IN THE SUPREME COURT STATE OF FLORIDA LAURA RUIMY, Appellant/Plaintiff/Petitioner, vs. FLOR N. BEAL, ALEX RENE BIAL a/k/a ALEX RENE BEAL,

Transcription

1 IN THE SUPREME COURT STATE OF FLORIDA LAURA RUIMY, Appellant/Plaintiff/Petitioner, vs. FLOR N. BEAL, ALEX RENE BIAL a/k/a ALEX RENE BEAL, Appellee/Defendant/Respondent. SUPREME COURT CASE NO.: RD DCA CASE NO.: 3D L.T. CASE NO.: CA-13 JURISDICTIONAL BRIEF OF RESPONDENT FLOR N. BEAL LUKS, SANTANIELLO, PEREZ, PETRILLO, GOLD & JONES James P. Waczewski Florida Bar No.: Raymond Diehl Road; Suite E Tallahassee, Florida (850) (telephone) (850) (facsimile) Attorneys for Appellee/Defendant/Respondent, Flor N. Beal

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3 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPE SIZE & STYLE i

4 TABLE OF AUTHORITIES CASES Page(s) Jenkins v. State, 385 So. 2d 1356 (Fla. 1982)... 4, 6 McCain v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992)... 1, 7, 8 Murphy v. Int l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000)... passim Persaud v. State, 838 so. 2d 529 (Fla. 2003)... 5 STATUTES/RULES Florida Rules of Appellate Procedure, Rule ii

5 STATEMENT OF THE CASE AND FACTS As the precedential portion of the opinion below demonstrates, the Third District Court of Appeal, in Case No. 3D07-533, was presented with an appeal by Laura Ruimy, the Plaintiff below, against Flor N. Beal and Alex Beal, the Defendants at trial, following an order granting the Defendants a new trial. The Third District was also presented with a cross-appeal in the same case. 1 (See Appendix to Amended Jurisdictional Brief for [sic] Appellant hereinafter Appendix, Item 1). The three-judge panel, including Chief Judge Gersten, Judge Schwartz, and Judge Ramirez, affirmed on all issues, though Judge Ramirez issued a concurring opinion, which reads more like a dissent, with regard to the direct appeal. (Appendix, Item 1). The opinion of Judges Gersten and Schwartz (hereinafter the Opinion ), which is the Opinion of the Third District, reads as follows: PER CURIAM. Affirmed. See Murphy v. Int l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000)(stating that new trial is warranted where argument of counsel is determined to be improper, harmful, incurable, and damaging to trial 1 The Opinion mistakenly refers to cross-appellants where only Appellee Flor N. Beal pursued a cross-appeal. The opinion also mistakenly indicates that the undersigned and attorney Mark Dearman represented both appellees/crossappellants. The undersigned brought these errors to the attention of the Court below, to no avail. These errors, however, do not affect the jurisdictional question before this Court. i

6 fairness); and McCain v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992)(holding that whether and to what extent defendant s conduct foreseeably and substantially caused injury is an issue to be determined by the jury based upon the specific facts of the case). (Appendix, Item 1, pages 1-2). As noted above, Judge Ramirez issued an eleven-page concurring opinion on his own (which reads more like a dissent) that was not joined by any of the other two judges in the case. (Appendix, Item 1, pages 3-13). There was no unanimous 11-page decision in this case, as Petitioner suggests. (Id.); (Amended Jurisdictional Brief for the [sic] Appellant, hereinafter A.J.B., at 1, 6). Thereafter, Petitioner, Laura Ruimy, through counsel, filed a Notice of Appeal, which this Court treated as a notice to invoke the discretionary jurisdiction of this Court. Petitioner served her A.J.B. on March 30, This is the Jurisdictional Answer Brief of Respondent Flor N. Beal only. SUMMARY OF ARGUMENT This Court lacks jurisdiction because the Third District s Opinion, below, simply affirmed and cited to two Florida Supreme Court opinions, each followed by a parenthetical that accurately reflects this Court s holding in those opinions. Petitioner mistakenly refers to a unanimous 11-page opinion of the Third District that does not exist. (See A.J.B., at 1, 6). The Opinion of the Third ii

7 District, a copy of which is contained in the Appendix, speaks for itself on this issue -- this was a per curiam affirmed case with citations (agreed to, at a minimum, by Chief Judge Gersten and Senior Judge Schwartz), together with a separate concurring opinion (which reads more like a dissent) by Judge Ramirez that this Court should disregard in considering whether this Court has jurisdiction to review the Third District s decision below. Petitioner has admitted that the majority properly described this Court s holding in Murphy. (See A.J.B., at 6)( Although the Third District properly stated the four part Murphy test... ). Petitioner, however, argues that the Third District misapprehended Murphy. (A.J.B., at 6). However, the concurring opinion of Judge Ramirez has no precedential value, and his reasoning did not affect the outcome of the case below. The per curiam Opinion by Chief Judge Gersten and Judge Schwartz contains no recitation of facts, nor does it demonstrate how these judges applied Murphy to the facts at hand. Therefore, Petitioner has not shown -- nor can she show that the per curiam Opinion represents a misapprehension of Murphy. All of the Petitioner s argument based upon Judge Ramirez s concurring opinion should be ignored. ARGUMENT The purpose of discretionary review by this Court, based upon conflict, is i

