instead of filing a notice of a plenary appeal, on January 7, 2002, pursuant to Fla. R. Civ. P (b), FIERA filed a motion for relief from judgment and to vacate default ( MOTION FOR RELIEF ). R On January 15, 2002, the JUDGE entered an order denying the MOTION FOR RELIEF. R-141. On February 12, 2002, FIERA filed its notice of appeal of the January 15, 2002 order denying its MOTION FOR RELIEF. R On December 11, 2002, the Third District issued an opinion in FIERA s appeal. The Third District reversed the JUDGE s denial of FIERA s motion, but only as to not affording FIERA a trial on damages. 3 On December 23, 2002 DIGICAST moved for rehearing. On February 12, 2002, the Third District denied that motion for rehearing. On March 6, 2003, DIGICAST filed a timely notice of appeal to the Supreme Court pursuant to Fla. R. 3 The Third District opined that the damages claimed by DIGICAST were not liquidated and, therefore, the JUDGE was obligated to conduct a trial to determine the unliquidated amount. 3

7 App. P (a)(2)(A)(iv). B. Statement Of The Facts. The AGREEMENT, signed by FIERA on March 3, 2000, provided that FIERA would compensate DIGICAST at the hourly rate of $ per hour for media planning and consulting services plus expenses if FIERA cancelled, defaulted, abandoned its media placement. R-2-4. No later than December 13, 2001, FIERA learned about entry of the December 7, 2001 final judgment. TR-8. The record reveals that at no time between service of the complaint on October 17, 2001 and January 7, 2002, that is until after the levy was conducted on January 4, 2002 and the final judgment paid in full at that time, was any paper ever filed on FIERA s behalf. The record also shows that before the January 4, 2002 levy FIERA never requested that the final judgment be set aside, nor that DIGICAST agree to abate further collection efforts. SUMMARY OF THE ARGUMENT The Third District created direct and express conflict with the same question of law decided in Curbelo v. Ullman, 571 So.2d 443 (Fla. 1990), other district courts of appeal, and the Third District itself. According to Curbelo, judicial error is not a proper subject for relief under Rule 1.540, where a party has ample time to move for rehearing or file a plenary appeal. The Third District ignored Curbelo by 4

8 reversing a circuit court judge s determination that damages were liquidated. ARGUMENT I. The Third District s Decision Conflicts With Curbelo v. Ullman, And Precedent From The Third And Other Districts Because The Trial Court s Determination About Liquidated Damages Was Judicial Error Not Subject To Collateral Attack Under Rule Where The Defendant Had Ample Time To File A Motion For Rehearing Or A Plenary Appeal To Set Aside The Final Judgment. A. A Defendant Is Required to Move For Rehearing Or File A Regular Appeal When It Challenges Errors Of Law In A Final Judgment. In its decision rendered on December 11, 2002, the Third District created conflict with: a) this Honorable Court s precedent; b) that of other district courts of appeal; and c) its own line of cases. In the Supreme Court s seminal decision in Curbelo v. Ullman, 571 So.2d 443 (Fla. 1990), this Court discussed whether relief from judicial error, such as a mistaken view of the law, could be applied for under Rule In Curbelo, the Supreme Court held inter alia that: Rule was intended to provide relief from judgments, decrees or orders under a limited set of circumstances. This rule was not intended to serve as a substitute for the new trial mechanism prescribed by Rule nor as a substitute for appellate review of judicial error. The court s error in determining damages without a jury was not the type of judicial mistake for which relief is available under subdivision (b)(1) of the rule; nor did the failure to provide a jury trial on damages result in a void judgment, allowing for relief under subdivision (b)(4). Id. at 444 (citing Fiber Crete Homes, Inc. v. Division of Administration, 315 5

9 So.2d 492, 493 (Fla. 4 th DCA 1975))(emphasis supplied). Thus, the Curbelo Court held that judicial error such as a `mistaken view of the law is not one of the circumstances contemplated by the rule. Curbelo, supra, at 445. The Curbelo Court held that the final judgment for damages was not void and not subject to collateral attack under rule 1.540(b)(4). Id. The Court found that the appellant had ample time to move for a new trial or file a notice of appeal. Id. The Court further held that [a]s long as [appellant] had these regular avenues of relief available to him, he was not denied due process. Id.(emphasis supplied). Since Curbelo, the Third District has reached this same conclusion in such cases as Allstate Insurance Co. v. Ramjit, 788 So.2d 402, 403 (Fla. 3d DCA 2001). Other district courts of appeal also have followed Curbelo. See, e.g., Harrison v. La Placida Community Ass n, Inc., 665 So.2d 1138, 1139, 1141 (Fla. 4 th DCA 1996)(mistaken view of law is judicial error not remediable by rule 1.540). 4 B. The Record Demonstrates That FIERA Had Ample Time To Move For Rehearing And To File A Notice Of Plenary Appeal. The record before the Third District demonstrated that FIERA had notice of 4 In a case cited by FIERA in its initial brief, Bowman v. Kingsland Development, Inc., 432 So.2d 660, 663 (Fla. 5 th DCA 1983), the Fifth District observed that judicial error cannot be remediable solely by appeal because such a rule would necessarily deny review and relief to all who did not discover the error within the time to appeal... However, FIERA had ample time, not only to perfect a plenary appeal, but also to move for rehearing pursuant to rule

