IN THE SUPREME COURT OF THE STATE OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA ORMOND BEACH ASSOCIATES LIMITED PARTNERSHIP, ET AL., Petitioners, Case No. SC v. CITATION MORTGAGE, LTD., ET AL., Respondents. / RESPONSE TO PETITIONERS JURISDICTIONAL BRIEF On Review from the District Court of Appeal, Fifth District State of Florida LANDIS GRAHAM FRENCH, P.A. CARLYLE APPELLATE LAW FIRM 145 East Rich Avenue La Plaza Grande Professional Center DeLand, Florida La Grande Boulevard Telephone: (386) The Villages, Florida Facsimile: (386) Telephone: (352) Facsimile: (352) WILLIAM E. SHERMAN SHANNON McLIN CARLYLE Florida Bar No Florida Bar No GILBERT S. GOSHORN, JR. Florida Bar No OF COUNSEL Co-counsel for Respondents, CITATION MORTGAGE, ET AL. Co-counsel for Respondents, CITATION MORTGAGE, ET AL.

2 TABLE OF CONTENTS Page TABLE OF CONTENTS... i TABLE OF CITATIONS... iii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 5 I. THE FIFTH DISTRICT CORRECTLY HELD THAT A VOID ORDER IS A NULLITY, THUS ALLOWING CITATION TO FILE A VOLUNTARY DISMISSAL WITHOUT PREJUDICE II. ORMOND BEACH FAILS TO MANUFACTURE A CONFLICT BASED ON THE FIFTH DISTRICT S OBSERVATION THAT IT FAILED TO PRESENT CONCLUSIVE EVIDENCE SHOWING THAT IT WOULD HAVE SUCCEEDED ON ITS OFFERS OF JUDGMENT BUT FOR CITATION S VOLUNTARY DISMISSAL CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 TABLE OF CITATIONS Cases Supreme Court MX Investments v. Crawford, 700 So. 2d 640 (Fla. 1997)... 1, 3, 5, 6, 9, 10 Thomas v. Moore, 796 So. 2d 1196 (Fla. 2001)... 7 Willson v. Buxton, 110 Fla. 286, 149 So. 329 (Fla. 1933)... 5, 8, 9 District Courts of Appeal Aero Toy Store, Inc. v. Sherwin Williams, Co., So. 2d 1267 (Fla. 4 th DCA 1999) Commonwealth Prop. Assoc., Inc. v. SunTrust Bank S.W., 835 So. 2d 1175 (Fla. 2d DCA 2002)... 6 Cooper v. Cooper, 194 So. 2d 278 (Fla. 2d DCA 1967)... 5, 8, 9 Gammie v. State Farm Mut. Auto. Ins. Co., 720 So. 2d 1163 (Fla. 3d DCA 1998)... 6 Gull Constr. Co. v. Hendrie, 271 So. 2d 775 (Fla. 2d DCA 1973)... 5, 8, 9 Ormond Beach Ltd. v. Citation Mortgage Ltd., 835 So. 2d 292 (Fla. 5th DCA 2002)... 1, 2, 3, 4, 5, 6, 9 ii

4 Our Gang, Inc. v. Commvest Sec., Inc., 608 So. 2d 542 (Fla. 4 th DCA 1992)... 5, 8, 9 Secretary of Veteran Affairs v. Tejedo, 774 So. 2d 709 (Fla. 3d DCA 1999)... 4, 7, 8 Florida Constitution Art. V. 3(b)(3), Fla. Const. (2003)... 5 Statutes , Fla. Stat. (1992)... 1 Court Rules Fla. R. Civ. P , 3, 4 Fla. R. App. P (a)(2)(A)(iv)... 5 Fla. R. App. P (a)(2) iii

5 STATEMENT OF CASE AND FACTS Petitioners, Ormond Beach Associates Limited Partnership ( Ormond Beach ), LPIMC, Inc., John Galston, Eugene Rosen, and Bruce Weinstein (collectively, Petitioners ), seek to invoke the discretionary jurisdiction of this Court, claiming that the decision of the Fifth District Court of Appeal, Ormond Beach Ltd. v. Citation Mortgage Ltd., 835 So. 2d 292 (Fla. 5th DCA 2002), conflicts with prior decisions of this Court and other district courts of appeal. However, the Fifth District s decision follows the well-established law of this Court, holding that a party cannot obtain an award of attorneys fees and costs under the Offer of Judgment statute, ( , Fla. Stat.), where, as here, a party voluntarily dismisses a case without prejudice. See, e.g., MX Investments v. Crawford, 700 So. 2d 640 (Fla. 1997). This case has a protracted history. In 1992, Respondents, Citation Mortgage, Ltd. and Citation Mortgage Corp. ( Citation ), filed a Complaint seeking, among other things, to foreclose a mortgage and recover monies owed by Ormond Beach. During the ensuing years, Ormond Beach answered the Complaint, raised affirmative defenses, and filed offers of judgment; however, it did not file any counterclaims. Ormond Beach Ltd. v. Citation Mortgage Ltd., 835 So. 2d 292, 294 (Fla. 5th DCA 2002).

6 Ormond Beach then decided to file for bankruptcy protection in the United States District Court in Connecticut. As a result, in April 1994, the bankruptcy court entered an automatic stay, stopping this action. Thereafter, on December 22, 1994, the bankruptcy court lifted the automatic stay for the limited purpose of allowing Citation to pursue its claims for rent against Ormond Beach. In turn, Ormond Beach filed a motion for partial summary judgment, which was granted on March 5, However, on December 13, 1995, the bankruptcy court rescinded its ruling, determining that its prior lifting the stay had been improvidently entered and that it would address Citation s claims for rent. Id. Eventually, the bankruptcy proceedings concluded and Ormond Beach moved for summary judgment in the trial court. Prior to the summary judgment hearing, however, Citation filed its notice of voluntary dismissal without prejudice. Id. Nonetheless, Ormond Beach then moved for attorneys fees and costs pursuant to its offers of judgment, and the trial court denied that motion. Id. at 295. On appeal, the Fifth District affirmed both the trial court s recognition of Citation s voluntary dismissal without prejudice and the order denying Ormond Beach s motion for fees and costs. In particular, the Fifth District rejected Ormond Beach s argument that it had previously obtained partial summary judgment, precluding a voluntary dismissal without prejudice. The court held that the void 2

7 order could not constitute a bar to the filing of a voluntary dismissal under rule So. 2d at (citation omitted). The Fifth District also rejected the argument that Citation could not obtain a voluntary dismissal without prejudice because Ormond Beach had shown entitlement to affirmative relief in the trial court through its offers of judgment. Indeed, the Fifth District explained that Ormond Beach had failed to show that it acquired any substantial right to recover on its offers of judgment. Id. at 296. It had failed to present conclusive evidence that it would have succeeded on its offers of judgment but for Citation s filing of its notice of dismissal. Id. Nor, for that matter, did the trial court find that Ormond Beach s offers were made in good faith. Id. In addition, the Fifth District held that this Court s decision in MX Investments, Inc. v. Crawford, 700 So. 2d 640 (Fla. 1997), precluded Ormond Beach from recovering on its offers of judgment. The court reasoned that once the trial court recognized Citation Mortgage's notice of voluntary dismissal without prejudice, Ormond Beach lost its right to request recovery of such fees. 835 So. 2d at To hold otherwise would preclude the filing of a voluntary dismissal in all cases in which a defendant had filed an offer of judgment. Id. Petitioners now seek discretionary review in this Court. 3

8 SUMMARY OF ARGUMENT Petitioners jurisdictional brief does not dispute the holding in MX Investments. Indeed, Petitioners conspicuously fail to even cite that controlling decision. Instead, they argue that the Fifth District failed to properly apply rule because it did not recognize Ormond Beach s void partial summary judgment. Thus, according to Petitioners, the Fifth District s decision conflicts with Secretary of Veterans Affairs v. Tejedo, 774 So. 2d 709 (Fla. 3d DCA 1999). Petitioners are mistaken. The Fifth District correctly determined that the bankruptcy court s decision to rescind its order lifting the automatic stay rendered the previously entered partial summary judgment a nullity and, [a]s such, the void order could not constitute a bar to the filing of a voluntary dismissal under rule So. 2d at 296. Indeed, because the order was rendered void, it was as if the order was never entered in the first place. Moreover, the Fifth District s decision does not conflict with the Third District s decision in Tejedo, where the party obtaining summary judgment achieved affirmative relief even after the grant of summary judgment was reversed on appeal. Here, however, Ormond Beach obtained no affirmative relief from its partial summary judgment because the bankruptcy court rescinded its order lifting the automatic stay, 4

