IN THE SUPREME COURT OF FLORIDA. Case No. SC L.C. Case No. 4D

Transcription

1 IN THE SUPREME COURT OF FLORIDA Case No. SC L.C. Case No. 4D BARBARA TURCOTTE and MELVIN TURCOTTE, v. Petitioners, CITY OF COCONUT CREEK, and SEMINOLE PROPERTIES II, INC., Respondents. JURISDICTIONAL BRIEF OF CITY OF COCONUT CREEK JOHN H. PELZER, ESQ. Florida Bar No Primary: Secondary: GREENSPOON MARDER, P.A. Trade Centre South, Suite W. Cypress Creek Road Fort Lauderdale, Florida Telephone: (954) Facsimile No. (954) Attorneys for the City

2 TABLE OF CONTENTS Page TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii SUMMARY OF ARGUMENT... 1 ARGUMENT... 2 I. THE PETITIONERS IGNORE THE SEMINAL CASE FROM THIS COURT THAT RESOLVES THE PURPORTED CONFLICT II. THERE IS NO CONFLICT BETWEEN THE DISTRICT COURT DECISION AND DECISIONS REGARDING A PARTY S CHOICE BETWEEN CERTIORARI AND DECLARATORY RELIEF CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 SIZE AND STYLE OF TYPE... 9 i

3 TABLE OF AUTHORITIES Page Chapinoff v. State, 2 So. 3d 1080 (Fla. 3d DCA 2009)... 3 City of Apopka v. Orange County, 299 So. 2d 257 (Fla. 4th DCA 1974)... 7 Cooper Tire and Rubber Co. v. Rodriguez, 2 So. 3d 1027 (Fla. 3d DCA 2009)... 3 Lake Rosa v. Board of County Commissioners, 911 So. 2d 206 (Fla. 5th DCA 2005)... 3 Odham v. Petersen, 398 So. 2d 875 (Fla. 5th DCA 1981)... 7, 8 Orange County v. City of Apopka, 299 So. 2d 652 (Fla. 4th DCA 1974)... 7 Padilla v. State, 905 So. 2d 217 (Fla. 3d DCA 2009)... 3 Red Carpet Corporation of Panama City Beach v. Roberts, 443 So. 2d 377 (Fla. 1st DCA 1983)... 5 Rhyne v. City of Wilton Manors, 392 So. 2d 992 (Fla. 4th DCA 1981)... 3 Seminole Entertainment, Inc. v. City of Casselberry, 866 So. 2d 1242 (Fla. 5th DCA 2004)... 3, 5, 6 State Commission on Ethics v. Sullivan, 430 So. 2d 928 (Fla. 1st DCA 1983)... 5 Topps v. State, 865 So. 2d 1253 (Fla. 2004)...passim ii

4 Treister v. City of Miami, 575 So. 2d 218 (Fla. 3d DCA 1991)... 3 Turcotte v. City of Coconut Creek, 88 So. 3d 296 (Fla. 4th DCA 2012)... 4 Webb v. Town Council of Town of Hilliard, 766 So. 2d 1241 (Fla. 1st DCA 2000)... 7 iii

5 SUMMARY OF ARGUMENT The conflict that the Petitioner relies upon was already resolved by this Court seven years ago. At that time, this Court announced a new, consistent rule that would be applied from that date forward to determine whether a decision on a writ petition would have preclusive effect. The decision of the district court in this case is completely consistent with that new rule announced by this Court. Because the Fourth District s prior decision on the Petitioner s Petition for Writ of Certiorari addressed the merits on its face, it is res judicata as applied to the later proceedings and appeal. When challenging certain land use decisions, a party may have a choice between certiorari and declaratory judgment routes for certain issues. However, the case law is uniform that the challenger must choose one route or the other, and may not pursue both. 1

6 ARGUMENT I. THE PETITIONERS IGNORE THE SEMINAL CASE FROM THIS COURT THAT RESOLVES THE PURPORTED CONFLICT. The Petitioners attempt to discuss the whether an issue decided on an extraordinary writ petition is res judicata without discussing this Court s pivotal decision in Topps v. State, 865 So. 2d 1253 (Fla. 2004). Indeed, the Petitioners do not even cite to Topps except in a quotation from the district court opinion. This glaring analytical omission, reflecting the Petitioners blind spot, demonstrates that there is no conflict. While the Petitioners can and do cite to any number of pre-topps cases standing for the proposition that decisions on writs have no preclusive effect, none of those cases can create conflict jurisdiction in this Court in light of the subsequent decision in Topps that fundamentally changed this Court s approach to extraordinary writs and issue preclusion. Topps has already resolved that conflict. In Topps, this Court catalogued the inconsistencies among its own prior decisions and the decisions of the district courts of appeal regarding whether an unelaborated denial of relief on an extraordinary writ petition should be considered a decision on the merits and therefore effective for issue preclusion purposes. Id. at This Court then recounted its prior, abortive efforts to resolve this inconsistency via rule making, id., followed by the determination to await a proper 2

