IN THli SUPRiiMli COURT OF FLORIDA. CASH NO.: SCl ON REVIEW FROMTIIF DISTR[CTCOURTOI APPliAI. FIRST DISTRICL STATE OF FLORIDA

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1 E]cctronically Filed 03/] I/ :0]:34 PM ET RECE]VED.3/11/2Sl3 17:03:32, Thomas D. Hall, Clerk, Supreme Court IN THli SUPRiiMli COURT OF FLORIDA CASH NO.: SCl3-262 PÁl.MlTI~l O Bl.LFF PROPERTll-S. 1.LC. a Florida limited liabilig company. EDGAR C. MARSllAll. iv. an individual. I AN[l:R.l. lidwards, an individual. Pelitioners. TRUSTMARK NATIONAl. BANK. Respondent. ON REVIEW FROMTIIF DISTR[CTCOURTOI APPliAI. FIRST DISTRICL STATE OF FLORIDA ANSWER BRl EF OF RESPON DENT BARRON & RE )DING, P.A. MICHAI L P, DICKEY Florida Bur No,: McKenzie A venue Panama Citv. 1 I I mdickev&barronreddine.com Telephone: (850) 785:/454 Facsimile: (850) Attorneys for RespondenL

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... i STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF ARGUMENT...2 ARGUMENT...2 CONCLUSION...6 CERTIFICATE OF SERVICE...7 CERTIFICATE OF COMPLIANCE...8

3 TABLE OF AUTHORITIES Cases Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla. 2006)..._..._...3 Bakur v. Signature Prop. ofnorthwest Florida, Inc., 903 So.2d 985 (Fla. 1st DCA 2005)...5 Bankers Mutual Capital Corp. v. U S. Fid. & Guar. Co., 784 So.2d 45 (Fla. 4th DCA 2001)...5 Crossley v. State, 596 So.2d 447 (Fla. 1992) Dept. ofrev. Wardlaw, 25 So.3d 80 (Fla. 4* DCA 2009)...5 Gibson v. Maloney, 231 So.2d 823 (Fla. 1970)...3 Southland Const.. lnc. v. Richeson Corp., 642 So.2d 5 (Fla. 5th DCA 1994)... 4, 5 Other Authorities Art. V, 3(b)(3), Florida Constitution...1 Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv)...,...1

4 STATEMENT OF THE CASE AND FACTS This case arises out of two separate lawsuits. Petitioners were borrowers and guarantors who defaulted on their debt to Respondent Trustmark National Bank ("Trustmark"). Petitioners proactively sued Trustmark, one of its loan officers, Gillis, and the counterparties in the real estate transaction financed by the Trustmark loan, Pilcher and Andrews, alleging breach of fiduciary duty and fraud in the inducement. Trustmark then sued Petitioners for their default on the note and guaranties, and for foreclosure of a parcel of real property in Walton County, Florida. The cases were consolidated under Case Number in the circuit court. On July 12, 2012, the trial court granted partial summary judgment in the case, completely disposing of Petitioners' claims against Gillis, but denying summary judgment on Trustmark's claims against Petitioners because it declined to rule on two affirmative defenses. Petitioners filed two notices of appeal, arguing that the First DCA had jurisdiction over both the Gillis and Trustmark claims. Petitioners then convinced the trial court that it lacked jurisdiction to proceed on the remaining claims brought by Trustmark, thereby effectively obtaining a stay without the expense of a supersedeas bond. After Trustmark moved for a second time to dismiss the appeal except to the extent it addressed the Gillis claims, the 1

5 First DCA correctly concluded that it had jurisdiction over the Gillis claims, but not those of Trustmark. This petition followed. SUMMARY OF ARGUMENT This Court only has jurisdiction under Article V of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv) if the district court's order expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. The order in question presents no such conflict, and in fact is entirely consistent with every other case that has ruled on this point of law, and so this Court lacks jurisdiction to review the order. ARGUMENT This Court lacks jurisdiction over the claims between Petitioners and Respondent Trustmark, because there is no express and direct conflict between the First DCA's order and a decision of another court of appeal or the Florida Supreme Court. Petitioners' attempt to invoke the jurisdiction of this Court rests upon Art. V, 3(b)(3) of the Florida Constitution, which grants this Court jurisdiction to review any decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. This same standard is embodied in Florida Rule of Appellate 2

6 Procedure 9.030(a)(2)(A)(iv). Because the order is not in express and direct conflict with any ruling of any other court, and in fact is entirely consistent with Florida law, this Court should deny the petition. In order for a decision of a court of appeal to trigger conflict jurisdiction, its holding must be irreconcilable with that of another court. Aravena v. Miami-Dade County, 928 So.2d 1163, 1166 (Fla. 2006). The holding is irreconcilable if the courts "reached the opposite result on controlling facts which, if not virtually identical, more strongly dictated" the result reached by the alleged conflict case. Crossley v. Stare, 596 So.2d 447, 449 (Fla. 1992). Although this analysis may require a review of the lower court's reasoning, "it is conflict of decisions, not conflict of opinions or reasons that supplies jurisdiction for review." Gibson v. Maloney, 231 So.2d 823, 824 (Fla. 1970). Petitioners' argument says nothing about the foregoing standard, instead focusing exclusively on the substantive question of whether the First DCA correctly determined that, while it maintained jurisdiction over Petitioners' appeal of the summary judgment granted in favor of Gillis, the trial court maintained jurisdiction over the claims and defenses of the remaining parties. The First DCA's decision in this regard is entirely consistent with Florida law, and so there simply is no conflict. 3

7 The question answered by the First District Court of Appeal, and the one upon which it ruled in the order at issue, was whether "to the extent that other matters remain pending between appellants and appellee, Trustmark, the lower tribunal retains jurisdiction and may proceed." Petitioner's Appendix at 1. Manifestly, the District Court of Appeal had jurisdiction over Petitioners' claims against Gillis, because the summary judgment order was final with regard to those claims. The issue posed by the Petitioners is whether the line of cases cited in Section I of Petitioners' Jurisdictional Brief stand for the proposition, as stated by Petitioners, that "if a party appeals a final judgment as to one party, the remainder of the case was stayed according the several district courts of appeal." None of the cases stand for this proposition, however, and so there is no irreconcilable conflict that would confer jurisdiction upon this Court. The first case cited by Petitioners, Southland Const., Inc. v. Richeson Corp., 642 So.2d 5 (Fla. 5th DCA 1994), addressed the appealability of an order disposing of claims against a corporation and one of its principals. The Richeson court concluded that it had jurisdiction over the counts against the individual defendant because the order finally disposed of the entire case as to that party, but concluded that it did not have jurisdiction over the counts against the corporate defendant because there remained viable claims against it at the trial court level. 4

8 Richeson, 642 So.2d at 6. Thus, the Richeson case stands for precisely the opposite conclusion from that advanced by Petitioners here. Likewise, Bakur v. Signature Prop. of Northwest Florida, Inc., 903 So.2d 985 (Fla. 1st DCA 2005), dealt with claims against various entities and an individual. The First DCA concluded it only had jurisdiction to the extent the order fmally dismissed all claims against the institutional defendant, while the claims against the individual remained pending in the trial court. Bakur, 903 So.2d at 988. The Bankers Mutual Capital Corp. v. U S. Fid. & Guar. Co, case, cited by Petitioners, appears to have reached the same conclusion based on the authority of Richeson, supra. See Bankers Mutual Capital Corp. v. U S. Fid. & Guar. Co., 784 So.2d 45, 47 (Fla. 4th DCA 2001). Petitioners then go on in their brief to argue that the filing of the notices of appeal divested the trial court of jurisdiction "over any related matter." The case they cite for this proposition, Dept. of Rev. Wardlaw, 25 So.3d 80 (Fla. 4* DCA 2009), expressly refutes the legal proposition set forth by Petitioners, stating, "the test to determine loss of jurisdiction is not whether the trial court is proceeding in matters related to the final judgment, but rather, the proper test is whether the trial court is proceeding in a matter which affects the subject matter on appeal." Wardlaw, 25 So.3d at 82.

9 CONCLUSION In sum, the First DCA's order regarding its continuing jurisdiction over the claims against Gillis, but lack of jurisdiction as to the remaining claims, is entirely consistent with Florida jurisprudence on this point. Thus, Petitioners cannot demonstrate an irreconcilable, express and direct conflict, and the petition should be denied for lack of jurisdiction. 6

10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been served by regular and U.S. Mail upon Robert O. Beasley, Esq., rob@lawpensacola.com; H. Matthew Fuqua, Esq., mfugua@embargmail.com and suthomp@embargmail.com; and William H. Green, Esq., greenandgreenhsd@earthlink.net, on this 1 Ith day of March, BARROlv & RHDDING, P.A. Michael P. Dickey Fla. Bar # Jeffrey S. Carter Fla. Bar #89633 Primary: mdickey@barronredding.com jcarter@barronredding.com P. O. Box 2467 Panama City, Florida (850) Secondary: chodges@barronredding.com eservice@barronredding.com ATTORNEYS RESPONDENT TRUSTMÃRK NATIONAL BANK 7

11 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY, on this 11th day of March, 2013, that this computergenerated brief complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure inasmuch as it was generated using Times New Roman 14-point font. BARRON RFDP NQ, P.A. k y Fla. Bar # P. O. Box 2467 Panama City, Florida (850) ATTORNEYS RESPONDENT TRUSTMARK NATIONAL BANK 8