IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CASE NO. 4D L.T. CASE NO CA-3616-XXXXMB

Transcription

1 IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CASE NO. 4D L.T. CASE NO CA-3616-XXXXMB RECEIVED, 6/12/ :08 AM, Clerk, Fourth District Court of Appeal SOVEREIGN HEALTHCARE OF MEDICANA, LLC, d/b/a MEDICANA NURSING & REHAB CENTER, vs. BONNIE M. STARK, and Appellant/Defendant, Appellee/Plaintiff, TOTAL NAILS ACADEMY, INC., d/b/a TOTAL NAILS AND HAIR ACADEMY, Appellee/Defendant. / REPLY BRIEF OF APPELLANT SOVEREIGN HEALTHCARE OF MEDICANA, LLC On Appeal from a Final Order of the Fifteenth Judicial Circuit, In and For Palm Beach County, Florida CARLTON FIELDS JORDEN BURT, P.A. CityPlace Tower 525 Okeechobee Blvd., Suite 1200 West Palm Beach, Florida By: Dean Morande Florida Bar No dmorande@cfjblaw.com CARLTON FIELDS JORDEN BURT, P.A. Miami Tower 100 S.E. 2nd Street, Suite 4200 Miami, Florida Telephone: (305) By: Cristina Alonso Florida Bar No calonso@cfjblaw.com Steven M. Blickensderfer Florida Bar No sblickensderfer@cfjblaw.com Counsel for Appellant Sovereign Healthcare of Medicana, LLC

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii ARGUMENT... 1 I. THE TRIAL COURT ERRED IN ENTERING JUDGMENT BASED ON JOINT AND SEVERAL LIABILITY... 1 A. Medicana s Nondelegable Duty To Maintain The Premises In A Reasonably Safe Condition Is Distinct From Total Nails Duty To Educate And Train Its Staff Under Ordinary Negligence Principles... 2 B. The Cases Plaintiff Relies On Do Not Apply... 6 C. The Jury s Apportionment Of Fault In Light Of The Nondelegable Duty Instruction Indicates It Necessarily Found That Total Nails Breached A Delegable Duty... 8 II. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR DIRECTED VERDICT AS TO FUTURE DAMAGES BECAUSE PLAINTIFF S EVIDENCE WAS SPECULATIVE, AND THUS INSUFFICIENT TO SUPPORT THE AWARD III. THIS COURT HAS JURISDICTION OVER THIS APPEAL CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 TABLE OF AUTHORITIES Page(s) Cases Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864 (Fla. 2d DCA 2010)... 3, 8 Burton v. MDC PGA Plaza Corp., 78 So. 3d 732 (Fla. 4th DCA 2012)... 2 Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932 (Fla. 2000)... 9 Carter v. Parker, 183 So. 2d 3 (Fla. 2d DCA 1966)... 7 Econ. Cash & Carry Cleaners, Inc. v. Gitlin, 1 So. 2d 191 (Fla. 1941)... 6, 7 Fontana v. Wilson World Maingate Condo., 717 So. 2d 199 (Fla. 5th DCA 1998)... 6, 7 Friedrich v. Fetterman & Assocs., P.A., 137 So. 3d 362 (Fla. 2013)... 6, 7 Harvey v. Maistrosky, 114 So. 2d 810 (Fla. 2d DCA 1959)... 6, 7 Indus. Affiliates, Ltd. v. Testa, 770 So. 2d 202 (Fla. 4th DCA 2000) Jones v. State, 423 So. 2d 520 (Fla. 5th DCA 1982) Kupperman v. Levine, 462 So. 2d 90 (Fla. 4th DCA 1985)... 7 Letzter v. Cephas, 792 So. 2d 481 (Fla. 4th DCA 2001)... 9 Lollie v. Gen. Motors Corp., 407 So. 2d 613 (Fla. 1st DCA 1981)... 7 ii

4 TABLE OF AUTHORITIES (Continued) Page(s) Marks v. Delcastillo, 386 So. 2d 1259 (Fla. 3d DCA 1980) McCarthy v. Garcia Menendez Enters., 693 So. 2d 75 (Fla. 3d DCA 1997)... 7 Nicholson v. Stonybrook Apartments, LLC, 154 So. 3d 490 (Fla. 4th DCA 2015)... 3, 4 Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418 (Fla. 4th DCA 2014)... 3, 8, 9, 10 Ratner v. Miami Beach First Nat l Bank, 362 So. 2d 273 (Fla. 1978) Sanchez v. Martin, 138 So. 3d 1165 (Fla. 3d DCA 2014) Schreuder v. Howard Johnson s Co., 712 So. 2d 795 (Fla. 2d DCA 1998)... 7 Skinner v. Fla. Power Corp., 564 So. 2d 572 (Fla. 1st DCA 1990) U.S. Sec. Servs. Corp. v. Ramada Inn, Inc., 665 So. 2d 268 (Fla. 3d DCA 1995)... 2 Walt Disney World Co. v. Merritt, 404 So. 2d 1077 (Fla. 5th DCA 1981)... 7 West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976)... 7 Williams v. Wometco Enters., 287 So. 2d 353 (Fla. 3d DCA 1973)... 3 Yuniter v. A&A Edgewater of Fla., Inc., 707 So. 2d 763 (Fla. 2d DCA 1998)... 6 iii

5 TABLE OF AUTHORITIES (Continued) Page(s) Statutes (3), Fla. Stat... 2, 8 Rule Rule 9.040(d), Fla. R. App. P Rule 1.480, Fla. R. Civ. P iv

6 ARGUMENT I. THE TRIAL COURT ERRED IN ENTERING JUDGMENT BASED ON JOINT AND SEVERAL LIABILITY Plaintiff misses the key distinction that sets this case apart from the traditional premises liability case. In addition to the premises liability claims asserted against Medicana as the property owner, Plaintiff asserted an ordinary negligence claim against the independent contractor providing hair salon services on the premises, Total Nails, for failing to adequately train and educate the student hairdresser on how to safely use the shampoo chair. (R. 3:581-83). This duty to educate and train was not related to any condition of the premises. Rather, the duty arose from Total Nails operation of the beauty salon, and existed by virtue of the fact Total Nails was a hair and nail school that trained student hairdressers. Consistent with these allegations, the jury was instructed to decide, inter alia, whether Medicana and Total Nails were negligent for failing to provide a safe seat upon which business invitees could sit which sounded in premises liability and for failing to educate and train the student hairdressers on how to use the shampoo chair which sounded in ordinary negligence. (R. 9:1643, 1648). The jury was further instructed on a landowner s nondelegable duty to provide a reasonably safe premises, and was told that a landowner remained liable for the acts of any independent contractors who breached that duty. (R. 9:1650). In light of these instructions (which Plaintiff requested) the jury found (on 1

7 the verdict form Plaintiff requested) both Medicana and Total Nails negligent, but no agency or joint venture relationship between them, leaving a landowner s premises liability for breach of a nondelegable duty as the only basis upon which to hold Medicana liable for Total Nails negligence. (R. 9: ). Further, the jury apportioned 15% fault to Medicana and 85% fault to Total Nails, thereby necessarily finding Total Nails breached a delegable duty to educate and train for which Medicana was not responsible as a landowner. Id. Despite this, the trial court disregarded the jury s comparative fault allocation and imposed joint and several liability on Medicana in violation of section (3), Florida Statutes. (R. 10: ). This constituted error. A. Medicana s Nondelegable Duty To Maintain The Premises In A Reasonably Safe Condition Is Distinct From Total Nails Duty To Educate And Train Its Staff Under Ordinary Negligence Principles It is well-established that a landowner owes a business invitee two duties: (1) to maintain the premises in a reasonably safe condition; and (2) to warn of concealed dangers on the property. Burton v. MDC PGA Plaza Corp., 78 So. 3d 732, 734 (Fla. 4th DCA 2012). It is equally well-settled that a landowner... is not vicariously responsible for all torts committed by the independent contractor... ; the landowner is only liable for the independent contractor s breach of the landowner s non-delegable duty to provide reasonably safe premises for its invitees. See U.S. Sec. Servs. Corp. v. Ramada Inn, Inc., 665 So. 2d 268, 271 (Fla. 2

8 3d DCA 1995); see also Williams v. Wometco Enters., 287 So. 2d 353, 354 (Fla. 3d DCA 1973) (landowner not liable for independent contractor s negligent discharge of firearm in theater). The distinction between a landowner s nondelegable and delegable duties was recently addressed by this Court in Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418 (Fla. 4th DCA 2014), and Nicholson v. Stonybrook Apartments, LLC, 154 So. 3d 490 (Fla. 4th DCA 2015). Examples of conduct relating to a landowner s nondelegable duty to maintain the premises in a reasonably safe condition include maintenance (McGruder), and security (Nicholson). The negligent conduct at issue in those cases falls under the umbrella of a landowner s premises liability for breach of a nondelegable duty, because it involves the failure to do something to the property that results in harm to the injured party. See Nicholson, 154 So. 3d at 494. In McGruder, for instance, the maintenance company hired to clean the premises allowed a clear, slippery substance to accumulate on the floor. 137 So. 3d at 421; see also Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 876 (Fla. 2d DCA 2010) (same). In Nicholson, the security company failed to keep the premises safe from foreseeable criminal activity. 154 So. 3d at 494. By contrast, the negligence at issue in cases involving delegable duties such as this falls under the umbrella of ordinary negligence and involves the 3

9 tortfeasor doing something to harm the injured party. Id. In such cases, negligence is based on conduct, not a condition of the premises. Id. at 492. Here, it was Total Nails student hairdresser s movement of the shampoo chair and failure to latch it that caused Plaintiff s injury (i.e., her misuse and lack of knowledge of the chair). The injury was not caused by the failure to maintain the premises in a reasonably safe condition, and it was not the result of the failure to warn of a dangerous condition or defect in the chair. 1 Indeed, there is no dispute here that the shampoo chair was safe when Medicana assembled it and placed it in the beauty salon for Total Nails use, or that it was safe when properly latched. (T. 6:692). Medicana assembled the chair pursuant to the instructions that came with it in the box, and there was no allegation those instructions were inadequate. (T. 6:624). The jury was never asked to find, and never found, that the shampoo chair was defective or a dangerous instrumentality. As Plaintiff acknowledges, the chair did not collapse because it was broken 1 Plaintiff never alleged Medicana failed to warn of a dangerous condition in her complaint. (R. 3:579-86; R. 4:638-42, ). Although she attempted to raise the failure to warn as a basis for liability at trial, the court ruled it waived and refused to give Plaintiff s requested jury instruction on it. (T. 9: ; R. 9:1649). Accordingly, the jury could not have based its finding of liability on any failure to warn. Still, Plaintiff improperly references the failure to warn in her Answer Brief at 17, 18, 20, 24, & 28. 4

10 or worn. (Answer Brief at 20). She further concedes, as she must, that the chair collapsed because Total Nails student hairdresser, who the jury found was not an agent of Medicana, failed to ensure the latch was secured after she moved it. (Answer Brief at 24). This concession contradicts her argument that she was injured as a result of a condition of the premises i.e., the shampoo chair being in a false latch position. Id. In reality, she was injured because the student hairdresser moved and failed to latch the chair, pursuant to her education and training (or lack thereof). Further, Medicana s duty to maintain the premises in a reasonably safe condition did not necessarily include educating and training Total Nails student hairdressers on the use of the shampoo chair, as Plaintiff claims. (Answer Brief at 15). To the contrary, common sense dictates that Total Nails duty to educate and train the student hairdressers on the use of the shampoo chair a chair designed for washing hair, not sitting related to its services as a hair and nail school, and its operation of the beauty salon. (See Initial Brief at 25, 28). Medicana, who was not in the business of providing hair services, was not precluded from delegating to Total Nails the duty and responsibility of operating the beauty salon and equipment therein for the provision of those services for its residents. Such conduct had no relationship to the premises itself, and thus cannot be said to have been subsumed within Medicana s duty to maintain the premises in a reasonably safe condition. 5

11 B. The Cases Plaintiff Relies On Do Not Apply The premises liability cases involving chairs that Plaintiff cites in support of her position are unpersuasive and distinguishable. (Answer Brief at 15-21). None of them address whether a property owner can be held liable as a matter of law for the negligence of an independent contractor for failing to educate and train on the use of a nondefective chair. See Econ. Cash & Carry Cleaners, Inc. v. Gitlin, 1 So. 2d 191, 192 (Fla. 1941) (circumstances surrounding injury caused by landowner s unlatched metal chair provided for customers for sitting created jury question as to landowner s liability); Harvey v. Maistrosky, 114 So. 2d 810, 814 (Fla. 2d DCA 1959) (whether plaintiff was justified in sitting on stool at landowner s shoe store was jury question); Yuniter v. A&A Edgewater of Fla., Inc., 707 So. 2d 763, 764 (Fla. 2d DCA 1998) (reasonableness of motel s inspection of chair was jury question); Fontana v. Wilson World Maingate Condo., 717 So. 2d 199, 200 (Fla. 5th DCA 1998) (having no procedure for inspecting/maintaining furniture created jury question as to hotel s liability); Friedrich v. Fetterman & Assocs., P.A., 137 So. 3d 362, 366 (Fla. 2013) (reversing directed verdict where plaintiff s expert testified inspection would have revealed chair s defective joint). The only factual similarity to this case that can be drawn from any of these cases is that in Gitlin, the metal chair was safe when fastened and posed a danger when unfastened, which Medicana does not dispute could happen to the shampoo 6

12 chair when unfastened. 2 1 So. 2d at 244. The fact that the shampoo chair was safe and not defective when assembled and installed by Medicana further distinguishes this case from the chair defect cases such as Harvey, 114 So. 2d 810; Fontana, 717 So. 2d 199; and Friedrich, 137 So. 3d 362. The remaining cases cited stand for the unremarkable proposition that a property owner may be liable for injuries arising from the plaintiff s use of a chair or the owner s placement of chairs in its establishment. See Schreuder v. Howard Johnson s Co., 712 So. 2d 795 (Fla. 2d DCA 1998) (collapsed chair in motel room); McCarthy v. Garcia Menendez Enters. Inc., 693 So. 2d 75, 76 (Fla. 3d DCA 1997) (Cope, J., concurring) (hazardous arrangement of chairs in restaurant); Kupperman v. Levine, 462 So. 2d 90 (Fla. 4th DCA 1985) (optical illusion created by chairs in home); Walt Disney World Co. v. Merritt, 404 So. 2d 1077 (Fla. 5th DCA 1981) (hazardous arrangement of chairs in restaurant); Carter v. Parker, 183 So. 2d 3 (Fla. 2d DCA 1966) (hazardous arrangement of chairs in lounge). Total Nails negligence then, as the jury was instructed and found, was for breach of a delegable duty related to the hair salon services it provided to educate 2 No cases cite Gitlin for its definition of a dangerous instrumentality. Under modern products liability law, a product is a dangerous instrumentality because of the dangers in its use and operation, not because it is dangerous in and of itself. Lollie v. Gen. Motors Corp., 407 So. 2d 613, 615 (Fla. 1st DCA 1981); see also West v. Caterpillar Tractor Co., 336 So. 2d 80, 85 (Fla. 1976) (discussing dangerous instrumentality doctrine). 7

13 and train its hairdressers on the use of salon equipment which sounded in ordinary negligence. Medicana s argument is not premised on a contention that it delegated, or is not liable for, the breach of a duty to maintain a safe premise. This critical fact distinguishes this case from Armiger, 48 So. 3d 864, and McGruder, 137 So. 3d 418, wherein the landlords delegated the duty to maintain the premises in a reasonably safe condition to independent contractors, and the landlords were held responsible for the subsequent breach of that duty. Unlike those cases, Medicana continued to exercise its nondelegable duty to maintain the premises in a reasonably safe condition. Indeed, it is likely Medicana s maintenance and inspection of the area to the extent it was negligent formed the basis of the jury s finding that Medicana was 15% at fault, which Medicana accepts. To the extent the jury found Total Nails breached a delegable duty, however, comparative fault principles apply. See (3), Fla. Stat. Plaintiff does not dispute this in her brief. C. The Jury s Apportionment Of Fault In Light Of The Nondelegable Duty Instruction Indicates It Necessarily Found That Total Nails Breached A Delegable Duty The fact that the jury was instructed to apportion fault between Medicana and Total Nails in light of the nondelegable duty instruction indicates that the jury necessarily found that Total Nails breached a delegable duty, as opposed to a nondelegable duty. The instruction on nondelegable duties told the jury that if 8

14 Total Nails breached Medicana s nondelegable duty to maintain the premises in a reasonably safe condition, it was to hold Medicana liable for that breach: A landowner has a non-delegable duty to provide business invitees, like [Plaintiff], with a reasonably safe premises and remains liable for the acts of any independent contractors responsible for breach of that non-delegable duty. (R. 9:1650) (emphasis added). As such, because it apportioned fault, the jury necessarily found that Total Nails breached a nondelegable duty. See Letzter v. Cephas, 792 So. 2d 481, 487 (Fla. 4th DCA 2001) (the law presumes that the jury followed the court s instructions and applied the law to the facts as it found them. ); see also Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 942 (Fla. 2000) ( [J]uries are presumed to follow the instructions given them. ). None of the cases cited by Plaintiff involve a jury apportioning fault between a landowner and independent contractor in light of instructions on a landowner s nondelegable duties and in light of an ordinary negligence claim against the independent contractor. McGruder, on which Plaintiff relies, is distinguishable. There, in apportioning fault, the jury was not instructed on a landowner s nondelegable duties, or to apportion fault to an independent contractor on an ordinary negligence claim. See 137 So. 3d at 431; (R. 9: ). Thus, this Court s decision that the imposition of joint and several liability was proper because the maintenance company was not liable for the landowner s breach of its duty to maintain a safe premises does not apply here, where Plaintiff s requested 9

15 and given instructions told the jury to hold Medicana liable to the extent Total Nails breached a nondelegable duty. Lastly, it should be noted that Plaintiff fails to address the due process concerns caused by her belated, post-verdict request for the trial court to impose joint and several liability on Medicana based on the nondelegable duty doctrine that she raised for the first time in response to Medicana s motion for directed verdict at trial. (Initial Brief at 26-27). Unlike in McGruder, where the plaintiff s only basis for seeking to impose joint and several liability was a claim sounding in premises liability, see (R. 9: ), Plaintiff s only alleged bases upon which to hold Medicana liable for Total Nails negligence was agency and a joint venture. (R. 3:580-81, ; R. 4:638-41, ). Plaintiff should have alerted Medicana and the court that she was seeking to hold Medicana jointly and severally liable for Total Nail s negligence on the basis that Total Nails breached a nondelegable duty before the jury returned its verdict, not well after. See Sanchez v. Martin, 138 So. 3d 1165, 1167 (Fla. 3d DCA 2014) ( a party defending a claim is entitled to due process, including the right to proper and adequate notice of the allegations which form the basis for the relief sought. To allow a court to rule on a matter without proper pleadings and notice is violative of a party s due process rights. (internal quotation marks omitted)). At bottom, Plaintiff cannot justify the trial court s decision to impose joint 10

16 and several liability, because Plaintiff has wholly failed to establish that the jury s verdict established as a matter of law as the trial court necessarily found that Total Nails breached a duty of Medicana that was nondelegable, to the exclusion of all other delegable duties. Indeed, Plaintiff ignores the trial court s instructions to the jury and the jury s verdict in her brief, and would have this Court ignore them as well. To correct this error, Medicana is not seeking a new trial or otherwise contesting the jury s verdict. To the contrary, Medicana is asking the Court to give effect to the jury s verdict and allocation of fault that the trial court improperly circumvented. Accordingly, this Court should reverse and remand for entry of a final judgment consistent with the jury s apportionment of comparative fault. II. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR DIRECTED VERDICT AS TO FUTURE DAMAGES BECAUSE PLAINTIFF S EVIDENCE WAS SPECULATIVE, AND THUS INSUFFICIENT TO SUPPORT THE AWARD In her brief, Plaintiff argues the absence of a timely post-trial motion addressing the sufficiency of the evidence supporting her claim for future damages limits this Court s standard of review to whether any view of the evidence could support a claim for future damages. (Answer Brief at 33). However, by not filing a motion to set aside the verdict and enter judgment in accordance with the motion for directed verdict, as required by Florida Rule of Civil Procedure 1.480, Medicana waived the issue for appellate review. See Indus. Affiliates, Ltd. v. Testa, 770 So. 2d 202, 204 (Fla. 4th DCA 2000). Because Medicana does not believe, in 11

