IN THE SUPREME COURT OF FLORIDA

Transcription

1 JAMES MUSZYNSKI, vs. Petitioner, HOLDEN COVE, INC., IN THE SUPREME COURT OF FLORIDA Respondent. / CASE NO.: DISTRICT COURT CASE NO.:5D DISCRETIONARY REVIEW OF A DECISION OF THE FIFTH DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF OF PETITIONER JAMES MUSZYNSKI B.C. MUSZYNSKI, ESQUIRE JOHN A. LEKLEM, ESQUIRE Attorney for JAMES MUSZYNSKI Attorney for JAMES MUSZYNSKI 1005 West Emmett Street 5151 Adanson Street, Suite 98 Kissimmee, Florida Orlando, Florida Telephone: Telephone: Facsimile: Facsimile: Fla. Bar No.: Fla. Bar. No.:

2 TABLE OF CONTENTS PAGE TABLE OF CITATIONS iii STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF ARGUMENT 2 ARGUMENT I.The Decision of the District Court of Appeal Expressly and Directly Conflicts with the Deci II.The Decision of the District Court of Appeal Expressly and Directly Conflicts with the Dec III.Statement Why this Court Should Exercise its Jurisdiction and Entertain the Case on the M CONCLUSION 10 CERTIFICATE OF SERVICE 11 CERTIFICATE OF COMPLIANCE 11 APPENDIX ii

3 TABLE OF CITATIONS iii PAGE Alexander Hamilton Corp. v. Leeson So. 2d 513 (Fla. 4 th DCA 1987) Apolaro v. Falcon So. 2d 815 (Fla. 3 rd DCA 1990) Beauchamp v. Collins So. 2d 294 (Fla. 3 rd DCA 1986) Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G 5 Condo. Ass n., Inc. 361 So. 2d 128 (Fla. 1978) Clay v. City of Margate So. 2d 434 (Fla. 4 th DCA 1989) Coggin v. Barfield Fla. 551; 8 So. 2d 9 (1942) Coon Clothing Co. Inc. v. Eggers, So. 2d 1357(Fla. 3 rd DCA 1990). Dionne v. Columbus Mills So. 2d 681 (Fla. 2 nd DCA 1975) Drakeford v. Barnett Bank of Tampa So. 2d 822 (Fla. 2 nd DCA 1997) Franklin v. Franklin So. 2d 401 (Fla. 3 rd DCA 1991) Gladstone v. Smith So. 2d 1002 (Fla. 4 th DCA 1999)

4 PAGE Higgs v. Florida Dep t. of Corrections So. 2d 962 (Fla. 1 st DCA 1994) Kozel v. Ostendorf 3, So. 2d 817 (Fla. 1993) Madison County v. Foxx So. 2d 39 (Fla. 1 st DCA 1994) McCord v. Smith 5 43 So.2d 704 (Fla. 1949) North Shore Hospital v. Barber So. 2d 849 (Fla. 1962) Pinecrest Lakes, Inc. v. Shidel 2, 6, 7, So. 2d 191 (Fla. 4 th DCA 2001) Pohlman v. Barry So. 2d 1172 (Fla. 4 th DCA 1996) Sarkis v. Pafford Oil Co., Inc So. 2d 524 (Fla. 1 st DCA 1997) Sekot Labs. v. Gleason So. 2d 286 (Fla. 3 rd DCA 1991) Orange County Code Section 1-8 1, 5 Orange County Code Section 1-9 1, 10 Orange County Code Section 1-10(b) 1, 5 Orange County Code Section 30-80(a) 1, 8, 10 iv

