SUPREME COURT OF FLORIDA RESPONDENTS JURISDICTIONAL BRIEF

Transcription

1 SUPREME COURT OF FLORIDA CASE NO. SC MERCURY INSURANCE COMPANY OF FLORIDA, Petitioner, vs. ASHLEY COATNEY, etc., et al., Respondents. ON REVIEW FROM THE DISTRICT COURT OF APPEAL, FIRST DISTRICT L.T. CASE NO. 1D RESPONDENTS JURISDICTIONAL BRIEF RANDLE D. THOMPSON Fla. Bar No KERRIGAN, ESTESS, RANKIN MCLEOD & THOMPSON, LLP Post Office Box Pensacola, Florida (850) Attorneys for Respondents Moody LOUIS K. ROSENBLOUM Fla. Bar No LOUIS K. ROSENBLOUM, P.A Bayou Boulevard, Suite 36 Pensacola, Florida (850) (850) (fax) Attorneys for Respondents JOHN FISHEL Fla. Bar No BOGGS & FISHEL

2 209 East Fourth Street Panama City, Florida (850) Attorneys for Respondent Coatney ii

3 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF CITATIONS ii STATEMENT OF THE CASE AND FACTS Preliminary Statement Facts Stated in District Court Opinion ISSUE PRESENTED FOR REVIEW (reframed by respondents) Whether the decision of the district court below expressly and directly conflicts with decisions from this court and the District Courts of Appeal, Second, Third and Fourth Districts, concerning the issue whether attorney s fees can be assessed pursuant to section , Florida Statutes, when a party makes a good faith, but unsuccessful, argument to change existing law. SUMMARY OF ARGUMENT 3 ARGUMENT 4 CONCLUSION 9 CERTIFICATE OF SERVICE 10 i

4 CERTIFICATE OF TYPE SIZE AND STYLE 10 ii

5 CASES TABLE OF CITATIONS Allstate Indem. Co. v. Wise, 818 So. 2d 524 (Fla. 2d DCA 2001) 2, 7 Boca Burger, Inc. v. Forum, Case No. SC , 2005 WL (Fla. July 7, 2005)..6 Carnival Leisure Indus., Ltd. v. Holzman, 660 So. 2d 410 (Fla. 4th DCA 1995).6 Cook v. Cook, 602 So. 2d 644 (Fla. 2d DCA 1992)...6 Cunningham v. Standard Guar. Ins. Co., 630 So. 2d 179 (Fla. 1994).5 Jones v. Charles, 518 So. 2d 445 (Fla. 4th DCA 1988)..6 Judges of the Eleventh Judicial Circuit v. Janovitz, 635 So. 2d 19, 20 (Fla. 1994).8 Kelly v. State, 359 So. 2d 493 (Fla. 1st DCA 1978).8 Matheny v. State, 429 So. 2d 1341 (Fla. 2d DCA 1983) 8 Mercury Ins. Co. of Fla. v. Coatney, Case No. 1D (Fla. 1st DCA Sept. 16, 2005) passim Muckerman v. Burris, 553 So. 2d 1300 iii

6 (Fla. 3d DCA 1989), rev. denied, 567 So. 2d 435 (Fla. 1990)..6 Parkway General Hosp., Inc. v. Stern, 400 So. 2d 166 (Fla. 3d DCA 1981)..6 Reaves v. State, 485 So. 2d 829 (Fla. 1986).7 State ex rel. Price v. McCord, 380 So. 2d 1037 (Fla. 1980).8 State Farm Mut. Auto. Ins. Co. v. Judges of the District Court of Appeal, Fifth District, 405 So. 2d 980 (Fla. 1981)..9 Vasquez v. Provincial South, Inc., 795 So. 2d 216 (Fla. 4th DCA 2001).6 Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982).5 OTHER AUTHORITIES Secion 35.10, Florida Statutes...8 Secion , Florida Statutes...passim iv

7 STATEMENT OF THE CASE AND FACTS Preliminary Statement Respondents respectfully submit this jurisdictional brief subject to their motion to dismiss served October 14, In its notice to invoke discretionary jurisdiction, petitioner seeks review of the decision issued by the District Court of Appeal, First District, on August 16, (Tab 1). As acknowledged by respondents, however, the district court replaced its August 16, 2005 opinion with a revised opinion issued September 16, (Tab 2). For that reason, the facts stated in this brief are taken from the September 16, 2005 opinion. Facts Stated in District Court Opinion The district court summarized the relevant facts as follows: The record in this case reflects that Mercury filed a complaint for declaratory judgment, asserting that the insurance policy issued to the insured, Ceasar L. Coatney, contained a clause excluding coverage for any loss caused while the insured is committing or attempting to commit a felony. Mercury further alleged that at the time of the accident Coatney was operating his vehicle in a manner showing that he was fleeing from or attempting to elude a law-enforcement officer in violation of section , Florida Statutes, which is a second degree felony if the person attempting to elude a law-enforcement officer causes injury to another person. The Moodys filed a motion for summary judgment 1

8 based on the Allstate decision. 1 The Moodys asserted the exclusionary clause on which Mercury relied to avoid coverage was void as against public policy, and further asserted that even assuming the exclusionary clause is valid, there is no testimony, evidence, or proof that the insured s conduct fell within the language of the exclusionary clause. Thereafter, the trial court entered Final Declaratory Judgment in favor of Ashley Coatney as personal representative of the estate of Ceasar L. Coatney, and in favor of the Moodys, against Mercury Insurance Company, ruling that the exclusionary clause is void as against public policy pursuant to Allstate. The court further decided that the personal representative was entitled to recover attorney s fees and pre-judgment interest from the insurer pursuant to section , Florida Statutes, and awarded attorney s fees to the Moodys pursuant to section , Florida Statutes. Mercury Ins. Co. of Fla. v. Coatney, Case No. 1D , slip op. at 3-4 (Fla. 1st DCA Sept. 16, 2005) (cited hereafter as slip op. ) (footnote added) (Appendix). The district court also added the following facts relevant to this court s jurisdiction: The appellate record does not include a transcript of the hearing on the Moodys motion for summary judgment, which, by stipulation of the parties, was limited to the question of whether Mercury s exclusionary clause was void as against public policy. As a consequence, we have no record of the arguments presented by the respective parties at the trial court level. We note, however, that Mercury s initial brief made no reference to a good faith effort to change existing law theory as a basis for avoiding liability for an attorney s fee to the Moodys, pursuant to section Although that argument was presented in Mercury s reply brief, we find it insufficient to demonstrate that the trial court s award of 1 Allstate Indem. Co. v. Wise, 818 So. 2d 524 (Fla. 2d DCA 2001). 2

9 an attorney s fee to the Moodys constituted an abuse of discretion. Slip op. at 5 (footnote omitted). SUMMARY OF ARGUMENT For several reasons, the decision below does not conflict with the decisions cited by petitioner from this court and the District Courts of Appeal, Second, Third and Fourth Districts, which recognize that a good faith effort to change existing law constitutes a defense to a claim for attorney s fees under the frivolous lawsuit statute, section , Florida Statutes. First, the district court below never addressed the merits of petitioner s good faith defense because, according to the district court, petitioner failed to provide the district court with a transcript of the arguments it supposedly made in the trial court and failed to raise the good faith defense in its initial brief. Second, the district court decision construed the 2002 version of section , Florida Statutes, which underwent substantial revision in All but one of the decisions cited by petitioner for conflict construed the pre-1999 version of section , Florida Statutes. Third, there is nothing stated in the district court opinion which is inconsistent with the good faith defense recognized by the cases cited by petitioner for conflict. To the contrary, the district court acknowledged 3

