IN THE SUPREME COURT OF FLORIDA CASE NO. SC: L.T. Case No. 3D CASTELO DEVELOPMENTS, LLC. Petitioner, NAKIA RAWLS, et al. Respondents.

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1 Electronically Filed 10/24/ :29:35 PM ET RECEIVED, 10/24/ :33:39, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA L.T. Case No. 3D CASTELO DEVELOPMENTS, LLC Petitioner, v. NAKIA RAWLS, et al. Respondents. ON DISCRETIONARY REVIEW FROM A DECISION OF THE THIRD DISTRICT COURT OF APPEAL RESPONDENT ATTORNEYS TITLE INSURANCE FUND, INC. S BRIEF ON JURISDICTION COHEN RUIZ P.A. Counsel for Respondent Miami Center, Suite South Biscayne Boulevard Miami, Florida Telephone: (305) Facsimile: (305) By: /s/ Mario M. Ruiz MARIO M. RUIZ Florida Bar No JACQUIN P. GILCHRIST Florida Bar No

2 TABLE OF CONTENTS INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 I. PETITIONER LACKS STANDING TO SEEK CONFLICT JURISDICTION... 5 II. III. THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANY OTHER DISTRICT COURT OF APPEAL OR OF THIS COURT... 6 PETITIONER S JURISIDICTIONAL BRIEF INAPPROPRIATELY REQUESTS THE COURT EXERCISE JURISDICTION TO CLARIFY RULES OF PROCEDURE... 8 CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i-

3 TABLE OF AUTHORITIES CASES Gandy v. State, 846 So.2d 1141 (Fla. 2003)... 6 Mystan Marine, Inc. v. Herrington, 339 So.2d 200 (Fla. 1976)... 6 Narrows Corp. v. Boca Ciega Sanitary District, 230 So. 2d 49 (Fla. 2d DCA 1970)... 8 Nedeau v. Gallagher, 851 So.2d 214 (Fla. 1st DCA 2003)... 5 Schmidt v. Mueller, 335 So. 2d 630 (Fla. 2d DCA 1976)... 8 Reaves v. State, 485 So.2d 829 (Fla. 1986)... 3 Vaughan v. First Union Nat l Bank of Fl., 740 So.2d 1216 (Fla. 2d DCA 1999)... 5 RULES Fla.R.App.P Fla.R.App.P Fla.R.App.P , 2, 4, 5, 7, 8, 9 Fla.R.App.P , 2, 3, 5, 7, 8, 9 -ii-

4 INTRODUCTION Petitioner takes issue with the Third District decision denying the motion to substitute under Florida Rule of Appellate Procedure 9.360(c). As Petitioner itself admits, No Court has previously interpreted Appellate Rule 9.360(c)(1). Petitioner s Brief. p. 5. Therefore, Petitioner has not and cannot show that the Third District decision expressly and directly conflicts with any decision of another district court of appeal or of this Court on the same question of law. Petitioner argues that the Third District decision is contrary to Florida Rule of Civil Procedure 1.260(c). However, the decision does not even address Rule 1.260(c) and therefore there can be no express and direct conflict. Even if there were such a conflict, it would not invoke this Court s conflict jurisdiction, which is limited to conflicts with decisions of other district courts or of this Court, not alleged conflicts with the rules of procedure. STATEMENT OF THE CASE AND FACTS Petitioner purchased a condominium unit at a foreclosure sale. Slip Op. p. 2. Attorneys Title moved to vacate the sale, and during the pendency of said motion, Petitioner conveyed the unit to a separate entity, Mortgage Bankers PBD, LLC ( Mortgage Bankers ). Id. The trial court vacated the foreclosure sale and Petitioner appealed. Id. At the time that Petitioner filed its notice of appeal, and at the time the trial court ruled on the motion to vacate, Petitioner had no interest -1-

