IN THE SUPREME COURT OF FLORIDA CASE NO.: SC11- THIRD DISTRICT CASE NO.: 3D UNITED AUTOMOBILE INSURANCE COMPANY a Florida Corporation,

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1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC11- THIRD DISTRICT CASE NO.: 3D UNITED AUTOMOBILE INSURANCE COMPANY a Florida Corporation, Petitioner, -v- KENDALL SOUTH MEDICAL CENTER INC., & DAILYN MEDICAL CENTER INC., a Florida Corporation Respondent RESPONSE TO PETITIONER S BRIEF ON JURISDICTION Christian Carrazana, Esq. Fla. Bar No.: PANTER, PANTER, SAMPEDRO, P.A. Attorneys for Respondent- Kendall South 6950 N. Kendall Dr. Miami Fl Phone: (305) Facsimile No.: (305)

2 TABLE OF CONTENTS TABLE OF CITATIONS. INTRODUCTION iii v STATEMENT OF THE CASE & FACTS.. 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 THE PETITION MUST BE DENIED BECAUSE THE THIRD DISTRICT S DECISION IN THIS CASE DOES NOT CONFLICT WITH ALEXDEX CORP., v. NACHON ENTERPRISES, INC., 641 SO.2d (FLA. 1994) NOR SEABREEZE VIDEO INC., v. FEDERICO, 684 SO.2D 226 (FLA. 2d DCA 1994) CONCLUSION 9 CERTIFICATE OF SERVICE. 10 CERTIFICATE OF FONT ii

3 TABLE OF CITATIONS 1. Adams v. Aetna Cas. & Surety Co., So.2d 1142 (Fla. 1 st DCA 1991) 2. Alexdex Corp., v. Nachon Enterprises, Inc.,... Passim 641 So.2d 858 (Fla. 1994) 3. Bunn v. Bunn, So.2d 387 (Fla. 4d 1975) 3. Butterworth v. Nat l League of Prof. Baseball Clubs, et. al., So.2d 1021 (Fla. 1994) 4. Dodi Publishing Co., v. Editorial America S.A., So.2d 1369 (Fla. 1980) 5. Sea Breeze Video v. Federico,.Passim 648 So.2d 226 (Fla. 2 nd DCA 1994) 6. State ex. Rel. Helseth v. DuBoise, 8 99 Fla. 812, 128 So. 4, 5 (Fla. 1930) 17. The Florida Star v. B.J.F., So.2d 286 (Fla. 1988) 18. Twyman v. Roell, Fla. 2, 166 So. 215, 217 (Fla. 1936) Florida Statutes Passim iii

4 Other Authorities Corpus Juris Secundum (2008) 8 Fla. Const.,... 3 iv

5 INTRODUCTION This is a petition for discretionary review of the Third District s decision in the present case affirming a final order of dismissal of a complaint for declaratory relief. In this brief, the Respondent, Kendall South Medical Center Inc., will be referred to as Kendall South ; Respondent, Dailyn Medical Center Inc., will be referred to as Dailyn Medical ; the Petitioner, United Auto. Ins. Co., will be referred to as United Auto. v

6 STATEMENT OF THE CASE & FACTS The petition for discretionary review arises from two personal injury protection claims where the medical providers, Kendall South and Dailyn Medical, by assignment, submitted a claim on behalf of United s insureds for a sum less than $15,000. Upon receipt of the claim, United requested pre-suit mediation pursuant to , Fla. Stat. 1 The providers declined mediation. United then sued the providers for declaratory relief where United prayed for a declaratory judgment declaring that the providers must mediate before they can file an action against United to enforce the policy because the providers PIP claims are subject to , Fla. Stat. After United filed suit, the providers moved to dismiss on the grounds that the circuit court lacked subject matter jurisdiction because the amount in controversy is less than $15,000; and that the maximum liability under United s policy is $10,000. The circuit dismissed the complaint for lack of subject matter jurisdiction; and United appealed. 1 Section (1)(a), Fla. Stat., (2011) states in part: In any claim filed with an insurer for personal injury in an amount of $10,000 or less or any claim for property damage in any amount, arising out of the ownership, operation, use, or maintenance of a motor vehicle, either party may demand mediation of the claim prior to the institution of litigation

7 United argued on appeal that the circuit court erred in dismissing the action because a declaratory relief action is an equitable action; and as such, there is concurrent jurisdiction in equity. In support of its argument, United relied on this Court s decision in Alexdex Corp., v. Nachon Enterprises, Inc., 641 So.2d 858 (Fla. 1994) and the Fourth District s decision in Sea Breeze Video Inc., v. Federico, 648 So.2d 226, 228 (Fla. 2d DCA 1994). The Third District, however, affirmed the dismissal because there is no concurrent jurisdiction to hear declaratory actions under , Fla. Stat. (2011). In making that determination, the Third District rejected United s reliance on Alexdex because it concerned a foreclosure action, not a declaratory relief action governed by

