SUPREME COURT OF FLORIDA

Transcription

1 SUPREME COURT OF FLORIDA PROFESSIONAL MEDICAL EDUCATION, INC., Petitioner, vs. PALM BEACH COUNTY HEALTH CARE DISTRICT and JEFF DAVIS, Respondents. / SC DCA CASE NO.: 4D CASE NO.: 2004CA AB PETITIONER S AMENDED JURISDICTIONAL BRIEF Respectfully submitted, GARCIA LAW FIRM, P.A. 224 Datura Street, Suite 900 West Palm Beach, Florida (561) (561) (telecopier) isidrogarcia@bellsouth.net BY: ISIDRO M. GARCIA Florida Bar No

2 TABLE OF CONTENTS Table of Citations... ii Statement of the Case and Facts... 1 Summary of the argument... 4 Argument First issue: Does the Opinion of the Fourth District expressly and directly conflict with the decisions of the First District on the defenses of privilege and justification?... 5 Second issue: Does the Opinion of the Fourth District expressly and directly conflict with the decisions of this Court that recognize a cause of action for civil conspiracy even in the absence of an underlying tort?... 9 Third issue: Does the Opinion of the Fourth District expressly and directly conflict with the decision of the First District on the issue of absolute immunity? Conclusion Certificate of compliance Certificate of service i-

3 TABLE OF CITATIONS Cases: Abele v. Sawyer, 750 So. 2d 70 (Fla. 4 th DCA 1999)... 8 Albritten v. Gandy, 531 So. 2d 381 (Fla. 1 st DCA 1988) American National Title & Escrow of Florida, Inc. v. The Guarantee Title & Trust Company, 810 So. 2d 996 (Fla. 4 th DCA 2002)... 7 Churraca v. Miami Jai-Alai, Inc., 353 So. 2d 547 (Fla. 1977)... 9 City of Stuart v. Monds, 10 So. 3d 1134 (Fla. 4 th DCA 2009), pet. for review pending. filed August 7, 2009 (SC ) Execu-Tech Business Systems, Inc. v. New Oji Paper Company Ltd., 752 So. 2d 582 (Fla. 2000)... 9 Laskey v. Smith, 239 So. 2d 13 (Fla. 1970)... 8 McGhee v. Volusia County, 679 So. 2d 729 (Fla. 1996)... 4 Peacock v. General Motors Acceptance Corporation, 432 So. 2d 142 (Fla. 1 st DCA 1983)... 6, 7, 8 Scheller v. American Medical International, Inc., 502 So. 2d 1268 (Fla 4 th DCA 1987)... 7 Snipes v. West Flagler Kennel Club, Inc., 105 So. 2d 164 (Fla. 1958)... 9 State Farm Mut. Auto Ins. Co. v. Austin Outdoor, Inc., 918 So. 2d 446 (Fla. 4 th DCA 2006) ii-

4 Wells Fargo Services, Inc. v. Lehman, 799 So. 2d 252 (Fla. 3rd DCA 2001)... 8 Constitutional provisions: U.S. Const., Art Art. I, 22, Fla. Const....9 Statutes: (9)(a), Fla. Stat Rules of court: Rule (a)(2), Florida Rules of Appellate Procedure iii

5 STATEMENT OF THE CASE AND FACTS Petitioner Professional Medical Education, Inc. ( PME ) is an educational for profit Florida corporation, owned by a former paramedic named Edward ( Ted ) Young, that provides continuing medical education classes required for the recertification of first responders and health care professionals such as EMTs, paramedics, firefighters, nurses and trauma surgeons. Respondents, Defendants below, the Palm Beach County Health Care District ( District ) and Dr. Jeff Davis, its medical director, sought to and did interfere with PME s business relations with third parties, including an organization named BTLS of Florida, Inc., Palm Beach County Fire Rescue and the City of Greenacres; this interference caused damages to PME because BTLS suspended PME for a period of 51 days, and Fire Rescue and Greenacres canceled verbal agreements they both had reached with PME, all directly as a result of Davis actions. The evidence must be viewed in the light most favorable to the prevailing party at trial 1 (PME), established the following facts: in the early part of 2000, PME was selected by Palm Beach County Fire Rescue to provide BTLS (basic trauma life support services) to its 1,100 firefighters, and other courses that were to follow. It was a substantial amount of business for the fledgling company, amounting to 1 DCA 2006). State Farm Mut. Auto Ins. Co. v. Austin Outdoor, Inc., 918 So. 2d 446, 448 (Fla. 4 th -1-