9 rendering the summary judgment a nullity. Petitioners further argue, however, that the Fifth District erred because it determined that Ormond Beach failed to present conclusive evidence that it had acquired any substantial right to affirmative relief. Petitioners misstate the Fifth District s decision. In particular, the Fifth District merely observed that Ormond Beach failed to present conclusive evidence that it would recover on its offers of judgment and not that it had failed to present conclusive evidence that it was entitled to affirmative relief. 835 So. 2d at 296. Indeed, Petitioners seek to manufacture a conflict where none exists, claiming that the Fifth District s decision conflicts with Willson v. Buxton, 110 Fla. 286, 149 So. 329 (1933), Our Gang, Inc. v. Commvest Securities, Inc., 608 So. 2d 542 (Fla. 4 th DCA 1992), Gull Construction Co. v. Hendrie, 271 So. 2d 775 (Fla. 2d DCA 1973), and Cooper v. Cooper, 194 So. 2d 278 (Fla. 2d DCA 1967). However, a proper reading of the Fifth District s decision demonstrates no conflict here. In fact, under this Court s decision in MX Investments, an offer of judgment, by definition, does not constitute a demand for affirmative relief precluding a plaintiff from taking a voluntary dismissal without prejudice. Accordingly, no conflict exists with any decisions cited by Petitioners. 5

10 JURISDICTIONAL STATEMENT Because Petitioners fail to demonstrate that any conflict exists between the Fifth District s decision and any decision in this State, this Court lacks jurisdiction to hear this case. Art. V. 3(b)(3), Fla. Const. (2003); Fla. R. App. P (a)(2)(A)(iv). ARGUMENT Contrary to Petitioners assertions, there is no conflict creating subject matter jurisdiction in this case. Rather, the Fifth District s decision is consistent with and follows this Court s decision in MX Investments, Inc. v. Crawford, 700 So. 2d 640 (Fla. 1997). In fact, in their attempt to allege a conflict, Petitioners neglect to even cite MX Investments, the very case that the Fifth District relied upon when rejecting Ormond Beach s claim that it can recover on its offers of judgment. In MX Investments, this Court held that a defendant may not recover attorneys fees under an offer of judgment if the plaintiff voluntarily dismisses the action without prejudice. Id. at 642. Central to that holding is the determination that the filing of an offer of judgment does not create a substantive right precluding a plaintiff from obtaining a voluntary dismissal without prejudice. See Commonwealth Prop. Assoc., Inc. v. SunTrust Bank S.W., 835 So. 2d 1175, 1175 (Fla. 2d DCA 2002) (citing MX Investments and holding that a fee award based on an offer of judgment is improper 6

11 where the case had been voluntarily dismissed without prejudice); Aero Toy Store, Inc. v. Sherwin Williams, Co., 725 So. 2d 1267, 1267 (Fla. 4 th DCA 1999) (same); Gammie v. State Farm Mut. Auto. Ins. Co., 720 So. 2d 1163, (Fla. 3d DCA 1998) (same). Thus, for this reason alone, and as explained further below, no conflict exists here, much less a conflict requiring this Court to exercise its discretionary jurisdiction. I. THE FIFTH DISTRICT CORRECTLY HELD THAT A VOID ORDER IS A NULLITY, THUS ALLOWING CITATION TO FILE A VOLUNTARY DISMISSAL WITHOUT PREJUDICE. Having failed to address MX Investments, Petitioners want to upset the Fifth District s decision by arguing that the court improperly discounted the partial summary judgment entered after the bankruptcy court improvidently lifted its automatic stay. Thus, according to Petitioners, Citation could not properly take a voluntary dismissal without prejudice and Ormond Beach should be entitled to recover on its offers of judgment. Petitioners argument fails from the beginning. A void order is no order at all. As the Fifth District correctly held, it is a nullity. See, e.g., Thomas v. Moore, 796 So. 2d 1196, 1198 (Fla. 2001) (stating that when an order is vacated, it may be considered void ab initio, meaning that it was a nullity from the beginning. ). Accordingly, in the present case, Ormond Beach did not obtain a partial summary 7

12 judgment and, as such, Citation properly took a voluntary dismissal without prejudice. The Third District s decision in Secretary of Veterans Affairs v. Tejedo, 774 So. 2d 709 (Fla. 3d DCA 1999), is not contrary. There, the plaintiff argued that the trial court should have recognized its notice of voluntary dismissal because the Third District had previously reversed summary judgment entered in its favor. Id. at 710. The Third District rejected this argument because, its prior decision still afforded the plaintiff affirmative relief, and allowed it to force a redemption against the defendant. Id. (explaining that the plaintiff had obtained the affirmative relief sought in the action- -forcing the right of redemption ). Thus, the court explained that, under the peculiar facts of that case, the reversal of summary judgment on appeal was not tantamount to an order denying summary judgment. Id. In the present case, however, the bankruptcy court s decision to rescind its order lifting the automatic stay did not grant Ormond Beach any affirmative relief. In fact, that decision did just the opposite. It nullified everything that had occurred in the trial court during the time that the stay had been improvidently lifted, including the partial summary judgment entered in Ormond Beach s favor. Thus, unlike the plaintiff in Tejedo, Ormond Beach gained no affirmative relief. II. ORMOND BEACH FAILS TO MANUFACTURE A CONFLICT BASED ON THE FIFTH DISTRICT S OBSERVATION THAT IT FAILED TO PRESENT CONCLUSIVE EVIDENCE SHOWING 8

13 THAT IT WOULD HAVE SUCCEEDED ON ITS OFFERS OF JUDGMENT BUT FOR CITATION S VOLUNTARY DISMISSAL. Petitioners also claim that this Court should exercise its discretionary jurisdiction because the Fifth District observed that the record must conclusively demonstrate[ ] that the defendant is entitled to affirmative relief. Jurisdictional Brief, at 7. Petitioners assert that this holding is improper and conflicts with Willson v. Buxton, 110 Fla. 286, 149 So. 329 (1933), Our Gang, Inc. v. Commvest Securities, Inc., 608 So. 2d 542 (Fla. 4 th DCA 1992), Gull Construction Co. v. Hendrie, 271 So. 2d 775 (Fla. 2d DCA 1973), and Cooper v. Cooper, 194 So. 2d 278 (Fla. 2d DCA 1967). Jurisdictional Brief, at 6-7. Petitioners have misstated the Fifth District s opinion. In fact, the court stated that Ormond Beach failed to conclusively demonstrate that it ever acquired a right to attorney s fees under its offers of judgment. 835 So. 2d at 296. Thus, the Fifth District merely observed that Ormond Beach had not established that it could recover on its offers of judgment but for Citation s voluntary dismissal. That observation was not a holding as Ormond Beach claims, but is dicta, and is actually consistent with MX Investments. Indeed, an offer of judgment does not constitute a demand for affirmative relief that would preclude a plaintiff from taking a voluntary dismissal without prejudice. To hold otherwise would be contrary to this Court s decision in MX Investments, the 9

14 decision that Ormond Beach fails to cite. For these reasons, the cases Ormond Beach relies upon in an attempt to allege a conflict are not to the contrary. In each of them, a party took some step, other than filing an offer of judgment, to demonstrate entitlement to affirmative relief. See Willson, 110 Fla. at 288, 149 So. at 330 (defendant sought to foreclose mortgages); Our Gang, Inc., 608 So. 2d at 544 (defendant had pending motion for counterclaim at the time plaintiff attempted to take voluntary dismissal without prejudice); Gull Constr. Co., 271 So. 2d at 776 (same); Cooper, 194 So. 2d at 280 (in divorce action, defendant/ wife filed motions for custody of minor children, alimony, and restraining order, precluding husband/plaintiff from taking a voluntary dismissal). CONCLUSION This Court should decline to exercise its discretionary jurisdiction in this case. There is no conflict here. Rather, the Fifth District faithfully applied this Court s decision in MX Investments to the facts in this case. Respectfully submitted, LANDIS GRAHAM FRENCH, P.A. CARLYLE APPELLATE LAW FIRM 145 East Rich Avenue La Plaza Grande Professional Center DeLand, Florida La Grande Boulevard Telephone: (386) The Villages, Florida Facsimile: (386) Telephone: (352) Facsimile: (352)

15 WILLIAM E. SHERMAN SHANNON McLIN CARLYLE Florida Bar No Florida Bar No GILBERT S. GOSHORN, JR. Florida Bar No OF COUNSEL CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent to: J. Lester Kaney, Esquire, Cobb, Cole & Bell, Post Office Box 2491, Daytona Beach, Florida ; Leighton Aiken, Esquire, and Dana M. Campbell, Esquire, Owens, Clary & Aiken, LLP, 1717 Main Street, Suite 2400, Dallas, Texas 75201, via U.S. regular mail this day of April, SHANNON McLIN CARLYLE Florida Bar No CERTIFICATE OF COMPLIANCE I hereby certify that this brief conforms to the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2) in that it was computer generated utilizing Times New Roman 14 point type. SHANNON McLIN CARLYLE Florida Bar No