IN THE SUPREME COURT OF FLORIDA APPEAL FROM THE THIRD DISTRICT COURT OF APPEALS PETITIONER S JURISDICTIONAL BRIEF

Transcription

1 IN THE SUPREME COURT OF FLORIDA CORAL BAY SECTION C HOMEOWNERS ASSOCIATION, Petitioner. Case No.: 3D MIAMI-DADE COUNTY Respondent Lower Tribunal Case No.: CA-01 APPEAL FROM THE THIRD DISTRICT COURT OF APPEALS PETITIONER S JURISDICTIONAL BRIEF Grayden M. Dough, Esquire Florida Bar Number Kruk & Dough, P.L. Post Office Box 1351 Port Richey, Florida Telephone: (727)

2 TABLE OF CONTENTS Page TABLE OF CONTENTS... 2 TABLE OF AUTHORITY... 3 STATEMENT OF FACTS AND CASE... 4 SUMMARY OF ARGUMENT... 5 ARGUMENT... 6 CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE APPENDIX. 10 2

3 TABLE OF CITATIONS Cases Carter, Hawley, Hale Stores, Inc. v. Whitman, 16 So. 2d 83, (Fla. 3d DCA 1987)... 7 Edwards v. City of Fort Walton Beach, 271 So. 2d 136 (Fla.1972). 7 John Crescent, Inc., v. Schwartz 382 So.2d 383 (Fla 4 th DCA 1980)... 5,6,7,8 Okeechobee Imports, Inc. v. Am. Sav. & Loan Ass'n of Fla., 558 So. 2d 506, 507 (Fla. 3d DCA 1990)... 7 Somero v. Hendry General Hospital, 467 So.2d 1103 (4 th DCA 1985)... 5,6,7,8 3

4 STATEMENT OF THE CASE AND FACTS This petition seeks review of reversal of a Default Judgment issued by the Eleventh Judicial Circuit Court by the Third District Court of Appeal. See Miami- Dade County, Florida v. Coral Bay Section C Homeowners Association No 3D (Fla. App. 3/19/2008)(Fla. 3 rd DCA 2008). The decision notes that the petitioner filed a complaint on March 1, 2007 against Defendant Miami-Dade County, properly serving the Chairman of the Board, Bruno Barreiro. The complaint was served at a district office of the Chairman. The Defendant Miami-Dade County, by and through the Chairman of the Board, Bruno Barreiro and his staff; failed to and intentionally ignored the necessity to take appropriate action. A Default Judgment was entered. On June 18, 2007 the Defendant finally acted and forwarded the complaint to the County Attorneys Office. The County Attorneys Office filed a Motion to Vacate the Default Judgment. The trial judge ruled that the chairman of the Board, Bruno Barreiro and staff, failed to, and intentionally ignored the necessity to take appropriate action. And that lack of action did not rise to excusable neglect. Based upon the findings presented at the hearing the Circuit Court denied the County s Motion to Vacate the Default Judgment. The County filed an appeal to the Third District Court of Appeals and oral arguments were heard (March, 2008). The Third District Court of Appeals reversed the trial courts decision. The Third 4

5 District Court concluded that inaction by the chairman and his staff; lack of action by the defendant constituted excusable neglect and reversed the trial judge s denial. SUMMARY OF THE ARGUMENT The Third District Court reversal of the trial court decision that inaction by a Defendant constitutes excusable neglect directly and expressly conflicts with the holding in John Crescent, Inc., v. Schwartz 382 So.2d 383 (Fla. 4 th DCA 1980) and Somero v. Hendry General Hosp., 467 So.2d 1103 (Fla. 4 th DCA 1985). The Fourth District Court of Appeals, summarizing what does not rise to excusable neglect; that a party (1) simply forgot or (2) intentionally ignored the necessity to take appropriate action, is not excusable neglect. See Somero v. Hendry General Hosp., 467 So.2d 1103, 1105 (Fla. 4 th DCA 1985). In an earlier decision the Fourth District Court of Appeals in John Crescent clearly stated a default will not be set aside where the defaulted party or his attorney simply forgot, or intentionally ignored the necessity to take appropriate action. The John Crescent court found the mere assertion by a party to a lawsuit that he does not comprehend the legal obligations attendant to service of process, does not create a sufficient showing of mistake, inadvertence, surprise or excusable neglect to warrant the vacating of a final judgment. Id at

