THE SUPREME COURT OF FLORIDA CASE NO. SC Twentieth Judicial Circuit Court Case No CA

Transcription

1 THE SUPREME COURT OF FLORIDA CASE NO. SC Twentieth Judicial Circuit Court Case No CA PHILLIP N. NORLAND, Pro Se, vs. Petitioner, VILLAGES AT COUNTRY CREEK MASTER ASSOCIATION, INC., et al., Respondent. / RESPONDENT S JURISDICTIONAL BRIEF ON REVIEW FROM THE DISTRICT COURT OF APPEAL SECOND DISTRICT, STATE OF FLORIDA By: MICHAEL R. WHITT Florida Bar No SANJAY KURIAN Florida Bar No BECKER & POLIAKOFF, P.A. Attorneys for Respondent Metropolis Avenue, Suite 100 Fort Myers, Florida Telephone: (239) _JurisAns.wpd Facsimile: (239) i BECKER & POLIAKOFF, P.A METROPOLIS AVENUE, SUITE 100 FT. MYERS, FLORIDA

2 TABLE OF CONTENTS Page TABLE OF CITATIONS iii STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT JURISDICTIONAL STATEMENT I. ARGUMENT CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE BECKER & POLIAKOFF, P.A. THE COLONNADES BELL TOWER DRIVE, SUITE 101 FT. MYERS, FLORIDA _JurisAns.wpd i

3 TABLE OF CITATIONS CASES PAGE Bridgestone/Firestone, Inc. v. Herron 828 So. 2d 414, 418 (Fla. 1 st DCA 2002) 5 Norland v. Villages At Country Creek Master Association, Inc. 782 So. 2d 878 (Fla. 2d DCA 2000) So. 2d 914 (Fla. 2001) 2 Stout Jewelers v. Corson 639 So. 2d 82 (Fla. 2d DCA 1994) 5 Whitten v. Progressive Casualty Insurance Co. 410 So. 2d 501 (Fla. 1982) 5 FLORIDA STATUTES , 3 Chapter , 3, 5 FLORIDA RULES OF APPELLATE PROCEDURE 9.030(a)(2)(A)(iv) (1) 7 FLORIDA RULES OF CIVIL PROCEDURE 1.120(g) 1 i BECKER & POLIAKOFF, P.A METROPOLIS AVENUE, SUITE 100 FT. MYERS, FLORIDA i

4 FLORIDA RULES OF JUDICIAL ADMINISTRATION iv

5 STATEMENT OF THE CASE AND FACTS Respondent, THE VILLAGES AT COUNTRY CREEK MASTER ASSOCIATION, INC. ( ASSOCIATION ), a non-profit corporation and homeowners association organized under Chapter 617, Florida Statutes, entered into a Management Services Agreement ( AGREEMENT ) with S & S GOLF MANAGEMENT, INC.( S & S ). The Petitioner owned a home in The Villages at Country Creek and was a member of the ASSOCIATION. Petitioner filed a Complaint in Equity naming as defendants the ASSOCIATION, Robert Selby, Gene Hirsch, Jack Blackburn, Wimp Moyer, Frank Binka, Ed Gisele, Robert Spurlock, George Falber and Bill Martin. The Complaint alleged that the AGREEMENT was unfair and unreasonable and was so unconscionable in its utter failure to provide any consideration for the contract to The Villages At Country Creek Master Association for the use of its valuable common areas that it should be declared void. The trial court granted the ASSOCIATION s Motion to Dismiss, which stated that: 1) the elements for injunctive relief had not been properly pled; 2) Norland sought a legal remedy and an injunctive remedy in the same count; 3) Norland improperly joined several causes of action in one count in violation of 1 BECKER & POLIAKOFF, P.A METROPOLIS AVENUE, SUITE 100 FT. MYERS, FLORIDA

6 Florida Rule of Civil Procedure 1.120(g); and 4) Norland failed to plead sufficient facts to support a claim for rescission of the AGREEMENT. The dismissal was without prejudice and gave Norland leave to amend the Complaint. Norland did not amend the Complaint, but rather filed an appeal with the Second District Court of Appeal, which was dismissed as an appeal from a nonfinal, non-appealable Order. See Norland v. Villages At Country Creek Master Association, Inc., 782 So. 2d 878 (Fla. 2d DCA 2000). 1 Norland then sought review of the Second District s decision with this Court where review was dismissed for lack of jurisdiction by Order dated January 16, See Norland v. Villages At Country Creek Master Association, Inc., 780 So. 2d 914 (Fla. 2001). 2 Appellant took no further action. 1 This decision was referenced in the Southern Reporter in a table captioned Florida Decisions Without Published Opinions. 2 Id. On January 23, 2002, the ASSOCIATION moved to dismiss the action for failure to prosecute, which the trial court granted, reserving jurisdiction to consider the ASSOCIATION s Motion to Tax Attorney s Fees and Costs. On March 20, 2002 the ASSOCIATION moved for attorney s fees pursuant to Sections and , Florida Statutes, and Article III, Section 6 of the Master Declaration of Covenants, Conditions and Restrictions for The Villages At Country Creek Master Association, Inc., as amended (the DECLARATION ). The trial court awarded attorney s fees to the ASSOCIATION under Section , the 2

