IN THE SUPREME COURT OF FLORIDA. CASE No. 4DCA No. 4D LOREEN I. KREIZINGER, P.A., a Florida Professional Association, Petitioner,

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE No. 4DCA No. 4D LOREEN I. KREIZINGER, P.A., a Florida Professional Association, Petitioner, v. SHELDON J. SCHLESINGER, P.A., a Florida Professional Association, and SCOTT SCHLESINGER, individually, Respondents. APPEAL FROM THE DISTRICT COURT OF APPEAL FOR THE FIFTH DISTRICT, STATE OF FLORIDA PETITIONER S JURISDICTIONAL BRIEF LOREEN I. KREIZINGER, P.A. JUSTINE S. ANAGNOS, ESQUIRE FLA. BAR NO Tower Suite NE Third Avenue Fort Lauderdale, FL (954) Attorney for Petitioner

2 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES... ii SUMMARY OF THE ARGUMENT... 1 STATEMENT OF THE CASE AND FACTS... 2 ARGUMENT... 5 I. DISMISSING THE CASE WITH PREJUDICE WITHOUT EVER GIVING LOREEN I. KREIZINGER, P.A., THE OPPORTUNITY TO AMEND TO ALLEGE ADDITIONAL ULTIMATE FACTS DIRECTLY AND EXPRESSLY CONFLICTS WITH MULTIPLE FIRST DISTRICT CASES AND FLA. R. CIV. P II. THE FOURTH DISTRICT S DECISION CONFLICTS WITH WELL-SETTLED LAW WHICH HOLDS THAT THE PRIVILEGE TO INTERFERE WITH A BUSINESS RELATIONSHIP CARRIES WITH IT, THE OBLIGATION TO NOT EMPLOY IMPROPER MEANS III. THE FOURTH DISTRICT S DECISION CONFLICTS WITH WELL-SETTLED LAW WHICH HOLDS THAT A RULE OF PROFESSIONAL CONDUCT MAY BE CONDEMNED BY HONEST AND REASONABLE MEN AND WOULD BE A BASIS TO GRANT OR DENY RELIEF BY A COURT OF EQUITY IV. THE FOURTH DISTRICT S DECISION DIRECTLY AND EXPRESSLY CONFLICTS WITH THE PLAIN LANGUAGE OF FLA. STAT AS WELL AS THE PLAIN MEANING OF SOLICIT/SOLICITATION... 8 V. THE FOURTH DISTRICT S DECISION DIRECTLY AND EXPRESSLY CONFLICTS WITH THE PLAIN LANGUAGE OF FLA. STAT AS WELL AS THE PLAIN MEANING OF SOLICIT CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE... 12

3 APPENDIX... 13

4 TABLE OF CITATIONS CASES CITED PAGE Anderson v. Anchor Organization for Health Maintenance, 274 Ill. App. 3d 1001 (1995)... 1, 3, 7 Brown v. Larkin & Shea, P.A., 522 So.2d 500 (Fla.1st DCA 1988)... 2, 8, 9 Brown v. State Dep t of Corrections, 701 So.2d 1211 (Fla. 1 st DCA 1997)... 6, 9 City of Gainsville v. State, Dep t of Transportation, 778 So.2d 519 (Fla. 1 st DCA 2001)... 6 Emig v. State, Dep t of Health and Rehabilitative Services, 456 So.2d 1204 (Fla. 1 st DCA 1984)... 1, 3, 6 Junger Utility & Paving Co. v. Myers, 578 So.2d 1117 (Fla. 1 st DCA 1989)... 8 Kirkland v. State, Department of Health and Rehabilitative Services, 424 So.2d 925 (Fla. 1 st DCA 1983)... 6 Kreizinger v. Schlesinger, 925 So.2d 431 (Fla. 4 th DCA 2006)... 1, 3, 4, 7, 9 McCurdy v. Collis, 508 So.2d 380 (Fla. 1 st DCA 1987)... 2, 3, 7 McDonald v. McGowan, 402 So.2d 1197 (Fla. 5 th DCA 1981)... 1, 7 Morsani v. Major League Baseball, 663 So.2d 653 (Fla. 2 nd DCA 1995)... 2, 3, 7 Roberts v. Roberts, 84 So.2d 717 (Fla. 1956)... 8 Snyderburn v. Bantock, 625 So.2d 7 (Fla. 5 th DCA 1993)... 2, 3, 8

