IN THE SUPREME COURT OF FLORIDA CASE NO.: SC LOWER TRIBUNAL CASE NO.: 4D

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC LOWER TRIBUNAL CASE NO.: 4D THOMAS D. LARDIN, P.A., a Florida Professional Association and THOMAS D. LARDIN, ESQUIRE, Defendant/Petitioners, v. BARBARA G. BANKS, P.A., a Florida Professional Association, Plaintiff/Respondent. RESPONDENT'S JURISDICTIONAL BRIEF On review from the Fourth District Court of Appeal Respectfully submitted, ARNSTEIN & LEHR LLP 200 E. Las Olas Boulevard Suite 1700 Fort Lauderdale, Florida Telephone: (954) Facsimile: (954) Franklin L. Zemel Florida Bar No: John M. Cooney Florida Bar No.: Counsel for Plaintiff/Respondent

2 TABLE OF CONTENTS STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 3 CONCLUSION... 7 i

3 TABLE OF AUTHORITIES Cases Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., 938 So. 2d 571, 574 (Fla. 4 th DCA 2006)...1, 2, 3, 4 Abbott Laboratories, Inc. v. General Electric Capital, 765 So. 2d 737 (Fla. 5 th DCA 2000)...2, 3, 5, 7 Collinson v. Miller, 903 So. 2d 221 (Fla. 2d DCA 2005)... 2, 3, 5, 6, 7 rev. denied, 918 So. 2d 292 (Fla. 2005)... 3 Medical Jets, S.A. v. Signature Flight Support Palm Beach, Inc., Case Number 4D (Fla. 4 th DCA Nov. 15, 2006)... 2 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 4 Times Publishing Company v. Russell, 615 So. 2d 158 (Fla. 1993)... 4 Perry v. Shaw, 13 So. 2d 811 (Fla. 1943)... 4 Tensfeldt v. Tensfeldt, 839 So. 2d 720 (Fla. 2d DCA 2003)... 6 W. R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297 (Fla. 1 st DCA 1999)... 6 Other Fla.R.App.P (a)(2)(A)(iv)... 3 ii

4 STATEMENT OF THE CASE AND FACTS Thomas D. Lardin, P.A. v. Barbara G. Banks, P.A. On March 11, 2005, the Respondent, BARBARA G. BANKS, P.A. ("Banks, P.A."), filed a complaint against Petitioners ("Lardin") for breach of their joint venture agreement, declaratory relief to determine Banks, P.A.'s, rights under the agreement, and unjust enrichment. Lardin responded to the complaint by filing a motion for summary judgment (before answer) asserting that there was an anticipatory repudiation and, therefore, a breach, when Lardin sent his letter of September 27, 1999 repudiating the joint venture agreement to Banks, thereby commencing the statute of limitations. Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., 938 So. 2d 571, 574 (Fla. 4 th DCA 2006). The trial court granted the motion for summary judgment, ruling that Banks, P.A.'s cause of action accrued upon Lardin's repudiation of the contract on September 27, 1999, and the statute of limitations therefore expired before the suit was filed in Id. The Fourth District Court of Appeal reversed, ruling that the statute of limitations does not automatically begin to run at the point of an anticipatory repudiation. The Fourth District correctly held that an anticipatory repudiation is merely a "tender of a breach" which the non-breaching party may: (a) elect not to accept at that time and instead stand ready to perform his or her own obligations under the contract, and (b) await the time for actual performance of the contract to bring suit after that time has arrived. Id. at

