RESPONDENT S ANSWER BRIEF

Transcription

1 SUPREME COURT OF FLORIDA CASE NO. SC Lower Tribunal No.: 4D RESPONDENT S ANSWER BRIEF GARY A. BARCUS Appellant/Petitioner vs. GROVE AT GRAND PALMS HOMEOWNERS ASSOCIATION, INC., Appellee/Respondent Tucker & Tighe, P.A. Attorney for Respondent 800 E. Broward Blvd., Ste. 710 Fort Lauderdale, FL (ph); (fax) Jamie L. Althouse, Esq. Fla Bar No Leonard Wilder, Esq. Fla Bar No T:\BRIEFS\Briefs pdf'd\ _jurisans.wpd

2 TABLE OF CONTENTS Table of Citations... ii Answer Brief... 1 Issues Presented... 1 Statement of the Case and Facts Summary of Argument... 4 Issue I Issue II Conclusion... 8 Certificate of Service and Compliance... 9 i

3 TABLE OF CITATIONS Rule of Appellate Procedure Florida Rule of Appellate Procedure Florida Rule of Appellate Procedure 9.030(a)(1), (a)(2)(c) and (a)(3)... 5 Florida Statute Cases Bryan v. Clayton, 698 So.2d 1236 (Fla. 5 th DCA 1997).3 Florida Real Estate Comm. V. Harris, 134 So.2d 785 (Fla. 1961)... 7 Mendez v. West Flagler Family Association, 303 So. 2d 1 (Fla. 1974)...7 Palm Beach Newspapers, Inc. v. Walker, 506 So. 2d 39 (Fla. 4 th DCA 1987)...4, 7 Potts v. Hayden, 249 So.2d 726 (Fla. 2 nd DCA 1971). 6 Sax Enterprise v. David & Dash, 107 So.2d 612 (Fla. 1958)... 7 SLT Warehouse v. Webb, 304 So. 2d 97 (Fla. 1974)... 4, 6, 7 ii

4 ISSUES PRESENTED I. DOES THE SUPREME COURT HAVE JURISDICTION TO REVIEW THIS CASE ON APPEAL? (Not argued by Appellant)(ANSWER: NO)... 5 II DID THE FOURTH DISTRICT COURT OF APPEAL ERR IN DISMISSING THE CASE BELOW BASED ON A FINDING THAT THE APPEALED COUNTERCLAIM WAS RELATED TO A CASE PENDING AT THE TRIAL COURT LEVEL? (ANSWER: NO)

5 STATEMENT OF THE CASE AND FACTS This case arises between a dispute between a homeowner and the homeowner s association. Respondent is seeking to foreclose a lien on the property owned by Petitioner Gary A. Barcus (hereinafter referred to as BARCUS) due to his non-payment of homeowner association assessments and attorney fees and costs related to the respondent s collection efforts. Respondent, Grove at Grand Palms Homeowners Association, Inc., is a not-forprofit Florida corporation that administers the affairs of the homeowner association community known as the Grove at Grand Palms (hereinafter referred to as the ASSOCIATION), a single family home community in west Broward governed under F.S. 720 and its Declaration of Restrictions which specifically requires all owners to pay homeowner association assessments. Petitioner, BARCUS, is an owner in the ASSOCIATION. In the foreclosure lawsuit, BARCUS filed an Answer, Affirmative Defenses and a three count counterclaim. BARCUS, in his second affirmative defense, argues that the ASSOCIATION violated the Fair Debt Collection Practices Act. Similarly, BARCUS, in his counter-claim, sued the ASSOCIATION for violating the Fair Debt Collection Practices Act, Florida Statue /Construction Lien Law and for Equitable Estoppel. In relevant part, The ASSOCIATION filed a Motion to Dismiss the Counterclaim and a Motion to Strike Affirmative Defense Number 1

6 Two arguing that per Bryan v. Clayton, 698 So.2d 1236 (Fla. 5 th DCA 1997) the Fair Debt Collection Practices Act does not apply to homeowner association communities. The trial court heard and granted the ASSOCIATION s motion. BARCUS appealed the trial court s ruling to the Fourth District Court of Appeal while the foreclosure lawsuit was still pending. On January 9, 2003, BARCUS filed his initial brief with the Fourth District Court of Appeal. In his brief, he generally argued that the ASSOCIATION did not correctly operate its collection efforts and that the Federal Fair Debt Collection Practices Act, Title 15, applies to homeowner association communities in Florida. Meanwhile the underlying foreclosure lawsuit was still pending in the Seventeenth Circuit of Broward County, Florida. On February 6, 2003, the Fourth District Court of Appeal ordered that BARCUS show cause why the appeal should not be dismissed for lack of appellate jurisdiction. See Exhibit 1. BARCUS filed a reply wherein he argues that his counter-claim should not be dismissed because the ASSOCIATION intertwined separate matters involving a previous injunction lawsuit. The ASSOCIATION filed a supplemental Answer Brief denying BARCUS versions of fact and further argued that the Fourth District Court of Appeal does not have jurisdiction to review the merits of an order dismissing a counterclaim where the issues involved in the complaint and counterclaim were interrelated, involved the same transaction and the parties on appeal remained the 3

