IN THE SUPREME COURT OF THE STATE OF FLORIDA. SC Lower TribunalNo. TROPICAL BREEZE RESORT 1D ASSOCIATION, INC.,

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA JERRY W. COUCH, GLENDA M. COUCH, and BEVERLY TODD, TRUSTEE, Petitioners, vs. SC Lower TribunalNo. TROPICAL BREEZE RESORT 1D ASSOCIATION, INC., Respondent. / "SECOND CORRECTED" PETITIONERS' JURISDICTIONAL BRIEF Mark Freund Florida Bar No Mark Freund, P.A Metropolitan Circle P. O. Box Tallahassee, Florida Phone: 850/ FAX: 850/ Attorney for petitioners, Jerry W. Couch, Glenda M. Couch, and Beverly Todd, Trustee

2 Table of Contents Table of Contents i Table of Authorities ii Statement of Case Summary of Argument Argument The decision by the District Court of Appeal in this case expressly and directly conflicts with this Court's decision in McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992) which holds that an order appearing to have the characteristics of a final money judgment in most respects and stating that execution may issue will be deemed to be a final order requiring review by immediate appeal The decision by the District Court of Appeal in this case expressly and directly conflicts with this Court's decision in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973) which holds that the district courts of appeal must follow, not limit, the decisions of this Court Conclusion Certificate of Service iii Certification of Type in Jurisdictional Brief iii -i-

3 Table of Authorities Cases: Climatrol Corp. v. Kent, 370 So. 2d 394 (Fla. 3d DCA 1979).. 9 Collier v. Brooks, 632 So. 2d 149 (Fla. 1st DCA 1994) Del Castillo v. Ralor Pharmacy,Inc., 512 So. 2d 315 (Fla. 3d DCA 1987) Essex v. Ayres, 503 So. 2d 1365 (Fla. 3d DCA 1987) Herrell v. Seyfarth, Shaw, Fairweather & Geraldson, 491 So. 2d 1173 (Fla. 1st DCA 1986) Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973) ,7-10 Iley v. Harris, 339 So. 2d 290 (Fla. 4th DCA 1976) Lindsay v. State, 579 So. 2d 350 (Fla. 1st DCA 1991) Makarewics v. Jacoby, 619 So. 2d 320 (Fla. 3d DCA 1993) McGurn v. Scott, 596 So. 2d 1041 (Fla. 1992) Raymond James & Associates, Inc., v. Godshall, 851 So. 2d 881 (Fla. 1st DCA 2003) Sherman v. Department of Professional Regulation, 452 So. 2d 1130 (Fla. 4th DCA 1984) Strickland v. State, 437 So. 2d 150 (Fla. 1983) Waite v. Leesburg Regional Medical Center, Inc., 582 So. 2d 789 (Fla. 5th DCA 1991) Florida Statutes: Fla. Stat Chapter 55, Florida Statutes Fla. Stat Appellate Rules of Procedure: Rule 9.030(a)(2)(A) ,10 -ii-

4 Statement of Case On April 12, 2001, the Circuit Court of Bay County, Florida, entered an order captioned as "Final Judgment" awarding monetary damages against petitioners, Jerry W. Couch, Glenda M. Couch and Beverly Todd, Trustee (jointly and severally, "Petitioners"), for the aggregate amount of $1,403, in favor of respondent, Tropical Breeze Resort Association, Inc. ("Respondent"). While this "Final Judgment" referred to the addresses of the Petitioners in accordance with Fla. Stat and also directed that writs of execution be issued against the Petitioners, this "Final Judgment" reserved jurisdiction to determine the Respondent's entitlement to and amount of punitive damages, if any, against Petitioners. In accordance with this "Final Judgment," Respondent was entitled to seek to levy upon the Petitioners' assets and to collect from the Petitioners the sums of money awarded in the "Final Judgment." On April 19, 2001, the Petitioners filed a motion for rehearing or reconsideration of the April 12, 2001, "Final Judgment." On July 30, 2003, the Circuit Court of Bay County, Florida, denied the motion by the Petitioners for rehearing or reconsideration of the "Final Judgment." Accordingly, on August 15, 2003, the Petitioners filed a notice of appeal of the order denying their motion for rehearing or reconsideration of the "Final Judgment" and of the "Final Judgment" itself. -1-

5 On March 11, 2004, the First District Court of Appeal entered an order dismissing the Petitioners' appeal of the July 30, 2003, order denying the motion by the Petitioners for rehearing or reconsideration of the "Final Judgment" and of the "Final Judgment." In its dismissal order, the First District Court of Appeal stated: The appellants suggest that the order should be 'deemed' final pursuant to McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992). Recently, this Court limited application of McGurn to orders that otherwise appear to be ordinary money judgments except for an improper reservation of jurisdiction to consider prejudgment interest, specifically. See Godshall, 851 So. 2d 881. However, McGurn and Godshall are both distinguishable from the present appeal because it is clear that related substantive claims remain pending in the form of Counts I though VI, VIII, and X through XIII, as well as the issue of punitive damages as to Counts VII and IX. It appears at this time that extensive judicial labor remains. On April 12, 2004, Petitioners filed their Notice to Invoke this Court's Discretionary Jurisdiction to review the dismissal by the First District Court of Appeal of the appeal by the Petitioners. Summary of Argument In McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992), this Court held that when a trial court's order purports to be a final judgment, has the characteristics of a final judgment and directs that execution shall issue, then the order is a final order subject to review by immediate appeal. The underlying -2- decision by the district court of appeal expressly limits this Court's holding in McGurn to only reservations by trial courts of jurisidiction to award prejudgment interest. This holding is expressly contrary to the holding this Court in McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992).

6 The underlying decision by the First District Court of Appeal to limit this Court's McGurn precedent in a manner determined by the district court undermines this Court's express holding in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973) that district courts of appeal are required to follow the precedents of this Court. The decision by the district court of appeal in the instant matter is expressly contrary to the holding of this Court in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). For these reasons, appellate jurisdiction is vested in this Court pursuant to Rule 9.030(a)(2)(A), Florida Rules of Appellate Procedure. Argument I. The decision by the District Court of Appeal in this case expressly and directly conflicts with this Court's decision in McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992) which holds that an order appearing to have the characteristics of a final money judgment in most respects and stating that execution may issue will be deemed to be a final order requiring review by immediate appeal. In McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992), this Court confronted the issue of whether or not an immediate appeal was proper when a trial court entered an order purporting to be a "final judgment" but reserved in the "final judgment" the power -3- to make an adjudication with respect to prejudgment interest. Finding that the entry of a "final judgment" had been improperly made by the trial court, this Court stated: "It is well settled that a judgment attains the degree of finality necessary to support an appeal when it

7 adjudicates the merits of the cause and disposes of the action between the parties, leaving no judicial labor to be done...." Id. at In McGurn, the trial court had entered an order captioned as a "final judgment" awarding Scott money damages against McGurn and directing that a writ of execution be issued against McGurn so Scott could enforce his rights to collect the judgment, although this "final judgment" specifically reserved to the trial court the power to adjudicate Scott's entitlement to an award of prejudgment interest. In this Court's decision quashing the district court of appeal's dismissal of McGurn's appeal of the "final judgment," this Court stated: "It is improper for a trial judge to render an order which in all respects appears to be an ordinary final money judgment but which leave the determination of prejudgment interest for future adjudication." Id. at This Court then analyzed the decision by the Third District Court of Appeal in Del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315 (Fla. 3d DCA 1987), a case in which the district court of appeal had held that, although the trial cout had improperly entered a final -4- judgment on compensatory damages while the trial court reserved jurisdiction to award punitive damages, the judgment appeared "to be, or have the attributes of a 'true' final judgment" and as such "it is deemed to have taken on the characteristics of such a judgment which requires review by immediate appeal." Id. at 319. Concluding this Court's analysis of the Del Castillo decision, this Court stated:

8 "Therefore, if McGurn had not appealed the order immediately, a later appeal might have been viewed as untimely." McGurn v. Scott, 596 So. 2d at The circumstances confronting the appellant in Del Castillo are exactly the same circumstances confronting the Petitioners in the instant case. In each case a trial court entered an order appearing to be a final judgment awarding money damages, directing the issuance of a writ of execution, but reserving the power of the trial court to adjudicate entitlement to and the amount, if any, of punitive damages. In quashing the district court of appeal's dismissal of McGurn's appeal, this Court held: "[B]ecause the order issued in this case appeared final in most respects and stated that execution could issue, the order will be deemed a final order requiring review by immediate appeal." [Emphasis supplied.] McGurn v. Scott, 596 So. 2d at Although not addressed by the district court of appeal below, the Petitioners contended below that the issuance of a -5- writ of execution without the remedy of appellate review would effectively deny Petitioners of and would destroy Petitioners'rights in their property since the ability of the Petitioners to obtain appellate review of what Petitioners contend is an erroneous "Final Judgment" by the Circuit Court of Bay County, Florida, is or potentially may be delayed until after levy has been made on

9 Petitioners' assets. Under Fla. Stat levy the sheriff may be made by the sheriff during the "life of the judgment or decree." Years may elapse prior to the entry of a "true" final judgment in the underlying litigation between Petitioners and Respondent. Moreover, both common sense and Chapter 55, Florida Statutes, instruct that writs of execution are not issued for interlocutory orders of trial courts. Writs of execution are to be entered by Florida courts only upon entry of a final judgment or final decree since the writ authorizes the immediate seizure of the judgment debtor's property to satisfy the money judgment. This Court's McGurn v. Scott decision was followed by the Third District Court of Appeal in Makarewics v. Jacoby, 619 So. 2d 320 (Fla. 3d DCA 1993) in which the appellant was deemed to have failed to timely seek an appeal of an order which "was, at the least, final in form because it both adjudicated the existence of and foreclosed an equitable lien on the appellant's property." Id. -6- The decision by the First District Court of Appeal in the instant case directly and expressly conflicts with this Court's McGurn v. Scott decision in that the underlying order in this case expressly determined that the trial court reserved jurisdiction to award punitive damages but refused to deem the "Final Judgment" as a "final" order. The First District Court of Appeals analysis of the finality of the underlying "Final Judgment" directly contradicts this Court's

10 analysis of finality in McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992), in which this Court held that "because the order issued in this case appeared final in most respects and stated that execution could issue, the order will be deemed a final order requiring review by immediate appeal." [Emphasis supplied.] Id. at II. The decision by the District Court of Appeal expressly and directly conflicts with this Court's decision in Hoffman v. Jones, 380 So. 2d 431 (Fla. 1973), which holds that the district courts of appeal must follow, not limit, the decisions by this Court. With every respect to the First District Court of Appeal, the underlying decision is "a loose cannon" which is about to explode in Florida's judicial system. When the First District Court of Appeal stated in its dismissal order that "[r]ecently, this [c]ourt limited application of McGurn to orders that otherwise appear to be ordinary final money judgments except for an improper reservation of jurisdiction to consider prejudgment interest, specifically[.]", the district court of appeal abridged -7- this Court's holding in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973) that the district court of appeal have no authority to overrule, modify or alter this Court's rulings. As stated by Justice Adkins in Hoffman, "to allow a District Court of Appeal to overrule controlling precedent of this Court would create chaos...." Id. at 434. The instant holding by the First District Court of Appeal is directly and expressly at odds with and conflicts with a long line of decisions form this Court and the district courts of appeal: Strickland v. State, 437 So. 2d 150, 152 (Fla. 1983) ("We said that

11 the district court of appeal are without authority to overrule supreme court precedent and are bound to follow the case law as set forth by us."); Collier v. Brooks, 632 So. 2d 149, 157 (Fla. 1st DCA 1994) ["While the Florida Supreme Court has occasionally chosen to depart from its own precedent on public policy grounds, we note that it frowns on such departures by lower courts. Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)."]; Essex v. Ayres, 503 So. 2d 1365, 1367 (Fla. 3d DCA 1987) ("[W]e are bound by Hoffman v. Jones, 280 So. 2d 1365 (Fla. 1973), to follow the holdings of the Supreme Court of Florida which we read to be inconsistent with Burdack."); Iley v. Harris, 339 So. 2d 290, 292 (Fla. 2d DCA 1976) ["This court is bound by the decisions of the Supreme Court of Florida. Cf. Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)."]; Harrell v. Syfarth, Shaw, -8- Fairweather & Geraldson, 491 So. 2d 1173, 1175 (Fla. 1986) ("The rule is well established that in the absence of constitutional, or statutory authority reflecting a change in the common law, a district court of appeal is not empowered to overrule controlling precedent of the Florida Supreme Court."); Sherman v. Department of Professional Regulation, 452 So. 2d 1128, 1130 (Fla. 4th DCA 1984) ("To be sure, on occasion there are rights and wrongs governing intermediate appellate court decision-making. For example, when the Florida Supreme Court has announced a rule of law, upon which a myriad of decisions have been predicated, a district court exceeds its authority if it promulgates a contrary rule."); Climatrol Corporation v. Kent,

12 370 So. 2d 394, 396 (Fla. 3d DCA 1979) ("[W]e are not privileged to reverse previous decisions of the Supreme Court of Florida."); Lindsay v. State, 579 So. 2d 350, 351 (Fla. 1st DCA 1991) ["We are not free to change that rule of law. Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)."]; Waite v. Leesburg Regional Medical Center, Inc., 582 So. 2d 789, 790 (Fla. 5th DCA 1991) ("A district court of appeal is without power to overrule supreme court precedent.") The underlying order in the instant case is extraordinary in that the order unabashedly states that the district court of appeal is limiting the application of this Court's McGurn decision. With every respect to the judges of the First District Court of Appeal, the Petitioners contend that the court -9- of appeal does not have the power to limit the application of this Court's precedent but must follow this Court's precedent. For the foregoing reasons, Petitioners request this Court to accept jurisdiction of this matter pursuant to Rule 9.030(a)(2)(A), Florida Rules of Appellate Procedure. Conclusion Petitioners respectfully ask this Court to accept jurisdiction of this matter, to determine that the order by the First District Court of Appeal is contrary to this Court's McGurn v. Scott holding, and to quash the order by the First District Court of Appeal dismissing the appeal by the Petitioners of the April 12, 2001, "Final Judgment" by the Circuit Court of Bay County, Florida. Respectfully submitted,

13 Mark Freund Florida Bar No Mark Freund, P.A Metropolitan Circle (32308) P. O. Box Tallahassee, FL Phone: 850/ Fax: 850/ Certificate of Service I HEREBY CERTIFY THAT I have served by U.S. mail, postage prepaid, a true and correct copy of the foregoing upon: Julie Ann Sombathy, Esq. Isler, Sombathy & Sombathy, P.A. P. O. Box 430 Panama City, Florida Larry A. Bodiford, Esq. Hutto & Bodiford P. O. Box 2528 Panama City, Florida on this 16th day of July, Mark Freund Certification of Type in "Corrected" Jurisdictional Brief

14 The above signed attorney for Petitioners hereby certifies to the Court that the type used in this brief is "Courier New 12-point Font." -iii-