IN THE DISTRICT COURT OF APPEAL FOR THE STATE OF FLORIDA FIFTH DISTRICT

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1 IN THE DISTRICT COURT OF APPEAL FOR THE STATE OF FLORIDA FIFTH DISTRICT RECEIVED, 10/17/2017 3:44 PM, Joanne P. Simmons, Fifth District Court of Appeal TOWN OF PONCE INLET, Appellant, v. CASE NO. 5D PACETTA LLC, a Florida limited liability company, DOWN THE HATCH, INC., a Florida corporation, and MAR-TIM, INC., a Florida corporation, Appellees. / APPELLEES MOTION TO STAY AND RECALL MANDATE Pursuant to Fla. R. App. P (a) and Fla. R. App. P , Appellees, Pacetta LLC, Down the Hatch, Inc. and Mar-Tim, Inc. respectfully request this Court to stay the effect of the mandate and/or recall the mandate in this appeal, pending the outcome of a petition for discretionary review by the Florida Supreme Court of this Court s June 16, 2017 Order, rendered final by the denial of Appellees motion for rehearing or rehearing en banc on September 25, In support, Appellees state as follows: 1 The mandate issued on October 16, Appellees file the instant motion before this Court because the Florida Supreme Court has directed that motions to stay and recall the mandate may be filed in either the District Court of Appeal or

2 1. Appellees will timely file their notice of appeal to the Florida Supreme Court and pursue discretionary review of this Court s June 16, 2017 Order reversing the trial court s judgment and remanding for a new trial on liability and damages. 2. Pending the outcome of that petition, and any further proceedings before the Florida Supreme Court should it grant review, Appellees respectfully request this Court stay the effect of the mandate and/or recall the mandate, thereby preserving the stay that was already in place during this Court s appellate review. 3. When balancing the relative harms to Appellant and Appellees were this Court to stay or recall the mandate, with the likelihood of success on appeal, it is clear that a preservation of the status quo is appropriate under Florida law. See Fla. R. App. P , Committee Notes (1977). 4. First, a stay is warranted because Appellees have a good faith basis for pursuing the appeal before the Florida Supreme Court. The Florida Supreme Court has multiple bases for invocation of discretionary jurisdiction, both on the basis that the Court s order directly conflicts with decisions of other District Courts of Appeal and the Supreme Court, and the Court s order expressly construes the the Florida Supreme Court, with the District Court of Appeal being the preferable forum. See, e.g., State v. Roberts, 661 So. 2d 821, (Fla. 1995) (in case where mandate had already issued, party could seek recall of mandate in either District Court or Florida Supreme Court, regardless of whether notice to invoke discretionary jurisdiction had been filed). 2

3 Fifth Amendment to the United States Constitution. See Fla. R. App. P (a)(2)(A)(ii) and 9.030(a)(2)(A)(iv). 5. Second, should the Florida Supreme Court accept jurisdiction, there is a significant likelihood that the Court could find in Appellees favor and ultimately uphold the well-reasoned and factually-supported liability judgment of the trial court and compensation verdict of the jury. The judgment is supported by competent, substantial evidence. And the liability order in particular is supportable under the reasoning of the United States Supreme Court s landmark decision in Murr v. Wisconsin, 137 S. Ct (2017), issued one week after this Court s June 16, 2017 Order. 6. Finally, and perhaps more importantly, the relative harms to Appellant and Appellees, should this Court issue the stay, weigh in favor of preserving the status quo. This Court s Order directs a remand of the case for a new trial, which involves an enormous expense of both litigant and judicial resources. A brief stay during the resolution of the appeal before the Florida Supreme Court will save the parties the time and expense of potentially needless litigation and without any commiserate detriment or prejudice to Appellant. CONCLUSION A stay of the effect of the mandate or recall of the mandate is appropriate and just in this case. The enforcement of the mandate could cause irreparable harm 3

4 to Appellees during the pendency of the appeal before the Florida Supreme Court, while there is no material risk of harm to Appellant should a stay be entered. Furthermore, Appellees have multiple good faith bases for pursuing discretionary review, and should the Florida Supreme Court accept jurisdiction, Appellees have a significant likelihood of success. As such, Appellees respectfully request this Court stay the effect of the mandate or recall the mandate pending the outcome of Appellee s petition for review and any further proceedings, should review be granted by the Florida Supreme Court. Appellees advised counsel for Appellant of their intent to file this motion, and the undersigned is authorized to represent that Appellant opposes this motion. Respectfully submitted, /s/ Amy Brigham Boulris Amy Brigham Boulris, Esq. Florida Bar No aboulris@gunster.com Kenneth B. Bell, Esq. Florida Bar No kbell@gunster.com Lauren Vickroy Purdy, Esq. Florida Bar No lpurdy@gunster.com Gunster, Yoakley & Stewart, P.A Brickell World Plaza, Suite 3500 Miami, FL Telephone: (305) Facsimile: (305) Attorneys for Appellees 4

5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 17th day of October, 2017 the undersigned electronically filed the foregoing with the Fifth District Court of Appeal. I further certify the following has been served via electronic mail to all counsel listed below: Noah McKinnon, Jr., Esq. Abraham McKinnon, Esq. Simpson Korey McKinnon et al. 595 West Granada Boulevard, Suite A Ormond Beach, FL nmckinnon@mckinnonandmckinnonpa.com amckinnon@mckinnonandmckinnonpa.com Clifford B. Shepard, Esq. Shepard, Smith & Cassady, P.A Maitland Center Parkway, Suite 100 Maitland, FL cshepard@shepardfirm.com Elliot H. Scherker, Esquire Brigid F. Cech Samole, Esq. Rachel A. Canfield, Esq. Greenberg Traurig, P.A. Wells Fargo Center, Suite Southeast Second Avenue Miami, FL scherkere@gtlaw.com cechsamoleb@gtlaw.com canfieldr@gtlaw.com Kimberly S. Mello, Esq. Greenberg Traurig, P.A. 625 East Twiggs Street, Suite 100 Tampa, FL mellok@gtlaw.com Michael A. Tessitore, Esq. 215 E. Livingston Street Orlando, FL mtessitore@morankidd.com Attorneys for Blue Water Realty Advisors, LLC /s/ Amy Brigham Boulris Amy Brigham Boulris 5