IN THE SUPREME COURT OF FLORIDA. CASE NO. SC th DCA CASE NO. 5D L.T. CASE NO. DR

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC th DCA CASE NO. 5D L.T. CASE NO. DR IN RE: DENISE AYALA, Petitioner, vs. WILLIAM A. GONZALEZ, Respondent. / RESPONDENT=S AMENDED REPLY BRIEF ON JURISDICTION DOROTHY J. McMICHEN, ESQUIRE Dorothy J. McMichen, P.A East Concord Street Post Office Box Orlando, Florida /

2 Florida Bar No Attorney for Respondent

3 TOPICAL INDEX TOPIC PAGE(S) TOPICAL INDEX... I TABLE OF CITATIONS AND AUTHORITIES... ii PRELIMINARY STATEMENT... iii STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS... 2 SUMMARY OF ARGUMENT... 3 ARGUMENT: REPLY TO PETITIONER=S ARGUMENTS: ARGUMENT I... 4 ARGUMENT II... 7 CONCLUSION... 9 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE i

4 TABLE OF CITATIONS AND AUTHORITIES CASES: PAGES Benitez v. Konfino, 624 So.2d 861 (Fla. 5 th DCA 1993)... 6 Botton v. Elbaz, 722 So.2d 974 (Fla. 4 th DCA 1999)... 8 Breen v. Huntley Jiffy Stores, 610 So.2d 29 (Fla. 2 nd DCA 1992)...8 Davis v. Florida Power Corporation, 492 So.2d 829 (Fla. 2 nd DCA 1986)... 8 Eggers v. Eggers, 776 So.2d 1096 (Fla. 5 th DCA 2001)... 7, 8 Ground Improvement Techniques, Inc. v. Merchants Bonding Company, 707 So.2d 1138 (Fla. 5 th DCA 1998)... 8 McDaniel v. Burton, 748 So.2d 1072 (Fla. 4 th DCA 1999)... 5, 6 Safety National Casualty Corporation v. Florida Municipal Insurance Trust, 818 So.2d 612 (Fla. 5 th DCA 2002)... 4 Steward v. Steward, 588 So.2d 692 (Fla. 5 th DCA 1991)... 6 Westshore Glass Corporation v. Hack Industries, Inc., 522 So.2d 1046 (Fla. 2 nd DCA 1988)...8 Yurgel v. Yurgel, 572 So.2d 1327 (Fla. 1990)... 5, 6 Statutes, Rules: Florida Rules of Appellate Procedure Rule 9.130(a)... 4 Rule 1.061, Florida Rules of Civil Procedure... 4, 6 ii

5 iii

6 PRELIMINARY STATEMENT In the Fifth District Court of Appeal, the Respondent, William I. Gonzalez, was the Appellant, and the Petitioner, Denise Ayala f/k/a Denise Gonzalez was the Appellee. In this brief, William I. Gonzalez shall be referred to as Respondent and Denise Ayala f/k/a Denise Gonzalez shall be referred to as Petitioner. For the information of the Court, this brief is amended only to correct incorrect line spacing in the argument and conclusion in the previous brief. iv

7 STATEMENT OF THE CASE On April 21, 2005, the Petitioner filed a Motion for Change of Venue for Inconvenient Forum. On May 11, 2005, the Respondent filed Former Husband=s Verified Objection to Former Wife=s Motion for Change of Venue for Inconvenient Forum. On May 12, 2005, the lower court held a hearing on the Motion for Change of Venue for Inconvenient Forum, said hearing was continued on July 18, On August 5, 2005, the lower court entered the Order on Former Wife=s Motion for Change of Venue for Inconvenient Forum. Said Order granted the Former Wife=s Motion for Change of Venue for Inconvenient Forum and transferred the action to the Commonwealth of Puerto Rico. On August 9, 2005, the Respondent filed a Motion for Rehearing of the Order on Former Wife=s Motion for Change of Venue for Inconvenient Forum, said motion was denied by the Order on Motion dated August 25, On September 1, 2005, the Respondent filed a Notice of Appeal of Non-Final Order. On November 2, 2005, the trial court entered the Order on Former Husband=s Motion for Stay of Proceedings Pending Appellate Review of Non-Final Order. Said Order stated that A[t]hese proceedings are hereby stayed until the conclusion of 1

8 the appeal or pending further order of this On June 23, 2006, the Fifth District Court of Appeal rendered an opinion reversing the August 5, 2005 Order on Former Wife=s Motion for Change of Venue for Inconvenient Forum which had transferred the action to the Commonwealth of Puerto Rico. On July 5, 2006, the Petitioner filed Appellee=s Motion for Certification, Appellee=s Motion for Rehearing and Motion for Rehearing En Banc, and Appellee=s Notice to Invoke Discretionary Jurisdiction. On August 16, 2006, the Fifth District Court of Appeal entered an Order denying the Motion for Certification, and Motion for Rehearing and Motion for Rehearing En Banc. STATEMENT OF THE FACTS The minor child of the parties was born on September 25, The Petitioner relocated to Puerto Rico in February Prior to this relocation, Florida was the home state of the minor child since his birth. The Respondent still resides in Orange County, Florida in the former marital residence of the parties and the minor child has visitation with the Respondent in Florida 40% of the time. The original proceedings in the parties= dissolution of marriage began in the Orange County, Florida court in 1999 when the Petitioner 2

9 filed her Petition for Dissolution of Marriage (A. 1). A long history of litigation is in the Orange County, Florida case. 3

10 SUMMARY OF THE ARGUMENT The decision of the Fifth District Court of Appeal in the instant case does not expressly and/or directly conflict with any decision of the Supreme Court of Florida or another district court of appeal and therefore, the Florida Supreme Court does not have discretionary jurisdiction to review said decision. 4

11 REPLY TO PETITIONER=S ARGUMENT I Petitioner=s Argument I basically states that the Respondent is not entitled to appeal the order of the trial court which transferred venue of the case from Florida to Puerto Rico. This assertion cannot be reconciled with the laws of Florida, including the case law cited in the Petitioner=s Jurisdictional Brief. Florida Rules of Appellate Procedure Rule 9.130(a) specifically grants the district court jurisdiction to review non-final orders that concern venue. The appeal in the instant case is from a non-final order regarding change of venue and therefore the Fifth District Court of Appeal had jurisdiction to hear said appeal. The Petitioner=s Motion for Change of Venue for Inconvenient Forum was brought pursuant to Rule 1.061, Florida Rules of Civil Procedure. Rule 1.061(a) states that A[t]he decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion.@ See also Safety National Casualty Corporation v. Florida Municipal Insurance Trust, 818 So.2d 612, 613 (Fla. 5 th DCA 2002). It is obvious that Rule 1.061(a) set forth a standard of review and that inherent in setting a standard of review is the right to have decisions reviewed by 5

12 the district court of appeal. Additionally, the case cited in the Petitioner=s brief of McDaniel v. Burton, 748 So.2d 1072 (Fla. 4 th DCA 1999) supports the Respondent=s position in the instant case. The Fourth District Court of Appeal in McDaniel, stated that A[a] trial court=s decision to relinquish jurisdiction of a petition for modification is subject to an abuse of discretion standard of review.@ Id at The facts in McDaniel are similar to the case at bar as in McDaniel, the Florida trial court relinquished jurisdiction to the Ohio court and then the district court of appeal reversed said decision. Id at 1074, In the instant case, the trial court transferred the case from Florida to Puerto Rico and the appellate court reversed the trial court=s decision. The Petitioner asserts that since the trial court relinquished jurisdiction to Puerto Rico, the Florida court cannot Arecapture@ said jurisdiction. It is important to note that jurisdiction has not yet been relinquished to Puerto Rico. On November 2, 2005, the trial court entered the Order on Former Husband=s Motion for Stay of Proceedings Pending Appellate Review of Non-Final Order. Said Order stated that A[t]hese proceedings are hereby stayed until the conclusion of the appeal or pending further order of this Court.@ 6

13 The Petitioner relied on Yurgel v. Yurgel, 572 So.2d 1327 (Fla. 1990) to support Argument I of the jurisdictional brief. The Petitioner=s reliance is misplaced and the Petitioner=s interpretation of Yurgel is incorrect. A review of Yurgel shows Yurgel simply does not say what the Petitioner asserts the case says. In no way does the ruling in Yurgel, or in any of the other cases cited in the Petitioner=s Argument I, operate to take away a party=s right to appeal a non-final order of the trial court changing venue to another state. If this were the case then the trial court would be the final authority in these types of cases and there would be no review for abuse of discretion as set forth in Florida Rules of Civil Procedure. Rule 1.061(a). The ruling of the Fifth District Court of Appeal is not expressly and/or directly in conflict with Yurgel v. Yurgel, 572 So.2d 1327 (Fla. 1990), McDaniel v. Burton, 748 So.2d 1072 (Fla. 4 th DCA 1999), Benitez v. Konfino, 624 So.2d 861 (Fla. 5 th DCA 1993), or Steward v. Steward, 588 So.2d 692 (Fla. 5 th DCA 1991). 7

14 REPLY TO PETITIONER=S ARGUMENT II The Petitioner=s Argument II asserts that the since the Respondent did not file affidavits with the trial court regarding the change of venue that the Petitioner should have been entitled to a granting of the motion to change venue and an affirmance of the trial court. The Fifth District Court of Appeal=s opinion in this case set forth that Awhile neither party submitted affidavits, the trial court did take live testimony.@ The Petitioner may have filed affidavits in the court file of the trial court, but said affidavits were never submitted to the trial court nor were said affidavits ever served upon the Respondent. In response to the Petitioner=s motion to change venue, the Respondent filed the Former Husband=s Verified Objection to Former Wife=s Motion for Change of Venue for Inconvenient Forum dated May 11, This verified objection should be considered as a sworn affidavit of the Respondent regarding the motion for change of venue. Additionally, both parties presented live testimony under oath at the hearing in trial court in this matter. The Petitioner relies on Eggers v. Eggers, 776 So.2d 1096 (Fla. 5 th DCA 2001) to support his assertion that a motion for change of venue must be supported by an affidavit. However, the ruling in Eggers states that Awhen a forum non conveniens is raised, it is incumbent upon the parties to submit affidavits or other evidence that will shed necessary 8

15 light on the issue of the convenience of the parties and witnesses and the interest of (emphasis added) Id at The live testimony at the hearing in the trial court in this case constitutes Aother as required by Eggers. The cases cited in the Petitioner=s Argument II set forth that either live testimony, sworn proof or other evidence offered under oath are acceptable instead of affidavits when the trial court is considering dismissal based upon forum non conveniens. Not a single case cited by the Petitioner supports his argument that the Respondent=s alleged failure to file affidavits triggers an operation of law that entitles the Petitioner to prevail on the motion for change of venue and affirmance of said order by the district court of appeal. See Eggers v. Eggers, 776 So.2d 1096 (Fla. 5 th DCA 2001), Ground Improvement Techniques, Inc. v. Merchants Bonding Company, 707 So.2d 1138 (Fla. 5 th DCA 1998), Breen v. Huntley Jiffy Stores, 610 So.2d 29 (Fla. 2 nd DCA 1992), Davis v. Florida Power Corporation, 492 So.2d 829 (Fla. 2 nd DCA 1986), Westshore Glass Corporation v. Hack Industries, Inc., 522 So.2d 1046 (Fla. 2 nd DCA 1988), Botton v. Elbaz, 722 So.2d 974 (Fla. 4 th DCA 1999). 9

16 CONCLUSION As set forth above, the decision of the Fifth District Court of Appeal in the instant case in no way expressly and/or directly conflicts with any decision of the Supreme Court of Florida or another district court of appeal and therefore, the Florida Supreme Court does not have discretionary jurisdiction to review said decision. Respectfully submitted, DOROTHY J. McMichen, P.A. /s/ DOROTHY J. McMICHEN DOROTHY J. McMICHEN, ESQUIRE 1500 East Concord Street Post Office Box Orlando, Florida / Florida Bar No Attorney for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to RUDOLPH C. CAMPBELL, ESQUIRE, Post Office Box 21672, Tampa, Florida this 5 th day of September, DOROTHY J. McMICHEN, P.A. /s/ DOROTHY J. McMICHEN DOROTHY J. McMICHEN, ESQUIRE 1500 East Concord Street Post Office Box Orlando, Florida / Florida Bar No Attorney for Respondent 10

17 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of Fla.R.App.P DOROTHY J. McMICHEN, P.A. /s/ DOROTHY J. McMICHEN DOROTHY J. McMICHEN, ESQUIRE 1500 East Concord Street Post Office Box Orlando, Florida / Florida Bar No Attorney for Respondent 11