17 good faith, that the error is clear enough to demonstrate fundamental error, see Marks v. Delcastillo, 386 So. 2d 1259, (Fla. 3d DCA 1980), it withdraws this argument. III. THIS COURT HAS JURISDICTION OVER THIS APPEAL Plaintiff s second challenge to this Court s jurisdiction should be rejected. At the outset of this appeal, Plaintiff moved to dismiss this matter, arguing that this Court lacked jurisdiction because the timely filed original notice of appeal referenced the Cost Judgment, not the Final Judgment. Medicana responded, inter alia, that any defect in the original notice of appeal which was timely as to both judgments was not jurisdictional because it did not substantially prejudice Plaintiff. See Skinner v. Fla. Power Corp., 564 So. 2d 572, 573 (Fla. 1st DCA 1990) (test for determining whether defect in notice is jurisdictional is prejudice); see also Ratner v. Miami Beach First Nat l Bank, 362 So. 2d 273, 274 (Fla. 1978) ( substantial prejudice ); accord Fla. R. App. P (d) (comm. notes) (1977). The Court denied Plaintiff s motion and allowed this case to proceed. Then and now, Plaintiff fails to allege, much less explain, how she was substantially prejudiced by any defect in the original notice of appeal. That, in and of itself, is a ground to reject Plaintiff s argument. See Jones v. State, 423 So. 2d 520, 522 (Fla. 5th DCA 1982) ( The party seeking dismissal must allege and show some prejudice or inconvenience caused by the deficiency in the notice. ). The fact 12

18 that Medicana took no issue with the Cost Judgment on appeal is of no moment. As was clear from the outset, the only reason Medicana took issue with the taxation of costs was because it believed it failed to conform to the jury s allocation of fault. Plaintiff was on notice that Medicana intended to appeal the Final Judgment to the extent it did the same. For these and each of the reasons provided in the August 22, 2014 Response to Plaintiff s Motion to Strike, the Court has jurisdiction over this appeal. This Court should once again reject Plaintiff s argument to the contrary. CONCLUSION Based on the foregoing, Medicana respectfully requests that the Court reverse and remand for entry of a final judgment that reflects the jury s apportionment of comparative fault. 13

19 DEAN A. MORANDE Florida Bar No CARLTON FIELDS JORDEN BURT, P.A. CityPlace Tower 525 Okeechobee Blvd., Suite 1200 West Palm Beach, Florida Telephone: (561) Facsimile: (561) Respectfully submitted, CARLTON FIELDS JORDEN BURT, P.A. Miami Tower 100 S.E. 2nd Street, Suite 4200 Miami, Florida Telephone: (305) Facsimile: (305) By: /s/ Steven M. Blickensderfer CRISTINA ALONSO Florida Bar No STEVEN M. BLICKENSDERFER Florida Bar No Counsel for Appellant Sovereign Healthcare of Medicana, LLC 14

20 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed through the edca Portal and is being served on this 12th day of June, 2015, on counsel of record and pro se party listed below via transmission of notices of electronic filing generated by the edca Portal, and/or U.S. Mail, as reflected below, to: Served via edca Portal and Howard S. Grossman Michael J. Ferrin Grossman Attorneys At Law 1098 NW Boca Raton Boulevard Boca Raton, FL lisa@grossmanattorneys.com howard@grossmanattorneys.com sandra@grossmanattorneys.com michael@grossmanattorneys.com Counsel for Appellee Served via U.S. Mail: Total Nails & Hair Academy c/o Gil Levin Michael Fine 2601 S. Military Trail Suite 30A West Palm Beach, FL Pro se Appellee By: /s/ Steven M. Blickensderfer STEVEN M. BLICKENSDERFER CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that this brief complies with the font requirements set forth in Florida Rule of Appellate Procedure by using Times New Roman 14-point font /s/ Steven M. Blickensderfer STEVEN M. BLICKENSDERFER 15