5 State ex.rel. Florida Bar v. Dawson, 111 So.2d 427 (Fla. 1959)... 8 OTHER AUTHORITIES PAGE Art. V, 3(b)(3), Fla. Const.... 3, 4 Black s Law Dictionary 1248 (5 th ed. 1979) Fla. R. Civ. P , 3, 5, 6 Fla. Stat , 4, 9, 10 Webster s Unabridged Dictionary 1816 (Random House 2001)... 10

6 SUMMARY OF THE ARGUMENT The Fourth District s decision expressly and directly conflicts with other decisions or statutes on five separate issues. First, the Fourth District s decision conflicts with Fla. R. Civ. P and Emig v. State, Dep t of Health and Rehabilitative Services, 456 So.2d 1204 (Fla. 1 st DCA 1984) as well as other cases. See infra. These cases hold it is error to enter a final judgment without granting leave to amend. Moreover, Fla. R. Civ. P liberally allows for amendments. The Court concedes that additional allegations might have overcome the dismissal, but still dismissed the case with prejudice on the initial complaint when no responsive pleading was served and without the opportunity to amend. Second, the Fourth District held that the allegations in the complaint in Anderson v. Anchor Organization for Health Maintenance, 274 Ill. App. 3d 1001 (1995) would not be sufficient under the Florida rule of tortious interference because Illinois law requires a pleading of purposeful interference. This directly and expressly conflicts with McDonald v. McGowan, 402 So.2d 1197 (Fla. 5 th DCA 1981) which specifically uses purposeful in the context of a claim for tortious interference with a contract. Third, the Fourth District held that [h]ad Schlesinger flown to Pensacola to meet with Gates, no wrong would have

7 occurred... Kreizinger v. Schlesinger, 925 So.2d 431 (Fla. 4 th DCA 2006). It also held that the payment for Gates travel to Fort Lauderdale does not create an unjustified interference with Kreizinger s contract, even if it may be an ethical violation..., thereby acknowledging that Schlesinger acted outside the proper exercise of their rights. Id. This directly conflicts with Morsani v. Major League Baseball, 663 So.2d 653 (Fla. 2 nd DCA 1995) and McCurdy v. Collis, 508 So.2d 380 (Fla. 1 st DCA 1987) which hold that when there is a qualified privilege to interfere with a business relationship, it carries the obligation to employ means that are not improper. Fourth, the Fourth District s decision conflicts with wellsettled law such as Snyderburn v. Bantock, 625 So.2d 7 (Fla. 5 th DCA 1993) as well as other cases which hold that a rule of professional conduct may be condemned by honest and reasonable men and would be a basis to grant or deny relief by a court of equity. See infra. The Court also misinterprets Brown v. Larkin & Shea, P.A., 522 So.2d 500 (Fla.1st DCA 1988), to mean that a violation of the rules does not create liability under any circumstances. Fifth, the Fourth District s decision conflicts with Fla. Stat , as well as the definition of solicit, by holding that Schlesinger s arranging and paying for a prospective client to fly to Fort Lauderdale to meet with Schlesinger for the purposes of discussing representation did not constitute

8 solicitation. As such, this Honorable Court should exercise its discretionary jurisdiction to resolve these conflicts. STATEMENT OF THE CASE AND FACTS Petitioner, Loreen I. Kreizinger, P.A., (hereinafter referred to as Kreizinger ) invokes this Court s jurisdiction, pursuant to Art. V, 3(b)(3), Fla. Const., to resolve the conflict between Loreen I. Kreizinger, P.A. v. Sheldon J. Schlesinger, P.A., 925 So.2d 431 (Fla. 4 th DCA 2006) and Fla. R. Civ. P and Emig v. State, Dep t of Health and Rehabilitative Services, 456 So.2d 1204 (Fla. 1 st DCA 1984)as well as other cases concerning whether it is error to enter a final judgment without granting leave to amend where plaintiff might allege ultimate facts and no responsive pleading had been served. See infra. Kreizinger also invokes this Court s jurisdiction, pursuant to Art. V, 3(b)(3), Fla. Const., to resolve the conflict between Kreizinger v. Schlesinger, 925 So.2d 431 (Fla. 4 th DCA 2006) and Anderson v. Anchor Organization for Health Maintenance, 274 Ill. App. 3d 1001 (1995) concerning the use of the term purposeful in the context of a claim for tortious interference with a contract. In addition, Kreizinger invokes this Court s jurisdiction, pursuant to Art. V, 3(b)(3), Fla. Const., to resolve the

