Filing # E-Filed 04/17/ :27:36 PM. RECEIVED, 04/17/ :28:29 PM, Clerk, Supreme Court STRICKEN

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1 Filing # E-Filed 04/17/ :27:36 PM RECEIVED, 04/17/ :28:29 PM, Clerk, Supreme Court

2 TABLE OF CONTENTS TABLE OF CONTENTS... TABLE OF CITATIONS... ii iii INTRODUCTORY AND STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 I. THE OPINION OF THE FIFTH DISTRICT EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF OTHER DISTRICT COURTS OF APPEAL REGARDING THE EXCUSABLE NEGLECT RULE OF LAW, GENERALLY, AND ITS APPLICATION TO THE "REASONABLE MISUNDERSTANDING" CLASS OF CASES WITHIN WHICH THE CASE AT BAR FALLS.. 4 II. THE OPINION OF THE FIFTH DISTRICT MISAPPLIED, AND EXPRESSLY AND DIRECTLY CONFLICTS WITH, PRIOR DECISIONS OF THIS COURT WHICH HELD A TRIAL COURT DECISION SHOULD BE AFFIRMED IF ANY BASIS EXISTS IN THE MOTION OR RECORD, RESPECTIVELY, EVEN IN THE ABSENCE OF REASONS FOR THE TRIAL COURT'S DECISION.. 8 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE

3 TABLE OF CITATIONS CASES Page No. Arcila v. BAC Home Loans Services, L.P., 145 So 3d 897(Fla. 2d DCA 2014)... 5 Bank ofnew York Mellon v. Depiero, 178 So. 3d 552 (Fla. 1" DCA 2015)... 5 BMW ofno. America, Inc. v. Krathen, 471 So. 2d 585 (Fla. 4th DCA 1985), rev. denied, 484 So, 2d 7 (Fla. 1986)... 7 Cohen v. Mohawk, Inc., 137 So. 2d 222 (Fla. 1962)... 9, 10 Elliott v. Aurora Loan Services, LLC, 31 So. 3d 304 (Fla. 4th DCA 2010)... 5, 6 Evans v. Hydeman, 168 So. 2d 183 (Fla. 2d DCA 1964)... 7 Fitzgerald v. Cestari, 569 So. 2d (Fla. 1990)... 4 Ford Motor Co. V Kikis, 401 So. 2d 1341 (Fla. 1981)... 4 Gables Club Marina, LLC v. Gables Condo. & Club Ass 'n, Inc., 948 So. 21 (Fla. 3d DCA 2007), rev. denied, 969 So. 2d 1012 (Fla. 2007)... 5, 7 Gibson Trust, Inc. v. Office, Att'y Gen'l, 883 So. 2d 379 (Fla. 4th DCA 2004)... 7 Goodno v. So. Florida Farms Co., 95 Fla. 90, 116 So. 23 (1928) 9 Kash N'Karry Wholesale, Inc. v. Garcia, 221 So. 2d 786 (Fla. 2d DCA 1969), cert. denied, 229 So. 2d 869 (Fla. 1969)... 7,

4 Lee v. Chung, 528 So. 2d 1313 (Fla. 2d DCA 1988)... 6 Mancini v. State, 312 So. 2d 732 (Fla. 1975)... 4, 8 Ocwen Loan Services, LLC v. Brogdon, 185 So. 3d 627 (Fla. 5 ' DCA 2016)... 5 Riggs v. State, 91 8 So. 2d 274, 278 (Fla. 2005)... 8 Smiles v. Young, 271 So. 2d 798(Fla. 3d DCA 1973), cert. denied, 279 So. 2d 305 (Fla. 1973)... 7 State ex rel. Alfred E. Destin Co. v. Heffernan, 47 So. 2d 15 (Fla. 1950)... 7 State v. Walker, 593 So. 2d 1049 (Fla. 1992)... 5 Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009)... 4 Williams v. Ricou, 143 Fla. 360, 196 So. 667 (1940)... 9 FLORIDA CONSTITUTION AND STATUTES Art. V, 3(b)(3), Florida Constitution... 3 RULES OF PROCEDURE Fla. R. Civ. P , 8 Fla. R. Civ. P Fla. R. Civ. P Fla. R. App. P (a)(2)(A)(iv)... 3 IV

