IN THE SUPREME COURT OF FLORIDA. LAURENCE ZIMMERMAN and CASE NO. 4D KIMBERLY ZIMMERMAN, L.T. NO. CA AN Petitioners,

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1 IN THE SUPREME COURT OF FLORIDA LAURENCE ZIMMERMAN and CASE NO. 4D KIMBERLY ZIMMERMAN, L.T. NO. CA AN Petitioners, vs. OLYMPUS FIDELITY TRUST, LLC and COLONIAL BANCGROUP, INC., f/k/a PALM BEACH NATIONAL BANK & TRUST COMPANY, Respondents. / JURISDICTIONAL BRIEF OF RESPONDENT, COLONIAL BANK, N.A. MARK R. KING, ESQ. MILLER, HAMILTON, SNIDER & ODOM, L.L.C. Counsel for Respondent, Colonial Bank, N.A. Eleventh Floor, 1200 Brickell Avenue Miami, FL Tel. (305) Fax (305)

2 TABLE OF CONTENTS STATEMENT OF THE CASE AND FACTS. 1 SUMMARY OF ARGUMENT. 1 ARGUMENT. 3 PAGE PETITIONERS FAIL TO ESTABLISH ANY BASIS FOR THE EXERCISE OF CONFLICT JURISDICTION.. 3 CONCLUSION.. 5 CERTIFICATE OF SERVICE... 6 CERTIFICATE OF COMPLIANCE 7 i

3 TABLE OF CITATIONS CASES PAGE Blue Cross & Blue Shield of Fla. v. Cassady, 496 So.2d 875 (Fla. 4 th DCA 1986)... 4 Campbell v. Werner, 232 So.2d 252 (Fla. 3 rd DCA 1970).. 1, 3 First Union Nat'l Bank v. Turney, 832 So.2d 768 (Fla. 1 st DCA 2002).. 3 Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1998) Gorman v. Kelly, 658 So.2d 1049 (Fla. 4 th DCA 1995) 4 Kincaid v. World Ins. Co., 157 So.2d 517 (Fla. 1963) 5 Zimmerman v. Olympus Fidelity Trust, 936 So.2d 652 (Fla. 4 th DCA 2006). 4, 5 ii

4 STATEMENT OF THE CASE AND FACTS Respondent Colonial Bank, N.A. ( Colonial ) does not agree with Petitioners characterization of the case, as set forth in their jurisdictional brief. The Fourth District Court of Appeal s decision fully sets forth the necessary facts and contract language relevant to this Court s analysis of the jurisdictional question before it. Colonial therefore adopts herein the Fourth District s recitation of the case and the facts. SUMMARY OF ARGUMENT Petitioners seek to have this Court exercise its conflict jurisdiction by positing that the decision of the Fourth District directly and expressly conflicts with Campbell v. Werner, 232 So. 2d 252 (Fla. 3 rd DCA 1970). This position has no merit. The case on which Petitioners rely, Campbell, is a foreclosure case. This is a breach of contract case. Petitioners oddly state that the Fourth District "affirmed the trial court s final summary judgment order permitting a mortgage holder to foreclose a first mortgage...." (Jurisdictional Brief of Petitioners at 1). This is wrong. Colonial did not foreclose any mortgages here. The Fourth District affirmed on the sole issue before it -- Colonial did not breach the lending documents made the basis of Petitioners contract claim against it. 1

5 Moreover, the Fourth District s decision hardly conflicts, as Petitioners claim, "with decisions of all the district courts of appeal... set[ting] forth that where the term of a contract is clear and unambiguous, the term must be enforced as written." (Jurisdictional Brief of Petitioners at 3). Quite the contrary, the Fourth District, as its decision makes plain, enforced the lending documents in accordance with their clear, unambiguous terms, following their ordinary meaning. Petitioners disagreement with the Fourth District s reading of the lending documents does not provide a basis for the exercise of this Court s conflict jurisdiction. The Fourth District enforced the lending documents as written in accordance with elementary principles of contract law. The decision in no way establishes a point of law contrary to any decision of this Court, or of any district court of appeal. Petitioners attempt to invoke the Court s conflict jurisdiction should be rejected. 2

6 ARGUMENT Petitioners Fail to Establish any Basis for the Exercise of Conflict Jurisdiction Petitioners reading of the applicable lending documents was properly rejected by the trial court and by the Fourth District. Here, under the guise of invoking this Court s conflict jurisdiction, Petitioners merely trot out these same rejected arguments. Underscoring this misguided effort, Petitioners mischaracterize the appeal as one of foreclosure, which it is not, and use a foreclosure case, Campbell, supra, in an effort to establish the conflict necessary to invoke this Court s jurisdiction. But, as this appeal did not involve a foreclosure, reliance on Campbell is badly misplaced, and this Court s jurisdictional analysis need go no further. 1 See, e.g., First Union Nat l Bank v. Turney, 832 So. 2d 768 (Fla. 1 st DCA 2002) (jurisdictional review based on conflict is unavailable "where the opinion below establishes no point of law contrary to a decision of the Supreme Court [of Florida] or another district court") (quoting Florida Star v. B.J.F., 530 So. 2d 286, 289 (Fla. 1988)). 1 Even if Campbell were relevant, there is no conflict between it and the Fourth District's decision. Campbell reversed a trial court's reinstatement of a mortgage, concluding that the mortgagor's reinstatement should not have been allowed "because of the essentiality of safeguarding the validity of contracts, and the right of enforcement thereof in event of a breach." Campbell, 232 So. 2d at

7 Even leaving aside Petitioners reliance on an equitable foreclosure case to establish jurisdiction in this breach of contract action, conflict jurisdiction still is unavailable. Here is the point of law relied on by the Fourth District in its decision: It is well settled that where a term of a contract is clear and unambiguous or only one logical interpretation consistent with the intent of the parties exists, the court must give the contract that meaning. Gorman v. Kelly, 658 So. 2d 1049, 1052 (Fla. 4 th DCA 1995) (citing Blue Cross & Blue Shield of Fla. v. Cassady, 496 So. 2d 875, 877 (Fla. 4 th DCA 1986)). Zimmerman v. Olympus Fidelity Trust, 936 So. 2d 652, 655 (Fla. 4 th DCA 2006). This is fundamental contract law. Perhaps had the Fourth District ruled that it would break with centuries of precedent and no longer construe contracts according to their plain terms, exercise of this Court s conflict jurisdiction might be proper. But obviously the Fourth District did not do this. The Fourth District read the lending documents and correctly enforced them as written: We reject the Zimmerman s contention that Colonial breached the mortgages by Colonial s failure to comply with the notice provision contained in paragraph 21 of the first mortgage. We conclude that whether proper notice under the first mortgage was given is not dispositive as, here, the significant issue is whether the Ziummermans had a right to reinstate. Under the terms of the second mortgage, Colonial had the right to accelerate that mortgage when the Zimmermans defaulted by failing to make payments, there was no requirement to give prior notice of cancellation, and the Zimmermans had no right under that mortgage to reinstate. While the Zimmermans did 4

8 have a right to reinstate under the first mortgage, reinstatement was contingent upon their curing the default under the second mortgage. To cure the default under the second mortgage, the Zimmermans were required to pay the accelerated amount of that mortgage, which they undisputedly did not do. Zimmerman, 936 So. 2d at 655. At bottom, Petitioners are simply re-arguing the merits of a decision with which they disagree. Disagreement, however, even if on the part of this Court, is insufficient to invoke the Court s conflict jurisdiction. See, e.g., Kincaid v. World Ins. Co., 157 So. 2d 517 (Fla. 1963) (conflict jurisdiction is not based on whether Supreme Court would have arrived at a different conclusion but on whether district court's decision on its face collides with a prior decision of Supreme Court or another district court so as to create conflict among the precedents). The Fourth District s decision in this breach of contract case creates no conflict with the decisions of this Court or with the decisions of any other court. The Court s conflict jurisdiction should not be exercised. CONCLUSION For the reasons set forth herein, Petitioners attempt to invoke the Court s conflict jurisdiction should be rejected. 5

9 Respectfully submitted, MILLER, HAMILTON, SNIDER & ODOM, L.L.C. Counsel for Respondent, Colonial Bank, N.A. Eleventh Floor 1200 Brickell Avenue Miami, FL Tel. (305) Fax (305) By: Mark R. King, Esq. Fla. Bar No CERTIFICATE OF SERVICE I certify that on November, 2006, I caused a copy of the foregoing Jurisdictional Brief of Respondent to be mailed to: Richard P. Zaretsky, Esq. Richard P. Zaretsky, P.A Palm Beach Lakes Blvd. Suite 900 West Palm Beach, FL Gerald F. Richman, Esq. Michael J. Napoleone, Esq. Leora B. Freire, Esq. Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A. 250 Australian Avenue South Suite 1504 West Palm Beach, FL Alfred A. LaSorte, Jr., Esq. Shutts & Bowen, LLP One Clearlake Centre 250 Australian Avenue South Suite 500 West Palm Beach, FL Scott G. Hawkins, Esq. Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive Suite 1100 West Palm Beach, FL Mark R. King, Esq. 6

10 CERTIFICATE OF COMPLIANCE Pursuant to Fla.R.App.P (a)(2), the undersigned further certifies that the foregoing brief is being submitted in Times New Roman 14 point font. Dated: November 10, Mark R. King, Esq. Fla. Bar No