IN THE SUPREME COURT OF FLORIDA. CASE NO.: SCl AIMEE OSMULSKI, L.T. Case No.: 2D L.T. Case No.: CI-11

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1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SCl AIMEE OSMULSKI, L.T. Case No.: 2D L.T. Case No.: CI-11 v. Petitioner, OLDSMAR FINE WINE, INC. a/k/a LUEKENS BIG TOWN LIQUOR, INC, d/b/a LUEKEN LIQUOR, Respondent. RESPONSE BRIEF TO PETITIONER'S BRIEF ON JURISDICTION COLE SCOTT & KISSANE, P.A. Attorneys for Respondent 9150 S. Dadeland Blvd., 14th Floor Miami, Florida Telephone: (305) Facsimile: (305)

2 TABLEOFCONTENTS Page TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...1 JURISDICTIONAL STATEMENT...3 ARGUMENT I. NOTHING IN THE SECOND DISTRICT'S OPINION IN OSMULSKI EXPRESSLY AND DIRECTLY CONFLICTS WITH THE FOURTH DISTRICT'S DECISION IN HETTIGER...4 CONCLUSION...10 CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE...12 DADELAND CENTRE II SOUTH DADELAND BOULEVARD - SUITE ) P.O. BOX M1AMI, FLORIDA (305) (305) FAX

3 TABLE OF AUTHORITIES Cases: Page American Hospitality Mgmt. Co. of Minnesota v. Hettiger, 904 So. 2d 547 (Fla. 4th DCA 2005)... passim Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001)... 5, 7, 8 Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389 (Fla. 2d DCA 2012)... passim Penn. Lumberman's Mut. Ins. Co. v. Fla. Power & Light Co., 724 So. 2d 629 (Fla. 3d DCA 1998)... 8, 9, 10 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 3 Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843 (Fla. 4th DCA 2004)... 8, 9 Other: Art. V 3(b)(3), Fla. Const... 1, 3 Fla. R. App. P (a)(2)(A)(iv)... 1, 3 11 DADELAND CENTRE Il SOUTH DADELAND BOULEVARD - SUITE P.O. BOX M1AMI, FLORIDA (305) (305) FAX

4 PRELIMINARY STATEMENT Because Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389 (Fla. 2d DCA2012) does not conflict on any point with any decision of this Court or of any District Court of Appeal, this Court does not have jurisdiction to review it. STATEMENT OF THE CASE AND FACTS The first paragraph of Petitioner's Statement of the Case and Facts is mere argument; it contains advocacy that is out of place in the Statement of the Case and Facts, which should be neutral; and it must be stricken or disregarded. (Pet'r Br., p. 1). The remainder of Petitioner's Statement of the Case and Facts is a fair recitation of the facts as they appear within the four corners of the decision of the Second District. SUMMARYOFTHEARGUMENT Conflict jurisdiction requires an express and direct conflict between the opinion under review and any opinion of this Court or another District Court of Appeal. Art. V 3(b)(3), Fla. Const.; Fla. R. App. P (a)(2)(A)(iv). Nothing in the Osmulski decision conflicts with any point in any decision of this Court or any other District Court of Appeal. Petitioner's assertion that Osmulski conflicts with the Fourth District's decision in American Hospitality Management Company 1 DADELAND CENTRE II SOUTH DADELAND BOULEVARD - SUITE P.O. BOX MIAMI FLORJDA (305) (305) FAX

5 Case No.: SC of Minnesota v. Hettiger, 904 So. 2d 547 (Fla. 4th DCA 2005) is incorrect. Hettiger is inapposite, and does not present the express and direct conflict necessary invoke the jurisdiction of this Court. Petitioner argues that the decision in Osmulski was made by the Second District "apparently on its own and without regard to the Fourth District's contrary holding"-but this is incorrect. (Pet'r Br., p. 5). The Second District's decision was made, not on its own or in a vacuum, but after a great deal of input from the parties, who collectively submitted an initial brief, answer brief, and reply brief, and who appeared for oral argument before the court. Moreover, the opinion in Osmulski recites the supposedly-contrary holding of the Fourth District in the Hettiger case, and deals with it head-on. (A 6-7). Thus, the Second District did not act "without regard" to the Fourth District. In reality, in the Second District engaged in a thoughtful analysis of Petitioner's arguments regarding the application of the "reasonably foreseeable" standard in which some courts, including the Fourth District when deciding Hettiger, have suggested the existence of a pre-suit common law duty to preserve evidence. The "reasonably foreseeable" standard has been used as a basis to argue a common law duty to preserve evidence in circumstances when a defendant can anticipate that litigation may be filed. The Osmulski court recognized this 2 DADELAND CENTRE II SOUTH DADELAND BOULEVARD - SUITE P O. BOX MlAMI, FLORIDA (305) (305) FAX

