IN THE SUPREME COURT OF FLORIDA, CASE # SC LT CASE# 2D

Transcription

1 IN THE SUPREME COURT OF FLORIDA, CASE # SC LT CASE# 2D DIVOSTA HOMES, L.P. and VILLAGEWALK OF BONITA SPRINGS HOMEOWNERS ASSOCIATION, INC. Petitioners Vs. ALEXANDER L. KAPLAN and DENISE A. KAPLAN, Respondents ON DISCRETIONARY CONFLICT REVIEW OF DECISIONS OF THE FLORIDA SUPREME COURT AND ANOTHER DISTRICT COURT OF APPEALS RESPONDENTS AMENDED JURISDICTIONAL ANSWER BRIEF Alexander L. Kaplan Florida Bar No Alexander L. Kaplan, P.A North Tamiami Trail Naples, Florida Telephone (239) Pro-Se Counsel for Respondents

2 TABLE OF CONTENTS PAGE Table of Citations... 2 Statement of the Case and Facts... 3 Summary of Argument... 5 Argument PETITIONER HAS STATED NO GROUNDS BY WHICH THIS COURT SHOULD EXERCISE IT S DISCRETIONARY REVIEW.6 Conclusion... 9 Certificate of Service... 9 Certificate of Compliance

3 TABLE OF CITATIONS CASES Seifert v. U.S. Home Corporation, 750 So.2d 633 (1999)... 5, 7 Hirshenson v. Spaccio., 800 So.2d Fla. 5 th DCA 2001)... 5, 7 2

4 STATEMENT OF THE CASE AND FACTS Petitioners are seeking to reverse a decision of the 2 nd Circuit wherein Petitioner s appeal was denied. In the Circuit Court an action had been brought by Respondents for four counts. The first two counts were for recision and fraud; the third count was an action against the Homeowners Association and the fourth count was for personal injury. The Circuit Court ordered the first two counts to arbitration pursuant to the sales contract and it retained jurisdiction of the third and fourth counts. Petitioners and Respondents appealed; the 2 nd DCA affirmed the lower court, and now Petitioners are seeking review of the retention of the third and fourth counts by the Supreme Court. Petitioner DIVOSTA HOMES L.P. built Respondents a home which was subsequently discovered to have a contaminated water supply. Further, the mold which caused ALEXANDER L. KAPLAN s serious personal injuries was not naturally occurring, but was in fact caused, created and/or exacerbated by the actual and active negligence of Petitioner DIVOSTA HOMES L.P., its agents, servants and/or employees. Petitioner built the home with a bacterially contaminated water system, then caused flooding of the home by its cleaning crew when they flushed paper towel down the toilets stuffing up the sewage discharge. When Petitioner came in to clean up the mess, it failed to sanitize the premises, forced contaminated water into 3

5 the walls, surfaces, etc., by trying to dry out the carpet and padding with a big industrial fan, and failing to replace the padding and carpet for an extended period of time instead of immediately removing them. These conditions caused and allowed the formation of toxic mold within the home. This is obviously not naturally occurring mold as might have been contemplated in the mold disclosure; this was active, actual negligence by the Petitioner (fourth count of the complaint). The third count of the complaint against the Homeowners Association (HOA) was for unequal and inequitable enforcement of the covenants and restrictions. The Circuit Court properly held that the HOA was not either a party nor a third party beneficiary of the sales contract and thus could not compel arbitration; the 2 nd DCA affirmed this decision. 4

6 SUMMARY OF ARGUMENT The decision by the 2 nd DCA was on all fours with this Court s previous rulings in Seifert v. U.S. Home Corp. and does not conflict with other District Court decisions. Petitioner s reliance on Hirshenson v. Spaccio is misplaced. Hirshenson did not involve a claim for personal injury arising out of active, actual negligence. Petitioner has failed to present a true showing that the 2 nd DCA decision herein conflicted with decisions of this Court or of other District Courts; nor have they presented any overriding issue of significant importance that would warrant review by the Supreme Court; the petition for review should therefore be denied. 5

7 ARGUMENT 1. PETITIONER HAS STATED NO GROUNDS BY WHICH THIS COURT SHOULD EXERCISE IT S DISCRETIONARY REVIEW. Respondents are seeking to have this Court accept for review the abovestyled case, and allege as grounds therefore that the 2 nd DCA decision herein conflicts with decisions of the Supreme Court as well as other District Court decisions based on a contractual disclaimer of liability for naturally occurring mold and the attachment of the contract to the Amended Complaint. Petitioners are ignoring one single fact, clearly pled in the original as well as the amended complaint; e.g., that the mold which caused ALEXANDER L. KAPLAN s serious personal injuries was not naturally occurring, but was in fact caused, created and/or exacerbated by the actual and active negligence of Petitioner DIVOSTA HOMES L.P., its agents, servants and/or employees. Petitioner built a home with a bacterially contaminated water system, then caused flooding of the home by its cleaning crew when they flushed paper towel down the toilets stuffing up the sewage discharge. When Petitioner came in to clean up the mess, it failed to sanitize the premises, forced contaminated water into the walls, surfaces, etc., by trying to dry out the carpet and padding with a big industrial fan, and failing to replace the padding and carpet for an extended period 6

8 of time instead of immediately removing them. These conditions caused and allowed the formation of toxic mold within the home. This is obviously not naturally occurring mold as might have been contemplated in the mold disclosure; this was active, actual negligence by the Petitioner as defined in Seifert v. U.S. Home Corporation, 750 So.2d 633 (1999). It is quite obvious that the 2 nd DCA did in fact apply the Seifert test in finding that this instant case was on all fours it, ruling that while the fraud and fraudulent inducement claims were subject to the arbitration clause, the personal injury claim was not, just as this Court held in it s original Seifert decision. Petitioner tries to make an issue of the contract being attached to the Amended Complaint, this occurred after the trial court had stricken the original complaint because the contract was not originally attached. Thereafter the Amended Complaint was filed with the contract attached but in neither complaint did Counts 3 or 4 (discrimination and personal injury) rely upon that contract in any way to plead a prima facie case for those counts. Any mention of the contract was simply to set out a chain of events in an unambiguous manner. Further, Hirshenson v. Spaccio, 800 So.2d 670 (Fla. 5 th DCA 2001) cited by Petitioner merely supports the 2 nd DCA s ruling in the instant case as to the fraud and fraudulent inducement claims. Hirshenson is thoroughly distinguishable in that 7

9 it did not involve any personal injury claim arising out of the active neglegence of a tortfeasor, as occurred herein. In substance, Petitioner has failed to present any true showing that the DCA opinion conflicted with decisions of this Court or of other District Courts; nor have they presented any overriding issue that is of significant importance such as to warrant review by the Supreme Court; the petition for review by this Court should therefore be denied. 8

10 CONCLUSION For the foregoing reasons, discretionary review should be denied. Respectfully submitted, Alexander L. Kaplan, Esq. Alexander L. Kaplan Florida Bar No Alexander L. Kaplan, P.A North Tamiami Trail Naples, Florida Telephone (239) Pro-se Counsel for Appellants CERTIFICATE OF SERVICE On August, 2008, I mailed a copy of this Response to SUSAN R. HEALY, ESQ., 3080 East Tamiami Trail, Naples, FL., ALEXANDER L. KAPLAN CERTIFICATE OF COMPLAINCE In accordance with Fla. R. App. P (a)(2), I certify that this document is submitted in Times New Roman, 14 point type, and margins of no less than one inch. ALEXANDER L. KAPLAN 9