IN THE SUPREME COURT OF FLORIDA CASE NO. SC LT CASE NOS. 4D & JEAN W. PHADAEL, Appellant,

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC LT CASE NOS. 4D & JEAN W. PHADAEL, Appellant, v. DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE FOR RALI 2007QS9, Appellee. ANSWER BRIEF ON JURISDICTION Marc James Ayers (Bar No ) Jose D. Vega (Bar No ) BRADLEY ARANT BOULT CUMMINGS LLP One Federal Place 1819 Fifth Avenue North Birmingham, AL (205) Attorneys for Appellee

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS... ii SUMMARY OF THE ARGUMENT... 1 ARGUMENT... 2 I. No Conflict Exists Warranting the Court s Jurisdiction A. The Meaning of Standing... 2 B. Subject Matter Jurisdiction... 4 II. Phadael s Underlying Challenge to Deutsche Bank s Standing Is Without Merit CONCLUSION... 7 Certificate of Service... 9 Certificate of Compliance... 9 i

3 TABLE OF CITATIONS Cases Department of Rev. v. Kuhnlein, 646 So. 2d 717 (Fla. 1994)...2, 3 Ferreiro v. Philadelphia Indem. Ins. Co., 928 So. 2d 374, 377 (Fla. 3d DCA 2006)... 2 Florida Power & Light v. Canal Auth., 423 So. 2d 421 (Fla. 5th DCA 1982)... 5 Garcia v. Stewart, 906 So. 2d 1117 (Fla. 4th DCA 2005)... 5 Glynn v. First Union Nat l Bank, 912 So. 2d 357 (Fla. 4th DCA 2005)... 2 Interlachen Lakes Estates, Inc. v. Brooks, 341 So. 2d 993 (Fla. 1976)... 3 Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927)... 5 Martinez v. Scanlan, 582 So. 2d 1167 (Fla. 1991)... 3 May v. Holley, 59 So. 2d 636 (Fla. 1952)...3, 4 Paulucci v. General Dynamics Corp., 842 So. 2d 797 (Fla. 2003)... 5 Polk County v. Sofka, 702 So. 2d 1243 (Fla. 1997)... 3 Riggs v. Aurora Loan Svcs., 36 So. 3d 932 (Fla. 4th DCA 2010)... 7 ii

4 Schuster v. Blue Cross & Blue Shield of Fla., Inc., 843 So. 2d 909 Fla. 4th DCA 2003)... 2 United Auto. v. Diagnostics of S. Fla., 921 So. 2d 23 (Fla. 3d DCA 2006)... 2 iii

5 SUMMARY OF THE ARGUMENT The Fourth District Court of Appeals affirmed the trial court s judgment of foreclosure, observing that the defendant-borrower Phadael had waived any challenge to Plaintiff Deutsche Bank s standing. Phadael appeals to this Court contending that the lower court s decision conflicts with other caselaw. Phadael argues that the plaintiff must demonstrate its standing by showing that there exists a case or controversy between the parties. Deutsche Bank agrees. But neither standing nor the phrase case or controversy invokes jurisdiction. Only objections to a court s subject-matter jurisdiction cannot be waived, while objections to a plaintiff s standing are waivable. Unlike the standing inquiry, Florida s jurisdictional inquiry looks to whether a party has petitioned a court that has the power to grant the relief requested, and has lawfully invoked that court s jurisdiction by filing an actual complaint seeking such relief. Here there is no dispute on those issues, thus there exists no conflict. Although this is merely a jurisdictional brief and not necessarily substantive, Deutsche Bank wishes to note for the Court s benefit that, waiver issues aside, Deutsche Bank continues to maintain that it has adequately proven its standing. Thus, Phadael is asking this Court to rule on an issue which ultimately may not change the judgment below. This is further reason to decline jurisdiction. 1

6 ARGUMENT I. NO CONFLICT EXISTS WARRANTING THE COURT S J URISDICTION. In its written opinion, the Fourth District Court of Appeals rejected Phadael s standing arguments, adopting the reasoning of the appellees that an objection to standing is an affirmative defense that can be, and was, waived. The Court did so citing decisions of multiple district courts of appeals. See slip opinion, at 2-3 (citing, e.g., Glynn v. First Union Nat l Bank, 912 So. 2d 357 (Fla. 4th DCA 2005); Schuster v. Blue Cross & Blue Shield of Fla., Inc., 843 So. 2d 909 Fla. 4th DCA 2003)). In his jurisdictional brief, Phadael attacks the 4 th DCA s decision as in direct conflict with other decisions. (Jurisdictional Brief, at 3.) Phadael expressly premises his jurisdictional arguments upon this supposed conflict. A. The Meaning of Standing Phadael cites several Florida cases which he contends stand for the proposition that standing requires a case or controversy : Department of Rev. v. Kuhnlein, 646 So. 2d 717, 720 (Fla. 1994); Ferreiro v. Philadelphia Indem. Ins. Co., 928 So. 2d 374, 377 (Fla. 3d DCA 2006); United Auto. v. Diagnostics of S. Fla., 921 So. 2d 23, 25 (Fla. 3d DCA 2006). Each of these cases does clearly require that there be a case or controversy. Moreover, Deutsche Bank agrees standing must involve a case or controversy. 2

7 The problem with Phadael s allegation of a conflict is that the requirement of a case or controversy simply does not address the right issue: Is standing jurisdictional such that it may be raised at any point in the litigation. Useful as is a phrase like case or controversy, it is simply not synonymous with jurisdiction. Phadael next cites the unremarkable holding in Polk County v. Sofka, 702 So. 2d 1243, 1245 (Fla. 1997), which only provides that courts must dismiss the case where they lack jurisdiction. This, of course, is not a conflict with the Fourth DCA s decision, because neither Deutsche Bank nor the appellate court below disagreed that a party lacking jurisdiction must dismiss. The only question was whether that jurisdiction could have been harmed had Deutsche Bank lacked standing, as conceived in Florida. Finally, Phadael again cites Kuhnlein, along with May v. Holley, 59 So. 2d 636, 639 (Fla. 1952) 1 and Martinez v. Scanlan, 582 So. 2d 1167 (Fla. 1991) in support of his argument. Kuhnlein and Scanlan are both opinions of this Court quoting with approval its prior opinion in May. Though May dealt with a declaratory judgment, Kuhnlein expressly analogizes the standing issue to much the same rule announced in May. 646 So. 2d at 721. May requires the showing of several elements : a bona fide, actual, present controversy dealing with real 1 Phadael incorrectly cites his quote from May as coming from Interlachen Lakes Estates, Inc. v. Brooks, 341 So. 2d 993 (Fla. 1976). 3

8 facts, impacting the power or rights of one of the parties, an antagonistic party, the placement of the claim before the court, and relief that will actually affect the parties. 59 So. 2d at 639. In short, Phadael has cited cases which can be read to require standing. Standing, moreover, certainly requires a real controversy between parties at loggerheads such that the relief granted will really and actually affect their rights. Deutsche Bank wholly agrees that this is what standing is. Missing from Phadael s brief, however, is any explanation even vaguely suggesting what subject matter jurisdiction is. It is impossible to determine whether standing affects jurisdiction, and thus decisions conflict, when no attention has been paid to jurisdiction. Phadael apparently hopes this Court will treat case or controversy as a shorthand for jurisdictional. This sort of assumption would be unwarranted. B. Subject Matter Jurisdiction Florida s concept of subject-matter jurisdiction is far different from the focus of standing. Jurisdiction is concerned not with the dispute or the parties to it, but with the court s power to adjudicate the controversy presented, and whether the court has been properly asked to adjudicate it. As Florida courts have made clear, subject matter jurisdiction comprises two essential aspects. First, a trial court must have power to adjudicate the class of cases to which such case 4

9 belongs. Lovett v. Lovett, 93 Fla. 611, 631, 112 So. 768, 776 (1927) (emphasis added); Paulucci v. General Dynamics Corp., 842 So. 2d 797, 801 n.3 (Fla. 2003); Garcia v. Stewart, 906 So. 2d 1117, 1122 (Fla. 4th DCA 2005). Second, a court s jurisdiction must be lawfully invoked by the filing of a proper pleading. Garcia, 906 So. 2d at 1122 (emphasis added); Florida Power & Light v. Canal Auth., 423 So. 2d 421, 423 (Fla. 5th DCA 1982). The Court in Lovett made clear that the first aspect regarding the court s power over the class of cases, is power conferred on the court by the sovereign to deal with the general abstract question. 93 Fla. at , 112 So. at 775. Lovett also explained the second aspect lawful invocation of the court s jurisdiction as a requirement to file a pleading or other document to actually commence the case. 93 Fla. at 630; 112 So. at 775. Florida Power elaborated on the lawful invocation aspect, requiring that there be a proper pleading. 423 So. 2d at 423. Further, in a footnote, Florida Power listed numerous examples of parties who had or had not lawfully invoked the power of the court to grant the relief requested. Id. at n.8. Most of the examples cited involved parties filing a particular pleading seeking a particular form of relief, then later seeking relief not initially requested, resulting in the court s refusal to grant such additional relief as extrajurisdictional. Id. In other words, lawful invocation of the courts concerns whether the litigants have asked a court to do something it can do. 5

10 There is little room to dispute that the trial court had the power to adjudicate a mortgage foreclosure action. There is similarly little room to dispute that Deutsche Bank lawfully invoked the court s jurisdiction by filing a pleading seeking the relief it ultimately obtained. Yet rather than concede the court s subject-matter jurisdiction, Phadael argues that subject-matter jurisdiction also requires an objective determination that a party has standing. This is a tortured reading that should be rejected. In Florida, subject matter jurisdiction, which cannot be waived, is implicated in two main circumstances. First, a party fails to file a real lawsuit seeking relief, thus failing to lawfully invoke the court s jurisdiction. Second, a party asks a court to grant relief is it unable to grant. Subject matter jurisdiction does not involve the different analysis whether the controversy is sufficiently adverse and real, which is the focus of the non-jurisdictional standing inquiry. There is no conflict presented by Phadael s appeal. II. PHADAEL S UNDERLYING CHALLENGE TO DEUTSCHE BANK S STANDING IS WITHOUT MERIT. Deutsche Bank recognizes that the Fourth District s opinion refers only to the waiver issue, and thus whether a conflict exists between that opinion and other caselaw is the Court s primary focus. Deutsche Bank has therefore willingly addressed whether such a conflict exists at the start. However, Deutsche Bank 6

11 wishes to note that, under the circumstances, Phadael is not entitled to this Court s review of the Fourth DCA s decision. As Deutsche Bank has maintained throughout its appellate and rehearing briefs, a review of the record on appeal indicates that Deutsche Bank did have standing to bring its foreclosure suit. Thus, although Deutsche Bank has contended that this defense was waived, Deutsche Bank has never conceded and does not concede that it both had standing and produced sufficient evidence thereof. Before summary judgment was entered, Deutsche Bank filed the original note, endorsed in blank, with the Court. As noted in Deutsche Bank s prior briefs, this action was sufficient to demonstrate Deutsche Bank s standing to foreclose in accordance with Riggs v. Aurora Loan Svcs., 36 So. 3d 932, 933 (Fla. 4th DCA 2010). (See Appellee s Brief, at 10-11; Rehearing Brief, at 5-7.) Because Phadael has not successfully drawn into question Deutsche Bank s standing, his appeal to this Court seeks review of an issue which ultimately will not change the judgment entered below. Thus this Court should decline to exercise jurisdiction. CONCLUSION This Court should decline to accept this case. The Fourth District s opinion was in line with preexisting Florida cases. Phadael has presented to this Court a false conflict which does not endanger or jeopardize any ruling of the various 7

12 district courts of appeal. Rather, the lower appellate courts have been getting it right in properly appreciating the distinction between standing and jurisdiction. Standing is a waivable affirmative defense, and Phadael waived it. His appeal does not warrant review by this Honorable Court. Respectfully submitted, BRADLEY ARANT BOULT CUMMINGS, LLP Marc James Ayers (Bar No ) Jose D. Vega (Bar No ) th Avenue North Birmingham, Alabama Telephone: (205) Facsimile: (205)

13 Certificate of Service I certify that a copy hereof has been furnished to: Garry W. Johnson, Esq. Bruce K. Herman, Esq. 511 Law, P.A East Broward Boulevard, Suite 206 Fort Lauderdale, Florida by First-Class United States Mail, postage prepaid, on the 18 th day of May, OF COUNSEL Certificate of Compliance Pursuant to Florida Rules of Appellate Procedure 9.210(a)(2), I certify this brief has been prepared using Times New Roman 14-point font. OF COUNSEL 9