6 $110,000 per year based on the agreed upon rate of $100 per Fire Rescue employee. In addition, PME was selected by the City of Greenacres, to provide similar training to a substantially smaller force of employees. The evidence showed that as a result of the selection of PME by Palm Beach County Fire Rescue, a series of events, orchestrated by the company s competitors, Todd Soard 2, and Barry Duff 3, conspiring with their long time colleague, Defendant Davis, then the Medical Director of the District, resulted in near catastrophic events to PME. First, Soard, Duff and Davis, acting in concert with one another, and by means of correspondence and telephonic communications, managed to suspend the ability of PME to put on BTLS courses. More specifically, as a result of false allegations made by Davis, Soard and Duff, to wit, that PME was being investigated for fraud by the District and/or Palm Beach County, BTLS entered an emergency suspension of PME s license and authority to conduct BTLS sponsored courses, effectively ending the agreements PME had secured to provide these courses to Fire Rescue and Greenacres. PME retained counsel which, after 51 days of suspension, was able to persuade BTLS that there was no basis for the emergency suspension. When 2 He was then the owner and operator of a company called Emergency Educational Consultants of South Florida, Inc. 3 At the time was in charge of coordinating training for student paramedics and EMTs at Palm Beach Community College, which entity provided the BTLS courses also. -2-

7 BTLS was made aware of the background machinations that had led to the false allegations against PME, and after it assigned one of its Board members to conduct an investigation of the allegations made by Davis, Soard and Duff, PME was cleared of wrongdoing and was again eligible to fulfill its agreement with Fire Rescue and Greenacres. Having been foiled in his first attempt to interfere with PME s business dealings with third parties, Davis, using a unique economic hold on first responders in Palm Beach County, told Fire Rescue and Greenacres that if they wanted his employer, the District to pay for the trauma courses, they would have to select another vendor, not PME. Davis was in a unique position to dictate terms to these third parties, as the District had taxpayer funds at its disposal to pay for medical training of employees of local governmental agencies in Palm Beach County, including employees of Fire Rescue and Greenacres. Although in the past these independent agencies had been permitted to choose their own vendor without interference by the District or Davis, Young, PME s principal, was informed by representatives of these agencies that Davis was threatening to withhold payment for these funds if they persisted in using PME, so they were no longer going to be able to use Young s company. As a result, the business was redirected to Young s competitors. -3-

8 A Palm Beach County jury, following a three (3) week trial, found in favor of PME on all claims they were permitted to decide against the District 4, and awarded PME the sum of $692,400 in damages for the claims of tortious interference; defamation; and civil conspiracy. The trial court judge, the Hon. Jonathan Gerber, denied the District s post trial motions. Following the denial of the District s post trial motions, an appeal to the Fourth District Court of Appeals ensued by the District. There was a cross appeal by PME seeking review of the grant of a directed verdict for Davis. A panel of the Fourth District held that all of PME s claims failed because the District was justified in interfering with PME s business relationships, presumably as a matter of law, and because the District could not interfere with the business relations PME had established since payment to the third parties would come from the District. Moreover, said the Fourth District, all claims were barred by the doctrine of absolute immunity. Slip Opinion, p. 1 in Appendix 1. For the conspiracy claim, the Fourth District held that since the underlying tort claims failed, there could not be a conspiracy claim and that this case did not fall into the independent conspiracy tort theory exception, that does not require an underlying tort, a theory specifically relied upon by PME at trial and in defending the verdict on 4 The trial court, Hon. Judge Jonathan Gerber, granted Davis a directed verdict on all claims, finding as a matter of fact and law that he had acted within the course and scope of his employment and thus was immune in accordance with (9)(a), Fla. Stat. Whether or not a government employee acts within or outside the course and scope of his employment is, this Court has said, a question for the jury. McGhee v. Volusia County, 679 So. 2d 729, 733 (Fla. 1996). This claim was cross appealed by PME, but the Fourth District Court of Appeals did not address the issue. -4-