5 INTRODUCTORY AND STATEMENT OF CASE AND FACTS References in this briefto Petitioners, EDMUND SEIJO and DAVID KALEEL and LESA KALEEL, Appellees in Case No. 5D below, will be SEIJO and KALEELS, respectively, or Petitioners. The remaining Appellees in the Fifth District Court ofappeal below ("Fifth District") are not involved in this appellate proceeding. References to the Appendix will be either (App. ) or (App., p._). This appellate proceeding involves the review of an opinion of the Fifth District ("the opinion") in which it reversed a ruling of the trial court awarding SEIJO, KALEELS, and the other Appellees below attorney's fees and costs. The opinion held, as it related to all of the Appellees below, that the trial court erred in finding Appellees were prevailing parties, and as such, Appellees were required to have filed their motions for attorney's fees and costs within 30 days of rendition of the final judgment as provided in Fla. R. Civ. P (App.,p.5). The opinion further held, as it related to SEIJO and KALEELS, that the trial court abused its discretion in finding excusable neglect and allowing Petitioners to late file their motion for attorney's fees and costs pursuant to Fla. R. Civ. P ("motion to late file"). The opinion held that "[g]enerally, courts are inclined to find excusable neglect 'when error occurs due to a breakdown in the mechanical or operational practices of the attorney's office equipment or staff.'" (App.,p.7). The 1

6 opinion then determined there was no evidence in the record to suggest such a breakdown, found an abuse of discretion, and reversed the award of attorney's fees and costs to SEIJO and KALEELS. (App.,p.8). The facts recited in the opinion, however, reflect the predicate for the motion to late file was based on long-recognized grounds for establishing excusable neglect, which grounds the Fifth District ignored in its analysis. These facts were: the parties "worked together regarding various procedural/ timing matters;" "[Respondent] had previously communicated with [Petitioners] with the understanding that [Petitioners] were entitled to attorney's fees;" [Petitioners] "relied on that course of conduct in determining that it was unnecessary to comply with the thirty-day requirement of Rule 1.525;" and "it was not uncommon practice between members of the local bar to agree to not hold themselves to filing time lines." (App., p.3). The Fifth District opinion was filed on February 10, (App.) The Notice to Invoke Discretionary Jurisdiction was timely filed on April 5, 2017, after the denial of Petitioners' motion for clarification/rehearing, rehearing en banc and certification. SUMMARY OF ARGUMENT The opinion misstates and/or expressly and directly conflicts with Supreme Court or other district court opinions on four rules of law. Initially, it expressly and directly conflicts with the other four district courts by misstating and limiting the 2

7 scope of a long-standing rule of law governing excusable neglect utilized by each of those other courts to analyze whether excusable neglect is established. Second, the opinion creates express and direct conflict by applying that misstated and limited version of the excusable neglect rule of law to the facts contained in the motion to late file and finding Petitioners failed to demonstrate excusable neglect. The facts presented in that motion, upon which the trial court found excusable neglect was established, are clearly contemplated by, and recognized as falling within, the excusable neglect rule of law/analysis utilized by each ofthe other district courts that have addressed similar motions. Third, the opinion misapplied the rule of law which this Court held governs the standard of review of decisions of a trial court that do not state the reason(s) for its ruling. Finally, the opinion (i) misapplied the rule of law announced by this Court governing review of discretionary decisions of a trial court, and (ii) conflicts with a decision of the Second District holding a trial court is in the best position to determine matters relating to alleged misunderstanding between counsel. ARGUMENT Jurisdiction for the Supreme Court of Florida to hear this matter is based upon its discretionary conflictjurisdiction set forth in Art. V, 3(b)(3), Florida Constitution and Fla. R. App. P (a)(2)(A)(iv). For purposes of establishing conflict 3

8 jurisdiction, an opinion of a district court of appeal must announce a rule of law that conflicts with a rule of law previously announced by the Supreme Court or another district, or misapplies prior decisions of the Supreme Court. Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009); Mancini v. State, 312 So. 2d 732 (Fla. 1975). It is not necessary that the district court opinion expressly identify conflicting district court or Supreme Court decisions in its opinion to create express conflict under the constitution, only that it discuss the legal principles the court applied. Ford Motor Co. V. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981). Conflict jurisdiction can also be found based upon apparent conflict. See e.g., Fitzgerald v. Cestari, 569 So. 2d 1258 (Fla. 1990). L THE OPINION OF THE FIFTH DISTRICT EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF OTHER DISTRICT COURTS OF APPEAL REGARDING THE EXCUSABLE NEGLECT RULE OF LAW, GENERALLY, AND ITS APPLICATION TO THE "REASONABLE MISUNDERSTANDING" CLASS OF CASES WITHIN WHICH THE CASE AT BAR FALLS. (A) Conflict with General Rule oflaw Governing Excusable Neglect The ultimate ruling by the Fifth District was the record was "devoid of any evidence or reference, by way ofmotion or argument, suggesting 'a breakdown in the mechanical or operational practices of the attorney's office equipment or staff,'" which the Fifth District held was how excusable neglect is "generally" established. (App., p.7). Based upon its statement of the rule, the Fifth District held excusable 4

