IN THE SUPREME COURT STATE OF FLORIDA

Transcription

1 IN THE SUPREME COURT STATE OF FLORIDA THE ESTATE OF MELISSA LEE NICHOLS, by and through TERRENA D. NICHOLS, Personal Representative, CASE NO.: SC DCA CASE NO.: 2D Plaintiff/Petitioner, L.T. CASE NO.: CI 19 v. M N MEDINVEST CO., L.P.; JBGE/MEDINVEST INC.; JOHN B. GOODMAN ENTERPRISES, INC.; THE GOODMAN GROUP, INC.; SAGE COMPANY; SIDNEY A. GOODMAN; JOHN B. GOODMAN; REBECCA BLAISE; SHARON STELBASKY; PATRICK DAUCHOT; BARBARA GALLAGHER; and FRANK SAFY; (as to Sabal Palms Health Care Center). Defendants/Respondents. RESPONDENTS RESPONSE TO PETITIONER S AMENDED JURISDICTIONAL BRIEF COLE, SCOTT & KISSANE, P.A. CHRISTOPHER B. HOPKINS 1645 Palm Beach Lakes Blvd., 2 nd Floor West Palm Beach, Florida hopkins@csklegal.com Telephone: (561) Facsimile: (561) Florida Bar No.: Attorneys for Respondents

2 TABLE OF CONTENTS TABLE OF CITATIONS... iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 2 There are no grounds for conflict jurisdiction pursuant to Article V, section 3(b)(3) of the Florida Constitution CONCLUSION... 7 CERTIFICATE OF SERVICE... 8 CERTIFICATE OF COMPLIANCE ii-

3 TABLE OF CITATIONS Cases Page(s) Allstate Insurance Co. v. Langford 655 So.2d 91 (Fla. 1995)... 4 Blankfeld v. Richmond Healthcare, Inc. 902 So.2d 296 (Fla. 4 th DCA 2005)... 6 Department of Children and Family Services v. G.M. and J.J. 816 So.2d 830 (Fla. 5 th DCA 2002)... 5, 6 Est. of Etting v. Regents Park at Aventura, Inc. 891 So.2d 558 (Fla. 2d DCA 2005)... 7 Fassy v. Crowly 884 So.2d 359 (Fla. 2d DCA 2004)... 4 Consolidated Fund I, Ltd. v. Fenelus 853 So.2d 500 (Fla. 4 th DCA 2003)... 7 Florida Star v. B.J.F. 503 So.2d 286 (Fla. 1988)... 2, 3 Global Travel Marketing, Inc. v. Shea 908 So.2d 392 (Fla. 2005)... passi m Integrated Health Care Services, Inc. v. Redway 783 So.2d 1108 (Fla. 2d DCA 2001)... 4 Integrated Health Care Services, Inc. v. Lang-Redway 840 So.2d 974 (Fla. 2003)... 4, 5 MN Medinvest Co. v. Estate of Nichols 908 So.2d 1178 (Fla. 2d 2005)... -iii-

4 m passi Constitution and Statutes Page(s) Article V, section 3(b)(3) of the Florida Constitution... passim Florida Statutes, Chapter , 5, 8 Florida Statute (1)(a)... 3 Florida Statute Florida Statute (1)... 3 Florida Statute (1)(b)... 5 Florida Statutes, Chapter Florida Statutes Florida Statutes, Chapter , 5 -iv-

5 STATEMENT OF THE CASE AND FACTS The Second District Court of Appeal properly ordered this matter to arbitration pursuant to a valid arbitration clause in a written agreement between the parties. MN Medinvest Co. v. Estate of Nichols, 908 So.2d 1178 (Fla. 2d 2005). The underlying lawsuit is premised upon allegations of negligence, wrongful death, breach of fiduciary duty, and violations of Florida Statutes, Chapter 400. This case arises from the admission of a minor to the Respondents skilled nursing facility where she was receiving care from health care providers. The Petitioner is the minor s mother, natural guardian, and the Personal Representative of the minor s Estate. The Petitioner properly signed the admission agreement which included a valid arbitration clause. Contrary to Petitioner s Statement of Case and Fact, the subject arbitration clause is a plain vanilla arbitration forum selection provision which conforms and cites to the Florida Arbitration Code. See Petitioner s Brief at p. 2. Nothing in the admission agreement nor the arbitration clause denies any statutory rights to attorney s fees or punitive damages. -1-

6 SUMMARY OF THE ARGUMENT The Petitioner has failed to identify a salient issue (or issues) deserving of resolution by the Supreme Court of Florida. The Petitioner invoked only Article V, section 3(b)(3) of the Florida Constitution (conflict jurisdiction) but the Petitioner has failed to squarely identify what express and direct decisional conflict might exist. Instead, the Petitioner has impermissibly claimed purported conflicts with public policy, statutes, and two decisions from the same District, which are not grounds for jurisdiction under Article V, section 3(b)(3). See Petitioner s Brief at p ARGUMENT It is difficult to ascertain from the Petitioner s Brief any decisional conflict much less one which is express and direct created by MN Medinvest Co. v. Nichols, 908 So.2d 1178 (Fla. 2d 2005). I. Nichols Does Not Conflict With Global Travel Marketing, Inc. v. Shea Nichols is a two-page opinion for which the legal basis is Global Travel Marketing, Inc. v. Shea, 908 So.2d 392 (Fla. 2005). No other case law or statute is relied upon in Nichols. As Shea remains valid law, there is no grounds for conflict jurisdiction. See Florida Star v. B.J.F., 503 So.2d 286, 288 fn 3 (Fla. 1988). Even if, in the light most favorable to the Petitioner, this Court perceived some statement -2-

7 or citation in the opinion below that could hypothetically create conflict, the Court should still refuse to exercise it discretion since the Nichols opinion establishes no point of law contrary to a decision of this Court or another district court. Id. at In the Amended Jurisdictional Brief, the Petitioner conceded that the Shea decision only addressed a very narrow question and that the facts underlying Shea stand in contradistinction to this instant matter. See Petitioner s Brief at p. 4. By Petitioner s own admission, Shea does not provide jurisdictional grounds under Article V, section 3(b)(3). II. Alleged Conflicts With Public Policy or Statutes Are Not Grounds for Conflict Jurisdiction On pages 3-5 of the Amended Jurisdictional Brief, the Petitioner claims that Nichols is contrary to Florida Statutes s (1)(a), s , and s (1). 1 See Petitioner s Brief at p Such is not a basis for jurisdiction under Article V, section 3(b)(3). Indeed, none of these statutes are interpreted or relied upon in the Nichols opinion. 1 Page 3 of Petitioner s Brief reads, in part, Petitioner respectfully disagrees and asserts that discretionary review is necessary because the Nichols Panel s opinion is contrary to several applicable statutes, it is in conflict with applicable decisional law, it is contrary to the public policy of this State as codified in Chapter and is contrary to the very strong public policy of this State of ensuring the protection of minors

8 On pages 8-9 of the Amended Jurisdictional Brief, the Petitioner further claims that Nichols misapprehended and misapplied chapter 765" and misapprehended the facts and misapplied the law applicable to the doctrine of necessities. See Petitioner s Brief at p Again, Nichols makes no reference to or interpretation of Florida Statutes, Chapter 765 and the Petitioner points to no decision in conflict regarding the doctrine of necessities. Such allegations are not grounds for jurisdiction under Article V, section 3(b)(3). III. Nichols Does Not Conflict With Lang-Redway On pages 6-7 of the Amended Jurisdiction Brief, the Petitioner avers that the underlying opinion is contrary to Integrated Health Care Services, Inc. v. Redway, 783 So.2d 1108 (Fla. 2d DCA 2001) and Fassy v. Crowly, 884 So.2d 359, 372 (Fla. 2d DCA 2004). See Petitioner s Brief at p.6-7. Curiously, the Petitioner acknowledges that this is an intradistrict conflict. Id. at 6. This Court, however, does not have jurisdiction under Article V, section 3(b)(3) to resolve intradistrict conflicts. See Allstate Insurance v. Langford, 655 So.2d 91(Fla. 1995). Respondents acknowledge that this Court issued a decision in Integrated Health Care Services, Inc. v. Lang-Redway, 840 So.2d 974 (Fla. 2003). That decision answered the certified question whether a plaintiff who brought only a Chapter 400 claim must also comply with the pre-suit requirements of Florida -4-