7 case, id. at Then, this Court concluded that Topps presented the opportunity it had been waiting for to announce a new, consistent rule of law. This Court announced a new rule that would apply henceforth, id. at 1258, and resolve the old conflicts. Subsequent to Topps, any decision on an extraordinary writ petition that clearly shows that the issue was considered by the court on the merits is deemed to have preclusive effect. Id. Even a simple citation of authority, or the inclusion of the phrases with prejudice or on the merits, is sufficient to make a simple denial of a writ petition a preclusive decision on the merits. Id. As demonstrated by the citations in the district court opinion in this case, this principle has been well established both after Topps and in those cases that anticipated the correct rule. See, Lake Rosa v. Board of County Commissioners, 911 So. 2d 206 (Fla. 5th DCA 2005); Seminole Entertainment, Inc. v. City of Casselberry, 866 So. 2d 1242 (Fla. 5th DCA 2004); Treister v. City of Miami, 575 So. 2d 218 (Fla. 3d DCA 1991); Rhyne v. City of Wilton Manors, 392 So. 2d 992 (Fla. 4th DCA 1981). Cases specifically citing Topps have likewise had no difficulty applying this Court s new uniform rule. See, e.g., Chapinoff v. State, 2 So. 3d 1080, 1081, fn.2 (Fla. 3d DCA 2009) (petitions for prohibition decided without addressing merits are not res judicata); Cooper Tire and Rubber Co. v. Rodriguez, 2 So. 3d 1027, 1030 (Fla. 3d DCA 2009) (noting that dismissal of a petition was based on prematurity, and therefore not a comment on the merits.); Padilla v. State, 905 So. 3

8 2d 217, 219 (Fla. 3d DCA 2009) ( the doctrine of collateral estoppel bars a litigant from raising an issue previously raised in an extraordinary writ petition if it is clear that the issue was considered by the court on the merits and relief was denied, (quoting and citing Topps). In its prior ruling on the Petitioners certiorari proceeding under Case No. 4D , the Fourth District did not simply cite an authority or include a touch phrase. The district court actually addressed the merits in the ruling, stating: The circuit court correctly applied section (19)(b), Florida Statutes (2005), when it determined that the subject ordinance, which simply expanded the definition of a permitted use to include a hotel, did not constitute a substantial deviation under the statute. See, Turcotte v. City of Coconut Creek, 88 So. 3d 296, 297 (Fla. 4th DCA 2012) (quoting prior decision). Accordingly, that ruling was on the merits and is preclusive as between the parties. The Petitioners accurately note that the district court s comments in the prior certiorari decision addressed only some of the issues raised in that petition, but not all. The Petitioners inaccurately draw a conclusion that any issues not expressly discussed must not have been considered by the district court and remain open to further litigation. This is contrary to the proper understanding of any appellate court ruling. If a party has cleared the jurisdictional hurdles in a certiorari proceeding so that the merits could be considered at all, the court is presumed to 4

9 have reached all of the merits presented. For example, in State Commission on Ethics v. Sullivan, 430 So. 2d 928 (Fla. 1st DCA 1983), the First District denied relief on a extraordinary writ petition to review interlocutory agency action, and also on a petition for writ of mandamus. Both rulings were on the merits but without discussing the merits, in the form of a per curiam affirmed decision. Id. at 932. The court noted that affirmed necessarily means that the appellate court has carefully examined all points raised by all appealing parties, and found them to be without merit. Id. (internal quotations and citations omitted.) See also, Red Carpet Corporation of Panama City Beach v. Roberts, 443 So. 2d 377 (Fla. 1st DCA 1983), noting that a per curiam affirmance is preclusive. The same analysis applies here. The fact that the court addressed the merits, even in part, in the prior certiorari petition means that the court considered all of the merits raised in the petition. If any arguments were unaddressed in the written opinion, it is only because they did not merit addressing. It does not mean that they were not considered and rejected. This rule applies with equal force to decisions on second-tier certiorari review, notwithstanding Petitioners argument to the contrary. Pet. Am. Jur. Brief at 7-9. In Seminole Entertainment, supra, the Fifth District gave preclusive effect to its prior second-tier certiorari decision when deciding an appeal in a subsequent declaratory judgment action. That is precisely what the Fourth District did in this 5

