IN THE SUPREME COURT OF FLORIDA. v. CASE No.: SC On Review from the District Court of Appeal, First District State of Florida

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1 wally Fikd 02/20/2013 (M:05:0'l Phi ET Fillit 2/2il/2ill3. Thumns D. Hall Clerk. Supreme Court IN THE SUPREME COURT OF FLORIDA PALMETTO BLUFF PROPERTIES, LLC, a Florida limited liability company, EDGAR C. MARSHALL, IV, an ind2vidual, LANIES J. EDWARDS, an individual, Petitioners, v. CASE No.: SC TRUSTMARK NATIONAL BANK, Respondent, PETITIONER'S JURISDICTIONAL BRIEF On Review from the District Court of Appeal, First District State of Florida..--~~ f ROBER O. BFA$LEY Flg.:'Bar No L tvak Beasley & Wilson, LLP $26 East Government St. Pensacola, FL Telephone:(850) B Fax: (850) rob@lawpensacola. com Attorney for Petitioners

2 TABLE OF CONTENTS Table of Citations... 2 Statement of the Case and Facts... 4 Summary of the Argument... 9 Jurisdictional Statement Argument Conclusion Certificate of Service Certificate of Compliance

3 TABLE OF CITATIONS Cases Page No. Bankers Mutual Capital Corp. v. U.S. Fidelity & Guar.Co., 784 So.2d 485 (Fla.. 4*" DCA 2001) Batur v. Signature Properties of Northwest Florida, Inc., 903 So.2d 985 (Fla. 1 * DCA 2005)... 9,11 Dept. of Rev. v. Wardlaw, 25 So.3d 80 (Fla. 4th DCA 2009) General Capital Corp., 212 So.2d 369 (1968) Pruitt v. Brock, 437 So.2d 768 (Fla. 1st DCA 1983) Southland Construction, Inc. v. Richeson Corp., 642 So.2d 5 (Fla. 5th DCA 1994) Rules Rule 9.030, Fla. R. App. P Rule 9.110, Fla. R. App. P Constitutional Provisions Art.V, 3(b) (3)Fla. Const

4 STATEMENT OF THE CASE AND FACTS This action began as two separate lawsuits, arising out of the same transaction and same set of facts, both matters filed in Walton County Circuit Court, case numbers 2009-CA ("2009 case") and 2010-CA ("2010 case"). In the 2009 case, Palmetto Bluff Properties, LLC ("Palmetto"), Lanier J. Edwards ("Edwards") and Edgar C. Marshall, IV ("Marshall"), (collectively "Petitioríers"), filed suit against multiple defendants, including Trustmark National Bank ("Trustmark") and John Gillis ("Gillis"), alleging fraud in the inducement and breach of fiduciary duty arising out of Palmetto's purchase of a tract of real property located in Walton County, Florida. The 2010 case was filed by Trustmark against Palmetto, Edwards and Marshall, seeking a judgment of foreclosure and monetary damages based on the breach of certain mortgages, promissory notes and guaranties related to the same piece of property at issue in the 2009 case. In their Answer, Petitioners asserted five affirmative defenses, setoff, fraud in the inducement, breach of fiduciary duty, recoupment, and estoppel. The fraud in the inducement and breach of fiduciary duty defenses mirrored Petitioners' affirmative claims against Trustmark in the 2009 case. 4

5 Upon the motion of Trustmark, the two lower court cases were consolidated on June 21, Pursuant to a lower court order, all future filings were to be filed under case number 2009-CA Thereafter, Trustmark and Gillis filed a motion for summary judgment in the consolidated case in January, On July 12, 2012, the lower court granted summary judgment in favor of Trustmark as to the fraud in the inducement and breach of fiduciary duty claims alleged in the 2009 case and asserted as affirmative defenses in the 2010 case, and in favor of Gillis as to Petitioners' claims of fraud in the inducement and breach of fiduciary duty in the 2009 case. In effect, the lower court's order was final as to Petitioners' claims of fraud and breach of fiduciary against both Trustmark and Gillis. However, because the lower court order also eliminated some but not all of Petitioners' affirmative defenses on those same 1ssues in the 2010 case, the ruling is non-final as to Trustmark. As the claims in the 2009 case are also the affirmative defenses in the 2010 case, they are inextricably intertwined with the remaining case against the Petitioners. The lower court's order also addressed the other affirmative defenses asserted by the Petitioners in the 2010 case. 5

6 Petitioners filed a Notice of Appeal in the First District Court of Appeal on July 19, 2012, Case No. 1D The Notice of Appeal was of the entire summary judgment order. The Notice referenced both lower court case numbers in the caption, but referenced case number 2009-CA, in the body, as it was the only outstanding case after consolidation. However, in an abundance of caution, on July 31, 2012, Petitioners filed a second Notice of Appeal, which also referenced both lower court case numbers in the caption, but referenced case number 2010-CA in the body, First DCA Case No. 1D On August 7, 2012, Trustmark filed a Motion to Dismiss appellate case number 1D , on the grounds that that the lower court's summary judgment order as to the 2010 case was not final. In effect, the Motion to Dismiss was with regard to both cases because it was filed in Case No. 1D , which related to the 2009 case, consolidated or not, and stated that it was with regard to the 2010 case. No Motion to Dismiss was filed in appellate case number 1D at that time. On September 12, 2012, the District Court issued a Show Cause Order in Appellate Case Number 1D , asking Petitioners to show why the Motion to Dismiss should not be granted. The Show Cause Order placed both lower 6

7 court case numbers in the caption and requested that Appellants attach copies of all operative pleadings filed in both lower tribunal cases, not just the 2009 case. On October 2, 2012, the district court denied Trustmark's Motion to Dismiss, stating that there was finality with regard to Petitioners' claims against Mr. Gillis. The district court' s order also included both lower court case numbers in its caption. In its denial of the Motion to Dismiss, the district court clearly recognized that there were multiple issues that had been appealed with regard to both lower court cases and that those issues were part of one consolidated case, either as an affirmative claim or an affirmative defense. The best summation of the district court's order is the language used in the order itself: "the Order on Plaintiff/Counter-Defendants, Trustmark National Bank and John Gillis' Amended Motion for Summary judgment is a partial final judgment that disposes of the entire case as to a party, John Gillis. Florida Rule of Appellate Procedure (k)." To make that statement, the district court had to and did consider and rule on all the issues regarding the Order issued by the trial court, not just the issues relating to the 2009 case. Thus, the district court had already considered and rejected the claims and 7

8 statements raised by Trustmark in its second Motion to Dismiss. Trustmark's second Motion to Dismiss, filed in both appellate cases on November 6, 2012, argues that the first Motion to Dismiss was directed to lower case number CA However, after consolidation in the lower court that case no longer existed. There is no order from either the trial court or the district court stating that the two lower court cases have been severed and may proceed independently from one another. Both the trial court and the district court have consistently treated the two lower court cases consolidated. On November 1, 2012, Petitioners filed a Motion to Consolidate Appellate Court case number 1D with case number 1D On November 20, 2012, the district court issued an Order denying the Motion to Consolidate pending the determination of its jurisdiction to decide both appeals. All of this is academic, however, because the district court was specific in both its Show Cause Order and its Order per the reasons explained above that it was making a ruling with regard to both lower tribunal cases that were on appeal. On October 10, 2012, after Petitioners filed their Notice of Appeal, Trustmark filed a Renewed Motion for 8

9 Summary Judgment in the lower court. On January ll, 2013, the District Court ordered the following: On October 2, 2012, the Court issued an order determining that the Order on Plaintiff/Counter-Defendants, Trustmark National Bank's and John Gillis's Amended Motion for Summary Judgment is a partial final judgment that disposes of the entire case as to John Gillis. Having since considered appellee' s Renewed Motion to Dismiss, and appellants' response, that determination remains undisturbed. Appellee's Renewed Motion to Dismiss and request that the Court relinquish jurisdiction to the lower tribunal are denied. Thi 541 Court has jurisdiction to review that portion of the order resolving the case as to Mr. Gillis only. To the extent that other matters remain pending between appellants and appellee, Trustmark, the lower tribunal retains jurisdiction and may proceed. SUMMARY The district court's January 11, 2013,.Order allows the lower tribunal to retain jurisdiction and proceed with matters between Petitioners and Trustmark, while a related matter between Petitioners and Gillis is on appeal. This decision is in conflict and cannot be reconciled with other Florida decisions that provide that once an appeal is timely filed, the lower court loses jurisdiction over any related matter. See, for example, Batùr v. Signature Propeties of Northwest Florida, Inc., 903 So.2d 985 (Fla. 9

10 1 t DCA 2005) and the other cases cited below in Petitioners' Argument. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the Supreme Court or another district court of appeal on the same point of law. Art.V, 3(b) (3)Fla. Const.; Rule (a) (2) (A) (iv), Fla. R. App. P. ARGUMENT I. Conflict in the Circuits The January 11, 2013 decision entered by the First DCA expressly and directly conflicts with decisions of other district courts of appeal on the same question of law. As discussed in the lower court brief, Rule (k), Fla. R. App. P. states that "[i]f a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition." Therefore, if Appellants had not timely appealed the final summary judgment in favor of Gillis and against Appellants, they would have lost any right to appeal that judgment. And if a party appeals a final judgment as to one party, remainder of the case is stayed according to several 10

11 district courts of appeal. See, Southland Construction, Inc. v. Richeson Corp., 642 So.2d 5 (Fla. 5th DCA 1994).; Batur v. Signature Properties of Northwest Florida, Inc., 903 So.2d 985 (Fla. 1 t DCA 2005) (finding that it had jurisdiction over two parties because of this rule and finding that the case against third party was stayed pending the appeal); see also, Bankers Mutual Capital Corp. v. U.S. Fidelity & Guaranty Co., 784 So.2d 485, 489 (Fla. 4th DCA 2001). Thus, once the Petitioners timely filed their two appeals in the district court, the lower court lost jurisdiction over any related matter. "When an appeal is perfected, the cause becomes one for the cognizance of the appellate court, and for that court alone." Dept. of Rev. v. Wardlaw, 25 So.3d 80, 82 (Fla. 4th DCA 2009) (The authority of the lower court is terminated, and it cannot proceed in the cause, at least as to the subject-matter of the appeal, until the appeal is heard and determined). II. The District Court ruled Contrary To The Law: The Trial Court Had No Jurisdiction To Hear Trustmark' s Renewed Motion For Summary Judgment. In conflict with both its own and other district courts, the First DCA ruled that the case at the trial court level could go forward without the completion of the appeal. Because Gillis is an employee of Trustmark Bank and his actions were done in his capacity as an employee, 11

12 any decision by the Appellate Court regarding Gillis will directly affect Trustmark Bank's case against the Petitioners. So, according to First DCA jurisprudence and other Florida district courts, the trial court does not have jurisdiction to hear issues presented by Trustmark's case against Petitioners in the 2010 case while the appeal is pending. "When a notice of appeal has been timely filed jurisdiction of the cause then vests absolutely in the appellate Court until such appeal has been finally disposed of by affirmance, reversal, or dismissal." General Capital Corp., 212 So.2d 369, 382 (1968); see also Fla. R. App. P ; see also Pruitt v. Brock, 437 So.2d 768 (Fla. 1st DCA 1983). Thus, the district court's Order is contrary to the decisions of the other district courts because it allows proceedings to continue in the trial court that can be directly affected by the matters still before the appellate court. CONCLUSION The First DCA made the right decision the first time when it stated that the Order from the trial court was final as to Gillis, but their second Order is in conflict with the clear decisions of the First DCA and the other 12

13 circuits. This Court has discretionary jurisdiction to review the decision below, and the Court should exercise that jurisdiction to consider the merits of Petitioner's argument. WHEREFORE, the Appellants request the Court to accept discretionary jurisdiction of this matter, and for such further relief as the Court deems appropriate. R #ERT-O BEASLEY Fl'a. Bar No Litvak Beasley & Wilson, LLP 226 East Government St. Pensacola, FL Telephone: (850) Fax: (850) rob@lawpensacola.com Attorney for Petitioners CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of this brief has been furnished by on February f/, 2013 to: H. Matthew Fuqua, Esq. P.O. Box 1508 Marianna, Florida mfuqua@embarqmail.com suthomp@embarqmail.com William H. Green, Esq. P.O. Box 609 Defuniak Springs, Florida greenandgreenhsd@earthlink.net 13

14 Michael P. Dickey P.O. Box 2467 Panama City, Florida, mdicke com chodge com e service@barronredding. com CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of Rule 9.210, Fla. R. P ert O. asley 14