IN THE SUPREME COURT OF FLORIDA. COMES NOW, Respondent, WEST GABLES REHABILITATION

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1 Filing # Electronically Filed 01/31/ :16:52 PM RECEIvED, 1/31/ :18:46, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA MARIE E. MENENDEZ, Petitioner, CASE NO.: SC vs. WEST GABLES REHABILITATION HOSPITAL, LLC Respondent. RESPONDENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION COMES NOW, Respondent, WEST GABLES REHABILITATION HOSPITAL, LLC, by and through undersigned counsel, and hereby files its Motion to Dismiss for Lack of Jurisdiction, and as grounds, states: BACKGROUND On December 10, 2013 Petitioner invoked the discretionary jurisdiction of this Court regarding a decision rendered by the Third District Court of Appeal on November 14, More specifically, Petitioner seeks review pursuant to this Court'.s discretionary jurisdiction under Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv). Petitioner claims that the Third District's decision expressly and directly conflicts with this Court's decision in McCain v. Florida Power Corp., 593 v. 500 (Fla. 1992). In addition, Petitioner contends that the Third District Court misapplied Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105 (Fla. 1 QUINTAIROS,. PRIETO, WOOD & BOYER, P.A., ATTORNEYS AT LAW ONE EAST BROWARD BOULEVARD, SUITE 1200, FORT LAUDERDALE, FLORIDA TEL: (954)

2 2005), and thus, this Court has discretionary jurisdiction based upon a misapplication of law. However, and as will be described in greater detail below, this Court lacks discretionary jurisdiction over the this matter because there is no express and direct conflict with this Court's decision in McCain v, Florida Power Corp., 593 v. 500 (Fla. 1992), and the Third District Court not misapply Goldbera v. Fla. Power & Light Co., 899 So. 2d 1105 (Fla. 2005). Thus, Petitioners Notice to Invoke Discretionary Jurisdiction of this Court must be dismissed. A. This Motion to Dismiss for Lack of Jurisdiction is timely. It must be first pointed out that any motion to dismiss, such as this one which questions this Court's jurisdiction, is appropriate at any time. Judge Padovano's leading treatise on Appellate Practice succinctly confirms the point: "A party may file a motion to dismiss to assert the absence of appellate jurisdiction at any stage of the proceeding before the appellate court." 2 Fla. Prac., Appellate Practice 1:8 (2014 ed.). Therefore, Respondent's Motion to Dismiss for Lack of Jurisdiction is timely and can be considered by this Court. B. This Court lacks jurisdiction to consider the merits of Petitioner's Jurisdictional Brief. Petitioner argues in the Jurisdictional Brief that "the Third District's opinion applies a proximate cause analysis to what is clearly a question of legal duty and therefore misapplies this Court's holding in McCain, 593 So. 2d at 504." See Jur. Brief at 4-5. In addition, in a second attempt to invoke this Court's jurisdiction, 2 QUINTAIROS, PRIETO, WOOD & BOYER, P.A.. ATTORNEYS AT LAW ONE EAST BROWARD BOULEVARD, SUITE FORT LAUDERDALE, FLORIDA TEL: (954)

3 Petitioner argues that the Third District Court misapplied Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105 (Fla. 2005), because it failed to apply a foreseeability test.. See Jur. Brief at 5-8. However, Petitioner mischaracterizes the holding of the Third District Court in order to improperly invoke the jurisdiction of this Court. The trial court's order was affirmed, because the Third District Court concluded, under long standing principles of appellate law, that Petitioner's rescue doctrine argument (i.e. that Respondent had a duty to Petitioner, because it invited Petitioner to participate in her mother's physical therapy, and thus, Respondent's breach of this duty was the proximate cause of Petitioner's injury when she rescued her mother by throwing herself at her mother to break her mother's fall) was not made to the trial court below, and therefore, the rescue doctrine argument could not be brought up for the first time on appeal in order to avoid summary judgment. More specifically, the Third District Court states at the beginning of the opinion that "[b]ecause Menendez's theory of liability depends upon the application of the "rescue doctrine,"1 and the rescue doctrine was not pled or argued below, we affirm." App. at 2 (emphasis added). The Third District again points out at page six of its. opinion that "Menendez's complaint presents two See Reeves v. N. Broward Hospital District, 821 So. 2d 319 (Fla. 4* DCA 2002). It is undisputed that Reeves was not brought before the trial court or pled in the proceedings below, and Reeves was only brought up in order to avoid summary judgment for the first time on appeal. 3 QU[NTAIROS, PRIETO, WOOD & BOYER, P.An Aff0RNEYs AT LAW ONE EAST BROWARD BOULEVARD, SU[TE 1200, FORT LAUDERDALE, FLORlDA TEL: (954)

4 theories of liability: premises liability and physical therapy malpractice. Under either theory, based upon the facts as revealed in the depositions, duty and proximate cause cannot be established except by the application of the rescue doctrine, which was not pled or argued below." (emphasis added). In addition, the Third District Court points out at page nine of its opinion "because Menendez failed to plead or otherwise present the rescue doctrine in the proceedings below, she cannot be heard to argue it on appeai." (emphasis added). As such, it was the failure of Petitioner to raise the rescue doctrine either in her pleadings or in opposition to the Motion for Summary Judgment at the trial level which foreclosed the Third District Court from considering it. This again is recognized by the Third District Court at page 9 of its opinion wherein it states: "[W]e therefore do not address whether the application of the rescue doctrine might have allowed Menendez's claim to survive summary judgment. We are foreclosed from considering the rescue doctrine because it was never presented to the trial court." (emphasis added). Thus, the Third District Court did not apply a proximate cause analysis to affirm the trial court's determination that Respondent owned no duty to Petitioner nor did it improperly decide the proximate cause issue as a matter of law as Petitioner would like to contend in the Jurisdictional Brief. Because the Third District Court affirmed the trial court solely on the basis of waiver, and not on the basis of lack of proximate cause, there is no 4 QUINTA1ROS, PRIETO, WOOD 8c BOYER, P,A,, ATTORNEYs AT LAW ONE EAST BROWARD BOULEVARD, SUITÉ 1200, FORT LAUDERDALE, FLO.RIDA TEL: (954)

5 express and direct conflict with McCain v. Florida Power Corp., 593 v. 500 (Fla. 1992), or a misapplication of Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105 (Fla. 2005). Therefore, this Court lacks jurisdiction to address the issues contained in Petitioner's Jurisdictional Brief, and thus, the Jurisdictional Brief must be dismissed. See Dept. of Health and Rehabilitative Services v. National Adoption Counseling Service, Inc., 498 So. 2d 888, 889 (Fla. 1986) (reversal of an order temporarily enjoining alleged unlicensed child-placing agencies from engaging in further placement or referral activity was not based on the merits, but was based on finding that the Dept. of Health was without standing to maintain a suit for injunction and hence, was not based on a finding which was in conflict with other decisions so as to vest the Supreme Court with jurisdiction on the petition for review). C. There is no express and direct conflict with McCain v. Florida Power Corp., 593 v. 500 (Fla. 1992), and thus, Petitioner's Jurisdictional Brief must be dismissed. To support the position that this Court has jurisdiction, Petitioner states that the Third. District Court, contrary to the holding in McCain, "conflated the duty element of negligence with proximate causation." Jur. Brief at 3. It appears that Petitioner relies upon McCain to make an argument that the Third District Court "passed upon the propriety of the trial court's determination of no duty by applying a proximate cause analysis." Jur. Brief at 4. However, the Third District Court 5 QUINTAIROS, PRIETO. WOOD & BOYER, P.A., ATTORNEYS AT LAW ONE EAST BROWARD BOULEVARD, SUITE 1200, FORT LAUDERDALE, FLORIDA TEL: 1954)

6 clearly and expressly states under the unique facts of this case that "duty and proximate cause cannot be established except by the application of the rescue doctrine which was not plead or argued below." App. 6. Under basic principles of tort law, without a duty on the part of the defendant, a plaintiff never gets to second prong of negligence, which is to determine whether there is proximate cause. The lac;k of duty was duly recognized by the trial court, and therefore, summary judgment was appropriately entered. Furthermore, and as recognized by the Third District Court, the only way Respondent would have a duty to the Petitioner is through the rescue doctrine; however, Petitioner failed to bring the rescue doctrine to the trial court's attention, and brought it up for the first time on appeal. Here, the Third District Court correctly stated and applied the law of duty and proximate cause based upon the unique facts of this case. As pointed out numerous times by the Third District Court, clear dictates of appellate law forecloses an appellate court from deciding an issue that is brought up for the first time on appeal. See Sunset Harbour Condo. Ass'n v. Robbins, 914 So. 2d 925, 928 (Fla ) ("In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved."); Bus. Success Grp., Inc. v. Argus Trade Realty Inv., Inc., 898 So. 2d 970, 972 (Fla. 3d DCA 2005) ("it is elementary that before a trial judge 6 QUINTAIROS, PRIETO, WOOD & BOYER, P.A., ATTORNEYS AT LAW ONE EAST BROWARD BOULEVARD, SUITE 1200, FORT LAUDERDALE, FLORIDA YEL: {954)

7 will be held in error, [she] must be presented with an opportunity to rule on the matter."). As such, Petitioner waived the only theory of liability, the rescue doctrine, which would have created a duty on the part of the Respondent, and thus, would have avoided summary judgment against Petitioner under the unique facts of this case. Because the Third District Court did not misapply McCain and clearly dealt with the issues of duty in its detailed opinion, this Court lacks jurisdiction and Petitioner's Jurisdictional Brief must be dismissed. See Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986) (having determined that there is no direct and express conflict, the petition for review was denied). D. The Third District Court did not misapply Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105 (Fla. 2005), and thus, Petitioner's Jurisdictional Brief must be dismissed. First, it is the Respondent's position that the Third District Court's reference to Goldberg v. Fla. Power & Light Co., 899 So, 2d 1105, 1116 (Fla..2005), is dicta, and thus, does not affect the Third District Court's decision affirming the trial court's granting of summary judgment. App. at 6-7. More specifically, the Third District Court literally spends one paragraph out of an entire nine page opinion on the issue of proximate cause. Additionally, the issue of proximate cause is brought up by the Third District Court under the subheading "B. The Nature of Menendez's Claims." Prior to discussing Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105, 1116 (Fla. 2005), the Third District points out that "duty and proximate cause 7 QUINTAIROS, PRIETO, WOOD & BOYER, P.A., ATTORNEYS AT LAW ONE EAST BROWARD BOULEVARD, SuiTE 1200, FORT LAUDERDALE, FLORJDA SS TEL: (954)

8 cannot be established except by the application of the rescue doctrine, which was not pled or argued below." App. at 6. Therefore, it is more than clear that the issue of the lack of proximate cause did not determine the outcome on appeal. Rather, what determined the issue on appeal, and what the Third District Court stresses throughout its nine page opinion, is the fact that Petitioner failed to raise the rescue doctrine at the trial level. Thus, under the longstanding dictates of appellate law regarding waiver, the Third District was foreclosed from deciding whether the rescue doctrine would have precluded summary judgment in Respondent's favor. See Robbins, 914 So. 2d at 928; Argus Trade Realty Inv., Inc., 898 So. 2d at 972. In the alternative and because the Florida Supreme Court can take discretionary jurisdiction to determine dicta, Respondent will address the merits of Petitioner's argument that the Third District Court misapplied Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105, 1116 (Fla. 2005). However, should this Court determine that the Third District Court misapplied Goldberg v. Fla. Power & Light Co., 899 So, 2d 1105, 1116 (Fla. 2005), it would not affect the outcome of the appeal, and trial court's order granting summary judgment must be affirmed. See e.g., Watson Realty Cor. v. Quinn, 452 So. 2d 568, 569 (Fla. 1984) (Florida Supreme Court had discretionary jurisdiction to recede from obiter dicta while affirming the trial court's judgment). 8 QUINTAIROS, PRIETO, WOOD & BOYER, P.Ao ATTORNEYs AT L.AW ONE EAST BROWARD BOULEVARD, SUITE 1200, FORT LAUDERDALE, FLORIDA TEL: (954)

9 As grounds that the Third District Court misapplied Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105, 1116 (Fla. 2005), Petitioner alleges that the Third District Court failed to analyze the facts underlying its conclusion of the proximate cause issue (i.e. apply a foreseeability test) and used a "truncated analysis to summarily determine Menendez's act, in and of itself, constituted a superseding intervening cause as a matter of law." Jur. Brief at 5-6. However, the Third District Court in its well-reasoned opinion expressly analyzed the unique facts of this case to the applicable law, and therefore, did not perform a "truncated analysis" as Petitioner contends. More specifically, in the two paragraphs before the Third District Court cites to Goldberg, the Third District gives the following analysis of the facts of the case: Menendez's complaint presents two theories of liability: premises liability and physical therapy malpractice. Under either theory, based upon the facts as revealed in the depositions,. duty and proximate cause cannot be established except by the application of the rescue doctrine, which was not plead or argued below. In this regard, the uncontroverted testimony of all the witnesses, including Menendez herself, was that she was stationed at a safe distance behind the wheelchair at the moment that her mother began to fall. From this position of safety, she - in her own words - "threw" herself towards her mother.. It was Menendez's action in leaving her position of safety which subjected her to potential injury." App. at 6 (emphasis added). In addition, the Third District Court spends almost two pages of its opinion presenting the facts of this case. App. at 3-5. The Third District Court points out that when these facts are "viewed in a light most 9 QUINTAIROS, PRIETo, WOOD & BOYER, P.A.. ATI-ORNEYS AT LAW ONE EAST BROWARD BOULEVARD, SUlTE 1200, FORT LAUDERDALE, FLORIDA TEL: (954)

10 favorable to Menendez," they "tell a story at odds with the allegations in the amended complaint." App. at 3. The Third District then goes into great detail as to what the "uncontradicted deposition testimony" shows. App. at 3-5. As such, the Third District Court presented a very thorough and detailed analysis of the facts of the case when determining that Menendez's act of throwing herself at her falling mother was not foreseeable unless Petitioner invoked the rescue doctrine in order to first create a duty on the part of Respondent. Therefore, the Third District Court did not misapply Goldberg v. Fla. Power & Light Co., 899 So, 2d 1105, 1116 (Fla. 2005), and properly analyzed whether, under the unique facts of this case, Petitioner's act of throwing herself at her mother was a superseding intervening cause or whether it was a foreseeable act due to a breach of Respondent's duty to Petitioner. Second, the Third District Court was clear that the only way one gets past summary judgment to determine whether Menendez's act of throwing herself at her mother constituted negligence on the part of the Respondent (i.e. a foreseeable act) is through the rescue doctrine. Without the rescue doctrine, there can be no negligence as a matter of law, because there is no duty on the part ofrespondent to Petitioner. Here, Petitioner failed to bring the rescue doctrine to the attention of the trial court, and thus, waived this theory of negligence. Through-out the Jurisdictional Brief, Petitioner conveniently ignores the fact that the reason why 10 QUINTAIROS, PRIETO, WOOD & BOYER. P.A., ATTORNEYS AT LAW ONE EAST BROWARD BOULEVARD, SUITE 1200, FORT LAUDERDALE, FLORIDA TEL: (954)

11 the trial court's order was affirmed was because Petitioner failed to bring the one argument that could have saved her from summary judgment to the attention of the trial court - that Respondent had a duty to Petitioner under the rescue doctrine. Petitioner now attempts to characterize her own failure as a failure by Third District Court in misapplying the holding in Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105, 1116 (Fla. 2005). As explained in detail above, the Third District Court properly applied Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105, 1116 (Fla. 2005). Because the Third District Court did not misapply Goldberg, this Court lacks jurisdiction and Petitioner's Jurisdictional Brief must be dismissed. E. The Third District Court did not misapply Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105 (Fla. 2005), and thus, there is no "dire consequences. for Florida's proximate cause jurisprudence. Finally, Petitioner's argument that "this misapplication of Goldberg has dire consequences for Florida's proximate cause jurisprudence" is unfounded. As stated above, the Third District Court's decision did not turn on the application of Goldberg (i.e. proximate causation), and thus, under the unique facts of this case, the Third District Court appropriately applied Goldberg. Moreover, had Petitioner not waived the issue of the rescue doctrine, the Petitioner may have been able to avoid summary judgment. Thus, there is no "dire consequences for Florida's proximate cause jurisprudence," and the Third District Court's opinion cannot be described as an "abrogation of Florida's proximate cause jurisprudence." 11 QUINTAIROS, PRIETO, WOOD & BOYER, P.A,, ATTORNEYS AT LAW ONE EAST BROWARD BOULEVARD, SUITE 1200, FORY LAUDERDALE, FLORIDA TEL: (954)

12 In addition, the facts at issue in Gibson v. Avis Rent-A-Car System, Inc., 386 So. 2d 520 (Fla. 1980), upon which Petitioner relies, are completely different from the facts of this case. In Gibson, there were two potential tortfeasors - the intoxicated driver of the first car who stopped in the middle of the road and the driver of the fourth car who failed to stop at all. In this case, there is only one potential tortfeasor - Respondent's physical therapist. Thus, Gibson is materially distinguishable on that fact alone. Moreover, Gibson does not have any facts similar to the facts at issue here. Here, Petitioner voluntarily threw herself at her mother in order to break her mother's fall. Had Petitioner simply stayed were she was, she would not have been injured. In Gibson, none of the drivers of the four cars involved in the accident intentionally drove into the pile-up to prevent someone from hitting another car. Thus, Petitioner's argument - that if the Third District Court's holding is applied to the facts in Gibson, that the intoxicated driver would be relieved of responsibility - is simply inaccurate. As the trial court and the Third District correctly points out, Petitioner was not in the zone of danger until Petitioner voluntarily threw herself at her mother in order to break her mother's fall. The only way the alleged negligent acts of Respondent's physical therapist could be found to be the proximate cause of Petitioner's injuries is by establishing a duty by Respondent through the rescue doctrine. As stated through-out this Motion, Petitioner failed to argue the rescue 12 QUINTAIROS, PR1ETO, WOOD & BOYER, P.A9 ATTORNEYS AT LAW ONE EAST BROWARD BOULEVARD, SUITE 1200, FORT LAUDERDALE, FLORIDA TEL: (954)

13 doctrine at the trial level, and for the first time on appeal, brought it to the attention of the Third District. The Third District Court correctly held that Petitioner waived the rescue doctrine argument. As such, the Third District Court was foreclosed from deciding whether the rescue doctrine would have saved Petitioner from summary judgment in Respondent's favor, and affirmed the trial court. Therefore, because this Court lacles jurisdiction, Petitioner's Jurisdictional Brief must be dismissed. WHEREFORE, Respondent, WEST GABLES REHABILITATION HOSPITAL, LLC, respectfully requests that this Court dismiss Petitioner's Jurisdictional Brief for lack of jurisdiction and any other relief this Court deems just and appropriate. Respectfully submitted, NETTE BE LON, ESQ. Fla. Bar No.: COUNSEL FOR RESPONDENT 13 QUlNTAIROS, PRIETO, WOOD & BOYER3 P.A., ATTORNEYS AT LAW ONE EAST BROWARD BOULEVARD, SUITE 1200, FORT LAUDERDALE, FLORIDA TEL: (954)

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of this motion was furnished via BRETT POWFJ J s R8Q, at brett@powellappeals.com. The Powell Law Firm, P.A., Old Cutler Rd., Suite 325, Palmetto Bay, FL, 33157, and GREGG A. SILVERSTEIN, ESQUIRE, at asilverstein@ssspa-law.com, Silverstein, Silverstein & Silverstei Biscayne Boulevard, Suite 504, Aventura, Florida 33180, on this day of January By. 1 ANETTE BELLON, ESQ. 1-la. Bar No.: COUNSEL FOR RESPONDENT Quintairos, Prieto, Wood & Boyer, P.A., One East Broward Blvd., Suite 1200, Ft. Lauderdale, FL Phone: (954) ibellon@qpwblaw.com CERTIFICATE OF COMPLIANCE In compliance with Florida Rule of Appellate Procedure 9.210(2), counsel for Respondent certifies that the size and style of type used in this Motion to Dismiss for Lack of Jurisdiction are 14 point type, Times New Roman. JEANETTE BELLON, ESQ. Fla. Bar No.: QUINTAIROS, PRIETO, WOOD & BOYER, P.Ao ATroRNÈVs AT LAW ONE EAST BROWARD BOULEVARD, SUITE 1200, FORT LAUDERDALE, FLORIDA TEL: (954)