10 petitioner s argument that it made a good faith effort to change existing law but, as previously noted, appellate review was precluded by petitioner s failure to provide a transcript and failure to raise the good faith argument in its initial brief. Fourth, the cases cited by petitioner from other jurisdictions which ostensibly support its position on the insurance coverage issue address the merits of the case, not jurisdiction. Petitioner s argument that it cited the cases from other jurisdictions in the trial court in a good faith effort to change existing law is a matter outside the four corners of the decision under review and therefore cannot be considered by the court to determine jurisdictional conflict. Finally, petitioner s argument that the district court lacked jurisdiction to issue its September 16, 2005 opinion after petitioner filed its notice to invoke discretionary jurisdiction is incorrect because petitioner neither requested nor received an order staying proceedings in the district court pending discretionary review. Further, absent a stay, the district court has the authority to recall its mandate and issue a new opinion at any time during the same term of court. ARGUMENT As indicated by the district court s opinion, respondents agree with petitioner s position on the merits that the trial court erred by assessing attorney s fees against petitioner pursuant to section , Florida Statutes. See slip op. at 2-3. Despite this concession, respondents cannot acquiesce to this court s 4

11 jurisdiction because the parties cannot stipulate to a court s jurisdiction where none exists. See Cunningham v. Standard Guar. Ins. Co., 630 So. 2d 179, 181 (Fla. 1994). Accordingly, respondents feel constrained to oppose the petition for review for the following reasons. Under subheading A.1., petitioner argues that the decision below failed to consider the good faith standard applicable as a defense to attorney fee claims under Florida Statutes Petitioner s Jurisdictional Brief at 4. The opinion below, however, indicates that the district court was unable to determine whether petitioner made a good faith argument in the trial court for the extension, modification or reversal of existing law because petitioner failed to provide the district court with a transcript of the hearing at which the arguments were supposedly made. See slip op. at 5. The opinion below also indicates that petitioner failed to make the good faith argument in its initial brief, thereby precluding appellate review. See id. These important procedural facts distinguish this case from the decisions cited by petitioner for conflict. Under subheading A.2., petitioner argues that the decision below conflicts with decisions which recognize that the trial court should not assess attorney s fees under section against a party who makes a good faith, but unsuccessful, attempt to change existing law. See Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982); Vasquez v. Provincial South, Inc., 795 So. 2d 216 (Fla. 4th 5

12 DCA 2001); Cook v. Cook, 602 So. 2d 644 (Fla. 2d DCA 1992); Carnival Leisure Indus., Ltd. v. Holzman, 660 So. 2d 410 (Fla. 4th DCA 1995); Jones v. Charles, 518 So. 2d 445 (Fla. 4th DCA 1988); Muckerman v. Burris, 553 So. 2d 1300 (Fla. 3d DCA 1989), rev. denied, 567 So. 2d 435 (Fla. 1990); Parkway General Hosp., Inc. v. Stern, 400 So. 2d 166 (Fla. 3d DCA 1981). This argument lacks merit for several reasons. First, the trial court assessed attorney s fees in this case under the 2002 version of section , Florida Statutes. See slip op. at 2 n.2, 4. Section underwent substantial revisions in See Boca Burger, Inc. v. Forum, Case No. SC , 2005 WL , at *7-8 (Fla. July 7, 2005). 2 Despite these revisions, the cases cited by petitioner all interpret the pre-1999 version of the statute with the exception of Vasquez. 2 The Boca Burger court noted the following changes made in 1999 to section : [T]he statute no longer applies only to an entire action; it now applies to any claim or defense. The standard for granting fees also has changed. Previously, a movant had to show a complete absence of a justiciable issue of either law or fact raised by the losing party , Fla. Stat. (Supp. 1978). Under the revised version, however, a movant need only show that the party and counsel knew or should have known that any claim or defense asserted was (a) not supported by the facts or (b) not supported by an application of then-existing law Boca Burger, 2005 WL , at *8 (emphasis the court s). 6

13 Second, the decision below does not state any principle of law which is inconsistent with the good faith defense available under section , Florida Statutes. To the contrary, the district court acknowledged petitioner s argument that it made a good faith effort to change existing law, slip op. at 5, but the district court was unable to consider the defense because petitioner failed to provide a transcript of the hearing and failed to make the good faith argument in its initial brief. See id. Under subheading B., petitioner cites cases from other jurisdictions which ostensibly support its position on the insurance coverage issue. According to petitioner, these cases necessarily demonstrate that its disagreement with the Wise case relied upon by the trial court was offered in good faith. The cases from other jurisdictions, however, address the merits of the case, not jurisdiction. Further, petitioner s contention that it cited these cases from other jurisdictions in the trial court, although presumably true, raises matters outside the four corners of the district court opinion which have no bearing on the jurisdictional conflict issue. See 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. ). Under subheading C., petitioner argues that the district court lacked jurisdiction to issue its September 16, 2005 opinion because petitioner s notice to 7

14 invoke filed on September 12, 2005, divested the district court of jurisdiction. As stated in respondents motion to dismiss served with this brief, petitioner s argument is incorrect because a notice to invoke discretionary jurisdiction does not stay proceedings in the district court in the absence of an order staying the mandate. See State ex rel. Price v. McCord, 380 So. 2d 1037 (Fla. 1980). Because no such order has been requested or issued in this case, the district court retained the authority to recall its mandate and issue a revised opinion notwithstanding petitioner s notice to invoke. 3 Further, in the absence of a stay, the district courts have jurisdiction to recall their mandates at any time during the same term of court in which the original mandate was issued. See Judges of the Eleventh Judicial Circuit v. Janovitz, 635 So. 2d 19, 20 (Fla. 1994). The district court below commenced its present term of court on the second Tuesday of July (July 12, 2005), and the term will continue until the second Tuesday in January, See 35.10, Fla. Stat. (2004). As explained in respondents motion to dismiss, both mandates and the order recalling mandate were issued in this case during the same term of court, and, accordingly, the district court had jurisdiction to recall its mandate and issue the revised September 16, Petitioner s reliance on Matheny v. State, 429 So. 2d 1341 (Fla. 2d DCA 1983), and Kelly v. State, 359 So. 2d 493 (Fla. 1st DCA 1978), is misplaced because both cases involved plenary appeals from the circuit court to the district court, not discretionary review in the Supreme Court of Florida. 8

15 opinion. Compare State Farm Mut. Auto. Ins. Co. v. Judges of the District Court of Appeal, Fifth District, 405 So. 2d 980 (Fla. 1981). In any event, a writ of mandamus is the correct method to challenge the district court s jurisdiction under these circumstances, not a notice to invoke discretionary jurisdiction based on conflict of decisions. See State Farm, 405 So. 2d at 982. CONCLUSION For the foregoing reasons, this court should deny the petition for review. Respectfully submitted: RANDLE D. THOMPSON Fla. Bar No KERRIGAN, ESTESS, RANKIN MCLEOD & THOMPSON, LLP Post Office Box Pensacola, Florida (850) Attorneys for Respondents Moody LOUIS K. ROSENBLOUM Fla. Bar No LOUIS K. ROSENBLOUM, P.A Bayou Boulevard, Suite 36 Pensacola, Florida (850) (850) (fax) Attorneys for Respondents JOHN FISHEL Fla. Bar No BOGGS & FISHEL 209 East Fourth Street Panama City, Florida (850) Attorneys for Respondent Coatney CERTIFICATE OF SERVICE 9

16 I HEREBY CERTIFY that a copy of the foregoing has been furnished to Mark J. Upton, Esquire, attorney for petitioner, Post Office Box 1800, Daphne, Alabama 36526, by U.S. Mail on this 14th day of October, CERTIFICATE OF TYPE SIZE AND STYLE The undersigned attorney hereby certifies that this brief was prepared using a 14-point Times New Roman proportionally spaced font in accordance with Rule 9.210(a)(2), Florida Rules of Appellate Procedure. LOUIS K. ROSENBLOUM Fla. Bar No LOUIS K. ROSENBLOUM, P.A Bayou Boulevard, Suite 36 Pensacola, Florida (850) (850) (fax) Attorneys for Respondents 10