9 Statutes, Chapter 766 (Medical Malpractice). Id. at 975. Herein, the Petitioner (Plaintiff below) has brought several counts other than a violation of Chapter 400, which factually distinguishes Lang-Redway from Nichols. Moreover, the Nichols opinion does not involve an interpretation or even the application of the two statutory pre-suit provisions. 2 Thus, factually and legally, there is no conflict sufficient to confer jurisdiction under Article V, section 3(b)(3). IV. Nichols Does Not Conflict With G.M. and J.J. The Petitioner appears to argue that the Opinion is in conflict with Department of Children and Family Services v. G.M. and J.J., 816 So.2d 830 (Fla. 5 th DCA 2002). See Petitioner s Brief at p.7;10. 3 In G.M. and J.J., a minor residing in a foster home needed chin surgery and the court explored whether the state agency could consent or if a court order was needed. The Fifth District proceeded to interpret the language of section (1)(b) as to not include surgery and held that the trial court needed to enter an order permitting surgery to 2 Both Florida Statutes, Chapter 400 (Nursing Home Resident s Rights) and Florida Statutes, Chapter 766 (Medical Malpractice) have undergone significant tort reform changes in 2001 and 2003, respectively. Many of the sections of Chapter 766 discussed in Integrated Health Care Services, Inc. v. Lang-Redway, 840 So.2d at were subsequently revised as part of tort reform. 3 To the contrary, however, GM and JJ is not referenced in the Petitioner s Conclusion as a decision which she claims is in conflict. See Petitioner s Brief, p

10 occur. G.M. and J.J., 816 So.2d at No conflict jurisdiction exists because G.M. and J.J. involved the interpretation of a statute regarding the authority of a state agency to obtain surgery for a minor residing in a foster home. Id. That holding has nothing to do with the facts or legal issues in Nichols since the Fifth District was interpreting a statute which is not at issue in the underlying opinion. Instead, Nichols relies upon Shea which addressed the authorities in the Fourteenth Amendment to the U.S. Constitution and the guarantees in Article I, section 23 of the Florida Constitution. See Global Travel Mktg., Inc. v. Shea, 908 So.2d at 398. V. Nichols Does Not Conflict With Blankfeld v. Richmond Healthcare, Inc. In Blankfeld v. Richmond Healthcare, Inc., 902 So.2d 296 (Fla. 4 th DCA 2005), the Fourth District rendered an opinion that a health care proxy did not have the authority to bind a patient to arbitration. Of note, the contract at issue in Blankfeld involved a different arbitration clause with different terms which substantially affected and/or eliminated remedies. Id. at 298. The arbitration clause in this case has no limitations on remedies and that question of law is not addressed in Nichols. More specifically, the Blankfeld decision involved the interpretation of the -6-

11 authority of a health care proxy under section , Florida Statutes (2001). Id. at The Nichols opinion, by contrast, involved the authority of a parent conferred by the U.S. and Florida constitutions. MN Medinvest Co. v. Nichols, 908 So.2d at 1179 citing Global Travel Mktg., Inc. v. Shea, 908 So.2d at 398. There is no conflict sufficient to confer jurisdiction under Article V, section 3(b)(3). CONCLUSION The Petitioner incorrectly asserts that the plain vanilla arbitration clause in the parties written agreement somehow limits statutory rights. See Petitioner s Brief at p. 2. While that is not grounds for conflict jurisdiction, it is their own assertion which is in conflict, since two District Courts have enforced arbitration pursuant to the same arbitration clause in nursing home contracts. See Est. of Etting v. Regents Park at Aventura, Inc., 891 So.2d 558 (Fla. 2d DCA 2005); see also Consolidated Resources Healthcare Fund I, Ltd., 853 So.2d 500, 502 (Fla. 4 th DCA 2003). The Nichols opinion is short and cites only to Shea which, as valid law, creates no grounds for conflict jurisdiction. None of the Florida Statutes referenced in Petitioner s Brief are interpreted or relied upon in Nichols. Thus, other district court opinions interpreting these statutes cannot be in conflict with Nichols since the underlying opinion has nothing to say on those topics. Succinctly -7-

12 put, this is an issue of apples and oranges as opposed to manifest express and direct conflict among the district courts sufficient to confer jurisdiction under Article V, section 3(b)(3) of the Florida Constitution. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above has been sent by? Facsimile and/or? U.S. Mail to: Susan B. Morrison, Esq., Law Offices of Susan B. Morrison, P.A., 1200 W. Platt Street, Suite 100, Tampa, Florida and Kimberley M. Kohn, Esq.,, Wilkes & McHugh, P.A., Tampa Commons, Suite 800, One North Dale Mabry Hwy., Tampa, Florida CHRISTOPHER B. HOPKINS Fla. Bar No.: COLE, SCOTT & KISSANE, P.A. Attorneys for Defendants/Respondents 1645 Palm Beach Lakes Blvd., 2 nd Floor West Palm Beach, Florida Telephone: (561) Facsimile: (561) CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing Response was typed in Times New Roman 14 point font. By: CHRISTOPHER B. HOPKINS Fla. Bar No.: