IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA PHILLIP N. NORLAND, Pro Se, ) No. SC Petitioner/Appellant ) 2ND DISTRICT COURT OF APPEAL vs. ) Case No. 2DO VILLAGES AT COUNTRY CREEK ) Lee County Case No CA MASTER ASSOCIATION, INC., ET AL ) Respondents/Appellees ) APPELLANT'S 2ND AMENDED BRIEF ON JURISDICTION TO INVOKE DISCRETIONARY JURISDICTION TO REVIEW DECISION OF 2ND DISTRICT COURT OF APPEAL Phillip N. Norland, Pro Se Country Creek Drive, #322 Estero, Florida, 33928

2 Phone; TABLE OF CONTENTS Table of Citations... i Statement of the Case and Facts... 1 Summary of the Argument... 2 Argument... 3 Point One... 3 Point Two... 4 Point Three... 7 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE WITH FONT SIZE TABLE OF CITATIONS Cases: Clifton v. State, 76 Fla. 244, 79 So. 707 (1918)... 9

3 First State Bank of Clermont v. Fitch, 141 So. 299 (Fla. 1932)... 3 Forum v. Boca Burger Inc., 788 So.2d 1055, (Fla. 4th DCA 2001)... 9 Hopkins v. Anderson, 152 So (Fla. 1933)... 4 State Department of Highway Safety and Motor Vehicles v. Salter, 710 So.2d 1039, (Fla. 2d DCA 1998)... 6 Stout Jewelers v. Corson, 639 So. 2d 82 (Fla. 2d DCA 1994)... 6 Weatherby Associates Inc. v. Ballack, 783 So.2d 1138 (Fla. 4th DCA 2001)... 5 Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501, (Fla. 1982)... 5 i Statutes: Sec , Fla. Stat Sec (1), Fla. Stat Sec , Fla. Stat Other authorities: Sec. 67, 22 Fla. Jur.2d

4 ii STATEMENT OF THE CASE AND FACTS This is a Request that the Supreme Court accept jurisdiction to review a decision of the 2nd District Court of Appeals, which affirmed an award of attorney's fees by the Circuit Court of Lee County. Plaintiff is an owner of a residence in the development named Villages at Country Creek, together with 965 other owners. As such, he owns an equity interest in the common property of the development which includes an 18 hole executive golf course and club house. On April 1, 1999, the master board under the control of developer US Home secretly entered into an agreement for the management of the golf course and club house with S&S Golf Management Inc., which provided ALL OF THE INCOME go to S&S for three years. After transfer of the development to the members, petitioner requested the new master board take action to void that agreement as

5 being unconscionable under the decisions of this court. The Board refused, upon advice of counsel. Plaintiff filed complaint to accomplish that end and to recover the moneys by which S&S was unjustly enriched under the unconscionable agreement. Respondents filed motions to dismiss based on alleged deficiencies 1 in form of the complaint. Plaintiff resisted citing the maxim of equity which provides that Equity regards substance rather than form. The trial court granted dismissal. Petitioner attempted appeals which were denied on the grounds that the dismissal was not a final judgment; whereupon petitioner abandoned is efforts because he realized that an amended complaint would be heard by the same judge who had wrongfully dismissed a perfectly good complaint already. Respondents moved to dismiss for lack of prosecution, which was not resisted because the case had already been dismissed and no cases were found that would indicate there was any purpose in resisting. Respondents moved for an award of attorney's fees, which was resisted on

6 the grounds stated hereinafter in the Summary of the Argument as reasons this Court should accept jurisdiction. SUMMARY OF THE ARGUMENT Two basic points are presented requesting the Supreme Court accept jurisdiction and review the Appeals Court's decision. (1) The decision of the Court of Appeals directly conflicts with decisions of the Supreme Court and other Courts of Appeal, and, in fact, with its own 2 prior decisions. The respondents are not "prevailing parties" as defined by every Florida appellate court decision reviewed in preparing for the appeal to the District Court. (2) The Supreme Court, as the court of last resort in Florida, has inherent power to review decisions which are contrary to all common sense, and would, without correction on review, subject the Florida justice system to considerable disrepute because the fees allowed here were incurred exclusively based on a nonexistent issue; i.e. individual liability of the directors of the master board -- as well as complete failure of counsel to advise the directors to fulfill their statutory

7 (Sec (1)) fiduciary relationship to the community's members. ARGUMENT POINT ONE: EQUITABLE MAXIMS APPLY. This action is founded in Equity law and should be governed by the wonderful maxims of equity which have been embraced by the Florida courts, but which have been ignored by the trial court and appeal court in arriving at the decisions made thus far in this case. "Probably the first in importance of the equitable maxims is that, 'Equity will not suffer a wrong to be without a remedy." First State Bank of Clermont v. Fitch, 141 So. 299, (Fla. 1932). 3 Equity looks to substance; not the form of things. Hopkins v. Anderson, 152 So. 205 (Fla. 1933). Equity seeks justice rather than technicality, truth rather than evasion and common sense rather than quibbling. Sec. 67, 22 Fla. Jur. 2d, 255. All the decisions made in this case thus far have been based on technicalities without consideration of justice, a justice which would not reward respondent's counsel for pursuing nonexistent issues and failing to advise their clients adequately about the responsibilities of fiduciaries, while punishing petitioner for attempting to

8 bring justice to his community. POINT TWO: Respondents' attorneys based their claim for fees as being prevailing parties under the provisions of Section and (erroneously referenced as , the former designation, in the Appeals Court decision) Florida Statutes. The Appeal Court based its decision solely on The only appellate court interpretations of the term "prevailing party" are found under Sec The decision of the Appeals court does not provide any reason why that phrase as found in should be interpreted differently than as used in Neither the trial court, nor has counsel for respondents 4 advanced any such reasoning -- so it is reasonable to assume that no such reasoning is available. The seminal Florida case on awarding attorney fees is Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla. 1982), which held that "The purpose of section is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag on them through attorney's fees". The standard governing awarding fees was then set: "As a prerequisite to an award

9 of fees... the court must find 'a complete absence of a justiciable issue of either law or fact raised by the losing party'... [this phrase means] a total lack of a justiciable issue, which is tantamount to a finding that an action is frivolous..." The court also held that "Merely losing, either on the pleadings of by summary judgment, is not enough to invoke the operation of the statute." (p. 506) (Emphasis supplied) Section was amended effective 10/1/1999. Since then it has been interpreted several times but essentially the proofs required have remained the same. In Weatherby Associates, Inc. v. Ballack, 783 So. 2d 1138, 1141 (Fla. 4th DCA 2001) the court affirmed that fees are awarded under where there 5 is a total or absolute lack of justiciable issues of either law or fact, this being tantamount to finding that the action is frivolous. There are no such findings in the trial court order, nor in the appellate court decision, nor could there be because the complaint alleged issues founded on undisputed facts and law. The Second District case which is contradictory to the present decision is State Department of Highway Safety and Motor Vehicles v. Salter, 710 So. 2nd

10 1039, (Fla. 2d DCA 1998). That court held that fees should be denied to Salter who obtained "the functional equivalent of a default judgment" when the department did not contest a motion to reinstate his license; and stated "As a matter of law, section fees may not be awarded against a defaulting party in civil litigation because failing to defend an action does not cause the needless waste of judicial resources the statute aims to discourage." (Emphasis supplied) The obvious abandonment of the cause by petitioner did not involve "needless waste of judicial resources"; rather the unnecessary charade to dismiss for lack of prosecution by respondents was the cause of such waste. The case of Stout Jewelers v. Corson, 639 So. 2d 82 (Fla. 2d DCA 1994) cited as authority by the District Court that a party awarded dismissal for lack of 6 prosecution is a prevailing party as provided in , is inappropriate because there the award of fees was based on a contractual provision, not statute, and, further, that case did not involve a case that had been previously dismissed, as here. Neither the District Court, the trial court, nor respondent's counsel have cited

11 any rule, statute or any other written authority for the proposition that an attempt to amend a dismissed case must be made or be subject to the penalty of having to pay attorney's fees. To impose fees under these circumstances, where only a true clairvoyant would understand such a need, would violate fundamental fairness; so fundamental that it should not be necessary to cite authorities because all acts in imposing penalties under our justice system are based on the idea that NOTICE is necessary. The decision of the District Court is in direct conflict with decisions of the Supreme Court, other Courts of Appeal, and its own decision, and this Court should accept jurisdiction to review that decision. POINT THREE: The Supreme Court, as the court of last resort in Florida, surely has inherent power to review decisions which are contrary to common sense and would, without correction, add to the disrepute our legal and justice 7 system is now held by many of our citizens. The decision of the Appeals Court does not address the issue, but, as a retired officer of the court in Iowa, I will vouch that the record of this case,

12 beginning in the Circuit Court and in the appeal, involves the proposition that the trial court erred in awarding fees for time allegedly spent which was not "reasonable and necessary", as sworn by counsel, as set out before in the Summary of Argument. For counsel to convince respondents to oppose the action designed to recover unjust enrichment for the benefit of the community demonstrates an agenda contrary to the best interest of the community, and to allow fees for such services is contrary to all common sense. Counsel for respondents has at all times misrepresented the complaint as asking for damages personally from the individual directors when there was no such prayer, and any such claim was specifically denied at the first opportunity - in the resistance to the motions to dismiss. Ethical Counsel then would have advised his clients withdraw from defense against the complaint, and advised the directors to help contest the issues of unconscionableness and unjust enrichment, for the benefit of the community -- or, at lease, not impede those determinations. The actions of respondents' counsel here fit the definition of theft by false 8 pretenses as found in Clifton v. State, 76 Fla. 244, 79 So. 707 (1918). Not only

13 have counsel been paid by respondents' insurance company, but now the false representations are being used to obtain money from petitioner with the approval, thus far, of the "justice" system. The Fourth District Court, in Forum v. Boca Burger, Inc., 788 So. 2d 1055 (Fla.4th DCA 2001) was particularly emphatic in its denunciation of unethical counsel when it stated: "Although we have an adversary system of justice, it is on founded on the rule of law. Simply because our system is adversarial does not make it unconcerned with outcomes. Might does not make right, at least in the courtroom. We do not accept the notion that outcomes should depend on who is most powerful, most eloquent, best dressed, most devious, and most persistent with the last word -- or, for that matter, who is able to misdirect a judge. (Emphasis supplied)... Such a system is surely defective, however, if it is acceptable for lawyers to 'suggest' a trial judge into applying a 'rule'... that they know --or should know -- is contrary to existing law." The actions of respondents' counsel, and the abject submission of the trial judge to their misrepresentations, will, if not corrected, contribute to the low esteem in which, unfortunately, the legal profession and our judicial system

14 are now held by many. Review of the Appeals Court decision could help restore some of the respect to those institutions that they deserve. 9 CONCLUSION The court should accept jurisdiction to review the decision of the Appellate Court to provide guidance as to the controlling interpretation of the term "prevailing party", wherever it may be found, and to provide guidance to the Bar as to proper conduct in providing legal services to their clients. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was furnished by ordinary mail to Michael R. Whitt,and Sanjay Kurian, Attorneys, Bell Tower Drive, Suite 101, Fort Myers, FL, 33907, on this 22nd day of September, CERTIFICATE OF COMPLIANCE The undersigned plaintiff/appellant certifies that this computer-generated brief is submitted in Times New Roman 14-point font. Phillip N. Norland, Pro Se, Appellant Country Creek Drive, #322 Estero, FL, 33928

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