IN THE SUPREME COURT OF FLORIDA CASE NO. SC v. DCA CASE NO. 4D

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1 CCC INVESTMENTS I, LLC, d/b/a TIFFANY HOUSE BY MARRIOTT, a foreign corporation; et al., IN THE SUPREME COURT OF FLORIDA Defendants/Petitioners CASE NO. SC v. DCA CASE NO. 4D ALEXANDER POLLOCK, Individually and as Personal Representative of the Estate and the Survivors of Bessie K. Kleinman, deceased, Plaintiff/Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL RESPONDENT S BRIEF ON JURISDICTION MILLS & CARLIN, P.A. Rebecca Bowen Creed Florida Bar No May Street Jacksonville, Florida (904) (904) facsimile rcreed@appellate-firm.com Attorneys for Respondent

2 TABLE OF CONTENTS TABLE OF CONTENTS...ii TABLE OF CITATIONS...iii PREFACE...iii STATEMENT OF CASE AND FACTS...1 SUMMARY OF ARGUMENT...2 ARGUMENT...4 Standard of Review...4 I. THE FOURTH DISTRICT S OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISIONS OF THIS COURT AND OTHER DISTRICT COURTS OF APPEAL...4 II. THIS CASE DOES NOT PRESENT COMPELLING POLICY REASONS TO JUSTIFY THE EXERCISE OF THIS COURT S DISCRETIONARY JURISDICTION...9 CONCLUSION...10 CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE...12 ii

3 TABLE OF CITATIONS CASES Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979)...5, 8 Dep't of HRS v. Nat'l Adoption Counseling Serv., Inc., 498 So. 2d 888 (Fla. 1986)...4 Farnsworth v. Tampa Elec. Co., 57 So. 233 (Fla. 1911)...6 Goldschmidt v. Holman, 571 So. 2d 422 (Fla. 1990)...4 Holley v. Kelley, 91 So. 2d 862 (Fla. 1957)...3, 6 Koon v. United States, 518 U.S. 81 (1996)...8 Mathieu v. Schnitzer, 559 So. 2d 1244 (Fla. 4th DCA 1990)...6 Menard v. O'Malley, 327 So. 2d 905 (Fla. 3d DCA 1976)... 3, 6, 7 Reaves v. State, 485 So. 2d 829 (Fla. 1986)...4, 8 Riley v. Willis, 585 So. 2d 1024 (Fla. 5th DCA 1991)...3, 6 Sanchez v. Wimpy, 409 So. 2d 20 (Fla. 1982)...9 Seaboard Coastline R.R. v. Addison, 502 So. 2d 1241 (Fla. 1987)... 2, 3, 6 Stark v. Smith, 310 So. 2d 334 (Fla. 3d DCA 1975)...6 United States v. Hall, 349 F.3d 1320 (11th Cir. 2003)...8 CONSTITUTION Art. V, 3(b)(3), Fla. Const....4 STATUTES AND RULES , Fla. Stat. (1999) , Fla. Stat. (1999) , Fla. Stat. (2001)...10 iii

4 Fla. R. App. P (a)(2)(A)(iv)...4 Fla. R. App. P v Fla. R. App. P Fla. R. App. P v iv

5 PREFACE Plaintiff/Respondent, Alexander Pollock, individually and as Personal Representative of the Estate and Survivors of Bessie K. Kleinman, deceased (the Respondent ), timely serves his brief on jurisdiction within twenty-five days after service of the Amended Brief on Jurisdiction by the Defendants/Petitioners, CCC Investments I, LLC, d/b/a Tiffany House by Marriott, Marriott Senior Living Services, Inc., and Marriott International, Inc. (collectively, the Petitioners ). See Fla. R. App. P (d); see also Fla. R. App. P (c) (authorizing service only by mail or hand delivery); Fla. R. App. P (e) (allowing additional time after service by mail); Fla. R. App. P (f) (computing time). 1 References to the Amended Brief on Jurisdiction will appear as Juris. Brief, followed by the specific page numbers. Citations to the decision of the Fourth District Court of Appeal, a conformed copy of which is attached to the Amended Brief on Jurisdiction, will appear as Opinion, followed by the specific page reference. 1 Because the clerk s office of the Supreme Court of Florida was closed for Veterans Day on Friday, November 10, 2006, Respondent timely serves his brief on Monday, November 13, See Fla. R. App. P (f)(9), (15). v

