IN THE SUPREME COURT OF FLORIDA. CERTAIN INTERESTED UNDERWRITERS AT LLOYD S LONDON SUBSCRIBING TO Case No. SC CERTIFICATE NUMBER TPCLDP217477,

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1 IN THE SUPREME COURT OF FLORIDA CERTAIN INTERESTED UNDERWRITERS AT LLOYD S LONDON SUBSCRIBING TO Case No. SC CERTIFICATE NUMBER TPCLDP217477, L.T. No. 2D ; as subrogee of MYRIA MAJOR, 2D vs. Petitioner. CITY OF ST. PETERSBURG, a Municipality of the State of Florida, Respondent. / JURISDICTIONAL BRIEF OF RESPONDENT On Review from the District Court, Second Judicial District, State of Florida JOHN WALLACE HAMILTON Assistant City Attorney City of St. Petersburg P.O. Box 2842 St. Petersburg, FL (727)

2 Attorney for Respondent Florida Bar No

3 TABLE OF CONTENTS TABLE OF CITATIONS...i STATEMENT OF THE CASE AND THE FACTS... 1 STATEMENT OF THE ISSUE... 2 SUMMARY OF ARGUMENT... 3 The Second District Court of Appeal did not construe constitutional provisions, but simply refused to apply them to the facts of the case. Petitioner has failed to present any legal authority in support of its position. Petitioner has failed to suggest any compelling reason why the Supreme Court's discretionary jurisdiction should be exercised. ARGUMENT... 4 CONCLUSION... 7

4 Cases TABLE OF CITATIONS Conner v. Reed Bros., Inc., 567 So.2d 515, 516 (Fla. 2d DCA 1990)... 5 Florida Constitution Article V, 3(b)(3)... 2 Article X... 4 Florida Rules of Appellate Procedure Rule 9.030(a)(2)(A)(ii)... 2,4,5 Committee Notes, Florida Rules of Appellate Procedure... 4 i

5 STATEMENT OF THE CASE AND THE FACTS Respondent respectfully submits that Petitioner's Statement Of The Case And The Facts is partially inaccurate and incomplete. Respondent supplements the Statement Of The Case And The Facts for clarity, accuracy, and completeness. Original Plaintiff Myria Major (not a party at the appellate stage) owned a rental residence in St. Petersburg, Florida, which was accidentally destroyed by fire during execution by St. Petersburg Police of a validly-issued, judicial search warrant. The police deployed a "flash-bang" device which accidentally ignited highly combustible soundproofing installed by Myria Major's tenants, as shown by affidavits which were properly before the trial court (filed in opposition to Petitioner's early Motion for Summary Judgment). The trial court dismissed the inverse condemnation claims of original Plaintiff and of Petitioner, with prejudice. Petitioner then attempted to amend to assert a separate inverse condemnation claim under the Federal Constitution. The trial court denied leave to amend, with prejudice. Appeals were taken to the Second District Court of Appeal by Petitioner, and consolidated for argument and determination. [Original Plaintiff did not appeal.] 1

6 STATEMENT OF THE ISSUE Whether the Florida Supreme Court should or should not exercise its limited, discretionary jurisdiction under Article V, Section 3(b)(3), Florida Constitution, and Fla. R. App. P (a)(2)(A)(ii), to review the opinion of the Second District Court of Appeal in this case. 2

7 SUMMARY OF ARGUMENT The Second District Court of Appeal did not construe constitutional provisions, but simply refused to apply them to the facts of the case. Petitioner has failed to present any legal authority in support of its position. Petitioner has failed to suggest any compelling reason why the Supreme Court's discretionary jurisdiction should be exercised. 3

8 ARGUMENT The specific rule provision Petitioner seeks to invoke for discretionary review is subdivision (A)(ii) of Fla. R. App. P (a)(2). Petitioner seeks review under that provision on account of what it contends was an "express construction" of the Fifth Amendment to the United States Constitution, and of Article X, Florida Constitution, by the Second District Court Opinion in this case. Constitutional construction was a matter formerly reviewable under the Supreme Court's mandatory appellate jurisdiction prior to the 1980 amendment to Rule The impetus for that modification was a burgeoning case load and the attendant need to make more efficient use of limited appellate resources. 1 Respondent respectfully suggests that the Second District Court's Opinion, in declining to extend the takings clause 2 to apply to the property destruction involved here, and in declining to apply the Fifth Amendment to the United States Constitution to "damage or destruction that occurs as an unintended, incidental consequence of lawful activity by government actors" 3, involves questions of limiting the application of the Constitution to the case at bar vis-a-vis construing 1 Committee Note, Rules of Appellate Procedure. 2 Article X, Section 6(a), Florida Constitution 3 By holding, as the Court did, that this does not constitute a compensable taking. 4

9 such provisions to mean that they should not so apply. However, even if, assuming arguendo that the Second District Court was construing the Federal and State Constitutional provisions, rather than refusing to apply them so as to create a new cause of action in inverse condemnation for allegedly tortuous activity, it is still apparent that Petitioner has advanced no reason, and cited no authority, which would suggest (let alone compel) this Honorable Court to exercise its discretionary authority to review the opinion of the Second District Court of Appeal. Petitioner has presented no decision of this Honorable Court supporting its view. Its only cited decision, Conner v. Reed Bros., Inc., 567 So.2d 515, (Fla. 2d DCA 1990, was a Second District Court of Appeal decision declining to certify the question presented as one involving issues of great importance, Fla. R. App (a)(2)(A)(v). There, the Court pointed out (in a footnote) that since it was expressly interpreting a provision of the Florida Constitution, the Florida Supreme Court would have an avenue of jurisdiction under Fla. R. App. P (a)(2)(A)(ii). (Appellant in the case never did follow that avenue for review.) Finally if, as Petitioner contends, Rule 9.030(a)(2)(A)(ii) provides a path for review, it nevertheless confers no right of reivew. Petitioner's application is addressed, as it must be, to the sound discretion of this Honorable Court. As 5

10 presented, however, Petitioner wholly fails to suggest any basis (beyond the existence of the route it may follow toward its desired relief) for an affirmative exercise of this Honorable Court's discretion. Respondent respectfully submits that this Honorable Court should properly decline to exercise its discretion to review the Second District Court of Appeal Opinion in this case. 6

11 CONCLUSION Petitioner has mistakenly suggested that the Second District Court of Appeal's Opinion construed provisions of the Florida and Federal Constitutions in reaching its result. Respondent respectfully submits that the Second District Court, rather than construing the provisions in question, simply declined to apply them to the facts before it. Further, Petitioner has failed to present any legal authority in support of its position, and has failed to suggest any compelling reason why this Honorable Court should exercise its discretionary jurisdiction to review the opinion of the Second District Court of Appeal. 7

12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been served upon to Stanley L. Martin, Esquire, Phelps Dunbar LLP, 100 So. Ashley Drive, Suite 1900, Tampa, FL by U.S. Mail, this day of February, JOHN C. WOLFE City Attorney By: JOHN WALLACE HAMILTON Assistant City Attorney City of St. Petersburg P.O. Box 2842 St. Petersburg, FL (727) FBN /SPN

13 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing Jurisdictional Brief of Respondent has a typeset of Times Roman 14. JOHN WALLACE HAMILTON Assistant City Attorney City of St. Petersburg P.O. Box 2842 St. Petersburg, FL (727) FBN /SPN