THE SUPREME COURT OF FLORIDA. v. Case No.: SC L.T. No.: 1D /3350

Transcription

1 GRACE ERIS and KAY C. HOWERTON, Appellants/Petitioners, THE SUPREME COURT OF FLORIDA v. Case No.: SC L.T. No.: 1D /3350 DANNY ATKINS and JAN (consolidated) WALKER, Appellees/Respondents. ON REVIEW FROM THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, STATE OF FLORIDA RESPONDENTS JURISDICTIONAL BRIEF MOORE, HILL & WESTMORELAND, P.A. Telephone: (850) ATTORNEYS FOR RESPONDENTS

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS... ii SUMMARY OF ARGUMENT... 1 ARGUMENT... 1 CONCLUSION... 3 CERTIFICATE OF SERVICE... 4 CERTIFICATE OF COMPLYING WITH FONT REQUIREMENTS... 5 i

3 TABLE OF CITATIONS Cases Arad v. Caduceus Self Ins. Fund, Inc., 585 So.2d 1000 (Fla 4th DCA 1991)... 2 Florando Inv. Corp. v. Fried, 412 So.2d 14 (Fla 2d DCA 1982)...1, 2 Mazzoni Farms, Inc. v. E.I. DuPont De Nemours and Company, 761 So.2d 306 (Fla. 2000)... 2 Walker v. Eris, 886 So.2d 414 (Fla. 1st DCA 2004)... 1 ii

4 SUMMARY OF ARGUMENT The decision below in no way conflicts with the decision from the Second District Court of Appeal in Florando Inv. Corp v. Fried, 412 So.2d 14 (Fla. 2d DCA 1982). Both the decision below and the decision in Florando stand for the proposition that, before a court can rescind a transaction, it must first restore the parties to their positions prior to the transaction. Indeed, the decision below simply reaffirms a long line of cases from this and other Florida courts reaffirming that fundamental principle of law. Because there is no conflict, this Court lacks jurisdiction to review the decision below and the petition should be denied. ARGUMENT It is unclear exactly why the Petitioners believe that the decision below expressly and directly conflicts with the decision in Florando. But even a cursory review of the Florando decision, and a brief review of the principle of law relied upon by the district court below, demonstrates that there is no basis for this Court to exercise its conflict jurisdiction. First, Florando is entirely consistent with the decision below. In this case, the district court reversed the trial court because the final judgment rescinding the deed and mortgage could not and did not restore the parties to the status quo ante. Walker v. Eris, 886 So.2d 414, 415 (Fla. 1st DCA 2004). Contrary to Petitioners suggestion, that is precisely the relief that the court in Florando held 1

5 was required by Florida law. See Florando, 412 So.2d at 15 (holding that the trial court, on remand, should devise a formula by which the parties would be placed, as nearly as possible, in their original respective positions ). Second, the rule relied upon by the district court below is not only consistent with Florando, but is also consistent with a long line of cases from this and other Florida courts on the same issue of law. See, e.g., Mazzoni Farms, Inc. v. E.I. DuPont De Nemours and Company, 761 So.2d 306, 313 (Fla. 2000) ( a prerequisite to rescission is placing the other party in status quo ); Arad v. Caduceus Self Ins. Fund, Inc., 585 So.2d 1000, 1004 (Fla 4th DCA 1991) ( [w]hen rescinding a contract, the parties are to be restored to their original positions ). CONCLUSION For the foregoing reasons, Respondents respectfully request that the Court deny the petition for review because there is no express and direct conflict between the decision below and any other Florida case on the same issue of law. MOORE, HILL & WESTMORELAND, P.A. (850) ATTORNEY FOR RESPONDENTS 2

6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing INITIAL BRIEF OF APPELLANTS has been furnished to R. John Westberry, Esquire, Holt & Westberry, P. L., 1108-A North 12 th Avenue, Pensacola, Florida and to Mark Lee Smith, Esquire, 224 E. Garden Street, Suite 3, Pensacola, Florida by hand delivery this 10th day of January, MOORE, HILL & WESTMORELAND, P.A. Telephone: (850) ATTORNEY FOR RESPONDENTS 3

7 CERTIFICATE OF COMPLYING WITH FONT REQUIREMENTS I HEREBY CERTIFY that the foregoing RESPONDENTS JURISDICTIONAL BRIEF has been prepared in Times New Roman 14-point font as required by the Florida Rules of Appellate Procedure. MOORE, HILL & WESTMORELAND,P.A. Telephone: (850) ATTORNEY FOR RESPONDENTS 4