6 STATEMENT OF CASE AND FACTS This is an action for wrongful death brought by the Respondent after his mother, a resident of Tiffany House by Marriott, a minimum-level assisted living facility owned and managed by the Petitioners, was murdered by another resident, Felix Freed. The evidence at trial showed that just before his admission, Mr. Freed had been hospitalized in a psychiatric facility. His medical records revealed that he suffered from dementia and that he had been hospitalized because of concerns that he could be dangerous to himself or others. Mr. Freed s medical evaluation, completed before his admission, also indicated that he was in need of continuous licensed nursing care. In March, 2001, Mr. Freed informed the Petitioners staff that he was concerned that he could hurt himself or others. He was evaluated at a local hospital and, after reporting that these homicidal and suicidal tendencies had ceased, he returned to the assisted living facility. Soon thereafter, according to his medical records, other residents noticed a change in Mr. Freed s personality. His daughter reported that she was concerned about her father s increasing paranoia. Mr. Freed s treating psychiatrist prescribed an antipsychotic medication and, on May 3, 2001, ordered a psychiatric nurse to monitor Mr. Freed. Petitioners 1

7 medical records did not reflect this order, and a psychiatric nurse was never retained. Seven days later, on May 10, 2001, Mr. Freed murdered Ms. Kleinman. Afterwards, he called the nurses desk to report that he had killed another resident. Respondent brought this suit under Chapter 400, Florida Statutes, alleging that the Petitioners acted negligently in admitting Mr. Freed as a resident of the assisted living facility and allowing him to continue to reside there. At trial, Respondent requested several jury instructions that pertained to the state statutes and regulations governing assisted living facilities, which the trial court denied. On appeal, Respondent argued that the trial court committed reversible error. The Fourth District Court of Appeal agreed. The court reversed the judgment, and remanded for a new trial. SUMMARY OF ARGUMENT The Fourth District s Opinion does not create an entirely new standard of review or conclude that reversal is inevitable no matter how remotely relevant a requested jury instruction is to the facts of the case, as the Petitioners suggest. Instead, the Fourth District s Opinion is entirely consistent with the decisions of this Court and other district courts of appeal, which establish that a party is entitled to have the jury instructed upon his theory of the case when there is evidence to support the theory. Seaboard Coastline R.R. v. Addison, 502 So. 2d 2

8 1241, 1242 (Fla. 1987); accord Holley v. Kelley, 91 So. 2d 862, 864 (Fla. 1957); Riley v. Willis, 585 So. 2d 1024 (Fla. 5th DCA 1991); Menard v. O Malley, 327 So. 2d 905, 907 (Fla. 3d DCA 1976). Because there was evidence to support the Respondent s theory of the case, the Fourth District properly reversed the judgment and remanded for a new trial. Although Petitioners contend that the Fourth District overlooked the broad discretion afforded a trial court in making decisions regarding jury instructions, Petitioners misapprehend the standard of review. Even the trial court s exercise of discretion is not without limitation. By definition, a trial court abuses its discretion when it fails to follow the law. Here, the Fourth District correctly ruled that the trial court s discretion was limited by the case law, including this Court s ruling in Seaboard Coastline Railroad. Aside from the Petitioners inability to show that the Fourth District s Opinion expressly and directly conflicts with the rulings of this Court or other district courts of appeal, compelling policy reasons do not justify this Court s exercise of discretionary jurisdiction. The Fourth District relied on the evidence presented in this case to reverse the judgment and remand for a new trial. The Opinion does not create a rule of inevitable reversal by requiring all trial courts to instruct a jury on any and all administrative rules, whenever requested by a party, or mistakenly equate administrative regulations with penal statutes to create 3

9 liability beyond legislative direction. Thus, there is no need for clarification from this Court. ARGUMENT Standard of Review This Court has discretionary jurisdiction to review a 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 point of law. Art. V, 3(b)(3) Fla. Const.; Fla. R. App. P (a)(2)(A)(iv). Conflict between decisions must be express and direct. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). In determining whether conflict jurisdiction arises, this Court must limit its review to those facts contained within the four corners of the decisions allegedly in conflict. Id. at 830, n.3; accord Dep t of HRS v. Nat l Adoption Counseling Serv., Inc., 498 So. 2d 888, 889 (Fla. 1986). I. THE FOURTH DISTRICT S OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISIONS OF THIS COURT AND OTHER DISTRICT COURTS OF APPEAL. Petitioners contend that the Fourth District s Opinion directly and expressly conflicts with Goldschmidt v. Holman, 571 So. 2d 422 (Fla. 1990), which establishes that decisions regarding jury instructions are within the sound discretion of the trial court and should not be disturbed on appeal absent prejudicial error/miscarriage of justice. (Juris. Brief, at 3.) According to the Petitioners, the Fourth District creates an entirely new standard by holding that reversal is 4

10 inevitable whenever a trial court fails to instruct a jury on an administrative regulation, no matter how remotely relevant to the facts of the case, without considering whether the error results in a miscarriage of justice under Goldschmidt. (Id. at 5.) Petitioners also ask this Court to grant jurisdiction to address whether the Fourth District erred in rendering its ruling without an adequate record for review, in conflict with this Court s ruling in Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). (Id. at 6.) Yet because Petitioners fail to show that the Fourth District s Opinion expressly and directly conflicts with either Goldschmidt or Applegate, this Court may not exercise its discretionary jurisdiction. Petitioners first misapprehend the Fourth District s Opinion. The Fourth District did not create a new standard of inevitable reversal by requiring that a trial court instruct the jury on any and all state regulations, no matter how remotely relevant to the facts of the case. Instead, the Fourth District expressly found that there was evidence from which the jury could have found violations of the statutes and regulations governing the assisted living facility owned and managed by the Petitioners. Because a party is entitled to have the jury instructed upon his theory of the case [statutory violation] when there is evidence to support the theory, the Fourth District reversed the judgment and remanded for a new trial on the merits. 5

11 (Opinion, at 3 (quoting Seaboard Coastline R.R. v. Addison, 502 So. 2d 1241, 1242 (Fla. 1987).) The Fourth District s thoughtful analysis is consistent with established Florida law. The trial court has the responsibility of correctly instructing the jury regarding the law which is applicable to the facts of the case. Stark v. Smith, 310 So. 2d 334, 335 (Fla. 3d DCA 1975); accord Farnsworth v. Tampa Elec. Co., 57 So. 233, 235 (Fla. 1911). Florida courts have long found that a trial court s refusal to instruct the jury as to a theory of a party s case, if supported by the evidence, constitutes reversible error. See Seaboard Coastline R.R., 502 So. 2d at 1242; Holley v. Kelley, 91 So. 2d 862, 864 (Fla. 1957); Riley v. Willis, 585 So. 2d 1024 (Fla. 5th DCA 1991); Mathieu v. Schnitzer, 559 So. 2d 1244, (Fla. 4th DCA 1990); Menard v. O Malley, 327 So. 2d 905, 907 (Fla. 3d DCA 1976). Certainly, the trial court s failure to instruct the jury on a theory of a party s case, when that theory is supported by the evidence, demonstrates prejudicial error. See, e.g., Riley, 585 So. 2d 1024 (considering whether the trial court s error requires reversal because the improper instruction affected the jury s deliberations by misleading or confusing it ); Menard, 327 So. 2d at 907 (although typically an appellate court will not set aside a verdict merely because the trial court refused to give a requested instruction, [n]evertheless it must be recognized that a party is entitled to have the jury instructed upon this theory of the case when the evidence 6

12 viewed in light favorable thereto substantially supports that theory ). But for the trial court s error in refusing to instruct the jury as requested, the jury may have reached a different result. Thus, the Fourth District s Opinion is consistent with the prejudicial error/miscarriage of justice standard of review announced in Goldschmidt. (See Opinion, at 3 (citing Riley and Menard).) Petitioners also err in complaining that the Fourth District did not afford great deference to the trial court s denial of the requested jury instructions. (Juris. Brief, at 4.) Typically, the standard for review of a trial court s denial of requested jury instructions is abuse of discretion. (Opinion, at 3.) Yet the Fourth District could not agree with the Petitioners that the trial court s discretion was broad. On the contrary, the Fourth District found, any discretion for the omission of this type of instruction is strictly limited by the case law. (Id.) [W]here the trial court erroneously refuses to instruct on a statutory violation, it appears from the cases that reversal is inevitable. (Id. (citing Holley, Riley, and Menard).) Once again, the Fourth District s Opinion is consistent with the established law of this Court and other district courts of appeal. In any event, Petitioners misapprehend the standard of review. Even in the exercise of its discretionary authority, a trial court may not refuse to follow the law. An error of law, by definition, is an abuse of the trial court s discretion. 7