9 conflict between Kreizinger v. Schlesinger, 925 So.2d 431 (Fla. 4 th DCA 2006), Morsani v. Major League Baseball, 663 So.2d 653 (Fla. 2 nd DCA 1995) and McCurdy v. Collis, 508 So.2d 380 (Fla. 1 st DCA 1987) concerning whether the qualified privilege to interfere with business relationship carries with it the obligation to employ means that do not constitute an ethical violation and/or a wrong. Moreover, Kreizinger invokes this Court s jurisdiction pursuant to Art. V, 3(b)(3), Fla. Const., to resolve a conflict between Kreizinger v. Schlesinger, 925 So.2d 431 (Fla. 4 th DCA 2006) and Snyderburn v. Bantock, 625 So.2d 7 (Fla. 5 th DCA 1993)as well as other cases concerning whether a rule of professional conduct may be a basis to grant or deny relief by a court of equity. See infra. Finally, Kreizinger invokes this Court s jurisdiction, pursuant to Art. V, 3(b)(3), Fla. Const., to resolve the conflict between Kreizinger v. Schlesinger, 925 So.2d 431 (Fla. 4 th DCA 2006), and the Fla. Stat , as well as the definition of solicit, concerning arranging and paying for a flight and transportation of a prospective client, for purposes of obtaining representation. A conformed copy of the Fourth District s opinion and denial of Petitioner, Kreizinger s Motion for Rehearing is annexed.

10 This action was filed by Kreizinger on December 18, 2003, for tortious interference with a contract for legal services between Kreizinger and Plaintiffs, Patricia Gates for and on behalf of herself and her daughter Christy Gates (hereinafter referred to as Gates ) by Sheldon J. Schlesinger, P.A. and Scott Schlesinger (hereinafter referred to as Schlesinger ). This case stems from an underlying medical malpractice case filed in Dade County. Kreizinger represented the Gates in that case from when the Gates terminated the employment of Kreizinger and hired Schlesinger. A charging lien was filed in the Dade County case which to date, has still not been resolved. The complaint in the instant case, and the allegations contained therein revolve around the details in which the Gates went from being Kreizinger s clients to being Schlesinger s clients and the repercussions of Schlesinger s actions. Although no answer was ever filed, various motions were filed, including Schlesinger s Motion to Stay Discovery and Motion to Dismiss. After argument from counsel on May 25, 2004, the Court entered an Order on July 8, 2004, granting their Motion to Dismiss the Complaint with Prejudice. This was the first complaint filed by Kreizinger in this case and no discovery was obtained in light of the continual stays in effect at the request of Schlesinger. Kreizinger filed its Notice of Appeal on July 23, The Fourth District affirmed dismissal of the complaint on

11 April 5, Kreizinger filed a Motion for Rehearing on April 19, 2006, which was denied by the Fourth District on May 8, ARGUMENT I. DISMISSING THE CASE WITH PREJUDICE WITHOUT EVER GIVING LOREEN I. KREIZINGER, P.A., THE OPPORTUNITY TO AMEND TO ALLEGE ADDITIONAL ULTIMATE FACTS DIRECTLY AND EXPRESSLY CONFLICTS WITH MULTIPLE FIRST DISTRICT CASES AND FLA. R. CIV. P The Fourth District rejected KREIZINGER S argument that the trial court should have allowed her an opportunity to amend the complaint. Allowing the Fourth District s decision to stand, will enable trial courts to dismiss a plaintiff s first attempt at a complaint with prejudice even when a responsive pleading has not been served, without giving a Plaintiff any opportunity to amend. Fla. R. Civ. P allows a party to amend a pleading once as a matter of course at any time before a responsive pleading is served. As such, dismissing this case with prejudice on the initial complaint when a responsive pleading had not been served, totally disregards the liberal practice of giving the right to make one amendment and deviates from the customary way that courts usually handle motions to dismiss that have been granted, which is by giving the Plaintiff every opportunity to state a cause of action in its complaint. Fla. R. Civ. P , Authors Comment (1967). If the facts alleged in the complaint did not sufficiently plead an intentional and