6 argument and did not outright reject it, Petitioner's suggestion to the contrary notwithstanding. (A 6-7). Nothing the Osmulski court decided directly and expressly conflicts with Hettiger. Because the underlying case was unlike Hettiger, and, more importantly, did not in any significant way conflict with the Fourth District's decision in Hettiger, conflict jurisdiction does not exist. For these reasons, the Petition should be denied. JURISDICTIONAL STATEMENT The Florida Supreme Court is authorized to exercise its discretionary jurisdiction to review decisions issued by the District Courts of Appeal that expressly and directly conflict with a decision of the Supreme Court or other District Courts of Appeal on the same point of law. See Art. V, 3(b)(3), Fla. Const.; Fla. R. App. P (a)(2)(A)(iv). The conflict must be "express and direct" and must appear within the four corners of the majority opinion. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986) ("Conflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority decision. Neither a dissenting opinion nor the record itself can be used to establish jurisdiction."). Nothing within the four corners of the Osmulski opinion expressly 3 DADELAND CENTRE II SOUTH DADELAND BOULEVARD - SUITE P.O. BOX MIAMI, FLORIDA (305) (305) FAX

7 and directly conflicts with the cases cited by Petitioner and, thus, jurisdiction does not lie in this Court. ARGUMENT I. NOTHING IN THE SECOND DISTRICT'S OPINION IN OSMULSKI EXPRESSLY AND DIRECTLY CONFLICTS WITH THE FOURTH DISTRICT'S DECISION IN HETTIGER. Petitioner contends that the Second District's decision in Osmulski creates a conflict with the Fourth District's decision in American Hospitality Management Company of Minnesota v. Hettiger, 904 So. 2d 547 (Fla. 4th DCA 2005). (Pet'r Br., pp. 4-9). The Hettiger case, however, is readily distinguishable, and is not a true conflict decision. In Hettiger, a repairman injured on a hotel's premises obtained a mid-trial instruction as to a rebuttable presumption of negligence on the hotel's part. The background facts were as follows: The repairman accompanied other air conditioning service personnel to a Holiday Inn. The repairman borrowed a ladder from the hotel operator to do the repairs. While using the ladder he fell from it and sustained severe injuries. That same day, the hotel operator destroyed the ladder. Hettiger at 548. Applying the reasonably foreseeable standard, the Fourth District noted that: 4 DADELAND CENTRE II SOUTH DADELAND BOULEVARD - SUITE P.O. BOX MIAMI FLORIDA (305) (305) F AX

8 Although this is not a products liability claim directly against a manufacturer, plaintiff's claim was founded on an allegation that the hotel operator knew that the ladder was dangerous to use. Under this circumstance a finder of fact could reasonably conclude that its unavailability was something other than fortuitous. Hettiger at 549. The Hettiger case also contains the following statement, which Osmulski apparently relies for conflict jurisdiction: In the context of a claim for spoliation of evidence other than medical records, we have held that a defendant could be charged with a duty to preserve evidence where it could reasonably have foreseen the claim. Hettiger at 549. However, this statement is not the holding of Hettiger; it is a recitation of a previous holding from an earlier case.' Furthermore, nothing in the Osmulski decision expressly and directly conflicts with this statement. To the contrary, in Osmulski, the Second District discussed both Hettiger and the "reasonably foreseeable" standard for the imposition of a common law duty to preserve potential evidence. (A 6-7). The holding of Osmulski can perhaps best be understood as an extension of Hettiger, in which the Second District applied Hettiger, discussed the "reasonably foreseeable" standard, and Although whether that was actually the holding of the earlier case, Haaopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001) is discussed in more detail, infra. 5 DADELAND CENTRE II SOUTH DADELAND BOULEVARD - SUITE P O. BOX MIAMI FLORIDA (305) (305) FAX

9 crafted a common-sense, real world, and equitable rule for "businesses or homeowners." (A 7). The Osmulski court declared that: [I]f a defendant has knowledge that an accident or incident has occurred on its property and that same defendant has a video camera that may have recorded the accident or incident, that defendant has a duty to obtain and preserve a copy of any relevant information recorded by that camera if a written request to do so has been made by the injured party or their representative prior to the point at which the information is lost or destroyed in the normal course of the defendant's video operations. (A 7). Clearly, the inclusion of the statement "if a defendant has knowledge that an accident or incident has occurred on its property" in this holding is a nod to the "reasonably foreseeable" standard put forth by Petitioner and discussed in Hettiger (and in Osmulski, one page earlier). (A 6). Moreover, the Osmulski court took pains to tie this holding in with the "reasonably foreseeable" standard, noting that generally "[e]ven under the reasonably foreseeable standard, the plaintiff's failure to make such a request [to preserve the evidence] would certainly be considered as a factor in determining whether a plaintiff's claim was reasonably foreseeable." (A 6). More specifically, of the case under review, the Second District stated: Even if Osmulski was not required to make a written request for the preservation of the video evidence, she 6 DADELAND CENTRE II SOUTH DADELAND BOULEV ARD - SUITE P O BOX MIAML FLORIDA (305) (305) FAN

10 would not be entitled to a spoliation jury instruction under the reasonably foreseeable standard upon which she bases her argument... here, at the time the video recordings were discarded or taped over, no lawsuit had been filed, no demand for preservation of the evidence had been made, and OFW's principal testified that even though he was aware that Osmulski had made a claim with the insurance carrier, he had been told that Osmulski was only seeking payment for her medical expenses. Thus, OFW was not on notice of a claim beyond medical expenses. Consequently, OFW did not have a duty to preserve the video recordings even under the reasonably foreseeable standard. (A 8). Thus, in Osmulski, the Second District did not set up a "written request versus no written request" paradigm as Petitioner has suggested. (A 5-10). Instead, it noted that a written request to preserve evidence was necessary in some instances and that in some instances, it could be evidence that a claim was reasonably foreseeable. That being the case, the Second District's decision in Osmulski plainly does not expressly and directly conflict with Hettiger, which the Osmulski court considered, applied, and modified. Petitioner, though, also cites Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1090 (Fla. 4th DCA 2001), stating that it "recognize[ed] [an] establishment's duty to preserve evidence even without a contractual, statutory, or administrative duty." (Pet'r Br., p. 6). However, the Fourth District later clarified that, in Hagopian, it had not established "any common law duty to preserve 7 DADELAND CENTRE II SOUTH DADELAND BOULEVARD - SUITE P.O. BOX MIAMI FLORIDA (305) (305) FAX

11 evidence." See Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843 (Fla. 4th DCA 2004), stating: Royal has argued, relying on Hagopian, that there can also be a common law duty to preserve evidence before litigation has begun... However, Hagopian does not expressly establish any common law duty to preserve evidence. Instead, in Hagopian, this court focused on Hagopian's ability to prove the case without the destroyed evidence, which involves the fourth and fifth elements of a spoliation claim. Royal & Sunalliance at 846 (emphasis supplied) (citing Hagopian).2 Thus, contrary to Osmulski's citation of it, Hagopian does not focus on, much less "recognize," a common law duty element of a spoliation claim. In the same way, Osmulski cites Pennsylvania Lumberman's Mutual Insurance Company v. Florida Power & Light Co., 724 So. 2d 629, 630 (Fla. 3d DCA 1998) for the proposition that "notice of potential litigation triggers the duty to preserve evidence." (Pet'r Br., p. 6). But contrary to Osmulski's summary of that case, the Third District did not hold in Penn. Lumberman's that notice of potential litigation triggers any duty. The entirety of Penn. Lumberman's states: Pennsylvania Lumberman's Mutual Insurance Company appeals from an Order granting the defendant, Florida Power & Light Company's Motion for Partial Summary 2 The Royal & Sunalliance court made clear that there was no "common law duty to preserve evidence before litigation has begun" and/or "in anticipation of litigation." Royal & Sunalliance, 724 So. 2d at DADELAND CENTRE II SOUTH DADELAND BOULEVARD - SUITE P.O. BOX 5690)5 - MIAM), FLORIDA (305) (305) FAX