10 the existence of the final judgment no later than December 13, TR-8-9. This was the date when both CASANOVA and GAGEL learned from FIERA s bank that its account had been garnished under the final judgment obtained by DIGICAST. TR-8-9; Def. Exh. A. Because the final judgment was entered on December 7, 2001, FIERA had until December 20, 2001 to serve a timely motion for rehearing. 5 Had FIERA filed such a motion, then the final judgment would not have been rendered, for purposes of filing a notice of plenary appeal, until the JUDGE disposed of that motion. Fla. R. App. P (h). Moreover, having actual knowledge of the existence of the final judgment on December 13, 2001, FIERA still had until January 7, 2002 to file a timely notice of appeal of the December 7, 2001 final judgment. 6 Notwithstanding the above time periods in which FIERA could have challenged entry of the December 7, 2001 final judgment, it chose to 5 FIERA still had ten days from December 13, 2001 to file a motion for rehearing. This follows because final judgment was entered on Friday, December 7, 2001, and the first day of the ten-day period didn t commence until December 10, Moreover, under rule 1.530(a), in such a motion FIERA could have requested that the JUDGE open the judgment if one has been entered, take additional testimony, and enter a new judgment. 6 This follows because the thirty-day period in which to file a notice of appeal ran on Sunday, January 6, Fla. R. App. P (e). Thus, FIERA had until the following Monday, January 7, 2002 to file its notice of appeal. 7

11 ignore these traditional avenues to obtain relief from final judgment. It was only after the Sheriff s levy on January 4, 2002, that FIERA decided to take action to set aside the final judgment under rule 1.540(b). R As further evidence that FIERA failed to avail itself of traditional procedural remedies prior to the Sheriff s levy, FIERA did not seek to stay execution under Fla. R. Civ. P (b). 7 FIERA willfully ignored DIGICAST s claim, final judgment, and garnishment of a small bank balance and did nothing while it still had time to set aside the final judgment by timely moving for rehearing or appeal. FIERA thumbed its nose at DIGICAST, even after actual notice of the final judgment and the bank garnishment, until several weeks later when the Sheriff s levy yielded recovery of the balance due under the final judgment. It was then, and only then, that it decided to invoke Rule to secure relief. C. Judicial Error On The Issue Of Liquidated Damages Is Was Not Subject To Collateral Attack Under Rule Under this Court s holding in Curbelo v. Ullman, 571 So.2d 443, 445 (Fla. 1990), FIERA was not permitted to collaterally attack judicial error where it had enough time to move for rehearing or file a plenary appeal. An erroneous 7 Under this rule, FIERA could have sought a stay of execution by providing a bond or simply for good cause shown. See, e.g., Allstate Insurance Co. v. Cruz, 768 So.2d 1138, 1139 (Fla. 3d DCA 2000). 8

12 determination about wheter damages are liquidated clearly is judicial error. The Third District s reversal directly conflicts with Curbelo, and decisions of other district courts, because FIERA had ample time to move for [rehearing] or file a notice of appeal. The Third District failed to apprehend it did not matter that DIGICAST obtained its final judgment without a trial on damages. Thus, the Third District failed to follow the well-established precedent of this Court, other district courts, and even its own precedent. Curbelo v. Ullman, 571 So.2d 443, 444 (Fla. 1990)(Rule cannot serve as a substitute for the new trial mechanism prescribed in Rule nor as a substitute for appellate review of judicial error ). In light of the above, it respectfully is submitted that this Honorable Court has jurisdiction over this cause pursuant to Fla. R. App. P (a)(2)(A)(iv), to resolve a direct and express conflict on the same question of law between the Third District s decision in this cause and Curbelo v. Ullman, 571 So.2d 443 (Fla. 1990), Harrison v. La Placida Community Ass n, Inc., 665 So.2d 1138 (Fla. 4 th DCA 1996), and the Third District s own precedent, including such cases as Allstate Insurance Co. v. Ramjit, 788 So.2d 402 (Fla. 3d DCA 2001). CONCLUSION In light of the foregoing, this Honorable Court should find a proper jurisdictional basis to entertain further review of this cause and order the parties to 10

13 submit their briefs on the merits. Respectfully submitted, Martin A. Feigenbaum Florida Bar No West Flagler Street Museum Tower 1565 Miami, FL (305) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Appendix to Amended Brief on Jurisdiction was furnished by mail this 24 th day of March, 2003 to: Richard Smith, Esq., Shook, Hardy, & Bacon, Suite 2400, 201 South Biscayne Boulevard, Miami, FL 33131; and Juan C. Zorrilla, Esq., Zorrilla & Garcia-Oliver, LLC, 2200 South Dixie Highway, Suite 705, Miami, FL CERTIFICATE OF TYPE SIZE AND STYLE 11

14 Pursuant to Fla. R. App. P (l), I hereby certify that the size and style of the typeface used in this Petition is 14-point Times New Roman. Martin A. Feigenbaum, Esq. 12

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