IN THE SUPREME COURT OF FLORIDA. Lower Tribunal No.: 4D RESPONDENT S BRIEF ON JURISDICTION. On Review from the District Court

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1 IN THE SUPREME COURT OF FLORIDA CADLEROCK JOINT VENTURE, L.P., ETC., Petitioner, CASE NO.: SC Lower Tribunal No.: 4D vs. LESLIE WILLIAMS, Respondent. / RESPONDENT S BRIEF ON JURISDICTION On Review from the District Court of Appeal, Fourth District State of Florida Peter N. Hanna, Esq. Attorney for Respondent 500 S.E. 12 th Street Fort Lauderdale, Florida (954) phanna@webunited.com Florida Bar No.:

2 TABLE OF CONTENTS Table of Citations...i Statement of the Case and Facts...1 Summary of the Argument...4 Jurisdictional Statement...4 Argument I. THIS COURT SHOULD DENY DISCRETIONARY REVIEW, UNDER Fla. R. App. P (a)(2)(A)(iv), OF THIS CASE BECAUSE THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT, CORRECTLY APPLIED THE RELEVANT CASE LAW OF THIS COURT,THE FOURTH DISTRICT, AND THE OTHER DISTRICT COURTS OF APPEAL...4 II. THIS COURT SHOULD DENY DISCRETIONARY REVIEW, UNDER Fla. R. App. P (a)(2)(A)(ii), BECAUSE THE OPINION DID NOT EXPRESSLY CONSTRUE ANY PROVISION OF THE STATE OR FEDERAL CONSTITUTION...7 Conclusion...9 Certificate of Service...9 Certificate of Compliance...9

3 TABLE OF CITATIONS Cases Cadle Co. v. Jay, 907 So. 2d 634 (Fla. 3 rd DCA 2005)...7 Gaylord v. Gaylord, 45 So. 2d 507 (Fla. 1950)...6, 7 State of Florida ex rel. Sentinel Star Co., 192 So. 2d 518 (Fla. 4 th DCA 1966)...8 Whipple v. JSZ Financial Co. Inc., 885 So. 2d 933 (Fla. 4 th DCA 2004)...6 Williams v. Cadlerock Joint Venture, L.P., 980 So. 2d 1241 (Fla. 4 th DCA 2008)...1, 2, 3, 5, 6, 7, 8 Constitutional Provisions and Statutes Art. IV, 1, Fed. Const...4, 8 Art. V, 3(b)(3), Fla. Const...4 Court Rules Fla. R. App. P.9.030(a)(2)(a)(iv)...4 Fla. R. App. P.9.030(a)(2)(a)(ii)...7, 8 i

4 STATEMENT OF THE CASE AND FACTS The Respondent, LESLIE WILLIAMS, rejects the Petitioner s Statement of the Case and Facts contained in Petitioner s Jurisdictional Brief at pages 1 3 in its entirety, because it is inaccurate. Therefore, Respondent LESLIE WILLIAMS offers the following as a complete and accurate rendition of the case and of the facts. The District Court s opinion can be found at Williams v. Cadlerock Joint Venture, L.P., 980 So. 2d 1241 (Fla. 4 th DCA 2008). In 1996 Cadlerock Joint Venture, L.P. filed a lawsuit against Leslie Williams and Lenford Johnson, amongst others, in United States District Court for the Southern District of New York. Williams v. Cadlerock Joint Venture, L.P., 980 So. 2d 1241 (Fla. 4 th DCA 2008). On April 30, 1996, the summons and complaint with lis pendens were personally served on a Leslie Williams, a five foot, five inch tall black woman, approximately 41 years of age, who lived in New York. Williams, 980 So. 2d at In August 1996 Cadlerock made an application for default judgment and affirmed the fact it had personally served a woman in New York. The district court entered a default judgment against the New York, female Leslie Williams and others. Williams, 980 So. 2d at 1241.

5 On August 8, 2006, orders to compel discovery relating to assets of Leslie Williams were personally served on the Respondent, LESLIE WILLIAMS, a six foot black male in his early forties, in Broward County. Williams, 980 So. 2d at The Respondent retained counsel and filed a motion to stay enforcement of the foreign judgment. Williams, 980 So. 2d at The Respondent argued that he was not the proper judgment debtor since Cadlerock s affirmation in support of the default judgment in New York established that the Leslie Williams served in New York was a woman and the person with whom it did business. Williams, 980 So. 2d at Cadlerock acknowledged that it did not have any evidence that the Respondent was served in the New York suit. Williams, 980 So. 2d at The trial court granted Cadlerock s motion to domesticate the New York judgment and allowed Cadlerock to pursue post-judgment discovery against the Respondent. Williams, 980 So. 2d at The Respondent, a six-foot black man living in Florida, challenged the order domesticating the foreign judgment against him and denying his motion to stay enforcement, arguing that entry of the order against him was erroneous because service was made, and a default and deficiency judgment was entered against, a

6 five foot, five inch tall black woman, approximately 41 years of age, who lived in New York. Williams, 980 So. 2d at On appeal to the District Court of Appeal, Fourth District, the appellate court stated the central issue in the case was whether the trial court erred in finding that Cadlerock properly domesticated its foreign judgment against the Respondent when he was not the person served in New York. Williams, 980 So. 2d at Recognizing that a foreign judgment need not be recognized if the foreign court lacked either personal or subject matter jurisdiction, the appellate court stated in its Opinion that Respondent had the burden of proving that the foreign court did not have personal jurisdiction over him. Williams, 980 So. 2d at The New York record (including the affidavit and return of service) clearly showed that a female named Leslie Williams was personally served with process. Williams, 980 So. 2d at Cadlerock affirmed that fact when it moved for default judgment. Williams, 980 So. 2d at The appellate court found that the New York court therefore lacked personal jurisdiction over the Respondent, and reversed the order of the trial court that, 1) domesticated the foreign judgment against the Respondent and, 2) that denied the Respondent s motion for a stay. Williams, 980 So. 2d at 1243.

7 SUMMARY OF THE ARGUMENT In this case, the district court of appeal held that the trial court erred when it domesticated a foreign judgment against a New York woman on a Florida man with the same name. The appellate court found that the Florida man, the Respondent, was never served with process in the lawsuit. Not having personal jurisdiction over him, the foreign court s judgment could not be recognized in Florida against the Florida man. The appellate court did not misapply the law and its decision is in accord with the laws of the State of Florida. Further, the appellate court did not expressly construe the Full Faith and Credit Clause of Art. IV, 1, of the Federal Constitution in reaching its decision. JURISDICTIONAL STATEMENT The discretionary jurisdiction of the Supreme Court of Florida is restricted to six designated categories of district court decisions under Art. V, 3(b)(3), Fla. Const. and Fla. R. App. P (a)(2)(A)(i-vi). ARGUMENT I. THIS COURT SHOULD DENY DISCRETIONARY REVIEW, UNDER Fla. R. App. P (a)(2)(A)(iv), OF THIS CASE BECAUSE THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT, CORRECTLY APPLIED THE RELEVANT CASE LAW OF THIS COURT,THE FOURTH DISTRICT, AND THE OTHER DISTRICT COURTS OF APPEAL.

8 The appellate court reviewed the legal determinations of the trial court using a de novo standard, and it tested findings of fact to see if they were supported by competent, substantial evidence. Williams, 980 So. 2d at The appellate court had all the facts before it, including Petitioner Cadlerock s affirmation in support of its motion for default judgment and the affidavit and return of service showing that a completely different person than Respondent Williams was served with process in the lawsuit that was filed and served in The appellate court had before it Petitioner s sworn affirmation that it sought a default judgment against the person it had served process on, a female living in New York. Petitioner obtained its judgment against the person it had served. Petitioner s assertion contained in its statement of the case and of the facts and its argument that Respondent only filed an affidavit regarding Respondent s gender and that the appellate court based its holding on this alleged untimely affidavit is a gross misrepresentation of the facts of the case as recited in the Opinion, and of the reasoning and holding of the Opinion itself. When the Petitioner attempted to enforce the default judgment it had obtained (said default judgment being against the person it served, a female who lived in New York) against the Respondent (a male living in Florida), a completely different person who was never served with process and who did not have any judgment entered against him, the Respondent asserted, and the appellate court