5 PAGE Orange County Code Section 34-7(a) 1, 8, 10 Orange County Code Section (b) 1, 5 v

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7 STATEMENT OF THE CASE AND FACTS The case, filed June 26, 2000, by the appellant Petitioner, JAMES MUSZYNSKI ( MUSZYNSKI ), is a simple enforcement by a citizen, as provided under the Orange County Code Sections 1-9, 30-80(a) and 34-7(a), of certain development standards required by the County Code, particularly Section (b). Proof of violation by the Respondent, HOLDEN COVE, INC. ( HOLDEN COVE ), exists on the face of the Complaint. HOLDEN COVE, prior to June 2000, at its own risk, placed unapproved subdivision improvements on its land that were nonconforming to the development standards of Orange County, particularly the entrance to the proposed subdivision. HOLDEN COVE did not deny that the entrance was in non-conformance with the Orange County Code, particularly the intersection safety standards of Section (b), that existed on and prior to June After June 2000, the County amended Code Section (b). Under County Code Sections 1-8 and 1-10(b), the amendment of the code shall not affect any suit or proceeding pending at the time of the amendment for an offense committed under the Code amended. Further, under the Code Sections 30-80(a) and 34-7(a) the court upon proof shall issue injunctive relief forthwith. However, the case has not been adjudicated on 1

8 the merits. Rather, the Trial Court dismissed the Complaint with leave to amend (primarily to require the joinder of an indispensable party that the Court subsequently allowed to withdraw), abated the case for an unrelated case and finally dismissed with prejudice for not filing timely. The District Court stated the case even survived the County s amending its code, cited the procedural default, found no abuse of discretion in dismissing the action and affirmed the dismissal. SUMMARY OF ARGUMENT The Fifth District Court s decision in this case is diametrically opposed to and irreconcilable with the principles established by District Courts on dismissal with prejudice and by this Court and District Courts that Florida s policy favors adjudication on the merits and against procedural or administrative default. Petitioner MUSZYNSKI has both a procedural and a substantive law issue case concerning the right to maintain an action for a mandatory injunction that has not been given due process recognition by the Trial Court or the Fifth District Court of Appeal. In that regard, the relief prayed for in each and every complaint filed in the Trial Court by MUSZYNSKI, is the same relief that was prayed for and ultimately granted in the conflict case of Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191 (Fla. 4 th DCA 2001). As in that case, the relief prayed for in this case is that of a mandatory injunction to prohibit a development that was inconsistent with 2

9 the then existing Code. The County Code provides to a citizen of the County the right to maintain an action for an injunction to enforce code provisions. A change in the County Code should have been of no consequence to MUSZYNSKI s right to maintain this action, except that it appears that the Trial Court and the District Court failed to give proper consideration to the timing of and effect of the amended Code provision, which not only retroactively attempted to cure the offending use and improvements of HOLDEN COVE, but also appears to have been interpreted to retroactively eliminate the right to maintain a complaint for injunctive relief by MUSZYNSKI. Additionally, the District Court and the Trial Court chose to resolve this action on procedural grounds rather than on the merits, in express and direct conflict with other District Courts of Appeal, as well as this Court, on the same question of law regarding a dismissal on procedural grounds as opposed to a disposition on the merits. The effect of the decision of the Trial Court and opinion of the District Court is to impose a sanction without regard to the factors established in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993). ARGUMENT I THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE SUPREME COURT. 3

10 A. ON DISMISSAL WITH PREJUDICE The District Court focused on the perceived procedural deficiencies without comment as to any of the factors that were established in Kozel, supra, to be used by the trial courts in determining whether or not a dismissal with prejudice was appropriate under the circumstances of the case. No such determination was made by the Trial Court. In Kozel, this Court disapproved of a dismissal on procedural grounds for failing to file an amended complaint for over five months past the due date. When the totality of the circumstances of the case are considered, there can be no doubt that the District Court is in conflict with the decisions of this Court. This Court has held that established and longstanding policy favors adjudication on the merits and against procedural defaults. This case was not adjudicated on the merits, but was dismissed with prejudice for a procedural default. The District Court s decision is in direct conflict with this Court s decision in North Shore Hospital v. Barber, 143 So. 2d 849 (Fla. 1962) and Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9 (1942). Further, this Court adopted a list of factors to assist in evaluating whether a dismissal with prejudice on procedural delay is acceptable. This case does not meet these factors. The District Court s decision is in direct conflict with this Court s decision in Kozel, supra. 4

11 B. ON RETROACTIVE APPLICATION OF LAW. Since the District Court in its opinion took judicial notice of Orange County amending its Code, the amended Code must have had consideration and weight in the District Court s decision. The amendment of Section (b) was an attempt to make the Respondent s development conform to the Orange County Code. However, the amendment took effect after the filing of Petitioner s initial complaint. Under Orange County Code, Sections 1-8 and 1-10(b), the amended Code provision cannot affect any suit pending at the time of the amendment for a violation under the prior Code. The amended Code has no consequence to the Petitioner s case or right to maintain this action. However, it appears that the Trial Court and the District Court gave consideration to the amended Code, retroactive application to the amended Code and retroactive interpretation to eliminate the right to maintain the action by Petitioner. Since there is no evidence in the record that Orange County gave or intended the amended Code Section to have retrospective effect, Orange County Code Sections 1-8 and 1-10(b) expressly preserve the Petitioner s rights to due process under the original Code Section and the District Court s decision stands in direct conflict with this Court s decision in McCord v. Smith, 43 So.2d 704 (Fla. 1949) and Century Village, Inc. v. Wellington, E, F, K, L, H, J, M & G Condo. 5

12 Ass n, Inc., 361 So.2d 128 (Fla. 1978). ARGUMENT II THE DECISION OF THE DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISIONS OF OTHER DISTRICT COURTS OF APPEAL. A. ON SUBSTANTIVE DUE PROCESS The decision of the Fifth District Court of Appeal failed to determine the due process issue of the right of MUSZYNSKI to maintain an action for a mandatory injunction and thereby denied that substantive right to Petitioner, in that the action was decided on perceived procedural issues, thus denying the right to have the matter determined on the merits, albeit, the harsh remedy of a mandatory injunction. In the Pinecrest Lakes, supra, the Fourth District affirmed the granting of a mandatory injunction to an aggrieved citizen that required the destruction of apartment buildings. That remedy was the only remedy provided. The Court determined that upon creation of public duties and citizens rights, the legislature is necessarily endowed with authority to specify precisely what remedies shall be used by judges to enforce statutory duties, regardless of whether in general such remedies usually require additional factors before it is traditionally employed. Pinecrest Lakes, supra. 6

13 In the case before the Trial Court, Orange County saw fit to enact Code provisions that created public duties and citizens rights, as well as specified precisely what remedies shall be used by judges to enforce those duties. Pursuant to said Code, MUSZYNSKI filed a complaint seeking to enforce pertinent Code provisions by requesting an injunction against Code violations. The same Code provided for only one remedy, that of an injunction. Petitioner has not been provided the opportunity to be heard on the merits, but rather has been denied, by the Courts dismissals, the right to maintain an action for mandatory injunction. This denial of substantive due process is in direct conflict with the Fourth District Court s decision in Pinecrest Lakes, supra. B. ON PROCEDURAL DUE PROCESS By not taking into account Florida s policy in favor of adjudication on the merits and against procedural default, the District Court s decision stands in direct conflict with the Third District Court s decisions in Sekot Labs v. Gleason, 585 So. 2d 286 (Fla. 3d DCA 1991), Franklin v. Franklin, 573 So. 2d 401 (Fla. 3d DCA 1991) and Apolaro v. Falcon, 566 So. 2d 815 (Fla. 3d DCA 1990) and with the Fourth District Court s decision in Pohlman v. Barry, 683 So. 2d 1172 (Fla. 4 th DCA 1996). Further, because dismissal with prejudice is an extreme sanction and should not be imposed in the absence of a showing that the opposing side was 7

14 ...prejudiced in a meaningful way..., the District Court s decision stands in direct conflict with the Third District s decision in Beauchamp v. Collins, 500 So. 2d 294 (Fla. 3d DCA 1986). Since it is well settled that a complaint should not be dismissed with prejudice if it supports a cause of action on any ground, the District Court s decision is in direct conflict with the Second District s decision in Dionne v. Columbus Mills, Inc., 311 So. 2d 681, 683 (Fla. 2d DCA 1975) and Drakeford v. Barnett Bank of Tampa, 694 So. 2d 822 (Fla. 2d DCA Because dismissal of a complaint with prejudice is a severe sanction which should only be granted when the pleader has failed to state a cause of action and it conclusively appears that there is no possible way to amend the complaint in order to state a cause of action, the District Court s decision is in direct conflict with the First District s decision in Madison County v. Foxx, 636 So. 2d 39, 51 (Fla. 1 st DCA 1994). By not looking to the four corners of the complaint and whether the case alleges a good cause of action, the District Court s decision is in conflict with the Fourth District s decision in Gladstone v. Smith, 729 So. 2d 1002 (Fla. 4 th DCA 1999) and Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513 (Fla. 4 th DCA 1987). In considering dismissal of a complaint, the facts alleged must be accepted as true and all reasonable inferences must be drawn in favor of the pleader, making the District Court s decision in conflict with the First District s 8

15 decision in Sarkis v. Pafford Oil Co., Inc., 697 So. 2d 524 (Fla. 1 st DCA 1997) and Higgs v. Florida Dep t. of Corrections, 647 So. 2d 962 (Fla. 1 st DCA 1994). Since the Orange County Code, Sections 30-80(a) and 34-7(a), requires the court, upon proof, to issue injunctive relief and does not grant discretion in the court to issue injunction, injunctive relief is the specified primary remedy to correct a violation of a public duty and to vindicate the right of a person affected by the violation. The legal remedy specified has been given its effectuating mechanism by the County government s legislative body within its powers. The District Court s affirming the dismissal with prejudice of the specified remedy under the County Code is in conflict with the Fourth District s decision in Pinecrest Lakes, supra. The effect of the opinion of the District Court is to impose a sanction for some unknown conduct that was never made a part of the record on appeal in that the Trial Court s Order of Dismissal with Prejudice merely granted the motions to dismiss of Defendant, without further comment or findings. This is in conflict with Clay v. City of Margate, 546 So. 2d 434, (Fla. 4 th DCA 1989) and Coon Clothing Co. Inc. v. Eggers, 560 So. 2d 1357(Fla. 3 rd DCA 1990). III STATEMENT WHY THIS COURT SHOULD EXERCISE ITS JURISDICTION AND ENTERTAIN THE CASE ON THE MERITS IF IT FINDS IT DOES HAVE JURISDICTION. 9

16 The Court should exercise its conflict jurisdiction and entertain this case on the merits, not only in the interest of preservation of uniformity and harmony in Florida case law on procedural due process, but also in support of substantive due process through adjudication on the merits. The facts of this case are not in material dispute. If HOLDEN COVE is not enjoined from the existing violations and nonconformance of its development under the provisions of the Orange County Code, MUSZYNSKI and the public at large will be irreparably harmed in that their procedural due process rights for injunctive relief under the Orange County Code, Sections 1-9, 30-80(a) and 34-7(a), will have been rendered useless and meaningless by the courts. MUSZYNSKI and the public at large will have no adequate remedy at law. The denial of MUSZYNSKI s specific remedy to correct a violation of a public duty by HOLDEN COVE, not upon the merits, but upon a lack of procedural and substantive due process, is a true miscarriage of justice. It is the antithesis of the legislated mechanism effectuated by the Orange County government and the well founded Florida case law and opinion of this Court. CONCLUSION The Fifth District Court of Appeal s decision in this case directly conflicts with the decisions of this Court and decisions of the First, Second, Third and 10

17 Fourth District Courts. As such, it creates division and uncertainty in Florida law and undermines the sound policy supporting the decisions with respect to dismissal with prejudice, particularly vis-a- vis procedural default, retroactive application of law and adjudication on the merits. The Court should exercise its jurisdiction, quash the District Court decision and allow Petitioner s case to proceed on its merit. 11

18 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail to: H. FRANKLIN ROBBINS, ESQUIRE, Post Office Box 3322, Orlando, FL 32802, STEVEN G. MASON, ESQUIRE, 1643 Hillcrest Street, Orlando, FL 32803,, this 28 th day of April CERTIFICATE OF COMPLIANCE 12 JOHN A. LEKLEM, ESQUIRE Attorney for JAMES MUSZYNSKI 5151 Adanson Street, Suite 98 Orlando, Florida Telephone: Facsimile: Fla. Bar. No.: B.C. MUSZYNSKI, ESQUIRE 1005 West Emmett Street Kissimmee, Florida Telephone: Facsimile: Fla. Bar No.: I HEREBY CERTIFY that this petition complies with the font requirement of Fla. R. App. P (l) in that it is Times New Roman 14 point font. JOHN A. LEKLEM, ESQUIRE JOHN A. LEKLEM, P.A. Florida Bar No Adanson Street, Suite 98 Orlando, Florida Telephone:

19 13 Facsimile: