IN THE SUPREME COURT OF FLORIDA. Case No. SC Lower Tribunal Case No. 1D WAKULLA FISHERMEN'S ASSOCIATION, INC., Petitioner, vs.

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1 Filing # Electronically Filed 09/15/ :58:15 PM RECEIVED, 9/15/ :58:55, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA Case No. SC Lower Tribunal Case No. 1D WAKULLA FISHERMEN'S ASSOCIATION, INC., Petitioner, vs. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Respondent. BRIEF ON JURISDICTION OF RESPONDENT, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION PAMELA JO BONDI ATTORNEY GENERAL Jonathan A. Glogau Chief, Complex Litigation Florida Bar No Teresa L. Mussetto Senior Assistant Attorney General Complex Litigation Florida Bar No Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida Tel: (850) Fax: (850) jon.glogau@myfloridalegal.com teresa.mussetto@myfloridalegal.com

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS... ii STATEMENT OF FACTS AND OF THE CASE... 1 STANDARD OF REVIEW... 4 SUMMARY OF THE ARGUMENT... 4 ARGUMENT....5 The Four Corners of the Wakulla Fishermen's II Decision Reflect No Basis for Jurisdictional Conflict...5 CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE i

3 Cases TABLE OF CITATIONS Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958)... 5 Campbell v. State, 906 So. 2d 293 (Fla. 2d DCA 2004)... 7 D'Angelo v. Fitzmaurice, 863 So. 2d 311 (Fla. 2003)... 4 Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101 (Fla. 2001)... 2 Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988)... 5 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 5 Hernandez v. Marsarm Corp., 613 So. 2d 914 (Fla. 3d DCA 1992)... 8, 9 Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass'n, 210 So. 2d 750 (Fla. 4th DCA 1968)... 7, 8 Kimbrell v. Paige, 448 So. 2d 1009 (Fla. 1984)... 2 Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962)... 6 State v. McBride, 848 So. 2d 287 (Fla. 2003)... 2 Topps v. State, 865 So. 2d 1253 (Fla. 2004)... 2 Universal Const. Co. v. City of Fort Lauderdale, 68 So. 2d 366, 369 (Fla. 1953)... 9 Univ. of Fla. v. Massie, 602 So. 2d 516 (Fla. 1992)... 9, 10 Wakulla Commercial Fishermen's Ass n, Inc. v. Fla. Fish & Wildlife Conserv. Comm n, 951 So. 2d 8 (Fla. 1st DCA 2007) ( Wakulla Fishermen s I )... 2 ii

4 Florida Constitution Article V, 3(b)(3), Fla. Const... 5 Article X, 16, Fla. Const... 1 Florida Administrative Code Fla. Admin. Code R. 68B Fla. Admin. Code R. 68B Fla. Admin. Code R. 68B iii

5 STATEMENT OF FACTS AND OF THE CASE Petitioner, Wakulla Fishermen's Association, Inc. ( Wakulla Fishermen's ) requests that this Court review a decision rendered by the First District Court of Appeal in Florida Fish and Wildlife Conservation Commision v. Wakulla Fishermen's Ass'n, Inc., 141 So. 3d 723, 729 (Fla. 1st DCA 2014) ( Wakulla Fishermen's II ) (Appendix A ) based on direct and express conflict. Because no conflict with any decision of this Court or another district court appears on the face of the First District s decision, this Court lacks jurisdiction and Wakulla Fishermen's petition should be denied. In its Amended Jurisdictional Brief ( Amended Brief ), Petitioner recites facts --without citation to Wakulla Fishermen s II, or otherwise--which are outside the four corners of the First District s decision, and, therefore, must be disregarded. The facts pertinent to the Court s jurisdictional analysis follow. In this case, the Florida Fish and Wildlife Conservation Commission ( Commission ) appealed to the First District a final judgment enjoining enforcement of article X, section 16, of the Florida Constitution and Florida Administrative Code Rules 68B 4.002, 68B , and 68B , and enjoining the Commission's authority to adopt rules with respect to the use of a gill net or an entangling net. 1 The Commission argued (and the appellate court 1 Wakulla Fishermen's II, 141 So. 3d at

6 agreed) that--based on the First District s 2007 decision addressing the same matter 2 --res judicata barred Petitioner s renewed challenge to these provisions. 3 Florida s Constitution imposes limitations on marine net fishing in Florida waters to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing and waste. 4 The challenged provisions prohibit the use of gill nets or other entangling nets and limit all other nets in the nearshore and inshore waters of Florida to 500 square feet of mesh area. 5 As the First District observed, these provisions and rules have been subject to almost continuous litigation since proposal of the constitutional amendment. Id. at In this case, the same three rules were again challenged. Id. The decision for which review is sought reflects the First District s careful evaluation of whether the doctrine of res judicata barred re-litigation of the validity of the rules at issue. Id. at 727. Its analysis began with this Court s definition of res judicata, identifying the four identities necessary for application of the doctrine. 6 The First District also recognized that the res 2 Wakulla Commercial Fishermen's Ass n, Inc. v. Fla. Fish & Wildlife Conserv. Comm n, 951 So. 2d 8 (Fla. 1st DCA 2007) ( Wakulla Fishermen s I ). 3 Wakulla Fishermen's II, 141 So. 3d at Id. at Id. 6 Id. (citing Topps v. State, 865 So. 2d 1253, 1255 (Fla. 2004); State v. McBride, 848 So. 2d 287, 290 (Fla. 2003); Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (quoting Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984)). 2

7 judicata applies to courts of equity, and that a judge is bound by precedent regardless of whether the judge agrees with the prior decision. 141 So. 3d at (citations omitted). The First District then examined the matters addressed in its 2007 decision and in the case presently before it (141 So. 3d at ) (bold emphasis added): Wakulla Fishermen's II: Appellees alleged below that the rules are facially unconstitutional and unconstitutional as applied. The injustice asserted stems from the arbitrary rule and its enforcement against commercial mullet fishermen trying to earn a living based on the allegations that the two-inch stretch mesh rule is far less selective than a net with a larger mesh so that commercial mullet fishermen are gilling vast quantities of juvenile fish every time they deploy a net. [Commercial mullet fishermen] are compelled to use a net that violates the purpose of the Net Limitation Amendment. Wakulla Fishermen's I: [P]laintiffs sought a declaration that the three rules were unconstitutional and unconstitutional as applied. It was alleged that research indicate[d] that nets with two-inch meshes gill a significant number of non-usable juvenile fish, which could lead to eradication of the species, whereas nets with larger meshes gill fewer fish and the ones which are gilled by the large meshes are older, commercially viable fish. [The Commission]... presented expert testimony that the mullet population remains healthy and has actually increased since the implementation of the two-inch net mesh limitation. This... is sufficient to establish a rational basis for adoption of the challenged rules as a means of furthering the goal of protecting marine resources. It was further alleged that these three rules operate together to violate the Florida Constitution's ban on gill and entangling nets, which ban 3

8 exists to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing and waste. Id. (citation omitted). Lastly, the First District considered whether Wakulla Fishermen's had established that a manifest injustice will result. 141 So. 3d at 728. The district court found that this argument. Id. (citations omitted). Based on its careful analysis, the First District reversed the trial court s order, concluding: The requisite four identities and a decision on the merits, required for application of the doctrine of res judicata, were established by the Commission. The trial court failed to find (and [Wakulla Fishermen s] failed to establish) a sufficient factual foundation for application of the manifest injustice exception. The court therefore erred in determining that [the] claims were not barred by res judicata. Id. at Wakulla Fishermen's timely petition for review followed. STANDARD OF REVIEW Whether Wakulla Fishermen's II provides a basis for exercise of conflict jurisdiction is a question of law, subject to the de novo standard of review. 7 SUMMARY OF THE ARGUMENT Conflict jurisdiction exists only where there is an express and direct conflict with a decision of another district court of appeal or of the Supreme Court on the same question of law such that the subsequent decision would effectively overrule the earlier decision. Conflict jurisdiction is also implicated where the appellate 7 See generally D'Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003). 4

9 court has misread controlling precedent, or misapplied it to materially different facts (as reflected on the face of the decision reviewed), effecting an incorrect result. Applying these standards, Wakulla Fishermen's II does not provide a basis for exercise of conflict jurisdiction. The court below properly defined the requirements of res judicata and thoroughly analyzed the case in light of those factors Petitioners contest the facts as found by the District Court and simply disagree with the outcome. Thus, the petition for review fails to show the necessary conflict and should be denied. ARGUMENT The Four Corners of the Wakulla Fishermen's II Decision Reflect No Basis for Jurisdictional Conflict The Supreme Court has discretionary 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. 8 The Florida Constitution narrowly limits the Court s review on this basis. 9 If conflict truly exists, all the brief need do, in most instances, is quote the law from the district court opinion and the law from the allegedly conflicting opinion, 8 Art. V, 3(b)(3), Fla. Const.; Fla. R. App. P (a)(2)(A)(iv). 9 See Florida Star v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988); Jenkins v. State, 385 So. 2d 1356 (Fla. 1980) (review of district court decisions is limited and strictly prescribed ) (quoting Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958)). 5

10 and then explain the importance of the case. 10 Conflict jurisdiction exists only when two or more relevant cases are directly or apparently irreconcilable. It always requires that at least one previous statement of law be overruled or harmonized. 11 Conflict jurisdiction requires that the conflict must be such that if the later decision and the earlier decision were rendered by the same Court the former would have the effect of overruling the latter. If the two cases are distinguishable in controlling factual elements or if the points of law settled by the two cases are not the same, then no conflict can arise. Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962). Conflict jurisdiction is also implicated where the appellate court (as reflected on the face of the decision reviewed) has misread controlling precedent, or misapplied it to materially different facts, effecting an incorrect result. 12 In assessing whether such misapplication conflict results, the Court s analysis is constrained by the four-corners rule: conflict must appear within the four corners of the majority decision brought for review. There can be no examination 10 Harry Lee Anstead, Gerald Kogan, Thomas D. Hall, Robert Craig Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L.Rev. 431, 523 (2005) ( Supreme Court Jurisdiction ). 11 Id. at See McBurnette v. Playground Equip. Corp., 137 So. 2d 563, 565 (Fla. 1962). 6

11 of the record, no second-guessing of the facts stated in the majority decision, and no use of extrinsic materials to clarify what the majority decision means. 13 As applied here, it is apparent from the four corners of the Wakulla Fishermen s II decision that the First District did not misapply the doctrine of res judicata. Instead, its analysis appropriately identified and applied the tenets applicable to that doctrine. See Wakulla Fishermen s II, 141 So. 3d at 724. Nor does the decision expressly and directly conflict with any of the cases cited in the Amended Brief. Petitioner cites Campbell v. State, 906 So. 2d 293 (Fla. 2d DCA 2004) (Amended Brief at 5) for the proposition that the Commission failed to establish the applicability of the doctrine, because it never produc[ed] a record of any prior proceedings. ( Id.) There is no conflict with Campbell in the first instance because the case does not hold as argued by the Petitioners. In addition, this argument is based on extra-record facts not supported by the face of the Wakulla Fishermen s II decision. That decision reflects, instead, that the requisite four identities and a decision on the merits, required for application of the doctrine of res judicata, were established by the Commission. Wakulla Fishermen s II, 141 So. 3d at 728. Similarly, Petitioner cites Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass'n, 210 So. 2d 750 (Fla. 4th DCA 1968) for the proposition that res 13 Supreme Court Jurisdiction, 29 Nova L. Rev. at 512 (footnotes omitted). 7

12 judicata only extends to facts and conditions as they existed at the time the prior judgment was rendered. (Amended Brief at 4.) In this regard, Petitioner asserts that [n]ew facts demonstrate that the Challenged Rules were not promulgated to further a specific fishery management objective. Because no such new facts are reflected on the face of the Wakulla Fishermen s II decision, 14 this argument fails. It additionally lacks merit because no direct and express conflict is shown based on controlling factual elements. See Hialeah Race Course, Inc., 210 So. 2d at 750 (affirming denial of a motion to dismiss a constitutional challenge to section (3), Florida Statutes, where the horse track sought a declaration regarding its rights as to racing dates allocated, and--in arguing that res judicata based on a 1948 decision should not apply--alleged interim changes which had occurred in Florida and seventeen substantial changes in the racing industry since 1947 ). Petitioner also cites Hernandez v. Marsarm Corp., 613 So. 2d 914 (Fla. 3d DCA 1992) (Amended Brief at 9), to support its observation that [m]anifest injustice may prevent application of res judicata when a child's right to support is at issue. In Hernandez, the Third District applied the manifest injustice exception in a suit for ejectment brought by Marsarm against the son and heir of Marsarm s creator.. Record facts disclosed that, prior to his son s birth, the father had conveyed the home without consideration to Marsarm in a lease-back 14 See generally Wakulla Fishermen s II, 141 So. 3d

13 arrangement; that the son and his mother had no assets of any substance. The manifest injustice there was based on the fact that the effect of affirming the judgment will be to deprive a child of needed support while bestowing a gift on Marsarm and its shareholders. 613 So. 2d at 916. The argued manifest injustice reflected on the Wakula Fishermen s II decision, in contrast, is that the group of mullet fisherman want to fish in a different way than is permitted by law. This is plainly distinguishable in controlling factual elements from the circumstances addressed in Hernandez. Lastly, Petitioner cites Universal Construction Company v. City of Fort Lauderdale, 68 So. 2d 366 (Fla. 1953) and University of Florida v. Massie, 602 So. 2d 516 (Fla. 1992) ( Massie II). (Amended Brief at 9-10.) In City of Fort Lauderdale, 68 So. 2d at 369, the Court did not apply res judicata to preclude the contractor s recovery in quantum meruit for improvements constructed where the city s approval of the extra work was determined to be ultra vires in a prior taxpayer s suit (thus, payment could not be made out of bond funds), but it did not appear fair or just that the city should be enriched at the expense of appellant. Massie II involved a case in which the Court quashed the First District s decision applying the manifest injustice exception to reverse the denial of Massie's application to modify a previously-entered order denying him workers' compensation benefits on the basis that his pre-existing multiple sclerosis 9

14 condition--allegedly worsened by routine job stress--was not compensable. Massie argued that the judge had made a factual mistake in determining whether Massie's stress at work was unusual. Upon review, this Court observed that, even though in rare instances, a court may correct its own erroneous prior decision to prevent manifest injustice, the First District did not have adequate reasons to do so; [i]t simply re-reviewed the record and erroneously changed its conclusion. 602 So. 2d at 525. Consistent with Massie II, the First District avoided that mistake here. CONCLUSION Because the Wakulla Fishermen s II decision correctly articulates and applies the Court s precedent regarding res judicata, and reflects no manifest injustice in applying the doctrine, the petition for review should be denied. Respectfully Submitted, PAMELA JO BONDI ATTORNEY GENERAL s/jonathan A. Glogau Jonathan A. Glogau Chief, Complex Litigation Florida Bar No Teresa L. Mussetto Senior Assistant Attorney General Complex Litigation Florida Bar No Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida Tel: (850) ; Fax: (850) jon.glogau@myfloridalegal.com 10

15 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing complies with rule 9.100(l) of the Florida Rules of Appellate Procedure and is in Times New Roman 14 font. s/ Jonathan A. Glogau Attorney CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the forgoing was served by this 15 th day of September, 2014, on Ronald A. Mowrey, rmowrey@mowreylaw.com, Mark L. Mason, mmason@mowreylaw.com, Nicholas Fugate, nfugate@mowreylaw.com, Mowrey Law Firm, P.A., 515 North Monroe Street, Tallahassee, Florida s/ Jonathan A. Glogau Attorney 11