5 -2- whatsoever in the condominium unit. Id. The Third District dismissed the appeal because Petitioner divested itself of all right, title and interest in the subject real property and therefore had no stake in the outcome of the dispute. Id. Petitioner asked the Third District to substitute Mortgage Bankers in its place and relied on Florida Rule of Appellate Procedure 9.360(c)(1). Id. The Third District applied Rule 9.360(c)(1) and denied substitution. Id. p.3. Importantly, the Third District opinion never addressed Florida Rule of Civil Procedure After the Third District issued its opinion, Petitioner filed a motion for rehearing and rehearing en banc and for the first time raised Florida Rule of Civil Procedure1.260 as a basis for permitting substitution at the appellate level. The Third District denied rehearing and rehearing en banc. Mortgage Bankers, the party who owns the property, never asked to be substituted as a party, nor does it ask this Court to accept jurisdiction. Mortgage Bankers appeared before the trial court at a hearing on a motion for reconsideration: At the outset of the hearing, counsel for Mortgage Bankers identified himself, but stated he was not appearing as part of this litigation. However, unable to contain himself, counsel took the bait from [Petitioner s] counsel, who, near the end of the hour-and-ten-minutelong hearing, asked the court to give Mortgage Bankers counsel two minutes. Counsel then jumped directly into the fray. We believe this act comprised an abandonment of any prior position he had articulated and

6 constituted a general appearance by Mortgage Bankers. [citations omitted]. Id. p.3. After making its general appearance before the trial court, Mortgage Bankers failed to later file a notice of appeal, and is barred from seeking appellate review. Id. If, on the other hand, Mortgage Bankers is deemed not to have made an appearance at the trial level, then the Third District ruled it could not intervene for the first time on appeal. Id. We have found no case in which this or any other court has employed Rule 9.360(c)(1) to allow a party who lacks standing to pursue an appeal. Id. p.5. Petitioner s Brief inappropriately refers to matters not contained in the four corners of the Third District opinion, and therefore irrelevant to a determination of whether this Court has conflict jurisdiction. As this Court held: This case illustrates a common error made in preparing jurisdictional briefs based on alleged decisional conflict. The only facts relevant to our decision to accept or reject such petitions are those facts contained within the four corners of the decisions allegedly in conflict. As we explain in the text above, we are not permitted to base our conflict jurisdiction on a review of the record or on facts recited only in dissenting opinions. Thus, it is pointless and misleading to include a comprehensive recitation of facts not appearing in the decision below, with citations to the record, as Petitioner provided here. Reaves v. State, 485 So.2d 829, 830 fn. 3 (Fla. 1986). Petitioner has clearly strayed from the above-quoted rule by injecting matters not contained within the -3-

7 four corners of the opinion. Attorneys Title requests that this Court either strike said matters or simply disregard these irrelevant and misleading references. SUMMARY OF THE ARGUMENT Petitioner lacks standing to seek this Court s conflict jurisdiction on behalf of the real party in interest, Mortgage Bankers. Petitioner divested itself of all interest in the subject condominium unit and has nothing to gain or lose through this appeal. The owner of the unit, Mortgage Bankers, did not appeal the trial court decision, did not ask to be substituted in the proceedings before the Third District, and has not asked this Honorable Court for any relief. Petitioner has not shown that Mortgage Bankers permitted or authorized Petitioner to seek relief on its behalf. This Court is devoid of jurisdiction over this matter. Petitioner has failed to show both express and direct conflict between the Third District s opinion and a decision of another district court of appeal or of the Supreme Court on a question of law actually decided in the opinion. Petitioner attempts to raise arguments that are outside of the four corners of the Third District s opinion. For example, Petitioner attempts to create conflict with Florida Rule of Civil Procedure However, that rule was never mentioned in the Third District opinion. Likewise, the opinions from other districts cited by Petitioner as being in conflict involved motions for substitution at the trial level which are governed by Florida Rule of -4-

8 Civil Procedure These decisions do not conflict with the Third District opinion, which involves a motion to substitute at the appellate level under Florida Rule of Appellate Procedure 9.360(c)(1). Petitioner admits that there is no decision construing Appellate Rule 9.360(c)(1). Hence, there is no opinion in conflict with the Third District decision. ARGUMENT I. PETITIONER LACKS STANDING TO SEEK CONFLICT JURISDICTION. A litigant must demonstrate that he or she has standing to invoke the power of the court. Vaughan v. First Union Nat l Bank of Fl. 740 So.2d 1216, 1217 (Fla. 2d DCA 1999). Standing requires that a litigant have a sufficient stake in the controversy, such that he or she will be affected by the outcome of the litigation. Nedeau v. Gallagher, 851 So.2d 214 (Fla. 1st DCA 2003). The Third District held that Petitioner, having divested itself of all interest in the real property, had no stake in the outcome and lacked standing to appeal. Importantly, Petitioner does not contend here that the Third District s ruling as to standing conflicts with another decision. Instead, Petitioner focuses on the fact that the Third District denied substitution of Mortgage Bankers in its place. However, if a party cannot show standing, it cannot invoke the jurisdiction of the Court. Petitioner, having nothing to gain or lose in the controversy, cannot purport -5-

9 to argue on behalf of another party who is the real party in interest. Mortgage Bankers did not pursue an appeal and did not request to be substituted as a party. Petitioner has failed to demonstrate that it is Mortgage Banker s proxy or has somehow been authorized to litigate in a representative capacity on behalf of Mortgage Bankers. II. THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANY OTHER DISTRICT COURT OF APPEAL OR OF THIS COURT. There is no express and direct conflict between the Third District decision and a decision of the Supreme Court or another district court of appeal on the same point of law. The jurisdiction of this Court extends only to the narrow class of cases enumerated in Article V, Section III (b) of the Florida Constitution. Gandy v. State, 846 So.2d 1141 (Fla. 2003); Mystan Marine, Inc. v. Herrington, 339 So.2d 200, 201 (Fla. 1976). It is well-settled that this Court does not have subjectmatter jurisdiction over a district court opinion that fails to expressly address a question of law. Gandy, 846 So.2d at The district court decision must contain some statement indicating that it has expressly addressed a question of law within the four corners of the opinion itself which could create conflict with another opinion reaching a contrary result. Id. at Petitioner s brief is unable to pinpoint the statement of law contained within the four corners of the opinion -6-

10 which directly and expressly conflicts with the opinion of another district court or of this Court. Petitioner s entire argument, in one form or the other, is that the Third District decision is contrary to Rule 1.260(c). However, there are multiple fallacies in this argument. First, the Third District decision does not even mention Rule 1.260(c). Therefore, there can be no express and direct conflict with that rule. Secondly, the Florida Rules of Civil Procedure, by their own terms, apply only to proceedings in circuit courts and county courts, not in district courts of appeal. Fla.R.Civ.P The case at bar involves a motion for substitution at the appellate level, not the trial level. The Florida Rules of Appellate Procedure govern proceedings in the Supreme Court and district courts of appeal. Fla.R.App.P Therefore, the decision of whether to allow substitution during an appeal is governed by the appellate rules of procedure not the civil rules of procedure. Even if Petitioner could somehow show express and direct conflict between a district court decision and a rule of civil procedure, such a conflict does not create decisional conflict jurisdiction. Petitioner is required to show conflict with a decision of another district court or of this Court. Moreover, the decision to allow or not allow substitution at the appellate level is a discretionary one. Rule 9.360(c) states that If substitution of a party is necessary for any reason, the court may so -7-

11 order on its own motion or that of a party. (Emphasis added). Clearly, the term may indicates that the decision is discretionary, not mandatory. None of the cases relied upon by Petitioner contain express and direct conflict with the Third District decision. For example, Petitioner cites Narrows Corp. v. Boca Ciega Sanitary District, 230 So. 2d 49 (Fla. 2d DCA 1970) and Schmidt v. Mueller, 335 So. 2d 630 (Fla. 2d DCA 1976), both of which involved motions to substitute at the trial level, governed by Florida Rule of Civil Procedure 1.260(c). The case at bar involves a motion to substitute at the appellate level. None of the cases relied upon by Petitioner involved motions to substitute at the appellate level, which are governed by Florida Rule of Appellate Procedure 9.360(c). As Petitioner freely admits, there are no reported opinions construing Florida Rule of Appellate Procedure 9.360(c), the provision actually relied upon by the Third District in this case. By logical extension, Petitioner has the impossible burden of showing conflict with an opinion that simply does not exist. III. PETITIONER S JURISIDICTIONAL BRIEF INAPPROPRIATELY REQUESTS THE COURT EXERCISE JURISIDCTION TO CLARIFY RULES OF PROCEDURE. Florida Rule of Appellate Procedure 9.120(d) states that the petitioner s brief shall be limited solely to the issue of the supreme court s jurisdiction. Petitioner s brief goes far afield from the issue of whether there is conflict jurisdiction and instead asks this Court to clarify the interplay between Florida -8-

12 Rule of Civil Procedure and Florida Rule of Appellate Procedure Petitioner s Brief, p 5 and 10. Petitioner further argues that the Third District opinion creates an absurd result under the rule of civil procedure. Petitioner misconstrues the meaning of conflict jurisdiction. Therefore, Attorneys Title respectfully requests that the Court disregard and/or strike all references to clarifying Florida Rule of Civil Procedure from Petitioner s Brief as being outside of the proper scope of the jurisdictional brief. The central basis for Petitioner s claim of conflict jurisdiction, Rule 1.260, was not raised until after the Third District rendered its decision, when Petitioner raised it for the first time in its Motion for Rehearing. Adhering to the well-settled rule that a motion for rehearing is not permitted to raise new arguments, the Third District denied that motion without opinion. Petitioner argues that due process is somehow threatened because no party will be able to appeal. The real party in interest never sought an appeal or even to be substituted. Petitioner, who no longer has any interest in the subject matter, inexplicably continues to try to force substitution upon a party that it claims is unrelated and in which it has no interest. CONCLUSION Respondent respectfully requests that this Court decline jurisdiction to review the Third District s opinion. -9-

13 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing brief was furnished by electronic mail and U.S. Mail this 24th day of October 2013, to: Dinah Stein, Esquire and Shannon Kain, Esquire, Hicks, Porter, Ebenfeld & Stein, P.A., 799 Brickell Plaza, 9th Floor, Miami, Florida 33131; Elizabeth Bowen, Esquire, Hyman Spector & Mars, LLP, 150 West Flagler Street, 27th Floor Museum Tower, Miami, Florida 33173; Andrew B. Peretz, Esquire, Law Offices of Andrew B. Peretz, P.A., 1 E. Broward Boulevard, Suite 700, Fort Lauderdale, Florida 33301; Kendall Coffey, Esquire, 2699 S. Bayshore Drive, Penthouse, Miami, Florida 33133; and Erik D. Wesoloski, Esq., Wesoloski Carlson, P.A, 848 Brickell Avenue, Suite 30, Miami, FL 33131, and via U.S. Mail to: Nakia Rawls, 400 Alton Road, #2507, Miami Beach, Florida CERTIFICATE OF COMPLIANCE We hereby certify that the foregoing brief is submitted in Times New Roman 14-point font in compliance with Florida Rule of Appellate Procedure 9.120(a)(2). COHEN RUIZ, P.A. Miami Center, Suite South Biscayne Boulevard Miami, Florida Telephone: (305) Facsimile: (305) By: /s/ Mario M. Ruiz MARIO M. RUIZ Florida Bar No JACQUIN P. GILCHRIST Florida Bar No

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