13 United States v. Hall, 349 F.3d 1320, 1323 (11th Cir. 2003) (reviewing omission of jury instruction); accord Koon v. United States, 518 U.S. 81, 100 (1996). As yet another ground for conflict jurisdiction, Petitioners suggest that the Fourth District rendered its conflicting decision without reviewing the entire cause.... (Juris. Brief, at 6.) Nothing in the language of the Opinion, however, suggests that the Fourth District failed to examine the entire cause in reversing the judgment. (See Opinion, at 1-4.) Nonetheless, Petitioners assert that the Fourth District s ruling conflicts with Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979), which requires affirmance of a judgment if the record brought by the appellant is inadequate to demonstrate reversible error. (Juris. Brief, at 6-7.) Petitioners essentially ask this Court to grant jurisdiction based upon the alleged insufficiency of the record on appeal below. This is improper. See Reaves v. State, 485 So. 2d 829, 830 & n.3 (Fla. 1986). The only facts relevant to the Court s decision to accept or reject discretionary jurisdiction are those facts contained within the four corners of the decisions allegedly in conflict. Id. at n.3. In any event, unlike Applegate, this is not a case where the Respondent proceeded to trial without a court reporter or otherwise failed to make a proper record before the trial court. See Applegate, 377 So. 2d at Had the Fourth District found the record on appeal inadequate (which, of course, it did not), the 8

14 court could have directed the Respondent to supply the omitted parts of the record. Fla. R. App. P (f)(2). The Fourth District properly rejected Petitioners claim that the requested jury instructions were not supported by the facts in evidence. (See Opinion, at 3, 4.) Petitioners are not entitled to a second appeal on the merits. See Sanchez v. Wimpy, 409 So. 2d 20, 21 (Fla. 1982). II. THIS CASE DOES NOT PRESENT COMPELLING POLICY REASONS TO JUSTIFY THE EXERCISE OF THIS COURT S DISCRETIONARY JURISDICTION. Consistent with the Petitioner s misguided efforts to establish conflict, the compelling policy reasons cited by the Petitioners also rest upon an erroneous interpretation of the Fourth District s Opinion. Petitioners contend that the Fourth District s Opinion affects virtually all litigation and, by improperly equating administrative rules with penal statutes, creates a... new field of liability beyond what exists without clear legislative direction. (Juris. Brief, at 8, 9-10.) Petitioners dire predictions arise from the notion that the Fourth District s Opinion somehow requires a trial court to instruct a jury on any and all requested administrative rules and regulations, no matter how remotely relevant to the facts. Once again, the plain language of the Opinion does not support the Petitioners interpretation. Nowhere in its Opinion does the Fourth District deprive a trial court of its discretion to deny a party s request for a jury instruction on an 9

15 administrative rule or regulation when there is no evidence to support that instruction as a theory of the case. Nor does the Fourth District expand potential liability by impermissibly equating administrative rules with penal statutes. Here, the administrative regulations governing assisted living facilities define and give meaning to Chapter 400, Florida Statutes. See (1)(g), (h), (j), Fla. Stat. (1999). Based on the evidence presented, the jury was entitled to consider any alleged violation of the statutes or the rules, policies, and procedures governing the assisted living facility as evidence of the Petitioners negligence. See (1), Fla. Stat. (1999); see also (2), Fla. Stat. (2001) (effective May 15, 2001, the violation of any applicable state administrative standard shall be evidence of negligence ). Therefore, even if the Petitioners could somehow persuade this Court that the Fourth District s Opinion expressly and directly conflicts with Goldschmidt or Applegate, compelling policy reasons do not justify this Court s exercise of its discretionary jurisdiction. CONCLUSION For all the foregoing reasons, Respondent respectfully requests that this Court decline to accept review of this case, which does not expressly and directly conflict with the decisions of this Court or other district courts of appeal. 10

16 Respectfully submitted, MILLS & CARLIN, P.A. Rebecca Bowen Creed Florida Bar No May Street Jacksonville, Florida (904) (904) facsimile and John J. Glenn Florida Bar No Anderson Glenn, LLC 2201 NW Corporate Blvd., Suite 100 Boca Raton, Florida (561) (561) Facsimile Attorneys for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have delivered a copy of the foregoing to Marilyn H. Mitchell, Evans & Luptak, P.L.C., 7457 Franklin Road, Suite 250, Bloomfield Hills, Michigan (Trial Attorneys for Appellant); John A. Brekka, Jr., Quintairos, Preito, Wood & Boyer, 1 East Broward Boulevard, Suite 1400, Fort Lauderdale, Florida (Attorneys for Appellees); and Jeffrey R. Creasman, Quintairos, Prieto, Wood & Boyer, 9200 S. Dadeland Blvd., One East, Suite PH-825, Miami, Florida (Attorneys for Appellees); by United States Mail, this day of November, Attorney 11

17 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing brief is in Times New Roman 14- point font and complies with the font requirements of Rule 9.210(a)(2), Florida Rules of Appellate Procedure. Attorney 12