5 Lardin thereafter filed a motion for rehearing, clarification and/or certification on the basis that the Fourth District improperly distinguished Abbott Laboratories, Inc. v. General Electric Capital, 765 So. 2d 737 (Fla. 5 th DCA 2000) and Collinson v. Miller, 903 So. 2d 221 (Fla. 2d DCA 2005). The Fourth District denied the motion, and Lardin then petitioned the Fourth District to recall its mandate based upon an asserted intradistrict conflict with Medical Jets, S.A. v. Signature Flight Support Palm Beach, Inc., Case Number 4D (Fla. 4 th DCA Nov. 15, 2006). At the same time, on November 22, 2006, Lardin filed their "Notice to Invoke Discretionary Jurisdiction" in this Court, stating that the Banks decision "expressly and directly conflicts with the decisions of other district courts of appeal on the same questions of law." [See, Petitioners' Notice to Invoke Discretionary Jurisdiction]. Petitioners did not file their Jurisdictional Brief within the requisite 10 days of filing their Notice. Instead, Petitioners filed their Jurisdictional Brief over two months later, apparently justifying this delay based upon their contested Motion to Suspend Jurisdictional Briefing. Banks, P.A., objected to Lardin's request to delay disclosure of the alleged interdistrict conflict(s) pending the Fourth District's ruling on whether an intradistrict conflict warranted a recall of its mandate. The Fourth District denied recall of its mandate on January 9, Lardin's (untimely) Jurisdictional Brief was filed on January 24, Motions filed in the Supreme 2

6 Court do not toll time unless the Court approves a specific request, for good cause shown, to toll the time for performance of the next act. Rule 9.300, Fla. R. App. P. Very few motions filed in the Supreme Court warrant a delay in further procedural steps to be taken in a case. See, Committee Notes to Rule 9.300, Fla. R. App. P. It is respectfully submitted that Lardin has not shown good cause in delaying his disclosure of an alleged interdistrict conflict pending a ruling by the Fourth District on his alleged intradistrict conflict. In any event, this Court denied, as moot, Lardin's Motion to Suspend Jurisdictional Briefing by Order dated January 31, SUMMARY OF THE ARGUMENT The Fourth District's decision in Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., 938 So. 2d 571 (Fla. 4 th DCA 2006) held that an anticipatory breach does not necessarily commence the running of the statute of limitations for breach of contract. This decision can be reconciled with Abbott Laboratories, Inc. v. General Electric Capital, 765 So. 2d 737 (Fla. 5 th DCA 2000) and Collinson v. Miller, 903 So. 2d 221 (Fla. 2d DCA 2005), rev. denied, 918 So. 2d 292 (Fla. 2005) where the Fifth District and Second District found that an actual, present breach not an anticipatory one commenced the statute of limitations in those cases even though the full extent of the plaintiff's damage may not have been known at the time of those actual breaches. Thus, the decision of the Fourth 3

7 District does not expressly and directly conflict with other district courts of appeal on the same question of law. ARGUMENT Discretionary jurisdiction to resolve conflicts is limited to those cases in which the decision of a district court of appeal "expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law." Fla.R.App.P (a)(2)(A)(iv). The term "expressly and directly" means that there can be no reconciling the asserted disparate decisions, and it is not enough to show that one district court decision is "effectively" or "impliedly" in conflict with other appellate decisions. Jenkins v. State, 385 So. 2d 1356 (Fla. 1980); see also, Times Publishing Company v. Russell, 615 So. 2d 158 (Fla. 1993). The Fourth District's decision in Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., held that an anticipatory breach does not necessarily start the running of the statute of limitations. This was the point of law on which the trial court had granted summary judgment before answer, and this was the point of law on which the Fourth District reversed and remanded to the trial court. The Fourth District, in Banks, P.A., took the position that an anticipatory repudiation is a tender of a breach that the non-breaching party may elect not to accept. So long as the nonbreaching party stands ready to perform his or her obligations under the contract, 4

8 he or she can await the time for actual performance of the contract to become due and bring suit after that time has arrived. The Fourth District cited to this Court's reference to a party's choice to act on the renunciation as explained in Perry v. Shaw, 13 So. 2d 811 (Fla. 1943), and cited to "persuasive authority" from outside of Florida on the question of law dealing with anticipatory breach and the application of the statute of limitations. Barbara G. Banks, P.A., supra, at The two decisions that Petitioners claim are in "express and direct" conflict with the Banks decision are not in conflict because these two decisions do not even deal with the legal issue of anticipatory breach and the application of the statute of limitations. In both Abbott, supra, and Collinson, supra, there was an actual, present breach, and not an anticipatory one, that started the limitations period even though in one case (Abbott) the full extent of damages was not known at the time of the actual breach. In Abbott Laboratories, Inc. v. General Electric Capital, 765 So. 2d 737 (Fla. 5 th DCA), Abbott was contractually restrained from entering into any agreements with customers of GECC. Id. at 739. Abbott breached the contract at the moment when it entered into an agreement with Goodgame, a customer of GECC. Id. at 740. The opinion even states that "Abbott materially breached that contract when it entered into the separate agreement with Goodgame." Id. at 740. The Fifth District held that GECC's injury was simultaneous with Abbott's breach, 5

9 at which time nominal damages had been sustained. Id. "Because GECC filed its action in 1998, more than five years after Abbott materially breached the VPA, and thereby caused injury to GECC, GECC's breach of contract claim against Abbott is barred by section 95.11(2)(b)." Id. Likewise, Collinson v. Miller, 903 So. 2d 221 (Fla. 2d DCA 2005), is another case where there was an actual, present breach and not just an anticipatory breach. In the Collinson case, the decedent, Mrs. Miller, had promised to devise a beach house to her children. Later, she unequivocally made clear her intention to sell the beach house to a third party, "and in fact violated the agreement by selling the beach house," thus committing an actual and present breach of her promise. Collinson, at 229. The Fourth District, in the Banks opinion, found Collinson distinguishable for other reasons, namely, on the basis that the cause of action in Collinson was not for breach of a contract but was an action for a constructive trust on real property. In Banks, at 574, the Fourth District wrote: "Although the repudiation of the promise commenced the running of the statute of limitations, the court indicated this was because it was an action for a constructive trust on the real property, not an action for breach of contract. Generally, the breach of a contract requiring the promisor to make a will or devise does not accrue until the death of the promisor. See, Tensfeldt v. Tensfeldt, 839 So. 6

10 2d 720 (Fla. 2d DCA 2003)." The Collinson decision was not based on principles of contract law. The authorities cited in Collinson are not ordinary contract case: e.g., Tensfeldt v. Tensfeldt, supra (dealing with promises to make a will or devise); W. R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297 (Fla. 1 st DCA 1999) (dealing with promissory estoppel); and all remaining citations dealing with "constructive trusts." The "promise" in Collinson was a promise to make a will or devise, which is a special form of promise governed by different rules including the statute of wills and the fact that such an action only accrues on the death of the promisor. Neither Abbott nor Collinson hold (like Banks) that in a breach of contract action a non-repudiating party must treat an anticipatory breach as an actual, present breach which commences the statute of limitations. The decisions of all three cases can be reconciled, and there is no express and direct conflict between the Fourth District Court of Appeal and either the Fifth or Second Districts. CONCLUSION This Court should decline to exercise its discretionary jurisdiction on the basis that there is no express and direct conflict with a decision of another district court of appeal on the same question of law. 7

11 Respectfully submitted this 8 th day of February, ARNSTEIN & LEHR LLP Counsel for Plaintiff/Respondent 200 E. Las Olas Boulevard, Suite 1700 Ft. Lauderdale, Florida Phone: (954) Fax: (954) By: Franklin L. Zemel Florida Bar No: John M. Cooney Florida Bar No.:

12 CERTIFICATE OF SERVICE Thomas D. Lardin, P.A. v. Barbara G. Banks, P.A. We hereby certify that the foregoing has been furnished via U.S. Mail to David F. Cooney, Esq. and Warren B. Kwavnick, Esq., Attorneys for Cooney, Mattson, Lance Blackburn, Richards & O'Connor, P.A., 1600 West Commercial Boulevard, Suite 200, Fort Lauderdale, Florida 33309, this 8 th day of February, ARNSTEIN & LEHR LLP Counsel for Plaintiff/Respondent 200 E. Las Olas Boulevard, Suite 1700 Ft. Lauderdale, Florida Phone: (954) Fax: (954) By: Franklin L. Zemel Florida Bar No: John M. Cooney Florida Bar No.: 85445

13 CERTIFICATE OF COMPLIANCE Thomas D. Lardin, P.A. v. Barbara G. Banks, P.A. We hereby certify that this petition has been prepared using a 14-point proportionally spaced Times New Roman font. ARNSTEIN & LEHR LLP Counsel for Plaintiff/Respondent 200 E. Las Olas Boulevard, Suite 1700 Ft. Lauderdale, Florida Phone: (954) Fax: (954) By: Franklin L. Zemel Florida Bar No: John M. Cooney Florida Bar No.: 85445