12 unjustified interference with the relationship by the SCHLESINGER, then pursuant to Emig v. State, Dep t of Health and Rehabilitative Services, 456 So.2d 1204 (Fla. 1 st DCA 1984); Brown v. State Dep t of Corrections, 701 So.2d 1211 (Fla. 1 st DCA 1997); Kirkland v. State, Dep t of Health and Rehabilitative Services, 424 So.2d 925 (Fla. 1 st DCA 1983) and City of Gainesville v. State, Dep t of Transportation, 778 So.2d 519 (Fla. 1 st DCA 2001), at this stage of the pleadings, KREIZINGER should have at least been able to amend the complaint to add allegations of unclean hands and any other ultimate facts. The holding of law in this case is in irreconcilable conflict with a Florida Rule of Civil Procedure and a consistent holding of law in majority opinions of another district. There is an actual conflict with controlling binding precedent and the constitutional right to access to courts that needs to be resolved. As such, jurisdiction should be accepted in order to settle this conflict. II. THE FOURTH DISTRICT S DECISION CONFLICTS WITH THE FIFTH DISTRICT S DECISION CONCERNING THE WORD PURPOSEFUL IN THE CONTEXT OF A CLAIM FOR TORTIOUS INTERFERENCE WITH A CONTRACT. The Fourth District held that the allegations in the complaint that were sufficient to state a cause of action for tortious interference in Anderson v. Anchor Organization for Health Maintenance, 274 Ill. App. 3d 1001 (1995) would not be sufficient under the Florida rule of tortious interference

13 because Illinois law requires a pleading of purposeful interference, not intentional and unjustified interference. This directly and expressly conflicts with McDonald v. McGowan, 402 So.2d 1197 (Fla. 5 th DCA 1981) which holds that [i]t appears to us the better view is that actual ill-will or fraud is not an essential element of the tort where the record shows a purposeful interference with a prior contract right. The Fourth District has created a express and direct conflict which has called into question the interpretation of the requirements of a cause of action for tortious interference which must be resolved to avoid future confusion and disorder. III. THE FOURTH DISTRICT S DECISION CONFLICTS WITH WELL-SETTLED LAW WHICH HOLDS THAT THE PRIVILEGE TO INTERFERE WITH A BUSINESS RELATIONSHIP CARRIES WITH IT, THE OBLIGATION TO NOT EMPLOY IMPROPER MEANS. Where there is a qualified privilege to interfere with a business relationship, the privilege carries with it the obligation to employ means that are not improper. Morsani v. Major League Baseball, 663 So.2d 653 (Fla. 2 nd DCA 1995) and McCurdy v. Collis, 508 So.2d 380 (Fla. 1 st DCA 1987). The Fourth District held that [h]ad Schlesinger flown to Pensacola to meet with Gates, no wrong would have occurred. Kreizinger v. Schlesinger, 925 So.2d 431 (Fla. 4 th DCA 2006). It also held that the payment for Gates travel to Fort Lauderdale does not create an unjustified interference with Kreizinger s contract, even if it may be an ethical violation... Id. The Court s

14 statements on their face, necessarily admit a wrong occurred. The Fourth District, by admitting that the means were improper but then holding that paying for the plane ticket is not an intentional and unjustified interference is in direct conflict with other Districts on this significant point of law. The Fourth District s affirmation of the trial court s decision on this issue exacerbates the conflict and heightens the need for the Supreme Court to resolve the uncertainty in the law that the Fourth District has created. IV. THE FOURTH DISTRICT S DECISION CONFLICTS WITH WELL-SETTLED LAW WHICH HOLDS THAT A RULE OF PROFESSIONAL CONDUCT MAY BE CONDEMNED BY HONEST AND REASONABLE MEN AND WOULD BE A BASIS TO GRANT OR DENY RELIEF BY A COURT OF EQUITY. The Fourth District cites to Brown v. Larkin & Shea, P.A. 522 So.2d 500 (Fla.1st DCA 1988), which states that a violation of the rules of professional conduct does not necessarily create liability between the parties. By using the words not necessarily, Brown allows for circumstances where the rules would create liability. This is consistent with well-settled law such as Snyderburn v. Bantock, 625 So.2d 7 (Fla. 5 th DCA 1993); Junger Utility & Paving Co. v. Myers, 578 So.2d 1117 (Fla. 1 st DCA 1989) and Roberts v. Roberts, 84 So.2d 717 (Fla. 1956) which hold that a violation of a rule of professional conduct may be condemned by honest and reasonable men and would be a basis to grant or deny relief by a court of equity. State ex.rel. Florida Bar v. Dawson, 111 So.2d 427 (Fla. 1959). It is the Fourth

15 District s inconsistent interpretation of Brown that allows them to conclude that no cause of action was stated because a violation of the rules does not create liability, even though the Court specifically states that the payment for the Gates travel to Fort Lauderdale may be an ethical violation. The Fourth District s decision has created a split of opinion with no clear guidelines for trial courts to follow. By accepting jurisdiction in this matter, the Supreme Court would avoid any potentially disparate decisions that the Fourth District s opinion may cause in the future. V. THE FOURTH DISTRICT S DECISION DIRECTLY AND EXPRESSLY CONFLICTS WITH THE PLAIN LANGUAGE OF FLA. STAT AS WELL AS THE PLAIN MEANING OF SOLICIT. The Fourth District makes a point of stating that no wrong would have occurred had SCHLESINGER flown to Pensacola to meet with Gates. However, the Court holds that [t]he conduct of the lawyer in meeting with the client in this case does not amount to interference because the client came to the new lawyer; the lawyer did not solicit the client. Kreizinger v. Schlesinger, 925 So.2d 431 (Fla. 4 th DCA 2006). The Court s interpretation was that the initial contact must be made by the attorney to be solicitation. As such, the court s holding expressly and directly conflicts with the plain language of Fla. Stat and the definitions of solicit because there is no requirement that the initial contact be made by the lawyer. Fla. Stat states in pertinent part that:

16 [i]t shall be unlawful for any person or her or his agent, employee or any person acting on her or his behalf, to solicit or procure through solicitation either directly or indirectly legal business, or to solicit or procure through solicitation a retainer, written or oral, or any agreement authorizing an attorney to perform or render legal service, or to make it a business to solicit or procure such business, retainers or agreements... Moreover, solicit is defined as follows: Solicit to seek to influence or incite to action.... Webster s Unabridged Dictionary 1816 (Random House 2001). Solicit.... to apply to for obtaining something;... to try to obtain.... To awake or excite to action.... Black s Law Dictionary 1248 (5 th ed. 1979) Nowhere in either the statute or the definition does it state who the initial contact must be made by. As such, the Fourth District, by holding otherwise, expressly and directly conflicts with Fla. Stat and the definition of solicit. As such, this Court should now clarify any confusion the Fourth District s decision may have caused and confirm the plain language of Fla. Stat and the definition of solicit by accepting discretionary review and quashing the contrary decision of the Fourth District below. CONCLUSION Based upon the foregoing arguments and citations of authority, Petitioner asserts there is ample cause for this Court to accept jurisdiction for consideration on the merits or to remand to the Fourth District Court of Appeals for

17 reconsideration.

18 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Jurisdictional Brief was mailed this 15 th day of June, 2006, to Sheldon J. Schlesinger, Esquire, Attorney for Respondents, Sheldon J. Schlesinger, P.A., 1212 SE Third Avenue, Fort Lauderdale, FL, 33316; and to Edna L. Caruso, Esquire, Attorney for Respondents, Edna L. Caruso, P.A., 1615 Forum Place, Suite 3A, West Palm Beach, FL, LOREEN I. KREIZINGER, P.A. 101 Tower - Suite NE Third Avenue Fort Lauderdale, FL (954) (954) Fax By JUSTINE S. ANAGNOS FLA. BAR NO

19 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the undersigned has fully complied with Florida Rules of Appellate Procedure, Rule 9.210(a)(2), setting forth the font requirements for preparing computer generated briefs, as well as Administrator Order AO04-84 regarding Mandatory Submission of Electronic Copies of Documents, dated September 13, LOREEN I. KREIZINGER, P.A. 101 N.E. Third Avenue 101 Tower, Suite 1810 Fort Lauderdale, FL (954) (954) Fax By JUSTINE S. ANAGNOS FLA. BAR NO