IN THE SUPREME COURT OF FLORIDA CASE NO. SC DISTRICT COURT CASE NO. 4D

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1 Electronically Filed 10/09/ :26:52 AM ET RECEIVED, 10/9/ :28:34, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CASE NO. SC DISTRICT COURT CASE NO. 4D PALM BEACH COUNTY SCHOOL BOARD a/k/a SCHOOL DISTRICT OF PALM BEACH COUNTY Petitioners, v. JANIE DOE 1, a minor child, by and through SILVANIA MIRANDA, her Parent and Natural Guardian, et al., Respondents. Petition for Discretionary Review of a Decision of the District Court of Appeal, Fourth District RESPONDENTS BRIEF REGARDING JURISDICTION MARC A. WITES Florida Bar No mwites@wklawyers.com Attorneys for Respondents WITES & KAPETAN, P.A North Federal Highway Lighthouse Point, Florida Tel: (954) /Fax: (954)

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES iii INTRODUCTION AND JURISDICTIONAL STATEMENT Besides Falling Far Short of Meeting the Standard Needed to Show Express and Direct Conflict, Counsel for the School Board Who Recently Argued Before This Court That This Very Decision is Binding and Precedential Now, Rather Incredibly, Takes the Opposite Position STATEMENT OF CASE AND FACTS SUMMARY OF ARGUMENT ARGUMENT I. The Opinion is Consistent With The Decisions All DCAs.. 5 II. There Are No Conflicts with this Court III. Kopel v. Kopel Does Not Create a Conflict IV. The Janie Does Claims Relate Back Even Though They Allege Additional Factual Detail CONCLUSION CERTIFICATE OF SERVICE.. CERTIFICATE OF COMPLIANCE ii

3 TABLE OF AUTHORITIES FLORIDA CASES PAGE Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864 (Fla. 2d DCA 2010) , 7, 8, 10 Aravena v. Miami-Dade County, 928 So. 2d 1163 (Fla. 2006) Board of Trustees v. Walton County, No. 1D13-244, 2013 Fla. App. LEXIS (Fla. 1st DCA Sept. 23, 2013) , 8 Caduceus Properties, LLC v. Graney, P.E., 107 So. 3d 403 (Fla. 2012) Cox v. Seaboard Coast Line, 360 So. 2d 8 (Fla. 2d DCA 1978) Dausman v. Hillsborough Area Reg l Transit, 898 So. 2d 213 (Fla. 2d DCA 2005) Fabbiano v. Demings, 91 So. 3d 893 (Fla. 5th DCA 2012) , 6, 7 Flores v. Riscomp. Indus., 35 So. 3d 146 (Fla. 3d DCA 2010) , 6, 7, 8 Kopel v. Kopel, 117 So. 3d 1147 (3d DCA 2013) Mainlands Constr. Co. v. Wen-Dic Constr. Co., 482 So. 2d 1369 (Fla. 1986) iii

4 Ron s Quality Towing v. Southeast Bank, 765 So. 2d 134 (Fla. 1st DCA 2000) Turner v. Trade-Mor, Inc., 252 So. 2d 383 (Fla. 4th DCA 1971) United Telephone Co. v. Mayo, 345 So. 2d 648 (Fla. 1977) West Volusia Hosp. Auth. v. Jones, 668 So. 2d 635 (Fla. 5th DCA 1996) STATUTES Fla. R. Civ. Proc (c) PAGE Passim 20 U.S.C. 1681, et seq. ( Title IX ) Passim iv

5 INTRODUCTION AND JURISDICTIONAL STATEMENT The Respondent Janie Does ( Respondents or Does ) request that this Court deny the Palm Beach County School Board s ( Petitioner or School Board ) petition for discretionary jurisdiction. Besides Falling Far Short of Meeting the Standard Needed to Show Express and Direct Conflict, Counsel for the School Board Who Recently Argued Before This Court That This Very Decision is Binding and Precedential Now, Rather Incredibly, Takes the Opposite Position. Pursuant to Article V, Section 3(b)(4) of the Florida Constitution, when a party attempts to invoke the discretionary jurisdiction of this Court through conflict, that conflict must be both express and direct. In order to meet this very high standard of express and direct conflict, a party must show that the holdings of the conflicting cases are irreconcilable. See, e.g., Aravena v. Miami-Dade County, 928 So. 2d 1163, 1166 (Fla. 2006). Here, a review of the most recent cases in all five District Courts of Appeal establishes that the Opinion is wholly consistent with their analyses, thereby precluding jurisdiction. In fact, Petitioner s counsel has specifically endorsed the Opinion as stating the correct law, and argued to this very Court, that the rule of law underlying the Opinion was actually prevailing law, consistent with the other district courts. In Kopel v. Kopel, Case No. SC ( Kopel ), the School Board s attorneys actually relied on the Fourth District s Opinion in this case to argue to this Court 1

6 that the Third District erred in holding that [t]o related back, the pleading must not state a new cause of action. (Counsel s Kopel brief, pp.7-8). There, Petitioner s counsel argued that the Third DCA s holding expressly and directly conflicts with decisions of this Court and of the First, Second, Fourth, and Fifth District Courts of Appeal. Indeed, the Opinion stands alone in applying a rule that was eliminated by the Florida Rules of Civil Procedure. In sharp contrast, this Court, as well as every other district court of appeal, have adopted the modern rule that, when a complaint is amended to state a new claim or legal theory, the new claim relates back to an earlier complaint if it is based on the same conduct, transaction or occurrence alleged in the earlier pleading. Id. at p.1 (emphasis added). Petitioner s counsel concluded by arguing that [t]his Court should accept jurisdiction to clarify that the Third DCA s cause of action test is not good law. Id. at p.9 (emphasis added). In contrast, here Petitioner s counsel asserts a position diametrically opposite from that it which advocates in Kopel. Specifically, Petitioner s Jurisdictional Brief argues that the Fourth DCA s decision here conflicts with the opinions in all other DCA s including Kopel and this Court claiming that all of the other decisions hold that, if a claim that is a new cause of action, it does not relate back to an original filing. See Petitioner s Jurisdiction Brief herein ( PJB ), passim. These contrary positions cannot both be correct, yet both were 2

7 contemporaneously submitted to this Court by the same law firm. 1 STATEMENT OF CASE AND FACTS Teacher Blake Sinrod molested the Janie Does while employed by the School Board as the girls third-grade teacher. App. A to PJB at 1. The girls original complaint, filed on July 26, 2006, stated a claim for negligence alleging, inter alia, that the School Board negligently supervised and retained Sinrod because it knew, or should have known, that he had molested other children in appropriately. Id. at pp.1-2. In 2011 the Janie Does hired the undersigned, and amended their complaint to allege separate claims for negligent supervision, negligent retention, intentional infliction of emotional distress, negligent infliction of emotional distress, and 1 Petitioner s counsel moved this Court to withdraw as counsel of record for Leon Kopel on July 19, 2013, approximately one month after it filed the jurisdictional brief on his behalf. However, Petitioner s counsel advanced the very same position in Kopel one year earlier, when it argued before the Third DCA that the amendment was proper because an amendment which merely makes more specific what has already been alleged generally, or which changes the legal theory of the action, will relate back even though the statute of limitations has run in the interim. Kopel v. Kopel, Case No. 3D11-536, Third District Court of Appeal, Appellee s Answer Brief filed March 5, 2012, at p.20 (quotations and emphasis as in original)(citations omitted). On September 26 and September 30, the undersigned requested that Petitioner withdraw the instant Jurisdictional Brief. Petitioner declined to do so. In addition, Petitioner s counsel declined to respond to inquiries with regard to whether it continues to represent Mr. Kopel and only withdrew from the matter pending before this Court. 3

8 violation of 20 U.S.C. 1681, et seq. ( Title IX ). Id. at pp.1-2. Like the negligence claims, the Title IX claim asserts that the School Board s negligence and deliberate indifference to prior reports of Sinrod s sexual assaults resulted in him remaining employed, leading to his assault on the Does. Id. at pp. 1 & 4. Concluding that the Title IX claim was a new cause of action, the trial court granted the School Board s motion to dismiss. Id. at pp.3-4. The Fourth DCA reversed, recognizing that, because [b]oth claims arose from the same conduct and resulted in the same injury, the Title IX claim related back to the original negligence claim and are not time-barred. Id. at p.4. SUMMARY OF ARGUMENT The Fourth DCA s Opinion is wholly consistent with recent decisions of all of the other District Courts of Appeal in Florida. Without exception, Florida s DCAs allow amendments that change legal theories where, as here, the claims arose from the same conduct and resulted in the same injury and the defendant had fair notice of the general factual situation. See, infra, pp.6-9. The Opinion properly concludes that the Does Title IX claims were based on the identical operative factual allegations that Petitioner s actions put Sinrod in a position that allowed him to molest them although Petitioner knew, or should have known, that he would do so. The Opinion correctly ruled that, because a new cause of action and even a new legal theory can relate back to the original pleading so long as 4

9 the new claim is not based on different facts, such that the defendant would not have fair notice of the general factual situation, the Title IX claims related back to the Does original complaint and are not time-barred. App. A to PJB at 4. ARGUMENT Florida Rule of Civil Procedure 1.190(c) ( Rule 1.190(c) ) provides that an amended pleading relates back to the date of the original pleading when it arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.... Fabbiano v. Demings, 91 So. 3d 893, 894 (Fla. 5th DCA 2012). 2 Petitioner s jurisdictional argument is flawed because it is based on case law that pre-dates the 1967 amendments to Rule 1.190(c). I. The Opinion is Consistent With The Decisions All DCAs. Petitioner relies on inapposite decisions including many issued before the 1967 amendments to Rule 1.190(c) to suggest that the Fourth DCA departed from the holdings of its sister DCAs. Recent decisions from all five DCAs, which Petitioner did not cite, refutes this assertion. In 2010, the Third DCA explained that, in determining whether a new claim relates back to an original complaint, the test is whether the original pleading gives fair notice of the general fact situation out of which the claim or defense 2 The Legislature adopted this version of the relation-back doctrine in Rule 1.190(c) in See Fabbiano, 91 So. 3d at

10 arises. Flores v. Riscomp Indus., 35 So. 3d 146, 148 (Fla. 3d DCA 2010) (citation omitted; emphasis added). Later that year, the Second DCA, in Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864 (Fla. 2d DCA 2010), quoted and followed this exact language from Flores. Id. at 870 ( the test [is] whether the original pleading gives fair notice of the general fact situation out of which the claim or defense arises. ) (emphasis added; additional citations omitted); see also Dausman v. Hillsborough Area Reg l Transit, 898 So. 2d 213, 215 (Fla. 2d DCA 2005) (trial court abused its discretion in denying [the] request to amend his complaint because [it was]... based on the same conduct upon which the original claim was brought; it merely changed the legal theory of the action ). In 2012, the Fifth DCA in Fabbiano, supra, also cited Flores when it explained that the rationale for Rule 1.190(c) s expression of the relation back doctrine is grounded in the notion of fair notice. When the original complaint gives fair notice of the factual underpinning for the claim, an amendment to state a new legal theory should relate back. 91 So. 3d at 895 (emphasis added). After noting that Florida adopted the Federal standard and looks to Federal decisions, the Fabbiano court observed that Federal cases [u]nquestionably... permit an amendment setting forth a new legal theory to relate back after a statute of limitations has expired, provided that the amended complaint arises from a 6

11 common core of operative facts. 91 So. 3d at 896 (citation omitted; emphasis added). 3 This year, in concluding that the Does Title IX claims relate back to their negligence claims, the Fourth DCA s Opinion below expressly relied on, and is wholly consistent with, both Flores and Fabbiano. App. A to PJB at pp.3-4. In so doing it affirmed the analysis used by the Second, Third, and Fifth DCAs. Completing the circle, the First DCA recently confirmed that it, too, follows the same analysis to determine whether a new claim relates back to an initial filing. See Board of Trustees v. Walton County, No. 1D13-244, 2013 Fla. App. LEXIS 15067, at *7-10 (Fla. 1st DCA Sept. 23, 2013) ( Walton County ). 4 The First DCA affirmed the trial court s conclusion that, under Armiger and other decisions, the plaintiffs claims in their third amended complaint related back to those asserted in their earlier complaint. Id. at *7-8 ( [t]he asserted conduct relevant to 3 In Fabbiano, the court clarified that it rejected the proposed amendment in West Volusia Hosp. Auth. v. Jones, 668 So. 2d 635, 636 (Fla. 5th DCA 1996) (cited by Petitioner) because [t]he cause of action was distinct because it sought recovery for distinct injuries and damages involving a different plaintiff. 91 So. 3d at (emphasis added). Fabbiano stressed that the West Volusia decision and others like it pertain to a narrow set of circumstances wherein the proposed amendment, although emanating from the same set of operative facts, involved a factually distinct claim. Id. (emphasis added). 4 As of the filing of the instant brief, the First DCA s decision is not final as the time has not expired for the filing or disposition of a motion for rehearing. 7

12 the prospective takings in the Second Amended Complaint and the retrospective takings claims in the Third Amended Complaint arises out of the same general factual situation and, accordingly, related back) (emphasis added). 5 II. There Are No Conflicts with this Court. Moreover, there are no inconsistent decisions from this Court. To the contrary, the only relevant post-amendment decision by this Court to mention Rule 1.190(c) concurred, albeit without analysis, that an amended counterclaim relate[d] back to the date of the original pleading as it arose out of the conduct, transaction or occurrence set forth in the original pleading. Mainlands Constr. Co. v. Wen-Dic Constr. Co., 482 So. 2d 1369, 1370 (Fla. 1986). Petitioner cites footnoted dicta in its only referenced post-1967 decision of this Court, United Telephone Co. v. Mayo, 345 So. 2d 648 (Fla. 1977) where this Court observed without citation to, or discussion of, Rule 1.190(c) that the right to amend does not authorize plaintiff to state new and different causes of 5 The trial court and the First DCA in Walton also relied on Ron s Quality Towing v. Southeast Bank, 765 So. 2d 134 (Fla. 1st DCA 2000), and the First DCA quoted from Turner v. Trade-Mor, Inc., 252 So. 2d 383, 384 (Fla. 4th DCA 1971). See Walton, 2013 Fla. App. LEXIS 15067, at *8-10. These cases also are wholly consistent with the Does position here. In fact, Flores, also cites to Ron s Quality Towing. 35 So. 3d at 148. Similarly, both Armiger (2d DCA) and Ron s Quality Towing (1st DCA) cite to Turner (4th DCA), further exemplifying the interrelatedness of these decisions and the consistency of their analyses. See Armiger, 48 So. 3d at 872; Ron s Quality Towing, 765 So. 2d at

13 action. Id. at 655 n.6 (citing decisions from 1926, 1938 and 1939). The vague dicta does not suggest a contrary position. III. Kopel v. Kopel Does Not Create a Conflict. In Kopel v. Kopel, 117 So. 3d 1147 (3d DCA 2013), 6 jurisdictional decision pending SC13-992, the Third DCA held that a fifth amended complaint, filed 14 years after the original complaint, did not relate back because it contained completely new factual allegations that were inconsistent with the earlier complaints allegations. 117 So. 3d at This holding does not conflict with the instant Opinion because the new Kopel claim sought compensation under completely different and inconsistent allegations. Id. In contrast the Does Title IX claim seeks compensation under identical and consistent allegations. IV. The Janie Does Claims Relate Back Even Though They Allege Additional Factual Detail. Petitioner s insistence that a conflict exists because the Fourth DCA purportedly did not consider whether Respondents Title IX claims require proof of different, essential facts is a red herring. However, there is no such legal standard. As Petitioner s Counsel has conceded in its Kopel briefs, the Fourth 6 Petitioner s Notice of Related Case filed in the instant matter that refers to Kopel is disingenuous. Although the case addresses the relation-back doctrine, it is not related, in any way, to Respondents claims. The same is true with regard to the Notice of Related Case that refers this Court to Caduceus Properties, LLC v. Graney, P.E., 107 So. 3d 403 (Fla. 2012), which addresses the circumstances under which claims against a new defendant will relate back to an earlier pleading. 9

14 DCA properly concluded that the Does Title IX claims relate back because they arise out of the same conduct, transaction or occurrence and Petitioner had fair notice of the general factual situation. The phrase advocated by Petitioner different, essential facts appears in only in one decision Petitioner cites, Cox v. Seaboard Coast Line, 360 So. 2d 8, 9 (Fla. 2d DCA 1978). In Cox the court noted that this Court previously held that a plaintiff s right to maintain an action for personal injuries required proof of some different essential facts than the plaintiff s wrongful death action arising from the same accident, and, accordingly, one was not res judicata of the other although the earlier decision might result in collateral estoppel. Cox does not hold that a new claim does not relate back to a timely claim if it requires proof of some different facts. Moreover, to the extent that it could be construed as so holding, the Second DCA s 2010 Armiger decision leaves no doubt of the standard followed by that court. Supra at p.6. CONCLUSION Respondents respectfully request that this Court decline to accept discretionary jurisdiction of this matter. 10

15 Respectfully submitted: WITES & KAPETAN, P.A. Attorneys for Appellants 4400 North Federal Highway Lighthouse Point, Florida Telephone: (954) Fax: (954) By: /s/ Marc A. Wites Marc A. Wites Fla. Bar No CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via electronic mail on October 9, 2013, upon attorney for Petitioner, Shannon P. McKenna, Esq., (smckenna@conroysimberg.com and eservicehwdappl@conroysimberg.com) Conroy Simberg, et. al., 3440 Hollywood Blvd., Second Floor, Hollywood, FL By:/s/ Marc A. Wites Marc A. Wites CERTIFICATE OF COMPLIANCE I certify that the foregoing brief complies with the font requirement of Florida Rule of Appellate Procedure 9.210(a)(2) and is submitted in Times New Roman 14-point font. By:/s/Marc A. Wites Marc A. Wites 11