9 neglect was not established by Petitioners. This, however, is a misstatement of the excusable neglect rule, and expressly and directly conflicts with the rule announced and utilized by each of the other district courts, to wit: "Excusable neglect is found where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir." E.g., Bank ofnew York Mellon v. Depiero, 178 So. 3d 552, 553 (Fla. 18' DCA 2015); Arcila v. BAC Home Loans Services, L.P., 145 So 3d 897, n.1 (Fla. 2d DCA 2014); Elliott v. Aurora Loan Services, LLC, 3 1 So. 3d 304, 307 (F1a. 4'h DCA 2010); Gables Club Marina, LLC v. Gables Condo. & Club Ass'n, Inc., 948 So. 21, 23 (F 1a. 3 d DCA 2007), rev. denied, 969 So. 2d 1012 (Fla. 2007).¹ By "generally" limiting excusable neglect to only breakdowns in attorney's office equipment or staff, the Fifth District incorrectly confined the rule/its analysis to the clerical/secretarial portion of the rule (and perhaps "a system gone awry"). It clearly eliminated "reasonable misunderstanding," and also appears to eliminate the ' Although the Fifth District recently followed the Elliott opinion in Ocwen Loan Services, LLC v. Brogdon, 185 So. 3d 627, 629 (Fla. 5th DCA 2016), for purposes of conflict jurisdiction, it is assumed the Fifth District was aware of Ocwen when it issued its opinion, and nonetheless, stated a conflicting rule. It is presumed no intradistrict conflict was created based upon the principle that the opinion last in time establishes the governing precedent for a district court. By limiting excusable neglect "generally" to breakdowns in an attorney's office, the Fifth District created conflict with each of the other district courts. State v. Walker, 593 So. 2d 1049 (Fla. 1992). 5

10 "foibles to which human nature is heir," from the rule/analysis recognized by each of the other district courts. This limitation expressly and directly conflicts with the stated rule and analysis utilized by each of the other four district courts of appeal. (B) Conflict created by application ofmisstated rule oflaw To exacerbate and compound the effect of its misstated and limited excusable neglect rule, the Fifth District then applied that rule to find a lack of excusable neglect below. It is apparent from the facts recited in the opinion that the agreements, relationship and possible misunderstanding between counsel were the grounds for Petitioners' motion to late file - not an office "breakdown."2 Based upon the Fifth District's opinion/analysis, however, these facts and similar fact scenarios did not, and can never, constitute excusable neglect as they can never be "generally" characterized as "a breakdown in the mechanical or operational practices of an attorney's office." Such a result expressly and directly conflicts with the opinions of three district courts, which expressly recognized and held that a misunderstanding and/or reliance upon conduct between members of the bar can establish excusable neglect. See Lee v. Chung, 528 So. 2d 1313, 1316 (Fla. 2d DCA 1988)(neglect is 2 These matters were required to be included in a verified pleading. Elliott, supra. Although the Fifth District made findings of deficiencies regarding other issues, it made no finding Petitioners' motion to late file failed to comply with this requirement for establishing excusable neglect. 6

11 excusable where it is result of generally accepted practices and amenities among the local bar); BMWofNo. America, Inc. v. Krathen, 471 So. 2d 585, 588 (Fla. 4th DCA 1985), rev. denied, 484 So. 2d 7 (Fla. 1986)(same); Smiles v. Young, 271 So. 2d 798, 802 (Fla. 3d DCA 1973)(same), cert. denied, 279 So. 2d 305 (Fla. 1973); Kash N'Karry Wholesale, Inc. v. Garcia, 221 So. 2d 786, 789 (Fla. 2d DCA 1969), cert. denied, 229 So. 2d 869 (Fla. 1969)(same). Based upon the general statement of law recognized in these cases, conflict jurisdiction exists with the Fifth District opinion. The opinion also expressly and directly conflicts with the following opinions, where each determined misunderstandings between counsel constituted excusable neglect on the facts noted. State ex rel. Alfred E. Destin Co. v. Heffernan, 47 So. 2d 15 (Fla. 1950)(stipulation party had as much time as needed to file amended pleading); Gables Club Marina, LLC, supra (misunderstanding between counsel regarding settlement negotiations); Gibson Trust, Inc. v. Office, Att'y Gen 'l, 883 So. 2d 379(Fla. 4th DCA 2004)(unrebutted affidavit established misunderstanding between counsel whether an extension had been agreed upon); Evans v. Hydeman, 168 So. 2d 183 (Fla. 2d DCA 1964) (mistake/misunderstanding regarding filing responsive pleading). The practical effect of the Fifth District's application of the excusable neglect rule "generally" to breakdowns in office equipment and staff precludes it from ever finding excusable neglect when faced with facts involving 7

12 conduct/misunderstandings between counsel, while the other district courts clearly consider such facts. That conflicting results will occur from application a rule of law to the same or similar facts provides another basis to invoke this Court's conflict jurisdiction. See Riggs v. State, 918 So. 2d 274, 278 (Fla. 2005); Mancini, supra. An additional consideration in this conflict analysis is that the Fifth District's truncated version of excusable neglect will not be limited to analysis of extensions of time contemplated by Rule It will also affect motions to set aside defaults under Fla. R. Civ. P , as excusable neglect is an element of such motions. The precedent established by the opinion restricts the grounds available to establish excusable neglect to set aside defaults, at least within the Fifth District. II. THE OPINION OF THE FIFTH DISTRICT MISAPPLIED, AND EXPRESSLY AND DIRECTLY CONFLICTS WITH, PRIOR DECISIONS OF THIS COURT WHICH HELD A TRIAL COURT DECISION SHOULD BE AFFIRMED IF ANY BASIS EXISTS IN THE MOTION OR RECORD, RESPECTIVELY, EVEN IN THE ABSENCE OF REASONS FOR THE TRIAL COURT'S DECISION. The Fifth District opinion recites the "trial court provided no basis for its conclusion that excusable neglect was established," which created the first step toward its ultimate holding the trial court abused its discretion in granting Petitioners' motion to late file. After taking that first step, it then undertook its own independent investigation of, and inferred from, the record as follows: "[o]n the record before us, 8

13 it appears that the failure to timely file the motion for attorney's fees was due to counsel's erroneous conclusion that the motion for rehearing tolled the time for filing." (Emphasis added) (App., p.7). This analysis and the statements by the Fifth District clearly misstate, and expressly and directly conflict with, precedent of this Court: (i) a district court cannot ignore a trial court ruling even if the trial court fails to specify the basis for its ruling in an order, and (ii) if there is no basis expressed in an order, a district court cannot reweigh the matters contained in the record. As to the first point, this Court held in Williams v. Ricou, 143 Fla. 360, 196 So. 667, 669 (1940), that appellate review of an order containing no specific findings is limited to review of the motion to determine support of a trial court's decision. Accord, Goodno v. So. Florida Farms Co., 95 Fla. 90, 116 So. 23 (1928) (order granting motion for new trial stating no specific grounds why motion was granted would be affirmed if any ground in motion sufficient to support entry oforder). This analysis is identical to that employed in reviewing final judgments containing no factual findings. See, e.g., Cohen v. Mohawk, Inc., 137 So. 2d 222, 225 (Fla. 1962). The actions by the Fifth District in ignoring the trial court's order because no specific findings were included, and then reconsidering the record, both misapplies the law and expressly and directly conflicts with these Supreme Court opinions. As to the second point, the function of an appellate court is to determine 9

14 whether any theory or principle of law appears in the record to support the decision of the trial court. Rather than conforming to that standard, the Fifth District engaged in its own an independent evaluation of the record to find the lack of excusable neglect, by inference and "appearance." This exercise by the Fifth District again misapplies and expressly and directly conflicts with Cohen, supra, at Finally, the decision of the Fifth District expressly and directly conflicts with an opinion of the Second District which held the trial court is in the best position to determine generally accepted practices ofthe bar, the amenities with which he/she is familiar and upon which he/she may have a right to rely for purposes of determining excusable neglect, and such decision should be left to the trial court. Kash N'Karry, supra, 221 So. 2d at 789. This the Fifth District clearly did not do by substituting its findings for that of the trial court and then finding it abused its discretion. CONCLUSION The Court should exercise its discretion and accept jurisdiction of this proceeding for any or all of the reasons stated above. 3 The Fifth District should never have engaged in drawing inferences as to why it believed Petitioners late filed their motion for attorney's fees and costs. There were facts contained in Petitioners' motion to late file why late filing occurred, which are contrary to the inferences drawn by the Fifth District in support of its finding of abuse of discretion and reversal of the trial court. 10

15 Respectfully submitted on April, 17, 2017: CERTIFICATE OF SERVICE MES P. BEADLE, Esq. Spira, Beadle & McGarrell, P.A. I HEREBY CERTIFY that a copy of the foregoing Petitioners' Brief on Jurisdiction was furnished by to Mark D. Shuman, Esq., Gray Robinson, P.A. (Mark.Shuman@gray-robinson.com) and Patricia K. Olney, Esq., Patricia K. Olney, P.A. (olney@ vessellaw.com) this 17* day of April 017. ES P. BEADLE, ESQUIRE SPIRA, BEADLE & McGARRELL, P.A Babcock Street N.E. Palm Bay, Florida Tel: (321) Fax: (321) Florida Bar No jbeadle@sbmlawyers.com Attomey for Petitioners CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing complies with the font requirements of Fla. R. App. P (a)(2). S P. BEADLE, ESQUIRE Spira, Beadle & McGarrell., P.A Babcock Street, N.E. Palm Bay, Florida Tel: (321) Fax: (321) Florida Bar No

16 Attorney for Petitioners 12