6 The decision, the subject of this appeal, shows the chairman s staff took no affirmative steps when served with the complaint. The inaction on the part of the chairman s staff does not rise to excusable neglect. ARGUMENT To apply the principal that; inaction by a defendant upon the service of a complaint is similar to a clerical mistake, totally misapprehends and misapplies the Fourth District Court of Appeals holdings in both John Crescent and Somero. Notwithstanding the long recognized judicial position in Florida that a clerical error rises to the level of excusable neglect, the Third District Court of Appeals misapplies previous case law and lowers the clerical error exception to include inaction by the Defendant, not and clerical error by a third party representing a Defendant. As a consequence of this decision, the potential negative impact upon the ability of a party to enforce a Default Judgment has been eviscerated by the decision in the instant case. Florida case law continually mandates that a party take some affirmative steps to protect its interest upon the service of a complaint is indeed justified, because it requires the defendant to act with some diligence. The law requires certain diligence of those subject to it, and this diligence cannot be lightly excused. The mere assertion by a party to a lawsuit that he does not comprehend the legal obligations attendant to service of process does not create a sufficient showing of 6

7 mistake, inadvertence, surprise or excusable neglect to warrant the vacating of a final judgment. See also John Crescent, Inc. v. Schwartz, 382 So.2d 383, (Fla. 4th DCA). The Third District Court application of the clerical error exception brings the lack of diligence by a Defendant to the same level as mishandling or forwarding the complaint to the wrong address. Florida courts have long recognized that [a] party to take the required steps necessary to protect its own interests, cannot, standing alone, be grounds to vacate judicially authorized acts to the detriment of other innocent parties. Id. The general consensus of courts in Florida where excusable neglect has been found the Defendant took some action and a third party made an error. See Carter, Hawley, Hale Stores, Inc. v. Whitman, 16 So. 2d 83, (Fla. 3d DCA 1987); Edwards v. City of Fort Walton Beach, 271 So. 2d 136 (Fla.1972); Okeechobee Imports, Inc. v. Am. Sav. & Loan Ass'n of Fla., 558 So. 2d 506, 507 (Fla. 3d DCA 1990). The Third District Court Appeals misapplication of previous case law that inaction by a Defendant is tantamount to a third party clerical error goes well beyond the previous decisions and extends excusable neglect to almost unimaginable factual neglectful scenarios As stated previously the Third District Court misapplication of the above cases as well as those cited in support of their decision all contemplate a Defendant taking some affirmative steps after service of the Complaint. The decision the 7

8 instant appeal shows unequivocally that the Defendant took no steps to protect their interest until well after the time for answering the complaint had run. See Miami-Dade County v. Florida v Coral Bay Section C Homeowners Association No 3D (Fla. App. 3/19/2008) at page 3, (Fla. 3 rd DCA 2008). The general policy in Florida has held that the failure to follow that policy constitutes excusable neglect. Somero v. Hendry Gen. Hosp., 467 So.2d 1103 (Fla. 4th DCA), review denied, 476 So.2d 674 (Fla.1985). In the decision the Third District Court states the Chairman s staff failed to follow standard procedures in forwarding legal papers to the County Attorney s Office. Miami-Dade County v. Florida v Coral Bay Section C Homeowners Association No 3D (Fla. App. 3/19/2008) at page 3, (Fla. 3 rd DCA 2008). Despite this the District Court did not follow Somero in finding that the failure to follow policy is not normally excusable neglect. Inexplicably the Third District Court decision found that the failure to follow policy does rise to excusable neglect, thus placing it at direct odds with the Fourth District Court in the Somero decision. CONCLUSION The Petitioners respectfully request this Court exercise its discretionary jurisdiction and accept review of this matter so that briefing on this matter may address the conflict on excusable neglect as regards to actions by the Defendant. The Third District Court s application of the excusable neglect secretarial/clerical 8

9 error of a third party representative of the Defendant and applying it to the Defendant actions renders Default Judgment moot. The purpose of the secretarial/clerical exception was designed to protect an innocent Defendant s who acted with diligence and forwarded the complaint to their legal counsel/insurance carrier who then misfiled or failed to file a timely pleading. The courts did not carve out the exception to apply to Defendant s who did not act in their interest. Respectfully submitted, CERTIFICATE OF SERVICE Grayden M. Dough, Esquire Florida Bar Number Kruk & Dough, P.L. Post Office Box 1351 Port Richey, Florida Telephone: (727) I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. mail to R.A. Cuevas, Jr.,, Esquire, Miami-Dade County Attorney s Office., 111 N.W. 1 st Street, Miami, Florida 33128, on this 24th day of April, Grayden M. Dough, Esquire Florida Bar Number

10 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Reply Brief was prepared in Times New Roman, 14 point font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. Grayden M. Dough, Esquire Florida Bar Number APPENDIX 10