9 later agreed, that while judgments of foreign courts are to be given full faith and credit of the law by courts in every jurisdiction, an exception to this requirement occurs when the foreign court lacked either personal or subject matter jurisdiction. Williams, 980 So. 2d at 1243, citing, Whipple v. JSZ Fin. Co., 885 So. 2d 933, 936 (Fla. 4 th DCA 2004). The issue of whether a foreign court had jurisdiction is res judicata and not subject to collateral attack if it was previously addressed in the foreign court and the defendant had a full and fair opportunity to litigate the issue in the foreign court. Id. at 936. If, however, the defendant did not have the opportunity to contest jurisdiction, he may raise the issue subsequently in a proceeding brought to enforce the judgment. Id. at 936. This reasoning and reliance on Whipple is in accord with the law of the State of Florida. There is no express or direct conflict with, and there was no misapplication of the law in regards to, Gaylord v. Gaylord, 45 So. 2d 507 (Fla. 1950). A complete and accurate recitation of the law from Gaylord is necessary because the Petitioner left out the key phrase (in bold and italics below) as follows: The proper forum in which to attack the validity of such decree, (if, indeed, it may be attacked by the Respondent in any court) is the jurisdiction in which it was rendered. We should not attempt to determine the validity of a decree of a sister state or of a foreign country. More certainly, we should not do so unless something appears on the face of the record which discloses its invalidity. The most we should do is to decide in proper cases (within which category this case does not fall) whether

10 foreign decrees should be accorded recognition by the courts of Florida under the full faith and credit clause of the Federal Constitution, Art. 4, 1, or the rule of comity. (Emphasis added). Gaylord, 45 So. 2d at The appellate court based its ruling on the express finding of fact that Petitioner did not present any evidence that it served Respondent with a summons and complaint and that the New York record (including the affidavit and return of service) clearly showed that a female named Leslie Williams was personally served with process. Williams, 980 So. 2d at Cadlerock affirmed that fact when it moved for default judgment. Williams, 980 So. 2d at The appellate court s decision is in accord with Gaylord and Cadle Co. v. Jay, 907 So. 2d 634, 637 (Fla. 3d DCA 2005) (The Full Faith and Credit Clause of the United States Constitution requires that foreign judgments be recognized and that such judgments may be collaterally attacked for either lack of jurisdiction or extrinsic fraud.). II. THIS COURT SHOULD DENY DISCRETIONARY REVIEW, UNDER Fla. R. App. P (a)(2)(A)(ii), BECAUSE THE OPINION DID NOT EXPRESSLY CONSTRUE ANY PROVISION OF THE STATE OR FEDERAL CONSTITUTION. The Opinion in this case only applies the principal that a foreign judgment is to be given full faith and credit of the law in every jurisdiction. Williams v. Cadlerock Joint Venture, L.P., 980 So. 2d 1241, 1243 (Fla. 4 th DCA 2008). In

11 order for this Court to have discretionary jurisdiction pursuant to Fla. R. App. P (a)(2)(A)(ii), the Opinion must have construed, as opposed to merely have applied, a provision of the State or Federal Constitutions. State ex rel. Sentinel Star Co., Inc. v. Lambeth, 192 So. 2d 518, 522 (Fla. 4 th DCA 1966) (Case decided prior to 1980 amendment of Art. V, 3(b)(3), Fla. Const.). The mere fact that a constitutional provision is indirectly involved in the ultimate judgment does not in and of itself convey jurisdiction. Lambeth, 192 So. 2d at 522. The appellate court in this case merely invokes the Full Faith and Credit Clause of Art. IV, 1, of the Federal Constitution when it decides whether or not to recognize the New York judgment against the Respondent and further states that the foreign judgment will not be given full faith and credit if the foreign court lacked subject matter or personal jurisdiction over the Respondent. Williams, 980 So. 2d at After reviewing the facts of the case, the appellate court found that Petitioner did not present any evidence that it served Respondent with a summons and complaint and that the New York record (including the affidavit and return of service) clearly showed that a female named Leslie Williams was personally served with process. Williams, 980 So. 2d at Cadlerock affirmed that fact when it moved for default judgment. Williams, 980 So. 2d at Therefore, finding the New York court lacked personal jurisdiction over Respondent Williams, the appellate court reversed the domestication of the foreign judgment

12 against Respondent Williams and did not give full faith and credit to the New York judgment against Respondent Williams. CONCLUSION This Court should deny discretionary review and enter an Order denying review, and close the case. CERTIFICATE OF SERVICE I CERTIFY that a copy hereof has been furnished via U.S. Mail to Keith A. Graham, Marchena & Graham, P.A., 976 Lake Baldwin Lane, Suite 101, Orlando, FL 32814, this 4th day of August, Peter N. Hanna, Esq. Attorney for Respondent 500 S.E. 12 th Street Fort Lauderdale, FL (954) Fax (954) phanna@webunited.com Florida Bar #: CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of Fla. R. App. P (a)(2). Peter N. Hanna, Esq. Attorney for Respondent

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