12 Judgment in a case alleging spoliation of evidence. Unlike the defendant in Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984), the defendant in this case was not under any statutory or contractual duty to maintain or preserve the transformer in question. To the extent that the appellant, who was the plaintiff below, argues that the defendant was under some type of common law duty to preserve the transformer in question after being notified of possible legal action against the defendant in connection with the transformer, we note that the record refutes the plaintiff's contention that the defendant's legal department was notified both by a letter and a "fax" concerning the possible initiation of legal action and, therefore, should have preserved the transformer as potential evidence in that legal action. As far as the notification by letter is concerned, it is undisputed that the letter was mailed to an incorrect address. Furthermore, as far as the "fax" is concerned, the plaintiff's own "fax" activity sheet reflects that, although an attempt was made to "fax" two pages, none were actually transmitted. Accordingly, for the foregoing reasons, the Summary Judgment entered by the trial court in favor of the defendant, which is under review herein, is affirmed. Id. at 630. Therefore, the most that can be said about Penn. Lumberman's is that it recites that the plaintiff in that case raised an (ultimately unavailing) argument "that the defendant was under some type of common law duty to preserve the transformer in question after being notified of a possible legal action against the defendant in connection with the transformer... " Id. The case, unequivocally, does not hold that "notice of potential litigation triggers the duty to preserve evidence," Osmulski's parenthetical to the contrary notwithstanding. (Pet'r Br., p. 9 DADELAND CENTRE II SOUTH DADELAND BOULEVARD - SUITE P O. BOX MIAML FLORIDA (305) (305) FAX

13 6). Instead, Penn Lumberman's merely observes that even if there could be presumed to be a common law duty, this issue is not reached because the defendant was never on notice of any potential suit. Thus, no case has the holding which Petitioner claims is in direct and express conflict with the holding of the Osmulski decision out of the Second District. Therefore, as set forth above, neither Hettiger, nor any other case cited by Osmulski, creates a basis for the conflict jurisdiction of this Court, and the Petition should be denied. CONCLUSION For the foregoing reasons, there is no jurisdictional basis for review by this Court because none of the cases relied upon by Petitioner, either implicitly or explicitly, support a claim of express and direct conflict. The Petition should therefore be denied and dismissed. 10 DADELAND CENTRE II SOUTH DADEL AND BOULEV ARD - SUITE P.O BOX M1AM1, FLORIDA (305) (305) FAX

14 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a copy of the foregoing was provided via electronic mail on this day of October, 2012, to: Celene H. Humphries, Esq., Brannock & Humphries, 100 S. Ashley Drive, Suite 1130, Tampa, FL 33602; and Justin W. Pimenta, Abrahamson & Uiterwyk, 900 W. Platt Street, Suite 100, Tampa, FL COLE SCOTT & KISSANE, P.A. A ttorneysfor Respondent 9150 S. Dadeland Blvd., Suite 1400 Miami, Florida Telephone: (305) Facsi 305) By: ANNE C. SULLIVAN FBN: DADELAND CENTRE II SOUTH DADELAND BOULEVARD - SUITE I400 - P O BOX MIAMI, FLORIDA (305) (305) FAX

15 CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.210(a), Fla. R. App. P., undersigned counsel hereby certifies that this brief is submitted in Tim By: ew Roman 14-po' t font. ANNE C. SULLIVAN FBN: DADEL AND CENTRE II SOUTH DADEL AND BOULEVARD - SU5TE P O BOX M1AM1, FLORIDA (305) (305 ) FA X