IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA RESPONDENT HENRY ANDREW HACSI S BRIEF ON JURISDICTION

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1 IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA CYNTHIA MARTIN, vs. Petitioner, HENRY ANDREW HACSI, CASE NO.: SC L.T. Case No.: 5D Respondent. / RESPONDENT HENRY ANDREW HACSI S BRIEF ON JURISDICTION FOWLER WHITE BOGGS BANKER P.A. P.O. Box 210 St. Petersburg, FL (727) Fax No: (727) chall@fowlerwhite.com mtinker@fowlerwhite.com Attorneys for Respondent, HACSI By: Charles W. Hall Florida Bar No: Mark D. Tinker Florida Bar No:

2 TABLE OF CONTENTS Table of Contents... i Table of Authorities... ii Preliminary Statement... 1 Statement of the Case and Facts Summary of Argument... 4 Argument: Conclusion... 9 Certificate of Service Certificate of Compliance i

3 TABLE OF AUTHORITIES BEC Construction Corp. v. Gonzalez, 383 So. 2d 1093 (Fla. 1st DCA 1980)... 6 Cope v. Waugh, 627 So. 2d 136 (Fla. 1st DCA 1993)... 5, 6 Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983)... 5 Floyd v. Wallace, 339 So. 2d 653 (Fla. 1976)... 5, 6 Hardee v. State, 534 So. 2d 706 (Fla. 1988)... 2 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 5 Martin v. Hacsi, 909 So. 2d 935 (Fla. 5th DCA 2005)...2, 6, 7 Rogers v. Concrete Svcs., Inc., 394 So. 2d 212 (Fla. 1st DCA 1981)... 6 Scutieri v. Miller, 584 So. 2d 15 (Fla. 3d DCA 1991)... 3, 8 Vera v. Adeland, 881 So. 2d 707 (Fla. 3d DCA 2004)... 8 Art. V, 3(b)(3), Fla. Const... 5 Fla. R. App. P Fla R. App. P Fla. R. Civ. P passim THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Rev., et. al. 17th Ed. 2000)... 1 ii

4 PRELIMINARY STATEMENT This petition arises out of the District Court of Appeal for the Fifth District s review of the dismissal of a personal-injury tort action. The Petitioner, CYNTHIA MARTIN, was the appellant/plaintiff below. She will be referred to as "MARTIN" in this Brief. Respondent, HENRY ANDREW HACSI, was the appellee/defendant and will be referred to as "HACSI." The proceedings below were conducted by the Honorable Judges Peterson, Pleus, and Orfinger. They will be collectively referred to as the appellate panel. References to the Appendix attached to MARTIN s Initial Brief on Jurisdiction will be designated by the symbol App. followed by the appropriate page numbers. Legal citations contained in this Brief are intended to conform to Florida Rule of Appellate Procedure and THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Rev., et. al. 17th Ed. 2000). All emphasis has been supplied by counsel unless otherwise noted. 1

5 STATEMENT OF THE CASE AND FACTS MARTIN s brief acknowledges that, when considering jurisdiction, this Court is limited to the facts which appear on the face of the lower court s opinion. Initial Brief at 7. See also, Hardee v. State, 534 So. 2d 706, 708 (Fla. 1988)( for purposes of determining conflict jurisdiction, this Court is limited to the facts which appear on the face of the opinion ). However, her brief then contains a statement of the facts which refers almost exclusively to the underlying record on appeal. Initial Brief at Most of those facts are absent from the face of the lower court s opinion. Accordingly, HACSI submits the following statement to provide the Court with the facts which frame its jurisdictional decision: MARTIN filed a personal-injury action against HACSI. Martin v. Hacsi, 909 So. 2d 935, 936 (Fla. 5th DCA 2005). HACSI died during that litigation, and his attorney filed a suggestion of death. Id. Thereafter, during the 90-day time frame for substitution of parties provided by Florida Rule of Civil Procedure 1.260(a)(1), Martin did absolutely nothing in the case and made no contact with Hacsi's attorney. Id. at 937. After the 90 days expired, HACSI s attorney filed a motion to dismiss. Id. at MARTIN s jurisdictional brief also exceeds the page limit set forth in Florida Rule of Appellate Procedure 9.210(a)(5). However, with the improper facts removed, it would likely comply with that limit and thus HACSI expresses no objection to the Court s consideration of that brief. 2

6 MARTIN did not file a motion for substitution of a party defendant, nor did she file a timely motion for enlargement of time to make such a motion. Id. In fact, it was only after she received the motion to dismiss that Martin wrote to Hacsi s attorney asking for the name of the personal representative of Hacsi s estate. Id. She eventually filed an untimely motion asking for an order substituting an unknown, unnamed personal representative or administrator for the decedent, but did not move for an extension of time to substitute parties until more than five months after the 90-day period had expired. Id. at The trial judge ordered dismissal of the action. Id. at 936. On appeal, MARTIN contended, in part, that HACSI s attorney had no authority to file the motion to dismiss subsequent to his client s death. Id. at 937. The Fifth District rejected that argument, stating: Alternatively, Martin argues that Hacsi s attorney had no authority to file a motion to dismiss after his client s death and before any party was substituted for the decedent. This argument was rejected in Scutieri v. Miller, 584 So. 2d 15 (Fla. 3d DCA 1991). We further note that if the attorney for a party, who dies during the course of litigation, were not allowed to file a motion to dismiss in the absence of a timely motion for substitution of a party until a party had been substituted, then dismissal could never occur and the rule would be meaningless. Id. MARTIN has now appealed that ruling, claiming that the above-quoted portion of the opinion expressly and directly conflicts with four other decisions. 3

7 SUMMARY OF ARGUMENT The Court should conclude that it has no jurisdiction to review the districtcourt s decision because there is no express or direct conflict between that opinion and those cited by MARTIN. Conflict jurisdiction requires essentially two elements: (1) that the cases expressly conflict on the same issue of law, and (2) that the conflict arise under indistinguishable factual circumstances. The cases at issue in this matter are poles apart in both respects. Legally, the cases cited by MARTIN deal solely with an attorney s ability to proceed on the merits of a case following the death of his or her client. The decision rendered below, on the other hand, deals only with an attorney s ability to effectuate the Rule substitution requirements following that death. Those are different legal questions, and the decisions announced in the respective cases thus do not address the same issue of law. Factually, this case involves the attorney for a deceased client filing a motion under Rule due to the plaintiff s failure to properly substitute a party for a deceased client. That fact is missing from the decisions cited by MARTIN, as no attorney in any of those cases filed such a motion. Therefore, the various opinions are distinct factually, as well. For those reasons, there is no conflict and the Court should decline jurisdiction. 4

8 ARGUMENT The Court should conclude that it has no jurisdiction to review this case because there is no express or direct conflict between the underlying opinion and those cited by MARTIN. Specifically, the Florida Constitution creates conflict jurisdiction only if the underlying decision 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. This Court has interpreted that provision to require two prerequisites to jurisdiction: (1) The various opinions must express decisions on the same question of law, and (2) That question of law must be addressed by all of the cases at issue under factual circumstances that are indistinguishable from one another. E.g. Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980)( This Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. ); Department of Revenue v. Johnston, 442 So. 2d 950, 950 (Fla. 1983)( Because we find this cause distinguishable on its facts from those cited in conflict, we discharge jurisdiction. ). Applying those two standards to this case, it is apparent that there is no conflict. MARTIN claims that the underlying decision is at odds with Floyd v. Wallace, 339 So. 2d 653 (Fla. 1976), Cope v. Waugh, 627 So. 2d 136 (Fla. 1st 5

9 DCA 1993), Rogers v. Concrete Svcs., Inc., 394 So. 2d 212 (Fla. 1st DCA 1981), and BEC Construction Corp. v. Gonzalez, 383 So. 2d 1093 (Fla. 1st DCA 1980). The decisional point of law stated in each of those cases is that, under varying circumstances, an attorney may not proceed on the merits of a case following the death of the client. See Floyd, 339 So. 2d at 654(attorney proceeded to obtain a final judgment of default following the client s death); Cope, 627 So. 2d at 136(attorney continued on to obtain final summary judgment following the client s death); Rogers, 394 So. 2d at 213(attorney accepted settlement after the client s death); BEC, 383 So. 2d at 1094(attorney filed a worker s compensation claim for benefits after the client s death). None of those cases deals with the attorney s ability to effectuate the Rule procedure itself following the death of his or her client. In the proceedings below, the appellate panel offered an opinion on solely that legal issue, and furthermore expressly distinguished the situation before it from merits determinations such as in Floyd, Cope, Rogers, and BEC. The Court first quoted Rule 1.260, taking care to emphasize the portion which states: Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party. Martin, 909 So. 2d at 936(quoting Fla. R. Civ. P. 6

10 1.260(a)(1))(original emphasis omitted). It then stated: We further note that if the attorney for a party, who dies during the course of litigation, were not allowed to file a motion to dismiss in the absence of a timely motion for substitution of a party until a party had been substituted, then dismissal could never occur and the rule would be meaningless. Id. at 937. In short, the appellate panel recognized traditional abatement-upon-death principles, but also noted that Rule requires dismissal when there has been no substitution for a deceased party. It then reasoned that, if the application of the dismissal rule itself were abated until there was a properly substituted party, then dismissal could never occur and the rule would be meaningless. Accordingly, the lower court s decision does not conflict on any point of law with Floyd, Cope, Rogers, and BEC. While those cases dealt with merits determinations following the death of a party, the case at issue deals with the application of Rule s dismissal provision when there has been no timely substitution following the death of a party. Those issues of law are distinct, and there is no conflict. Furthermore, the decisions at issue are distinguishable on the single controlling factual element. The fact at issue in this case is that, upon the plaintiff s failure to properly substitute a party, the attorney for a deceased client filed a motion to dismiss under Rule That fact is missing from Floyd, Cope, 7

11 Rogers, and BEC, as no attorney in any of those cases filed such a motion. Therefore, the decisions are distinct factually, as well. Simply stated, the relevant test for jurisdiction is whether the decisions express conflicting legal determinations under identical facts. The decisions at issue in this case do not conflict, but rather operate in perfect harmony under their own, unique facts. Following the death of a client who is a party to pending litigation, the attorney may not proceed on the merits of the case as in Floyd, Cope, Rogers, and BEC. However, in order for the dismissal portion of Rule to have any purpose, 2 the attorney for the deceased party as an officer of the court must be permitted to draw the court s attention to the fact that no substitution has occurred. That was the reasoning of the appellate panel below, and it is in harmony with the only other district-court opinion which references the topic. See Scutieri v. Miller, 584 So. 2d 15, 16 (Fla. 3d DCA 1991)( Plaintiff sued defendant in tort. During the pendency of the action, defendant died.... [D]efense counsel moved to dismiss for failure to move for substitution within the 90-day period prescribed by Rule ). Therefore, there is no conflict and this Court should decline jurisdiction. 2 The purpose of Rule is to provide an orderly procedure and timetable for substitution where a party has died during the course of the litigation. Vera v. Adeland, 881 So. 2d 707, 709 (Fla. 3d DCA 2004). 8

12 CONCLUSION For all of the foregoing reasons, the decisions at issue do not express any conflict on the same point of law, nor were they considered under indistinguishable facts, and the Court should thus decline jurisdiction. Respectfully submitted, FOWLER WHITE BOGGS BANKER P.A. P.O. Box 210 St. Petersburg, FL (727) Fax No: (727) Attorneys for Respondent, HACSI By: Charles W. Hall Florida Bar No: Mark D. Tinker Florida Bar No:

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that an original and five copies of the foregoing Brief on Jurisdiction have been furnished by U.S. Mail and electronic submission this November 8, 2005, to THOMAS D. HALL, CLERK, Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida ; and one copy each to BILL McCABE, ESQUIRE, 1450 S.R. 434 West, Suite 200, Longwood, FL 32750; and MICHAEL A. SHIFFMAN, ESQUIRE, 309 Oakridge Boulevard, Suite B, Daytona Beach, FL Mark D. Tinker Florida Bar No: CERTIFICATE OF COMPLIANCE Pursuant to Florida Rule of Appellate Procedure 9.210, the undersigned counsel certifies that this Brief is printed in Times New Roman 14-point font. Mark D. Tinker Florida Bar No: