IN THE SUPREME COURT OF THE STATE OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA JERRY W. COUCH, GLENDA M. COUCH, and BEVERLY TODD, TRUSTEE, Petitioners, vs. SC TROPICAL BREEZE RESORT ASSOCIATION, INC., Respondent. On Appeal from the First District Court of Appeal Amended Respondent's Reply Brief on Jurisdiction Julie Ann Sombathy Florida Bar No Isler, Sombathy, & Sombathy, P.A. 434 Magnolia Avenue Panama City, Florida Phone: Fax: ATTORNEY FOR RESPONDENT TROPICAL BREEZE RESORT ASSOCIATION, INC.

2 Table of Contents Table of Contents...i Preface...ii Table of Authorities...iii Statement of the Case...1 Summary of Argument...2 Argument...4 POINT ON APPEAL: The district court opinion in Couch v. Tropical Breeze Resort Ass'n, Inc., 867 So. 2d 1219 (Fla. 1st DCA 2004) does not expressly contradict the decision of the Florida Supreme Court in McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992) because reservation of jurisdiction contained in the final judgment appealed in McGurn is clearly distinguishable from the reservation of jurisdiction contained in the final judgment appealed in Tropical Breeze. Conclusion...8 Certificate of Service...9 Certificate of Compliance...10 Appendix

3 Preface The parties will be referred to as Petitioner and Respondent. The following symbols will be used: A. - Appendix 2

4 Table of Authorities Argonaut v. May Plumbing Co., 474 So. 2d 212, 215 (Fla.1985)...2 Couch v. Tropical Breeze Resort Ass'n, Inc., 867 So. 2d 1219 (Fla. 1st DCA 2004)...1-2,4 Del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315 (Fla. 3d DCA 1987) ,6 McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992)

5 Statement of the Case The procedural statement of case is essentially correct, except that the First District Court of Appeal entered its order dismissing Petitioner's appeal on March 11, In addition, the appeal taken is of the Final Judgment entered April 12, 2001, not of the Order Denying Rehearing entered in August The hearing of the Petitioner's Motion for Rehearing filed April 19, 2001 was delayed by the filing of Petitioners' bankruptcy proceedings and Petitioners' subsequent appeal of the trial court's order denying a motion to recuse. The Final Judgment specifically reserved jurisdiction for determination of an award of punitive damages as to the counts against Petitioners on which the final judgment was entered. 1

6 Summary of Argument The district court opinion in Couch v. Tropical Breeze Resort Ass'n, Inc., 867 So. 2d 1219 (Fla. 1st DCA 2004) does not expressly contradict the decision of the Florida Supreme Court in McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992) because the reservation of jurisdiction contained in the final judgment appealed in McGurn is clearly distinguishable from the reservation of jurisdiction contained in the final judgment appealed in Tropical Breeze. The decision of this honorable court in McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992) involved a final judgment which awarded money damages and reserved jurisdiction for the purposes of awarding prejudgment interest. McGurn, 596 So. 2d at The award of prejudgment interest is a purely ministerial act by the trial court, requiring no further judicial labor than the application of an interest rate promulgated by the legislature to predetermined liquidated damages from a date determined from prevailing caselaw. Argonaut v. May Plumbing Co., 474 So. 2d 212, 215 (Fla. 1985). The final judgment appealed in this matter contains a reservation of jurisdiction "for a trial by jury on the issue of punitive damages" as to the matters on which the final judgment was entered. A. at 3. Clearly, the final judgment which was at issue in McGurn is distinguishable from the final judgment at issue in the case on appeal because the judgments reserve jurisdiction for vastly different forms of judicial labor. For this reason, the district court opinion on appeal does not expressly or directly contradict this honorable court's decision in 2

7 McGurn. 3

8 Argument POINT ON APPEAL: The district court opinion in Couch v. Tropical Breeze Resort Ass'n, Inc., 867 So. 2d 1219 (Fla. 1st DCA 2004) does not expressly contradict the decision of the Florida Supreme Court in McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992) because reservation of jurisdiction contained in the final judgment appealed in McGurn is clearly distinguishable from the reservation of jurisdiction contained in the final judgment appealed in Tropical Breeze. The final judgment on appeal to the district court herein contained a reservation of jurisdiction as to the matters on which the judgment was entered "for a trial by jury on the issue of punitive damages." A. at 3. The final judgment on appeal resolved only two out of multiple counts contained in the Fifth Amended Complaint. A. at 1. Additionally, numerous counterclaims filed by the Petitioners were left unresolved by the final judgment. Notwithstanding the entry of the final judgment as to Counts VII and IX of the Respondent's Fifth Amended Complaint, a great deal of judicial labor, including a trial by jury of the issue of punitive damages for Counts VII and IX remained. In McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992), the final judgment entered was for money damages and the reservation of jurisdiction was for the determination of prejudgment interest. McGurn, 596 So. 2d at This honorable court discussed the nature of prejudgment interest and the judicial labor required for a 4

9 determination of same, as well as the "procedural quandary" in which a litigant is placed when a final judgment is entered reserving jurisdiction as to prejudgment interest in McGurn. Id. at The ruling contained in McGurn is limited by its very facts to judgments reserving jurisdiction for calculation of prejudgment interest. Id. In fact, the law cited by this honorable court in rendering its decision supports the district court's dismissal of Petitioner's appeal herein: Id. at It is well settled that a judgment attains the degree of finality necessary to support an appeal when it adjudicates the merits of the cause and disposes of the action between the parties, leaving no judicial labor to be done except the execution of the judgment. The Petitioner states that the circumstances of the case of Del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315 (Fla. 3d DCA 1987) are "exactly the same" as those in the case on appeal. To the contrary, the case in Del Castillo was completed except the reservation of jurisdiction on punitive damages. Del Castillo, 512 So. 2d at 317. As the First District Court of Appeal stated in its opinion in the case on appeal: Specifically, Counts I through VI, VIII, and X through XIII are not adjudicated by the order on appeal. Moreover, although the order appears to adjudicate the merits of counts VII and IX, it reserves jurisdiction to hold a trial on the issue of punitive damages. A. at 5. Thus, the procedural circumstances of Del Castillo are distinguishable from those in the case on appeal. 5

10 The Petitioner's focus herein is improperly directed at the simple existence of the reservation of jurisdiction as opposed to the remaining judicial labor to be completed. Notwithstanding that, as an element of damages, prejudgment interest is not ancillary to the judgment in the same manner as attorney's fees, the determination of prejudgment interest is a purely ministerial act of the trial court. McGurn v. Scott, 596 So. 2d 1042, 1044 (Fla. 1992). The judicial labor involved is vastly different in calculating prejudgment interest than the judicial labor involved in conducting a jury trial of all remaining matters as well as punitive damages. In McGurn, the procedural quandary of a prejudgment interest calculation was solved by a directive to the district court from this honorable court to order the trial court to make the determination pending appeal. Obviously, such a remedy is not practicable in the case on appeal as there is much judicial labor to complete, namely a trial of numerous claims and counter-claims as well as the issue of punitive damages. 6

11 Conclusion The Petitioner's request for discretionary jurisdiction should be denied. 7

12 Certificate of Service I hereby certify that I have forwarded a true copy of the foregoing Respondent's Reply Brief on Jurisdiction on the following by regular U.S. Mail: Mark Freund, Esq. Mark Freund, P.A. P. O. Box Tallahassee, Florida Larry A. Bodiford, Esq. Hutto & Bodiford, P.A. P. O. Box 2528 Panama City, Florida on this 14th day of June, Julie Ann Sombathy Florida Bar No Isler, Sombathy, & Sombathy, P.A. 434 Magnolia Avenue Panama City, Florida Phone: Fax: ATTORNEY FOR RESPONDENT TROPICAL BREEZE RESORT ASSOCIATION, INC. 8

13 Certificate of Compliance I hereby certify that this Reply Brief complies with the requirements of Rule 9.210(a)(2) with respect to font, type and size (Times New Roman 14). Julie Ann Sombathy Florida Bar No Isler, Sombathy, & Sombathy, P.A. 434 Magnolia Avenue Panama City, Florida Phone: Fax: ATTORNEY FOR RESPONDENT TROPICAL BREEZE RESORT ASSOCIATION, INC. 9

14 Appendix 1. Opinion of the First District Court of Appeal dated March 11, 2004 Couch v. Tropical Breeze Resort Ass'n, Inc., 867 So. 2d 1219 (Fla. 1st DCA 2004) 10