IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE N O SC District Court N O 03D KLAUS VERMEULEN, Petitioner, v. WORLDWIDE HOLIDAYS, INC., Respondent. On Petition for Discretionary Review from the District Court of Appeal of Florida Third District AMENDED REPLY TO PETITIONER S BRIEF ON JURISDICTION Charles M-P George, Esq. Misty M.C. Taylor, Esq. Attorneys for Respondent 4800 LeJeune Road Coral Gables, Florida

2 TABLE OF CONTENTS PAGE TABLE OF CITATIONS...iii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 2 I. NO EXPRESS CONFLICT A. This is a not a rear-end collision case; it s a lack of evidence case... 2 B. Vermeulen s cases are distinguishable... 3 C. No express conflict... 3 D. The rule applied does not conflict with another... 4 E. The facts are distinguishable... 4 F. A claim alone is not enough... 5 CONCLUSION... 5 CERTIFICATE OF COMPLIANCE... 6 CERTIFICATE OF SERVICE... 6 INDEX TO THE APPENDIX... 7 ii

3 TABLE OF CITATIONS CASES PAGE Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960).... 3,4 Vermeulen v. Worldwide Holidays, Inc., 922 So. 2d 271 (Fla. 3d DCA 2006)... passim iii

4 PRELIMINARY STATEMENT Respondent, Worldwide Holidays, Inc., will be referred to as Worldwide or Respondent. Petitioner, Klass Vermeulen, will be referred as Vermeulen, Petitioner or Plaintiff. The District Court s opinion is located in the attached appendix. Citations to that opinion are designated: Slip at. All emphasis is ours except where noted. STATEMENT OF THE CASE AND FACTS Mr. Vermeulen was riding in a van when it was involved in an accident. Vermeulen v. Worldwide Holidays, Inc., 922 So. 2d 271 (Fla. 3d DCA 2006).... Vermeulen claims that the [van] driver rear-ended another vehicle. Vermeulen did not see the car which collided with the van.... Slip at 3 (emphasis added). Slip at 5. The record before us is insufficient to show that the van was operated negligently. There is no evidence regarding how the accident occurred, the vehicle involved... or any information regarding the other car involved in the accident. On these facts the District Court affirmed, holding that summary judgment -1-

5 was proper because there was no evidence supporting Mr. Vermeulen s claim that the van he was riding in had rear-ended the car in front of it. Slip at 3, 5. SUMMARY OF THE ARGUMENT The District Court found that there was no evidence supporting Petitioner s claim that the van he was riding in was involved in a rear-end collision. Slip at 3,5. Despite this express finding, Petitioner again claims that this is a rear-end collision case and that the District Court s opinion conflicts with rear-end collision cases. Contrary to Petitioner s claim, this is a lack of evidence case, not a rearend collision case. Since this is a lack of evidence case, and not a rear-end collision case, the result reached in this case does not conflict with the rear-end collision cases cited by Petitioner. Since this is a lack of evidence case, and not a rear-end collision case, there is no conflict jurisdiction in this Court. ARGUMENT I. NO EXPRESS CONFLICT. A. This is a not a rear-end collision case; it s a lack of evidence case. This case does not conflict with the rear-end collision cases cited by Vermeulen because this is not a rear-end collision case; it s a lack of evidence case. -2-

6 In its most simplistic form the issue on appeal was whether summary judgment was properly entered against Vermeulen where there was no evidence supporting his claim that the van he was riding in had rear-ended the car it was following. In affirming, the District Court held that summary judgment was proper because there was no evidence supporting the claim that the van Vermeulen was riding in had rear-ended the car it was following. B. Vermeulen s case law is distinguishable. Vermeulen s cases are distinguishable. In each of the cases cited in support of conflict jurisdiction there was evidence showing that a following car had rearended a leading car. In each of those cases, the evidentiary presumption germane to rear-end collision cases applied because there had actually been a rear-end collision. Here there is no evidence supporting Vermeulen s claim that this is a rearend collision case. Slip at 3,5. Consequently, rear-end collision case law does not control. C. No express conflict. In order for Vermeulen to show conflict jurisdiction he must show that the Third District s opinion announces a rule of law that is different from or conflicts with a rule previously announced in other cases. Nielsen v. City of Sarasota,

7 So. 2d 731, 734 (Fla. 1960). Alternatively, he must show that the Third District s application of the controlling rule of law produced a result different from that reached in other factually similar cases. Nielsen, 117 So. 2d at 734. In making this showing, Vermeulen is limited to the facts as found by the District Court. Nielsen, 117 So. 2d at If the District Court s opinion does not, on its face, conflict with others, there is no conflict. D. The rule applied does not conflict with another. The rule applied in this case is this: A lawsuit can not be based on speculation or surmise and where a plaintiff facing summary judgment fails to present any evidence whatsoever supporting her/his view of how the accident occurred, summary judgment is proper. This rule is much, much different from the one controlling read-end collision cases. Since the rule of law announced in this case does not conflict with that controlling read-end collision cases, conflict jurisdiction does not lie in this court. The Petition for review must be dismissed. E. The facts are distinguishable. Conflict jurisdiction is not proper because the facts of this case are completely different from those in the cases cited by Vermeulen. In the cases cited by Vermeulen there was evidence that a rear-end collision occurred. Here, there is no evidence showing how the accident occurred, much less that it was a rear-end -4-

8 collision case. Slip at 3,5. This case does not conflict with those cited by Vermeulen because the facts are completely different. Since there is no conflict, conflict jurisdiction does not lie in this court. The Petition for review must be dismissed. F. A claim alone is not enough. Vermeulen persists in claiming that this is a rear-end collision case. He does this despite the fact that both the trial and appellate court heard his claim, reviewed the evidence and found that there was no evidence supporting that claim. Seeking a third bite of the apple, Vermeulen once again claims that this is a rear-ended collision case. Vermeulen does this despite there being nothing in the Third District s ten-page opinion supporting this claim. Contrary to Vermeulen s position, this is not a rear-end collision case and all the argument in the world will not make it one. The Third District got it right: A claim alone is not enough to defeat summary judgment, there must be at least some record evidence supporting that claim. CONCLUSION The District Court s opinion does not expressly conflict with the decisions cited by Petitioner. This Court does not have conflict jurisdiction. The Petition for -5-

9 review must be dismissed. CERTIFICATE OF SERVICE WE CERTIFY that a true and correct copy of this Amended Reply to Petitioner s Brief on Jurisdiction was furnished to: Christopher J. Lynch, Esquire, Hunter, Williams & Lynch, P.A., 66 West Flagler Street, 8 th Floor, Concord Building, Miami, Florida and Marvin Weinstein, Esquire, 777 Arthur Godfrey Road, Second Floor, Miami Beach, Florida 33140, by U.S. Mail on May 31, By: Charles M-P George Florida Bar No Misty M.C. Taylor, Esq. Attorneys for Respondent 4800 LeJeune Road Coral Gables, Florida CERTIFICATE OF COMPLIANCE WE CERTIFY that the font utilized in this brief is New Times Roman and the size is 14 point. by: -6-

10 Charles M-P George, Esq. Florida Bar N o INDEX TO THE APPENDIX Opinion on review