7 DECLARATION, and also found that attorney s fees were awardable [n]ot only as the prevailing party, but also under Chapter The trial court entered a Final Judgment on July 19, 2002, finding that the involuntary dismissal resulting from Appellant s lack of prosecution resulted in the ASSOCIATION being the prevailing party in the action entitling it to attorney s fees under Section , the DECLARATION, and additionally as sanctions against Plaintiff pursuant to Section (1) The trial court entered a Final Judgment in the amount of $9, as an award for attorney s fees in favor of the ASSOCIATION. Norland filed a Notice of Appeal with the Second District Court of Appeal. After reviewing the briefs and hearing the oral argument of the parties, the Second District rendered its opinion, which is attached hereto as Exhibit A. Additionally, the Second District has issued its Mandate, which is attached hereto as Exhibit B. Norland s Motion for Rehearing was denied and subsequently Norland filed his Notice to Invoke the Discretionary Jurisdiction of this Court. SUMMARY OF THE ARGUMENT 3 BECKER & POLIAKOFF, P.A METROPOLIS AVENUE, SUITE 100 FT. MYERS, FLORIDA

8 In this case, the District court of Appeal held that the Respondent ASSOCIATION was the prevailing party and was entitled to its attorney s fees. In finding that the ASSOCIATION was the prevailing party, the District Court noted that the ASSOCIATION became the prevailing party when Norland s claim was dismissed for failure to prosecute. The Respondent contends that the decision of the District Court in no way expressly or directly conflicted with any decision of this Court. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review decisions of the District Court of Appeal that expressly and directly conflict with the decision of the Supreme Court or another District Court of Appeal on the same point of law. See Art. V, 3(b)(3), Fla. Const. (1980); Fla.R.App.P (a)(2)(A)(iv). 3 3 No other provision of 9.030(a)(2) invoking the discretionary jurisdiction of the Supreme Court is even remotely applicable. 4

9 ARGUMENT The decision of the District Court of Appeal in this case does not expressly or directly conflict with any decision of this Court or any District Court of Appeal as to any point of law. The District Court of Appeal found that Norland s original Complaint was brought under a statutory provision which expressly provided for prevailing party attorney s fees. The District Court further found that the ASSOCIATION became the prevailing party when Norland s Complaint was dismissed for failure to prosecute, pursuant to Stout Jewelers v. Corson, 639 So. 2d 82 (Fla. 2d DCA 1994). The Petitioner spends numerous pages arguing that the term prevailing party is the same under Section as it is in any other statute, and requires an explicit finding by the trial court as to an absence of a justiciable issue of law or fact raised by the Plaintiff in the action. The Petitioner has consistently argued that the standard should be applied to any other section in statutes requiring prevailing party attorney s fees. As the First District noted in Bridgestone/Firestone, Inc. v. Herron, Section creates an entirely different kind of entitlement to attorney s fees. The statute does not use the phrase prevailing party to mean the party who ultimately wins the case, but rather refers 5 BECKER & POLIAKOFF, P.A METROPOLIS AVENUE, SUITE 100 FT. MYERS, FLORIDA

10 to the party who defeats any claim or defense. 828 So. 2d 414, 418 (Fla. 1 st DCA 2002). Clearly the standard for fees differs from other prevailing party statutes. Accordingly, there is no express or direct conflict between the Second District s opinion in this case and any other case, including this Court s decision in Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla. 1982). The decision of the District Court of Appeal is not in direct or express conflict with the decisions of this Court or the other District Courts of Appeal, and therefore this Court should not accept jurisdiction to review the Second District s Opinion. CONCLUSION This Court does not have discretionary jurisdiction to review the decision below, as the Second District s decision does not expressly or directly conflict with the opinions of this Court or any other District Courts of Appeal, therefore, this Court cannot consider the merits of Petitioner s argument. 6

11 CERTIFICATE OF COMPLIANCE The undersigned certifies that this Jurisdictional Brief has been printed in Times New Roman 14 point font, and otherwise meets all requirements of Florida Rule of Appellant Procedure 9.100(l). By: Michael R. Whitt Florida Bar No Sanjay Kurian Florida Bar No BECKER & POLIAKOFF, P.A. Attorneys for Respondent Metropolis Avenue, Suite 100 Fort Myers, Florida Telephone: (239) Facsimile: (239) BECKER & POLIAKOFF, P.A METROPOLIS AVENUE, SUITE 100 FT. MYERS, FLORIDA

12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Jurisdictional Brief has been sent by U.S. mail to PHILLIP N. NORLAND, Pro Se, Country Creek Dr., #322, Estero, FL 33928, on this day of September, _JurisAns.wpd By: Michael R. Whitt Florida Bar No Sanjay Kurian Florida Bar No BECKER & POLIAKOFF, P.A. Attorneys for Respondent Metropolis Avenue, Suite 100 Fort Myers, Florida Telephone: (239) Facsimile: (239)