8 not only to correct errors that are apparent from decisions of lower appellate courts, but, primarily, to resolve conflicts among the district courts of appeal and to ensure that opinions of the district courts of appeal do not conflict with, or misapply, prior opinions of this Court. Florida Rules of Appellate Procedure, Rule 9.030, provides, in pertinent part, as follows: See Id. (2) Discretionary Jurisdiction. The discretionary jurisdiction of the supreme court may be sought to review (A) decisions of the district courts of appeal that (iv) expressly or directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law. Generally, therefore, this Court does not consider dissenting or concurring opinions in determining whether a conflict exists (i.e., whether this Court finds that jurisdiction exists) and whether this Court s discretion should be exercised to review the opinion by the lower appellate court. See e.g., Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980)( Accordingly, we hold that... the Supreme Court of Florida lacks jurisdiction to review per curiam decisions of the several district courts of appeal of this state rendered without opinion, regardless of whether they are accompanied by a dissenting or concurring opinion, when the basis for such review is an alleged conflict of that decision with a decision of another district ii

9 court of appeal or of the Supreme Court. ). Rather, this Court reviews only the precedential portion of the lower appellate court s opinion to make this jurisdictional determination. See Id. Furthermore, this Court has held that it does not have jurisdiction to review per curiam affirmances with citation to case law unless at least one of those cases cited is pending review before this Court. See Persaud v. State, 838 So.2d 529, (Fla. 2003) (holding that the Court does not have jurisdiction to review per curiam decisions of the district courts of appeal that merely affirm with citations to cases not pending review in this Court. ). While it is conceivable that a concurring opinion would demonstrate that a decision below was mistaken, that would only occur where the concurring opinion was written by a judge who had a deciding vote in the lower appellate court s final decision. For example, please assume an imaginary case considered by a threejudge panel of the Third District where the opinion is a per curiam affirmed with one concurrent opinion and one dissenting opinion. Please further assume that the concurring judge s opinion sets out to explain the only reason why he or she is affirming and, in doing so, the concurring judge reveals a clear misapprehension of a prior precedent by this Court. The concurring judge further notes that but for his understanding of this Court s precedent, he or she would have agreed with the dissenting judge and would have reversed. Only under such circumstances, i

10 perhaps, a party seeking discretionary review by this Court under the abovequoted rule might be able to show that the decision below was in error because the concurring judge s opinion reflects a misapprehension of the law that, if resolved in that party s favor, would result in reversal. In this case, however, it is obvious from the Third District s Opinion, below, that two of the three judges (at a minimum) voted to affirm the Trial Court, issuing the following Opinion: PER CURIAM. Affirmed. (Citations omitted see Statement of the Facts and Case, above). Two of the judges in the panel, Chief Judge Gersten and Senior Judge Schwartz, relied on this brief per curiam Opinion to affirm, and only these first two pages represent the Third District s Opinion. See Jenkins, supra. Judge Ramirez, on his own, wrote a concurring opinion that, in fact, seems to be more of a dissenting opinion. Whether Judge Ramirez properly described the record and the facts, or whether he misapprehended the pertinent law or his opinion conflicts with other district court opinions this is all irrelevant to this Court s jurisdictional inquiry. Correcting any of Judge Ramirez errors of law, if any, would not affect the outcome of the appeal below. Further, Judge Ramirez description of the record or facts relevant to the appeal is irrelevant the two other affirming judges may have ii

11 interpreted the record and/or facts differently and disagree with Judge Ramirez s description of the record or facts. See Id. Thus, in considering whether this Court should exercise its discretion, or whether jurisdiction even exists, this Court cannot rely on Judge Ramirez s description of the facts or record to then determine if the cases cited by the two other judges were properly applied below since this Court would not be able to determine whether Chief Judge Gersten and Senior Judge Schwartz improperly applied the cases they cited to the facts/record as they found them. See Id. Therefore, the only basis upon which Petitioner, here, could establish that jurisdiction exists is for Petitioner to establish that the majority s opinion, below, improperly described the holdings of the two cases upon which they relied in reaching their decision. Two opinions were cited, as follows: See Murphy v. Int l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000)(stating that new trial is warranted where argument of counsel is determined to be improper, harmful, incurable, and damaging to trial fairness); and McCain v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992)(holding that whether and to what extent defendant s conduct foreseeably and substantially caused injury is an issue to be determined by the jury based upon the specific facts of the case). (See Appendix, Item 1, pages 1 and 2). Respondent Flor N. Beal addresses McCain first. Respondent Beal notes i

12 that in seeking review before this Court, Petitioner has not argued that the Third District misapprehended this Court s opinion in McCain, therefore this Court need not consider whether the summary of the holding in McCain is or is not accurate. 2 As for the majority s description of what this Court stated in Murphy, there can be no dispute that the description accurately represents this Court s general holding in that case. In Murphy, this Court set out a new way to seek a new trial, or reversal for a new trial, on the basis of un-objected-to closing argument. This Court s opinion, by Judge Lewis, set out a four-part test to address such motions/appeals, using the following headings: 1. THE CHALLENGED ARGUMENT MUST BE IMPROPER; 2. THE ARGUMENT MUST BE HARMFUL; 3. THE ARGUMENT MUST BE INCURABLE; AND 4. THE ARGUMENT MUST BE SUCH THAT IT SO DAMAGED THE FAIRNESS OF THE TRIAL THAT THE PUBLIC S INTEREST IN OUR SYSTEM OF JUSTICE 2 The majority cited to McCain to support its affirmance of the cross-appeal. Since Petitioner prevailed on the cross-appeal, she has no interest in showing a misapprehension by the Third District of the holding in McCain. Rather, it is this Respondent, Flor N. Beal, who, if this Court accepted jurisdiction, would argue that the Third District erred in affirming on the cross-appeal because she raised the question that she had no duty to prevent her adult brother from accessing her vehicle, since there was no competent evidence to show that her brother was a poor driver; while the Third District relied on the portion of McCain that addresses causation issues. However, because this error is not apparent from the Opinion, Ms. Beal did not seek review by this Court. Of course, if this Court does accept jurisdiction, she will ask this Court to consider this issue as well. ii

13 REQUIRES A NEW TRIAL. See Murphy, supra, at The parenthetical, below, properly describes in general terms (not word by word) the four-part test this Court described in Murphy. And, as noted above, Petitioner has admitted that the Third District properly described this Court s holding in Murphy. See A.J.B., at 6. Therefore, it cannot be determined from the per curiam opinion whether Chief Judge Gersten and Judge Schwartz misapprehended Murphy. Simply, this Court cannot consider whether the majority, below, misapprehended Murphy because the majority did not describe the facts, the allegedly improper argument, or anything else in the record of import to the decision that Murphy supported the affirmance of the Trial Court. Nor could any Florida Court, seeking to rely on the majority s per curiam Opinion below as precedent, perceive from the Opinion that it held anything differently than what this Court held in Murphy. For these reasons, the Opinion cannot be deemed to be in conflict with the opinion of any other district court of appeal, nor can it be deemed to show a misapprehension by the deciding judges of this Court s holding in Murphy. Thus, this Court should find that it does not have jurisdiction to review this case. Respondent Flor N. Beal notes that her failure to address the representations by Petitioner of the facts of this case, which were made without citation to the i

14 record and which relied in great part on the unanimous opinion that was in fact a concurring opinion by Judge Ramirez only, should not be treated as an admission that any representations in the A.J.B. are accurate. Rather, there is no need to address much of what Petitioner wrote in her A.J.B. (including any portion that the undersigned deems to contain misrepresentations), as most of it is irrelevant to the question of whether this Court has the discretion to assume jurisdiction over the present appeal. CONCLUSION For the reasons stated above, this Court should dismiss the current petition for lack of jurisdiction, and grant Respondent any other relief this Court deems just and proper. Respectfully submitted this 7 th day of April, LUKS, SANTANIELLO, PEREZ, PETRILLO, GOLD & JONES JAMES P. WACZEWSKI, ESQ. Fla. Bar No Raymond Diehl Road; Suite E Tallahassee, Florida (850) (telephone) (850) (facsimile) Attorneys for Appellee/Defendant, Flor N. Beal ii

15 CERTIFICATE OF SERVICE I certify that a true and correct copy hereof has been furnished to those listed below by U.S. Mail on this 7 TH day of April, SERVICE LIST JAMES P. WACZEWSKI, ESQ. Marvin Weinstein, Esq. Mark J. Dearman, Esq. Frank Amsalem, Esq. Dearman & Gerson Grover & Weinstein, P.A West Sunrise Boulevard, Suite Arthur Godfrey Road, 2 nd Floor Plantation, FL Miami Beach, FL CERTIFICATE OF TYPE SIZE & STYLE Respondent Flor N. Beal, by and through their undersigned counsel and pursuant to Florida Rule of Appellate Procedure 9.210(a)(2), hereby certifies that the type, size, and style utilized in this Brief is 14 point Times New Roman. JAMES P. WACZEWSKI, ESQ. i