9 appeal. Slip Opinion, p. 7. The Fourth District did not address the cross appeal by PME which had questioned the propriety of granting Davis a directed verdict on all claims. SUMMARY OF THE ARGUMENT The Panel Opinion of the Fourth District expressly and directly conflicts with the prior decisions of the First District Court of Appeals on two (2) important issues that served as the Fourth District Panel s justification for overturning the jury s verdict: the applicability of the justification defense and the unprecedented extension of the absolute privilege (also called absolute immunity ) doctrine, from claims of defamation to claims for tortious interference. In addition, the Fourth District Panel failed to follow a civil conspiracy theory, relied upon by PME, to affirm the conspiracy claim. Because of these direct and express conflicts, and the extraordinary usurpation by the Fourth District panel s of the jury s function as fact finder in a trial, it is respectfully requested that this Court accept jurisdiction of this case to resolve conflicts created by this Opinion. ARGUMENT Point 1. The Fourth District Panel Opinion expressly and directly conflicts with the decisions of the First District on the same point of law regarding the defense of privilege, justification and absolute immunity. -5-

10 The absolutist premise behind the panel Opinion s statement of the law (a defendant not a stranger to a business relationship can never be liable for tortiously interfering when it has a supervisory or potential financial interest in how a contract is performed 5 ) is expressly and directly contrary to a decision of the First District Court of Appeals on the same issue. Moreover, the decisions directly conflict on a second issue: privilege to interfere. In Peacock v. General Motors Acceptance Corporation, 432 So. 2d 142 (Fla. 1 st DCA 1983), an automobile dealer, brought to bankruptcy as a result of legal claims brought against it by the General Motors Acceptance Corporation (GMAC), filed a counterclaim against GMAC, claiming tortious interference with a relationship the dealer had enjoyed with GMAC s parent company, General Motors (GM). The trial court had dismissed the claim based on the corporate relationship of GMAC and GM, and, based on the privilege to act created by GMAC s financing agreement with the dealer. The First District Court reversed a dismissal of the claims: We reject GMAC's reasoning and hold that GMAC's subsidiary relationship to GM does not in itself negate the possibility of GMAC's having intentionally interfered with Peacock's and Peacock Chevrolet's business relationships with GM. GMAC is a distinct legal entity, and its being a wholly owned subsidiary of GM does not alter that status... 5 No evidence is cited from the Record to support these alleged interests the District allegedly held. In fact, the evidence was to the contrary, as two representatives of Fire Rescue testified that they had been free in the past to select their own vendor for these services. -6-

11 Neither can we accept GMAC's next argument, to the effect that the counterclaim shows on its face that GMAC is privileged to act as it allegedly did because of rights secured by GMAC's financing agreements with Peacock Chevrolet. GMAC's privilege to protect its contractual interests is not absolute but is instead conditioned upon its employing means that are not improper. Id., (citations omitted, emphasis added). The foregoing decision expressly and directly conflicts with the Panel Opinion here on two points, first, on the holding that a party not a stranger to the business relationship can never ever be liable for tortiously interfering 6, and second, on setting limitations, not recognized by the absolutist approach of Judge Gross in this case, on the means of when interference is permissible. The Panel Opinion in this case concluding that [t]he recovery on the tortious interference count fails because the District s interfering conduct was not unjustified, a required element of the tort, Slip Opinion, at page 3, Amended Appendix 1, is directly contrary to Peacock that holds that the issue of justification is a matter of proof, not a legal decision for a court to make: Whether the plaintiff must prove lack of justification or the defendant must prove justification is an unsettled issue in Florida. Peacock, 6 The Fourth District Panel Opinion even strays from said Court s own precedent, where the very argument accepted here (a party cannot interfere in business relations to which it has an interest) was soundly rejected. See: American National Title & Escrow of Florida, Inc. v. The Guarantee Title & Trust Company, 810 So. 2d 996 (Fla. 4 th DCA 2002); Scheller v. American Medical International, Inc., 502 So. 2d 1268 (Fla 4 th DCA 1987). -7-

12 supra, 432 So. 2d 142, 144 n. 1 (Fla. 1 st DCA 1983) (Emphasis added, citations omitted).regardless of whether justification is classified as an element of the claim, as the Fourth District did here, or as an affirmative defense, as it has said previously 7, justification is an issue of fact for a jury, not a legal issue a court can decide in a vacuum devoid of facts, as the Fourth District purported to do here. In this case, the Fourth District panel simply substituted its view of the facts for a factual decision that under our system of law is for a jury to make. To overturn a jury s determination on what is purely a factual issue, the Fourth District would have had to first determine that there was absolutely no evidence to support the jury s verdict that the interference was in fact not justified. 8 The extraordinary usurpation of the jury s power to determine facts is contrary to well established Florida law 9, which protects the right of a party to a jury trial, an 7 A member of the same panel who decided this case, Judge Warner, previously recognized that [j]ustification or privilege to interfere with a contract is a defense to a tortious interference action. [citation omitted] The Dantos' claim (sic) is an affirmative defense, because they allege that they were privileged in interfering with the agreement on behalf of Commerce Park. Abele v. Sawyer, 750 So. 2d 70 (Fla. 4 th DCA 1999). 8...[A] jury s verdict should not be overturned unless there is a complete absence of evidence to support its findings. Wells Fargo Services, Inc. v. Lehman, 799 So. 2d 252, 255 (Fla. 3rd DCA 2001) (emphasis added). 9 Laskey v. Smith, 239 So. 2d 13, 14 (Fla. 1970) (...the trial judge does not sit as a seventh juror with veto power...not every verdict which raises a judicial eyebrow should shock the judicial conscience. ) -8-

13 express guarantee of the Constitution of the United States 10 and the Constitution of the State of Florida. 11 Point 2. The Fourth District Opinion expressly and directly failed to follow prior decisions of this Court that recognize a civil conspiracy cause of action without an independent, underlying tort. Without saying why, the Fourth District made short shrift of a theory advanced by PME at trial that does not require an underlying tort to establish a civil conspiracy. Slip Opinion, p. 7, note 3. Plaintiff reiterated the theory in defending the appeal before the Fourth District, a theory based on Snipes v. West Flagler Kennel Club, Inc., 105 So. 2d 164 (Fla. 1958), where this Court held that a group of track operators who denied a Plaintiff the opportunity to race his dogs on their tracks for the purpose of driving him out of the dog racing business could be found liable for civil conspiracy, even if there was no underlying independent tort, because of the power held by the interfering entities. 1 2 Given this was a theory advanced by the 10 In suits at common law...the right to a trial by jury shall be preserved. U.S. Const., Art. 7, enacted in The Florida Constitution also provides that "[t]he right of trial by jury shall be secure to all and remain inviolate." Art. I, 22, Fla. Const. 12 A civil conspiracy can itself be actionable without an independent underlying tort. Execu-Tech Business Systems, Inc. v. New Oji Paper Company Ltd., 752 So. 2d 582, 586 n. 8 (Fla. 2000). See also: Churraca v. Miami Jai-Alai, Inc., 353 So. 2d 547 (Fla. 1977). Application of this rule would eviscerate the only basis (i.e. lack of viable underlying tort) the Fourth District Panel had for reversing the jury s verdict on the conspiracy claim. -9-

14 Plaintiff at trial, the Fourth District s failure to affirm the verdict rendered for PME on the conspiracy claim, with no legal or factual basis for doing so, is expressly and directly contrary to the above cited decisions of this Court. Point 3. The Fourth District Opinion expressly and directly conflicts with the decision of the First District in Albritten. As an alternative basis for its Opinion, the panel also relied upon a recent case of the Fourth District, City of Stuart v. Monds, 10 So. 3d 1134 (Fla. 4 th DCA 2009), pet. for review pending. filed August 7, 2009 (SC ) which purported to establish a newly announced rule of law, never applied in Florida, that extends the doctrine of absolute privilege 13 from defamation claims and applies it to tortious interference claims. Slip Opinion, p. 6 n. 2. This new case, is in direct and express conflict with the decision of the First District Court of Appeals in the case of Albritten v. Gandy, 531 So. 2d 381 (Fla. 1 st DCA 1988), which holds, squarely to the contrary, that absolute privilege does not apply to tortious interference claims. CONCLUSION The Fourth District Opinion expressly and directly conflicts with the decisions of the First District and of this Court, as set forth above, and this Court should accept jurisdiction of this case to resolve the conflicts created by said Opinion. 13 Called absolute immunity in the panel Opinion. -10-

15 CERTIFICATE OF COMPLIANCE Counsel certifies that he has complied with Rule (a)(2), Florida Rules of Appellate Procedure, in all respects. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served VIA REGULAR U.S. MAIL this day of, 2009 to Barbara Sonneborn and Minnie Urbanek, SONNEBORN, RUTTER et al., P.A., 1545 Centrepark Drive North, West Palm Beach, Florida and Robert Rivas, SACHS & SAX, 310 West College Avenue, 3 rd Floor, Tallahassee, Tallahassee, Florida BY: ISIDRO M. GARCIA -11-