SUPREME COURT OF FLORIDA RESPONDENT S JURISDICTIONAL BRIEF

Transcription

1 Filing # Electronically Filed 01/03/ :25:42 PM RECEIVED, 1/3/ :28:35, John A. Tomasino, Clerk, Supreme Court SUPREME COURT OF FLORIDA ANHEUSER-BUSCH COMPANIES, INC. and ANHEUSER-BUSCH, INCOPORATED, Petitioners, vs. CHRISTOPHER STAPLES, CASE NO.: SC L.T. NOs.: 1D CA Respondent. RESPONDENT S JURISDICTIONAL BRIEF 1 BRETT HASTINGS Fla. Bar No Law Offices of Brett Hastings, P.A. 226 Third Street N. Jacksonville Beach, FL Tel: (904) Fax: (904) brett@justiceforjax.com Attorney for Respondent PHILIP S. KINNEY Fla. Bar No. Kinney & Sasso, PL Lake Mead Ave., #801 Jacksonville Beach, FL Tel: (904) Fax: (904) philip@jaxlitigation.com Attorney for Respondent

2 TABLE OF CONTENTS Table of Citations Statement of the Case and Facts Summary of Argument Argument THERE IS NO DIRECT AND EXPRESS CONFLICT BETWEEN THE DECISION RENDERED BELOW AND THE THIRD DCA S OPINION IN MICCOSUKEE TRIBE OF INDIAN V. LEHTINEN Conclusion Certificate of Service Certificate of Compliance

3 TABLE OF CITATIONS Case Law Miccosukee Tribe of Indian v. Lehtinen, 114 So.3d 329 (Fla. 3d DCA 2013) Reaves v. State, 485 So.2d 829 (Fla. 1986) Green v. Massey, 384 So.2d 24 (Fla. 1980) Rules Rule 4-1.7(b), Fla. R. of Prof. Cond Rule 9.030(a), Fla. R. App. Pro Rule 9.030(a)(2)(A)(iv), Fla. R. App. Pro Rule 9.030(a)(2)(A)(v), Fla. R. App. Pro Statutes Section , Fla. Stat , 8 Section (3)(a), Fla. Stat Constitutions Art. V, Sec. 3, Fla. Const

4 STATEMENT OF THE CASE AND FACTS As the Petitioners jurisdictional brief points out, Respondent ( Staples ) was injured on the job (while at an Anheuser-Busch plant) and filed for workers compensation from his employer. Thereafter, Staples filed a personal injury/premise liability action against Anheuser-Busch. The firm representing Anheuser-Busch in the personal injury/premise liability action entered an appearance on behalf of Staples employer who filed a notice of lien under section (3)(a), Fla. Stat. Because s requires that Staples and his employer cooperate with one another in the investigation and prosecution of the tort claim against Anheuser-Busch, Staples sought disqualification of Anheuser-Busch s counsel on the basis of conflict of interest. The trial court agreed and granted the disqualification. Anheuser-Busch filed a motion for rehearing asserting for the first time that Anheuser-Busch and Staples employer had entered into an indemnity agreement. However, the alleged agreement was not attached to either the motion for rehearing or the accompanying affidavit. Thus, the trial court denied the motion for rehearing. Anheuser-Busch appealed. The First DCA affirmed finding no departure from the essential requirements of the law. In discussing the dissent, the First DCA pointed out: However, the only issues Petitioners have raised before us are whether Respondent had standing to seek disqualification of the law 4

5 firm and whether, if Respondent had the requisite standing to do so, the existence of the indemnity agreement that was not brought to the trial court s attention until the filing of Petitioners motion for rehearing established that Petitioners interests were not fundamentally antagonistic to Respondent s employer s interest. 4 th DCA opinion, p. 4. The First DCA went on to point out that Ansheuser-Busch did not argue that the trial court s analysis under 4-1.7(b) was erroneous. Indeed, Ansheuser-Busch s certiorari petition filed before the lower court never even cited to 4-1.7(b). The issues presented to the First DCA were strictly limited to the two set forth above. SUMMARY OF ARGUMENT There is no express and direct conflict between the decision rendered in this case and that rendered by the Third DCA in Miccosukee Tribe of Indian v. Lehtinen, 114 So.3d 329 (Fla. 3d DCA 2013). The First DCA opinion neither cites Lehtinen in the majority opinion nor analyses the same issue as that in Lehtinen. Petitioners second and third issues are also grounded on the alleged express and direct conflict with Lehtinen. However, Petitioners attempt to make a weightier argument by suggesting that the First DCA s opinion will affect every litigant s right to counsel of their choosing (issue II) and will adversely affect all members of the Florida Bar s ability to trade on their experiences and expertise (issue III). Here, Petitioner s arguments fail to establish a basis of jurisdiction, because this 5

6 Court does not have jurisdiction over issues of great public importance (assuming there are any) in the absence of certification by the First DCA. ARGUMENT I. THERE IS NO DIRECT AND EXPRESS CONFLICT BETWEEN THE DECISION RENDERED BELOW AND THE THIRD DCA S OPINION IN MICCOSUKEE TRIBE OF INDIAN V. LEHTINEN. Florida law is well settled that, since 1980, the Florida Supreme Court is a court of limited jurisdiction, with the various district courts of appeals intended to be the courts of last resort for the vast majority of cases. See Fla. R. App. Pro , Committee Notes, 1980 Amendment. The supreme court s jurisdiction is defined by Art. V., Sec. 3 of the Florida Constitution and Fla. R. App. Pro (a). The only possible basis for the supreme court s discretionary jurisdiction in this case is set forth in 9.030(a)(2)(A)(iv), which provides: (2) Discretionary Jurisdiction. The discretionary jurisdiction of the supreme court may be sought to review (A) decisions of district courts of appeal that (iv) expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law; Rule 9.030(a)(2)(A)(iv), Fla. R. App. Pro. Conflict between decisions sufficient to satisfy jurisdictional requirements must be express and direct. The Florida Supreme Court has held that the express 6

7 and direct conflict must appear within the four corners of the majority opinions of the decisions allegedly to be in conflict. Neither a dissenting opinion, concurring opinion, nor the record itself can be used to establish jurisdiction. Reaves v. State, 485 So.2d 829, 830 (Fla. 1986). See also, Greene v. Massey, 384 So.2d 24, 27 (Fla. 1980) ( An opinion joined in by a majority of the members of the Court constitutes the law of the case. A concurring opinion does not constitute the law of the case nor the basis of the ultimate decision unless concurred in by a majority of the Court. ) In this case, Ansheuser-Busch has failed to demonstrate a direct and express conflict between the First DCA s opinion below and Miccosukee Tribe of Indian v. Lehtinen, 114 So.3d 329 (Fla. 3d DCA 2013). In challenging the disqualification below, Ansheuser-Busch presented the First DCA with only two issues, (1) Respondent s standing; and, (2) if standing existed, the analytical impact, if any, of the indemnity agreement between the parties giving rise to counsel s conflict of interest. As the First DCA s opinion notes, the alleged indemnity agreement was first brought to the trial court s attention in Ansheuser-Busch s motion for rehearing. However, the indemnity agreement was not attached to the motion for rehearing or accompanying affidavit. Consequently, the trial court denied the motion for 7

8 rehearing. The First DCA found no departure from the essential requirements of the law in this case. The Lehtinen presents no decisional conflict whatsoever. Lehtinen did not address the issue of standing. Neither did that case involve an indemnity agreement. Because the two cases involved different questions of law, there can be no direct and express conflict sufficient for supreme court jurisdiction. In any event, Lehtinen was decided on quite different facts. In that case, the attorney represented clients in wholly unrelated matters. In the instant case, not only were the matter related, the matters were in a fact the same same accident, same injuries, same damages and same evidence. Under the circumstances, Staples employer was required by statute to cooperate with Staples in the tort claim while at the same time being represented by the attorney defending the tort claim. The trial court found the attorney was in fact representing clients directly adverse to one another and that the conflict could not be waived because their interests were fundamentally antagonistic. Section , Fla. Stat. provides as much by requiring Staples and his employer to cooperate with one another in prosecuting the tort action. Because the instant case involved facts and questions of law utterly distinct from Lehtinen, the First DCA opinion does not directly and expressly conflict with the opinion in Lehtinen and no basis for supreme court jurisdiction exists. 8

9 Anheuser-Busch s second and third issues in its jurisdictional brief merely restates the alleged conflict jurisdiction refuted above except to add in some alarmist language about the First DCA s opinion impinging the litigant s right to choose counsel or the attorney s right to represent whomever he/she chooses. This is nothing new. The rules of professional conduct have always prohibited attorneys from undertaking cases in which a conflict of interest exists. In that sense, a litigant s right to choose counsel and an attorney s right to freely choose clients has always been limited, and the First DCA s opinion does nothing to increase that limitation. Finally, to the extent Anheuser-Busch attempts to frame the issue as one of great public importance, jurisdiction must be denied. In order for discretionary jurisdiction to be available on that basis, Fla. R. App. Pro (a)(2)(A)(v) requires the district court of appeal to certify that the question of law is one of great public importance. There has been no such certification in this case. CONCLUSION Anheuser-Busch has failed to demonstrate that the First DCA s opinion below directly and expressly conflicts with Miccosukee Tribe of Indian v. Lehtinen, 114 So.3d 329 (Fla. 3d DCA 2013). The two cases address different legal questions and distinct facts. Consequently, no conflict jurisdiction exists. 9

10 Nor did the First DCA certify that this case presents a question of great public importance. Because there is no basis for the supreme court to exercise discretionary jurisdiction, the Respondent, Christopher Staples, respectfully requests that the court decline jurisdiction and dismiss this appeal. CERTIFICATE OF SERVICE I HEREBY CERTIFY a copy hereof was furnished electronically to E. T. Fernandez, Esq., and Brian K. Sebaaly, Esq., Fernandez Trial Lawyers, P.A., Perimeter Park, Jacksonville, Florida at Pleadings@Fernandeztl.com and Brian@Fernandeztl.com this 3rd day of January, CERTIFICATE OF COMPLIANCE The undersigned certifies this computer generated brief complies with Fla. R. App. Pro (a)(2) and is prepared using Times New Roman 14-point font. /s/ Brett Hastings BRETT HASTINGS Fla. Bar No Law Offices of Brett Hastings, P.A. 226 Third Street N. Jacksonville Beach, FL Tel: (904) Fax: (904) brett@justiceforjax.com Attorney for Respondent 10