8 SUMMARY OF ARGUMENT This Court lacks jurisdiction. Art. V., 3(b)(3) Fla. Const. (1980). The Court must deny United s petition for discretionary review because the Third District s opinion does not conflict with Alexdex Corp., v. Nachon Enterprises, Inc., 641 So.2d 858 (Fla. 1994) nor Sea Breeze Video v. Federico, 648 So.2d 226 (Fla. 2 nd DCA 1994). There is no conflict because Alexdex did not involve a declaratory judgment action governed by Chapter 86 or an amount in controversy. Alexdex concerned a lien foreclosure action that traditionally lies in equity. The present case, in contrast, involves an action for declaratory relief governed by Unlike other matters in equity, there is no concurrent jurisdiction for declaratory relief actions under There is no conflict with Sea Breeze Video, supra. In Sea Breeze, the Second District held that a circuit court s jurisdiction is invoked by a good faith allegation that the amount in controversy is in excess of $15,000. Id. Applying this rule, the Second District concluded that jurisdiction lies solely in the circuit court to hear the plaintiff s claim for declaratory and injunctive relief because the plaintiff alleged an amount in controversy in excess of $15,000. Id. The Second District, however, did not address the issue decided by the Third District in this case because the plaintiff s claim for declaratory and injunctive relief in Sea - 3 -

9 Breeze concerned an amount in excess of $15,000. The present case, in contrast, involves claims less than $15,000. ARGUMENT THE PETITION MUST BE DENIED BECAUSE THE THIRD DISTRICT S DECISION DOES NOT CONFLICT WITH ALEXDEX CORP., v. NACHON ENTERPRISES, INC., 641 SO.2d (FLA. 1994) NOR SEABREEZE VIDEO INC., v. FEDERICO, 684 SO.2D 226 (FLA. 2d DCA 1994) This Court lacks discretionary jurisdiction because there is no express or direct conflict with a decision of another District Court or Supreme Court on the same question of law decided below. The Florida Constitution states: (b) JURISDICTION. The supreme court: (3) May 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. Art. V., 3(b)(3) Fla. Const. (1980)(emphasis added); See also Fla. R. App. P (a)(2)(A)(iv). This Court has subject matter jurisdiction under Art. V 3(b)(3), Fla. Const., over any decision of a district court that expressly addresses a question of law within the four corners of the opinion itself. The Florida Star v. B.J.F., 530 So.2d 286, 288 (Fla. 1988). But there is no discretionary jurisdiction where the opinion establishes no point of law contrary to a decision of this Court or another district court. Id. This Court explained in Florida Star, 530 So.2d at 288: While this Court has subject-matter jurisdiction to hear any petition arising from an opinion that establishes a point of law, we have - 4 -

10 operated within the intent of the constitution s framers, as we perceive it, in refusing to exercise our discretion where the opinion below establishes no point of law contrary to a decision of this Court or another district court. (emphasis added). For conflict jurisdiction to exist, the conflict must be found in the decision of the district court under review. Dodi Publishing Co., v. Editorial America S.A., 385 So.2d 1369 (Fla. 1980). The petition must be denied because the Third District s decision does not conflict with Alexdex Corp., v. Nachon Enterprises, Inc., 641 So.2d 858 (Fla. 1994) nor Sea Breeze Video v. Federico, 648 So.2d 226 (Fla. 2d DCA 1994). The point of law decided in Alexdex and Sea Breeze is unrelated to the issue decided below; and both cases are distinguishable from this case. Unlike the present case, Alexdex was a foreclosure action, not an action for declaratory relief governed by Chapter 86. The point of law decided in Alexdex is whether the circuit and county courts have concurrent jurisdiction to hear equitable claims, not actions for declaratory relief. To resolve the issue in Alexdex, this Court applied the rules of statutory construction to resolve a conflict between (2)(c) and 34.01(4), Fla. Stat 2 ; and concluded that that legislature intended 2 Section 34.01(1)(c), Fla. Stat., (2011) states in relevant part: (1) County courts shall have original jurisdiction (c) Of all actions at law in which the matter in controversy does not exceed the sum of $15,000, exclusive of interest, costs, and attorney fees, except those within the exclusive jurisdiction of the circuit courts. (emphasis added); cf (2)(a), Fla. Stat., (2011)( (2) [circuit courts] shall - 5 -

11 to provide concurrent jurisdiction to hear matters in equity except that equitable claims filed in county court must fall within the county court s monetary jurisdiction. Notably absent from the analysis in Alexdex is a discussion regarding ; which obviously, is due to the fact that Alexdex did not involve a claim for declaratory relief. Likewise, there is no conflict with Second District s decision in Sea Breeze, supra, because the issue decided by the Second District is whether the circuit court s jurisdiction may be invoked by a good faith allegation that the amount in controversy is in excess of $15,000 in order to hear a claim for declaratory and injunctive relief. In deciding the question, the Second District applied the well established rule that a plaintiff s good faith allegation that the claim exceeds $15,000 is sufficient to invoke the circuit court s jurisdiction. Applying this rule, the Second District concluded that jurisdiction solely lies in the circuit court to hear the plaintiff s claim for declaratory and injunctive relief because the plaintiff alleged an amount in controversy in excess of $15,000 4 : have exclusive jurisdiction: (a) In all actions at law not cognizable by the county courts. )(alteration in original)(emphasis added). 3 Section , Fla. Stat., states: The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. (emphasis added). 4 The rule stare decisis in Sea Breeze is that a circuit court s jurisdiction is invoked by a good faith allegation that the amount in controversy is within the circuit - 6 -

12 If the plaintiff alleges an amount in controversy exceeding the county court s jurisdiction, [] the action lies in circuit court. The petitioners have alleged an amount in controversy exceeding the county court s jurisdictional limit of $15,000. Thus, the circuit court should not have transferred this matter, solely within its jurisdiction, to the county court. With confidence that the circuit court will vacate its order of transfer and hear this cause, we withhold issuing the writ of mandamus. Sea Breeze Video, 648 So.2d at 228 (emphasis added). United, however, claims there is a conflict based on a one sentence blurb from the Sea Breeze opinion where the Second District states that [w]here an action for declaratory relief and injunctive relief does not reach the threshold jurisdictional amount of the circuit court, a plaintiff may choose either court, each court having concurrent jurisdiction. Id. at 228 citing Alexdex, 641, So.2d 858, 862. This statement is dicta, not the holding of the case because unlike the present case, the issue decided in Sea Breeze did not concern a claim below the jurisdictional amount of the circuit court. The plaintiff in Sea Breeze, unlike here, alleged an amount in controversy in excess of $15,000. The present case, in court s jurisdictional amount; and the result stare decisis is that the circuit court erred in transferring the action to the county court where the plaintiff alleged an amount in controversy within the circuit court s jurisdiction. See Butterworth v. Nat l League of Professional Baseball Clubs, et. al., 644 So.2d 1021, 1024 n.7 (Fla. 1994)( Rule stare decisis involves the Supreme Court s choice of [the applicable] legal standard or test while result stare decisis is the result reached by applying that legal standard to the particular facts of the case. ) - 7 -

13 contrast, involved claims less than $15,000. Accordingly, the statement quoted by United from the Sea Breeze opinion is dicta, not law. It is well settled that any remark or observation by an appellate court concerning a principle of law not essential in deciding the case is obiter dicta with no precedential value. Bunn v. Bunn, 311 So.2d 387, 389 (Fla. 4d DCA 1975). No decision is authority on any question that is not properly before the appellate court. State ex. Rel. Helseth v. DuBoise, 99 Fla. 812, 128 So. 4, 5 (Fla. 1930); Twyman v. Roell, 123 Fla. 2, 166 So. 215, 217 (Fla. 1936)( To be of value as a precedent, the questions raised by the pleadings and adjudicated in the case cited as precedent must be [o]n point with those presented in the case at bar. ) It is elementary that the authority of a former decision as a precedent must be limited to the points actually decided on the facts before the court. 21 C.J.S., Courts 220 (2008)(emphasis added); See also Adams v. Aetna Cas. & Surety Co., 574 So.2d 1142, 1153 (Fla. 1 st DCA 1991)( It is elementary that holding [of] an appellate decision is limited to the actual facts recited in the opinion. ) - 8 -

14 CONCLUSION The Respondent, Kendall South, by and through undersigned counsel, prays for an order denying United s petition for discretionary review; and award Respondent attorney fees and costs pursuant to , Fla. Stat. (2011). Respectfully Submitted, Christian Carrazana, Esq. Fla. Bar No.:

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by U.S. mail on this day of April 2011 to: Michael J. Neimand, Esq., Office of General Counsel, Attorneys for Appellant, P.O. Box , Miami Fl ; Russell Lazega, Esq., Attorney for Appellee, Dailyn Medical Center, Biscayne Blvd., Suite 107, Miami Fl Christian Carrazana, Esq., Fla. Bar No.: CERTIFICATE OF FONT I HEREBY CERTIFY that this brief complies with the font requirement of Fla. R. App. P (a)(2). Christian Carrazana, Esq. Fla. Bar No.: