IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA MOSES ACHORD, et al., vs. Petitioners, Case No. SC L.T. CASE NO. 4D OSCEOLA FARMS CO., Respondent. / RESPONSE TO PETITIONERS BRIEF ON JURISDICTION Robert C. L. Vaughan, Esq. Ward Kim Vaughan & Lerner LLP Financial Plaza, Suite 2001 Fort Lauderdale, FL Ph: (954) Fax: (954) rvaughan@wardkim.com William Killian, Esq. Squire Sanders & Dempsey, LLP 200 South Biscayne Blvd. Suite 4000 Miami, FL Ph: (305) Fax: (305) wkillian@ssd.com Joseph P. Klock, Jr., Esq. Juan Carlos Antorcha, Esq. Miguel Morel, Esq. Rasco Klock Reininger Perez Esquenazi Vigil & Nieto 283 Catalonia Avenue Coral Gables, FL Ph: (305) Fax: (305) jklock@rascoklock.com jantorcha@rascoklock.com Attorneys for Respondent, Osceola Farms Co.

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii BACKGROUND... 1 STATEMENT OF THE CASE AND FACTS... 2 SUMMARY OF ARGUMENT... 4 ARGUMENT... 5 I. PETITIONERS IMPROPERLY ARGUE THE MERITS OF THE CASE... 5 II. THERE IS NO CONFLICT DISCRETIONARY JURISDICTION... 6 III. PETITIONERS OMIT THIS COURT S MOST RECENT DECISION ON SECOND-TIER CERTIORARI REVIEW... 9 CONCLUSION...10 CERTIFICATE OF SERVICE...12 CERTIFICATE OF COMPLIANCE...13 i

3 Cases TABLE OF AUTHORITIES Achord v. Osceola Farms Company, 52 So. 3d 699 (Fla. 4 th DCA 2010)... 1 Bowers v. State, 23 So. 3d 767 (Fla. 2d DCA 2009)... 6, 7, 8 Bygrave v. Sugar Cane Growers Cooperative, 898 So. 2d 945 (Fla. 4th DCA 2005)... 2 Custer Medical Center v. United Automobile Insurance Company, Case No SC (Fla. Nov. 4, 2010)... 1, 9, 10 Department of Highway Safety and Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. 2d DCA 2004)... 6, 7, 8 Gordon v. Okeelanta Corp., 784 So. 2d 537 (Fla. 4th DCA 2001)... 2 Kyle v. Kyle, 139 So.2d 885, 887 (Fla. 1962)... 7 State v. Barnum, 921 So. 2d 513, 523 (Fla. 2005)...4, 5 Williams v. Atlantic Sugar Association, Inc., 773 So. 2d 1176 (Fla. 4th DCA 2000)... 2 Statutes Florida Statutes section , 2, 8 Rules Rule 9.120(d) of the Florida Rules of Appellate Procedure... 6 ii

4 BACKGROUND Petitioners are all foreign nationals, non-resident former cane cutters whose matters were dismissed by the County Court for failing to post a non-resident cost bond pursuant to Florida Statutes section The trial court s order of dismissal was affirmed by the Appellate Division of the Fifteenth Judicial Circuit Court. Petitioners then sought second-tier review before the Fourth District Court of Appeal. On September 1, 2010, the Fourth District held that the circuit court appeals panel did not depart from the essential requirements of law, nor did it violate clearly established law. See Achord v. Osceola Farms Company, 52 So. 3d 699 (Fla. 4 th DCA 2010). Such a holding was entirely consistent with wellestablished precedent, including this Court s recent opinion in Custer Medical Center v. United Automobile Insurance Company, Case No SC (Fla. Nov. 4, 2010) ( Custer ). Nonetheless, Petitioners sought, inter alia, rehearing improperly urging that court to expand the scope of second-tier certiorari review to that of a plenary, direct appeal. The Fourth District denied all of those requests on December 29, Petitioners request to invoke this Court s discretionary jurisdiction followed. 1

5 STATEMENT OF THE CASE AND FACTS After more than 20 years of litigation culminating in a dismissal of their federal court action, Petitioners filed 1500 individual claims in the county court for Palm Beach County. 1 In 2007, Osceola served a notice for the Petitioners to post the $100 non-resident bond required by section , Florida Statutes. When Petitioners failed to post the required bond, Osceola moved to dismiss the complaint as to the non-compliant plaintiffs. Petitioners responded that because they were indigent, the bond requirement would unconstitutionally deprive them of free access to the courts and therefore the statute was unconstitutional and any bond requirement had to be waived as a matter of constitutional right. The trial court held that the statute was constitutional, and ordered the non-resident plaintiffs to post the required bond or face dismissal of their respective claims. When they failed to comply, the court dismissed the non-compliant non-resident plaintiffs. The non-residents appealed to the Fifteenth Judicial Circuit Court. 1 Over the last 20 years, individuals who belonged to Plaintiffs original class thrice tried their claims before juries and lost. During the appellate proceedings that followed, these individuals fared no better, given that the Fourth District Court of Appeal affirmed each of the three jury verdicts. See Williams v. Atlantic Sugar Association, Inc., 773 So. 2d 1176 (Fla. 4th DCA 2000); Gordon v. Okeelanta Corp., 784 So. 2d 537 (Fla. 4th DCA 2001); Bygrave v. Sugar Cane Growers Cooperative, 898 So. 2d 945 (Fla. 4th DCA 2005). 2

6 On direct appeal, the plaintiffs argued that the non-resident bond statute was unconstitutional because it violated the Open Courts Clause of the Florida Constitution. The circuit court affirmed the county court dismissal without opinion. Plaintiffs then filed their petition for second-tier certiorari review to the Fourth District Court of Appeal. The Fourth District denied the petition for writ of certiorari, finding that Petitioners had not met the standard for establishing that the circuit court, appellate division, had departed from clearly established law resulting in a gross miscarriage of justice, which is the only basis upon which a district court of appeal may review an appellate judgment of the circuit court reviewing a county court judgment. Now, Petitioners seek to invent discretionary jurisdiction. Realizing that any argument based upon the construction and application of the second-tier certiorari review will meet the identical fate that it did before the Fourth District, Petitioners throw themselves at the feet of the Court seeking to have it invent common law certiorari power which this Court rigorously eschews. Thus, the petition filed here deals only with the merits already rejected by the County Court and the Appellate Division of the Circuit Court. Petitioners doomed request should be rejected, and the Court should dismiss the action, perhaps retaining jurisdiction to award sanctions and costs against Petitioners counsel. 3

7 SUMMARY OF ARGUMENT The Fourth District s September 1, 2010, order is final and not subject to review, as this Court has consistently ruled: A decision of a Florida district court of appeal is final for these purposes because in the absence of conflict with another district court decision or a decision of this Court... or some other Florida constitutional basis, this Court has no jurisdiction to simply and routinely review the district court decisions. State v. Barnum, 921 So. 2d 513, 523 (Fla. 2005). Petitioners brief on jurisdiction has nothing to do with jurisdiction. Instead, Petitioners present the Court with two arguments: the first a rehash of what they served up unsuccessfully to the Fourth District and to the circuit court about the alleged miscarriage of justice, and the second, an attempt to invoke the discretionary jurisdiction of this Court based upon a hypothetical conflict jurisdiction. On the latter point, Petitioners point to two district court of appeal opinions where one of the courts disagreed with another s interpretation and application of existing law. Presently, that is not even the case before this Court. Here, Petitioners claim in some convoluted and hard-to understand formula that a conflict exists because there is NO other case which disagrees with the Fourth District s holding. If that seems a bit bizarre, it is trumped by the proposed certified question: if a district court of appeal may accept certiorari jurisdiction... where it finds that another district court has construed a statute 4

8 incorrectly, it certainly follows that a district court can grant certiorari to review whether a statute is unconstitutional when there has been no ruling from another district. Petitioners Brief on Jurisdiction, at 10 (emphasis added). Petitioners own framing of the issue to this Court, by itself, demonstrates that there is no conflict jurisdiction in this case. Petitioners theory arrives before this Court completely moribund and deserves immediate judicial internment. ARGUMENT I. PETITIONERS IMPROPERLY ARGUE THE MERITS OF THE CASE Petitioners first argument is nothing more than an improper argument on the merits, in which they attempt to sway this Court by arguing that the decision below will result in a miscarriage of justice. However, Petitioners argument should be stricken or at the very minimum denied for the following reasons: It is beyond dispute that this Court is without power to simply assume jurisdiction in a case to correct what [it] perceive[s] as error, even if the issue appears to be important.... Thus, a decision of a district court construing a statute can remain in effect indefinitely. State v. Barnum, 921 So. 2d 513, 523 (Fla. 2005). Further, as stated by this Court, [a] decision of a Florida district court of appeal is final for these purposes because in the absence of conflict with another district court decision or a decision of this Court... or some other Florida 5

9 constitutional basis, this Court has no jurisdiction to simply and routinely review the district court decisions. Id. Furthermore, Rule 9.120(d) of the Florida Rules of Appellate Procedure states that Petitioner s brief should be limited solely to the issue of the supreme court s jurisdiction.... The language and purpose of the rule are rather clear and the Committee Notes resolves any doubt in stating that [t]he jurisdiction brief should be a short, concise statement of the grounds for invoking jurisdiction and the necessary facts. It is not appropriate to argue the merits of the substantive issues involved in the case or discuss any matters not relevant to the threshold jurisdiction issue. See Fla. R. App. P (emphasis added). In sum, Petitioners first argument is nothing more than an argument on the merits as to why they believe the district court erred and thus should denied. II. THERE IS NO CONFLICT DISCRETIONARY JURISDICTION Petitioners argue that the district court s decision indirectly conflicts with Department of Highway Safety and Motor Vehicles v Nader, 4 So. 3d 705 (Fla. 2d DCA 2004) and Bowers v. State, 23 So. 3d 767 (Fla. 2d DCA 2009). According to Petitioners, in both Nader and Bowers, the Second District Court of Appeal accepted certiorari jurisdiction to grant second-tier review where each found that another sister court had construed a statute - upon which a circuit court, in its appellate capacity, had incorrectly relied upon. 6

10 Petitioners logic spins as follows: a district court can grant certiorari to review whether a statute is unconstitutional when there has been no ruling from another district court. 2 There is no question that such language could be inserted in the Florida constitution, and once was, but no longer is, and clearly presents no conflict with Nader or Bowers. This Court has been redundantly strict in ruling that: jurisdiction to review because of an alleged conflict requires a preliminary determination as to whether the court of appeal has announced a decision on a point of law which, if permitted to stand, would be out of harmony with a prior decision of this Court or another Court of Appeal on the same point, thereby generating confusion and 3 instability among the precedents. Further, conflict must be such that if the later decision and the earlier decision were rendered by the same court, the former would have the effect of overruling the latter. Id. Finally, this Court s precedent also teaches that if the two cases are distinguishable in controlling factual elements or if the points of law settled by the two cases are not the same, then no conflict can arise. Id. Not only are Nader and Bower, factually distinguishable, but the points of law settled are not the same. In Nader, the Second District disagreed with the Fourth District s interpretation of a statute. It concluded that a district court is authorized to 2 Petitioners Brief on Jurisdiction, at Kyle v. Kyle, 139 So.2d 885, 887 (Fla. 1962). 7

11 grant certiorari relief and quash a circuit court decision that obeyed the controlling precedent and disobeyed the plain language of the statute. The issue below is completely dissimilar because not the county court, not the circuit court, and not the Fourth District deviated from the established principle of law the plain language of the statute so there is no second-tier certiorari jurisdiction claim at any level. Petitioners ignore the fact that the conflict is caused by their view of the law constituting a deviation from the established principle of law, i.e., the plain reading of section , Florida Statutes. The suggestion is absurd. Further, Nader stands for the proposition that a circuit court does not have to follow the law of another district, if the appellate court in which the circuit court sits disagrees with the opinion rendered by the other district court of appeal opinion. Rather, in such a case, the district court of appeal could certify the question to this Court to resolve the issue. Here, there was no conflict before the Fourth District, and it declined Petitioners invitation to certify anything to this Court. Similarly, in Bowers, the Second District, found that the circuit court applied existing precedent from another district court of appeal, and, nevertheless, granted certiorari relief on the basis that the Fourth District had departed from clearly established law by applying the law incorrectly. Id. at 8

12 771. Again, this was not the issue that was before the Fourth District court below. III. PETITIONERS OMIT THIS COURT S MOST RECENT DECISION ON SECOND-TIER CERTIORARI REVIEW So consumed were they in rearguing the merits that Petitioners omitted any analysis of this Court s most recent decision on second-tier review in Custer Medical Center v. United Automobile Insurance Company. As this Court held in Custer, and as the Fourth District found below, there is no jurisdiction for a district court of appeal to reconsider the judgment of the circuit court under view, solely based upon how fascinating appellants may feel their legal points to be. The Custer Court came down hard on the Third District s opinion making it doctrinally clear that there was no interesting point of law second-tier jurisdiction for the district court of appeal. In so doing, this Court empathically rejected any penumbra basis for second-tier certiorari review, pointing out that as a case travels up the judicial ladder, review should consistently become narrower, not broader. Custer at 9. As much as Petitioners may wish, this Court is not a tribunal which can simply take a case because it is interesting or may be one that touches upon someone s sense of right and wrong. The district court of appeal s opinion has reached the end of its jurisdictional rope. As stated in Custer, [a] district court should exercise its discretion to grant review only when the lower tribunal has 9

13 violated a clearly established principle of law resulting in a miscarriage of justice. Custer at 10 (emphasis added). Accordingly, the Fourth District decision properly followed the Custer book of rules when it held that the circuit court could not have violated the essential requirements of law when that principle of law had never existed. Custer at 5 (emphasis added). CONCLUSION Petitioners have provided this Court with a jurisdictional brief that improperly reargues the merits of the case and fails to provide this Court with a district court of appeal opinion which conflicts with the Fourth District s wellreasoned opinion. This Court s limited jurisdiction does not encompass Petitioners improper and jurisdictionless petition, or for that matter hypothetical conflicts. Moreover, even if discretionary jurisdiction existed, the opinion below presents no reason for this Court to exercise its discretion to grant review. The Fourth District s opinion is entirely consistent with Custer and its latest teachings on Second-Tier Certiorari Jurisdiction. Accordingly, Petitioners request that this Court exercise its discretionary jurisdiction to review the decision below must be denied. 10

14 Respectfully submitted, Joseph P. Klock, Jr., Esq., FBN Juan Carlos Antorcha, Esq., FBN Miguel Morel, Esq., FBN Pending RASCO KLOCK REININGER PEREZ ESQUENAZI VIGIL & NIETO 283 Catalonia Avenue Coral Gables, FL Ph: (305) Fax: (305) Robert C. L. Vaughan, Esq., FBN WARD KIM VAUGHAN & LERNER LLP. Financial Plaza, Suite 2001 Fort Lauderdale, FL Ph: (954) Fax: (954) and William B. Killian, Esq., FBN SQUIRE SANDERS & DEMPSEY, LLP 200 South Biscayne Blvd. Suite 4000 Miami, FL Ph: (305) Fax: (305) wkillian@ssd.com By: Miguel Morel 11

15 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was served to the following via U.S. Mail, postage prepaid on April,: Robert C.L. Vaughan, Esq. Ward Kim Vaughan & Lerner LLP Financial Plaza, Suite 2001 Fort Lauderdale, FL David L. Gorman, Esq. David L. Gorman, P.A. 618 U.S. Highway One, Suite 303 North Palm Beach, Florida Gregory S. Schell, Esq. Migrant Farmworker Justice Report 508 Lucerne Avenue Lake Worth, Florida James K. Green, Esq. 222 Lakeview Avenue Suite 1650 West Palm Beach, Florida William Killian, Esq., Squire Sanders & Dempsey LLP 200 South Biscayne Blvd. Suite 4000 Miami, FL By: Miguel Morel 12

16 CERTIFICATE OF COMPLIANCE I hereby certify that the text of Response to Petitioners Brief complies with the font requirements of Florida Rules of Appellate Procedure, Rule 9.210(a). DATED: April, 2011 By: Miguel Morel , v. 2 13