IN THE SUPREME COURT OF FLORIDA CASE NO. SC05- ORCHID ISLAND PROPERTIES, INC., et al., Petitioners,

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC05- ORCHID ISLAND PROPERTIES, INC., et al., Petitioners, W.G. MILLS, INC. OF BRADENTON, UNITED STATES FIDELITY AND GUARANTY COMPANY, and O DONNELL, NACCARATO & MIGNOGNA, INC., Respondents. OIP'S JURISDICTIONAL BRIEF Steven L. Brannock Eli H. Subin Florida Bar No Florida Bar No HOLLAND & KNIGHT LLP HOLLAND & KNIGHT LLP P.O. Box South Orange Ave, # 2600 Tampa, FL Post Office Box 1526 Telephone: (813) Orlando, FL Facsimile: (813) Telephone: (407) Facsimile: (407) Attorneys for Petitioners

2 TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF CITATIONS...ii BRIEF ON JURISDICTION...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF THE ARGUMENT...5 ARGUMENT...5 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 TABLE OF CITATIONS FEDERAL CASES In re Smith, 926 F.2d 1027 (11th Cir. 1991)...8 STATE CASES Behavioral Health Options, Inc. v. Charte Behavioral Health Systems of Tampa Bay, Inc., 727 So. 2d 1135 (Fla. 2d DCA 1999)...3 Croteau v. Operator Service Co., 721 So. 2d 386 (Fla. 4th DCA 1998) Delmas v. Harris, 806 So. 2d 578 (Fla. 4th DCA 2002) Dobrick v. Discovery Cruises, Inc., 581 So. 2d 645 (Fla. 4th DCA 1991)...8 Gonzalez v. Turner, 427 So. 2d 1123 (Fla. 3d DCA 1983)...9 Matthews v. Urezzio, 788 So. 2d 1153 (Fla. 5th DCA 2001) Miami Beach v. State ex. rel. Epicure, Inc., 148 Fla. 255 (Fla. 1941)...6 Miller v. Nelson, 550 So. 2d 1193 (Fla. 5th DCA 1989)... 1, 5, 8 Naghtin v. Jones, 680 So. 2d 573 (Fla. 1st DCA 1996) Quintana v. Barad, 529 So. 2d 1300 (Fla. 3d DCA 1988)...8 ii

4 Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So. 2d 68 (Fla. 1978)...7 State v. Sullivan, 640 So. 2d 77 (Fla. 2d DCA 1994)...6 State v. Wilkins, 534 So. 2d 705 (Fla. 1988)...8 OTHER AUTHORITY Philip J. Padovano, Florida Appellate Practice, Section 28.2 (2004)...6 iii

5 BRIEF ON JURISDICTION This petition for review brought by Orchid Island Properties, Inc., et. al, (OIP), presents a conflict among the district courts of appeal concerning the duty of a trial judge to bring a case to its conclusion and thereby permit an appeal. The trial court entered a non-final order that effectively doomed OIP's case against its general contractor, W.G. Mills Inc. of Bradenton (Mills-Bradenton). Ready to perfect its appeal, OIP moved the trial court to enter final judgment against OIP. Surprisingly, the trial court refused to enter final judgment. The effect of that decision was to leave the case in a procedural netherworld. OIP cannot take an appeal because the case is not yet final, but, as conceded by respondents, there is no further step OIP can take to bring the case to conclusion that does not risk waiver of its appellate rights. As a result, OIP sought a petition for writ of mandamus from the Fourth District, asking the court to enforce the trial court's mandatory duty to enter an order that would bring the case to conclusion and allow OIP to perfect its appellate rights. The court denied the petition (A. 1). The decision below refusing to enforce the trial court's duty to bring the case to conclusion is in direct conflict with a decision of the Fifth District, Miller v. Nelson, 550 So. 2d 1193 (Fla. 5 th DCA 1989) which recognizes and enforces that very duty. On a fundamental level, the decision conflicts with the most basic principle of appellate law -- the right to an appeal from an adverse decision. 1

6 STATEMENT OF THE CASE AND FACTS The case below is construction litigation brought by a condominium association against OIP, the developer of the condominium project. OIP settled with the association which assigned its claims against the various construction entities to OIP. OIP now has claims for indemnity pending against general contractor Mills-Bradenton, USF&G and another party, ONM (collectively "Mills- Bradenton"). Mills-Bradenton argues that OIP's claims are no longer valid because the parties have reached a settlement of OIP's indemnification claims. OIP disagrees believing that the alleged settlement agreement is not enforceable. The trial court resolved that disagreement by entering an order enforcing the putative settlement agreement. This ruling had the same effect as if the trial court had granted a motion for summary judgment against OIP, holding that OIP's claims are now barred by the putative settlement. OIP respectfully disagrees with the trial court's ruling enforcing the proposed settlement agreement and wishes to appeal that ruling. But, as the Fourth District recognized in this case, there is no final order in the case yet because OIP's litigation against Mills-Bradenton remains pending and has not been dismissed, even though, by virtue of the trial court's erroneous order, Mills-Bradenton now has a successful defense of settlement (A. 2). Thus, to perfect its right of appeal, OIP filed a motion requesting the trial court to take the ministerial step of entering 2

7 final judgment against OIP on its claims against Mills-Bradenton, USF&G and ONM, and reserving jurisdiction to enforce the settlement agreement. To OIP's surprise, Mills-Bradenton objected to the entry of final judgment in its favor. Apparently, Mills-Bradenton decided that the best way to win the subsequent appeal was to prevent that appeal from ever being perfected. When the trial court not only refused to enter the final judgment but also failed to rule on OIP's motion for entry of judgment, OIP brought a petition for writ of mandamus asking the Fourth District to order the trial court to enter final judgment. The Court denied the petition as premature because the trial court had not yet ruled on OIP's motion for entry of judgment. (OIP I). The denial was without prejudice, however, and the panel invited OIP to "... again seek mandamus relief in the event the trial court refuses to enter a final order...." After the order in OIP I, the trial court finally ruled on OIP's motion, but refused to enter final judgment on OIP's claims. 1 Accepting the invitation of the panel in OIP I, OIP filed a second mandamus petition. That second petition resulted in the decision from which OIP seeks conflict review. The Fourth District 1 The trial court ruled that OIP was not entitled to final judgment because OIP still had claims pending against other parties in the construction litigation. The trial court overlooked clear authority that the resolution of a case against one party or parties creates a final and appealable order as to those parties. See, e.g., Behavioral Health Options, Inc. v. Charter Behavioral Health Systems of Tampa Bay, Inc., 727 So. 2d 1135 (Fla. 2d DCA 1999). OIP sought a final judgment as to the claims between OIP and Mills Bradenton the claims against other parties were irrelevant. See id. 3

8 agreed that there was not yet a final judgment from which OIP could appeal because the litigation between OIP and Mills-Bradenton was not yet dismissed. The court denied the mandamus petition holding that OIP did not have the right to compel entry of final judgment. Rejecting mandamus as a remedy, the court suggested that OIP could bring its case to conclusion itself by filing a notice of voluntary dismissal. But, as recognized by the court earlier in the decision, voluntary dismissal is not the answer in light of Mills-Bradenton's warning that it would claim waiver, relying on authority that suggests that any such voluntary dismissal would eliminate OIP's right to appeal. OIP now invokes the jurisdiction of this Court. As shown below, the Fourth District's decision conflicts with a decision of the Fifth District that recognizes the mandatory duty to bring litigation to conclusion to allow a party to perfect its appellate rights. The decision also highlights the conflict and confusion among the District Courts over the appealability of orders enforcing and denying settlement agreements. Accepting jurisdiction will enable this Court to resolve these conflicts, provide guidance to the courts and to the bar on these important issues, and vindicate the fundamental right to appellate review. 4

9 SUMMARY OF THE ARGUMENT This petition presents a fundamental conflict over the right to appeal. The court below ruled that a trial court has no duty to enter an order bringing a case that has reached its practical conclusion to a formal conclusion to enable the parties to perfect their appellate rights. This decision conflicts with the Fifth District's Miller decision reaching the opposite (and correct) result by ordering the entry of final judgment when necessary to preserve a party's right to appeal. Accepting jurisdiction will permit this Court to resolve this important conflict in the law on mandamus, and vindicate the fundamental right the losing party in every case has to an appeal. The case will also permit the Court to address the substantial confusion in the District Courts over the timing and proper remedy for seeking review of an order granting or denying motions to enforce settlement agreements. ARGUMENT The putative settlement in this case contemplates the conclusion of the litigation between OIP and Mills-Bradenton and requires them to voluntarily dismiss their claims against each other and to exchange mutual releases. By ruling that the settlement agreement is enforceable, the trial court effectively gives Mills- Bradenton an absolute defense in the construction litigation to any further attempt by OIP to press its claims against Mills-Bradenton. In effect, the trial court has 5

10 granted the equivalent of a motion for summary judgment on OIP's claims against Mills-Bradenton. But, just as the granting of a motion for summary judgment is not appealable until the court takes the next step and enters judgment, the order enforcing the settlement agreement does not create a final order in the case until final judgment is entered on OIP's claims against Mills-Bradenton. Entry of a final judgment dismissing OIP's claims in the construction litigation against Mills- Bradenton will allow OIP to appeal the order enforcing the settlement, and is all that OIP seeks. It is well-settled that mandamus is the appropriate remedy to enforce the trial court's mandatory duty to enter an order on a motion. See, e.g., State v. Sullivan, 640 So. 2d 77, 78 (Fla. 2d DCA 1994) ("If a trial court fails or refuses to enter a written order that is needed for an appeal, counsel has the remedy of filing a motion or a petition for writ of mandamus with this Court to compel the trial court to enter such an order."). See Philip J. Padovano, Florida Appellate Practice, Section 28.2 (2004). The Fourth District, however, failed to follow this line of authority, in apparent reliance on cases in the mandamus context that suggest that, although mandamus can be used to compel a ruling, mandamus cannot be used to compel the trial court to rule a particular way on the motion. See e.g., Miami Beach v. State ex. rel. Epicure, Inc., 148 Fla. 255 (Fla. 1941). Thus, since the trial court eventually ruled on OIP's motion for entry of final judgment by denying it, 6

11 the Fourth District erroneously believed its work was through. See A. 2 ("Since the trial court ruled on the pending motion, this Court has no reason to issue a writ of mandamus"). The Fourth District's refusal considered the trial court's duty too narrowly. The mandatory duty at issue was the duty to bring litigation to a conclusion to permit OIP to perfect its appeal. The trial court's refusal to enter final judgment has left the case in a procedural netherworld where OIP can neither move the case to final judgment nor seek review of the erroneous order enforcing the settlement agreement. OIP's claims against Mills-Bradenton remain pending so, as the Fourth District recognized, there is not yet a final order from which to appeal. OIP cannot further litigate those claims because any motion it files will be defeated by the defense of settlement. OIP cannot voluntarily dismiss because Mills-Bradenton has made very clear that it will argue that any such voluntary dismissal is a waiver of OIP's appellate rights. See e.g., Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla. 1978) (holding that a voluntary dismissal immediately divests the court of jurisdiction in the case). Thus, absent the entry of final judgment by the trial court or intervention by an appellate court, the case will forever sit in this purgatory, effectively over, but not yet final. The Fourth District's narrow view of its authority conflicts with the Fifth District which has recognized that there is a mandatory duty to bring litigation to a 7

12 conclusion and that an appellate court has the power to direct a particular ruling in the appropriate circumstances. In Miller v. Nelson, 550 So. 2d 1193 (Fla. 5 th DCA 1989), the Fifth District granted a petition for mandamus specifically directing the trial court to enter a final judgment to permit petitioner to appeal. Id. at 1194 ("The writ is issued and the trial judge is directed to enter final judgment, thereby enabling the petitioner to pursue his appeal."). 2 This only makes sense, considering that the right to an appeal is fundamental. See State v. Wilkins, 534 So. 2d 705, 706 (Fla. 1988). Consider a simple analogy. Suppose that the trial court issued an order granting a motion for summary judgment. The law is clear that such an order is not appealable unless and until the court takes the next step and enters judgment. See, e.g., Dobrick v. Discovery Cruises, Inc., 581 So. 2d 645 (Fla. 4 th DCA 1991). Could a trial court in such a case refuse to take that next step and leave the case in a procedural netherworld thus preventing the losing party from filing an appeal? Of course not! Yet, that is precisely the procedural posture of this case. Simply put, when the effective end of the case has been reached, the trial judge has a duty to enter a final judgment terminating the litigation. If the trial court refuses, mandamus is the appropriate remedy. See In re Smith, 926 F.2d 1027, 1030 (11 th Cir. 1991) (issuing 2 The Third District effectively reached the same conclusion in Quintana v. Barad, 529 So. 2d 1300, 1302 n.5 (Fla. 3d DCA 1988). Although the appellate court declined officially to direct entry of final judgment, it made very clear what ruling was required under the circumstances. 8

13 a writ of mandamus where the trial court's failure to act has effectively frozen the litigation and thwarted the possibility of an appealable final order"). Moreover, if the Fourth District was concerned about its power to direct entry of final judgment through a petition for writ of mandamus, it could have treated OIP's petition as a petition for certiorari and its failure to do so in itself creates conflict jurisdiction. Indeed, the court's cryptic refusal at the end of its opinion to provide what it called an "advisory opinion" suggests that the court was concerned that OIP had sought the wrong appellate remedy. Opinion at 2. Of course, this ignores that mandamus is precisely what the Fourth District in OIP I had invited OIP to file if the trial court refused to enter final judgment. But more importantly for purposes of this conflict petition, if the Fourth District denied mandamus because it thought some other remedy such as certiorari was more appropriate, its ruling conflicts with numerous decisions of this Court and other district courts holding that an appellate court cannot deny relief simply because it believes petitioner sought the wrong remedy (c) Fla.R.App.P.; Gonzalez v. Turner, 427 So. 2d 1123 (Fla. 3d DCA 1983) (mandamus treated as certiorari). Mills-Bradenton's response below (which is likely to be repeated in this Court) is that OIP's petition came too late, that OIP should have appealed from the order granting enforcement of the settlement agreement. This argument only underscores the importance of accepting jurisdiction in this case. As evidenced by 9

14 the confusion demonstrated by the decision below, and the contradictory arguments made by Mills-Bradenton throughout this case, the law is far from settled on whether and by what remedy one seeks review of orders granting or denying enforcement of settlements. 3 Compare Croteau v. Operator Service Co., 721 So. 2d 386 (Fla. 4 th DCA 1998) (enforcement order is a partial final judgment) with Naghtin v. Jones, 680 So. 2d 573 (Fla. 1 st DCA 1996) (order denying motion to enforce a settlement not reviewable by appeal or certiorari). 4 Indeed, the majority and concurring opinions in this case reached opposite conclusions, the majority confirming that there is no final order, and the concurrence suggesting the opposite. 5 Granting jurisdiction will also enable the Court to bring order out of the conflicting decisions in the district courts concerning the appealability of orders granting or denying motions to enforce settlement agreements. 3 CONCLUSION For all these reasons, this Court should accept jurisdiction over this case. Mills-Bradenton argued at various points in this review process that the decision was non-final and not reviewable, non-final and reviewable by certiorari, a partial final judgment, and a final judgment. 4 See also Delmas v. Harris, 806 So. 2d 578 (Fla. 4 th DCA 2002) (order denying enforcement of settlement agreement cannot support a partial final judgment); Matthews v. Urezzio, 788 So. 2d 1153 (Fla. 5 th DCA 2001) (order on settlement agreement may support an appeal as a partial final judgment). 5 Even if the court were to determine that the order enforcing a settlement agreement was a partial final judgment, this would have no effect on OIP's right to obtain a final judgment. Partial final judgments may be appealed immediately or at the end of the case (k) Fla.R.App.P. OIP had no obligation to take an interlocutory appeal that risked dismissal on jurisdictional grounds. 10

15 Respectfully submitted, Steven L. Brannock Florida Bar No HOLLAND & KNIGHT LLP P.O. Box 1288 Tampa, FL Telephone: (813) Facsimile: (813) Eli H. Subin Florida Bar No HOLLAND & KNIGHT LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida Telephone: (407) Facsimile: (407) John H. Dannecker Florida Bar No.: SHUTTS & BOWEN LLP Post Office Box 4956 Orlando, Florida Telephone: (407) Facsimile: (407) Attorneys for Petitioners 11

16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail Delivery to: The Honorable Robert A. Hawley, Circuit Judge, th Ave., Suite 383, Courtroom 6, Vero Beach, Florida 32960, and to all counsel on the attached service list this 14th day of February, Attorney CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Jurisdictional Brief complies with the font requirements of Rule 9.100(l) of the Florida Rules of Appellate Procedure. Attorney # _v1 12