7 same. Subsequently, on July 24, 2003, the Fourth District Court of Appeal dismissed for lack of jurisdiction Gary A. Barcus v. Grove at Grand Palms HOA, Inc. The Fourth District stated that the appellant has not shown through his brief or an appendix that the dismissed counterclaim is unrelated to the pending claim. Exhibit 2. BARCUS now requests that the Florida Supreme Court take review from the Fourth District Court s dismissal of the appeal. SUMMARY OF ARGUMENT The ASSOCIATION argues that the Court does not have jurisdiction to entertain this case on appeal. Second, in the alternative, the Fourth District Court of Appeal did not err in dismissing the appeal. The ASSOCIATION argues that the Fourth District Court of Appeal did not err in that ruling and affirmatively relies on SLT Warehouse v. Webb, 304 So. 2d 97 (Fla. 1974) and Palm Beach Newspapers, Inc. v. Walker, 506 So. 2d 39 (Fla. 4 th DCA 1987). 4

8 ARGUMENT I. DOES THE SUPREME COURT HAVE JURISDICTION TO REVIEW THIS CASE ON APPEAL? (Not argued by Appellant) (NO) According to the Florida Rule of Appellate Procedure 9.030(a)(2), the Florida Supreme Court does not have discretionary jurisdiction over this case. The decision of the district court did not expressly declare valid a state statute, expressly construe a provision of the state or federal constitution, expressly affect a class of constitutional officers, expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law, pass upon a question certified to be of great public importance; or certified to be in direct conflict with decisions of other district courts of appeal. In addition, the district court did not certify the decision to require immediate resolution by the supreme court. Furthermore, Rule 9.030(a)(1), (a)(2)(c) and (a)(3) are not applicable to this case either. Consequently, the order entered by the Fourth District Court of Appeal in this case should not be reviewed on appeal by the Florida Supreme Court. The ASSOCIATION respectfully requests that the Court not review this case based on the argument above. If the Court finds that it does have jurisdiction to review this 5

9 case, then the ASSOCIATION respectfully requests that this Court make a finding in accordance with the argument made under Issue II of this brief. II. DID THE FOURTH DISTRICT COURT OF APPEAL ERR IN DISMISSING THE CASE BELOW BASED ON A FINDING THAT THE APPEALED COUNTERCLAIM WAS RELATED TO A CASE PENDING AT THE TRIAL COURT LEVEL? (NO) Respondent respectfully argues that because there is no jurisdiction to review this case, there is no applicable standard of review. However, Respondent sets forth the following applicable case law. The Fourth District Court of Appeal did not err in dismissing the case before it on the basis that BARCUS did not show that the dismissed counterclaim, which was being appealed, was not related to the pending claim at the trial court level. The law in Florida is clear that where a pending claim in another case involves the same transaction and parties, a final order from another case is not appealable. In Potts v. Hayden, 249 So. 2d 726 (Fla. 2 nd DCA 1971), it was held that an appeal would not lie from a final summary judgment on a counterclaim while the main claim between the parties was pending. Furthermore, in S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97,99 (Fla. 1974) this Court held that appellate courts do not favor piecemeal review of a cause and trial courts should exercise care to avoid, so far as possible, 6

10 the necessity for successive appeals. Id at 99 citing Sax Enterprises v. David & Dash, 107 So. 2d 612 (Fla. 1958); Florida Real Estate Commission v. Harris, 134 So. 2d 785 (Fla. 1961). This court further held that piecemeal appeals will not be permitted where claims are interrelated and involve the same transaction and the same transaction and the same parties remain in the suit. S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974). See also Palm Beach Newspapers, Inc. v. Walker, 506 So. 2d 39, 40 (Fla. 4 th DCA 1987) (stating [a] final order, dismissing less than all of several interrelated claims which involve the same transaction and parties, is not appealable where there is any interrelated claim involving the same transaction and parties remaining in the suit. ). BARCUS inaccurately relies on Mendez v. West Flagler Family Association, 303 So. 2d 1 (Fla. 1974), as it supports the proposition that piecemeal appeal should not be permitted where claims are legally interrelated and in substance involve same transaction. Mendez at 5. However, the case also states that when it is obvious that a separate and distinct cause of action is pleaded which is not interdependent with other pleaded claims, it should be appealable if dismissed with finality at trial level and not delayed of appeal because of the pendency of other claims between the parties. Id. In this instance, the cause of actions in the foreclosure lawsuit and the dismissed counterclaim are clearly interdependent. BARCUS incorrectly argues that the claims in the two cases 7

11 are unrelated. The parties in the suit that was before the Fourth District Court of Appeal and the case that was in the lower court both involved the same parties, BARCUS and the ASSOCIATION, and they both arose out of the same transaction. The dismissed counterclaim is directly related to the ASSOCIATION S foreclosure action resulting from the non-payment of assessments and attorneys fees associated with same. BARCUS clearly alleged in his counterclaim that he went to the counter defendant with his checkbook and funds to cover outstanding fees. Therefore, relying on the case law stated above that piecemeal appeals should not be permitted, the Fourth District Court of Appeal did not err in dismissing the case before the Court. CONCLUSION This case is not within the purview of this Court s discretionary jurisdiction. Consequently, this appeal should not be heard. In the alternative, BARCUS s counterclaim on appeal before the Fourth District Court of Appeal was clearly interrelated to the allegations of the underlying lawsuit. Therefore, the ASSOCIATION respectfully requests the Court to affirm the Fourth District Court of Appeal s order dismissing the BARCUS appeal. 8

12 CERTIFICATION I hereby certify that a true and correct copy of the foregoing was mailed this day of December, 2003 to Gary Barcus, Esq., 1689 SW 158 th Ave., Pembroke Pines, FL I further certify that this brief complies with the font requirement of Florida Rule of Appellate Procedure 9.210(a)(2). The fount is Courier New 12-Point. Althouse Jamie L. Fla Bar No Leonard Wilder Fla. Bar No

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