10 case. More importantly for the sake of this jurisdictional briefing, the Petitioners cannot cite to any decision of another district court of appeal or this Court in conflict with the decision of the Fourth District in this case or the Fifth District in Seminole Entertainment. Such a case would have to expressly hold that the Topps rule is inapplicable to second-tier certiorari decisions in order to create a conflict. No such case exists. Accordingly, this Court lacks discretion to consider that question. The Petitioners may very well have made a strategic error in pursuing certiorari relief prior to pursuing their declaratory judgment action, but any disadvantage resulting therefrom is a self-inflicted wound. Seminole Entertainment, 866 So. 2d at

11 II. THERE IS NO CONFLICT BETWEEN THE DISTRICT COURT DECISION AND DECISIONS REGARDING A PARTY S CHOICE BETWEEN CERTIORARI AND DECLARATORY RELIEF. The Petitioners cite two cases as being in conflict on the issue of a parties choice between pursuing certiorari relief or declaratory judgment. Neither of these cases stand for the proposition that a party may choose to pursue both certiorari and declaratory judgment relief on the exact same claim. Accordingly, there is no conflict. In Webb v. Town Council of Town of Hilliard, 766 So. 2d 1241 (Fla. 1st DCA 2000), the court held that a plaintiff could challenge a zoning action for improper notice by way of declaratory judgment instead of certiorari. It did not hold that the plaintiff could do both. In Odham v. Petersen, 398 So. 2d 875 (Fla. 5th DCA 1981), the footnote relied upon by the Petitioners describes the Apopka Airport cases: Orange County v. City of Apopka, 299 So. 2d 652 (Fla. 4th DCA 1974) and City of Apopka v. Orange County, 299 So. 2d 257 (Fla. 4th DCA 1974). In those cases three cities brought a declaratory judgment action against the county for a declaration that a particular county ordinance did not apply to the cities. Separately, the cities brought a certiorari proceeding challenging the decision of the county to deny a special exception under the same ordinance. The two cases presented entirely separate legal questions, and do not stand as authority for presenting the same 7

12 question multiple times through the different vehicles of certiorari and declaratory judgment. The footnote in Odham actually clarifies that. A party may not raise the same issue in multiple proceedings. Accordingly, none of these cases are in conflict with the decision of the district court in this case and do not support the exercise of this Court s jurisdiction. CONCLUSION For the foregoing reasons, it is respectfully submitted that this Court should deny jurisdiction. Respectfully Submitted, s/ John H. Pelzer JOHN H. PELZER, ESQ. Florida Bar No Primary john.pelzer@gmlaw.com Secondary dotti.cassidy@gmlaw.com GREENSPOON MARDER, P.A. Trade Centre South, Suite W. Cypress Creek Road Fort Lauderdale, Florida Telephone: (954) Facsimile No. (954) Attorneys for the City 8

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by this 17th day of September 2012 in accordance with Florida Rule of Judicial Administration to [see below]. this brief. CERTIFICATE OF COMPLIANCE Undersigned counsel certifies that TIMES NEW ROMAN, 14 pt., is used in s/ John H. Pelzer John H. Pelzer John.pelzer@gmlaw.com Florida Bar Number Counsel of Record: Daniel L. Wallach, Esq., dwallach@becker-poliakoff.com Gary C. Rosen, Esq. grosen@becker-poliakoff.com Alan B. Koslow, Esq. akoslow@becker-poliakoff.com Becker & Poliakoff, P.A Stirling Road Fort Lauderdale, FL (954) Counsel for Petitioners Kenneth G. Spillias, Esq., Primary: kspillias@llw-law.com Secondary: mlozada@llw-law.com Andrew J. Baumann, Esq. Primary: abaumann@llw-law.com Lewis, Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, FL (561) Counsel for Respondent Seminole Properties II John H. Pelzer, Esq. Primary john.pelzer@gmlaw.com Secondary : dotti.cassidy@gmlaw.com Glenn N. Smith, Esq. Primary glenn.smith@gmlaw.com Secondary linda.davis2@gmlaw.com Greenspoon Marder, P.A. 100 W. Cypress Creek Road, Suite 700 Fort Lauderdale, Florida Counsel for Respondent City of Coconut Creek Florida Supreme Court Attn: Clerk's Office 500 South Duval Street Tallahassee, Florida Brief both ed to court, original sent by FedX; copies to counsel as noted. 9