IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA CASE NO. SC11-352 THE VILLAS DEL VERDE HOMEOWNERS ASSOCIATION, INC., Petitioner, vs. CLARK H. SCHERER, III, Respondent. ON DISCRETIONARY REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL Case No.: 2D09-5547 PETITIONER S AMENDED BRIEF ON JURISDICTION Respectfully submitted, DEEB & DURKIN, P.A. Brian P. Deeb, Esq. Florida Bar No.: 500534 Nicole E. Durkin, Esq. Florida Bar No.: 0078069 5999 Central Avenue, Suite 202 St. Petersburg, Florida 33710 (727) 384-5999 (727) 384-5979 (facsimile) Counsel for Petitioner

TABLE OF CONTENTS TABLE OF AUTHORITIES... I STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 I. THE SECOND DISTRICT COURT OF APPEAL S DECISION IS A MISAPPLICATION OF THIS COURT S DECISION IN MURTHY AND CREATES EXPRESS AND DIRECT CONFLICT AS THIS COURT DID NOT LIMIT OR ABSOLVE QUALIFYING AGENTS FROM LIABILITY BROUGHT UNDER FLORIDA STATUTES OTHER THAN CHAPTER 489. CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE... 11

TABLE OF AUTHORITIES CASES: Comptech International, Inc. V. Milam Commerce Park, Ltd., 753 So.2d 1219 (Fla. 2000)... 9 Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006)... 4 Evans v. Taylor, 711 So. 2d 1317 (Fla. 3d DCA 1998)... 8 Knowles v. State of Florida, 848 So. 2d 1055 (Fla. 2003)... 4 Murthy v. N. Sinha Corp., 644 So. 2d 983 (Fla. 1994)... passim Pinkerton-Hays Lumber Company, Inc. v. Pope, 127 So. 2d 441 (Fla. 1961)... 5 Robertson v. State of Florida, 829 So. 2d 901 (Fla. 2002)... 4 Wale v. Barnes, 278 So. 2d 601, 602-604 (Fla. 1973)... 5 STATUTES: Chapter 489, Florida Statutes... passim Chapter 553, Florida Statutes... passim Specific Statute: 553.84, Florida Statutes... passim FLORIDA CONSTITUTION: Art. V, x. 3(b)(3), Fla. Const... 4, 5

RULES: Rule 9.210, Fla.R.App.P... 11

STATEMENT OF THE CASE AND FACTS Petitioner, The Villas Del Verde Homeowner s Association, Inc (hereinafter The Villas ), a sixty-two unit townhome community filed its multi-count suit against CFS Gulfport, LLC (hereinafter CFS ), the developer, Scherer Construction & Engineering, LLC (hereinafter Scherer Construction ), the general contractor and Clark H. Scherer, III (hereinafter Clark Scherer ) the contractor s qualifying agent, owing to defects in the community s construction. (A.2) 1. After non-jury trial, the circuit court found work performed did not comply with the Florida Building Code and awarded over one million dollars in damages jointly and severally against the three parties. (A. 2). The Villas single cause of action against the qualifying agent, Clark Scherer, was brought pursuant to 553.84, Florida Statutes which creates a civil action for building code violations. (A. 3). Neither corporate defendant appeared or defended the claims brought or judgment entered. (A. 2). The trial court determined Clark Scherer, by his action and inaction, committed violations of the Florida Building Code. (A. 3). Clark Scherer filed his appeal to the Second District Court of Appeal. The Second District misapplied the holding of this Honorable Court s decision in 1 Reference to the Second District Court of Appeals decision is made by notation of A. followed by appropriate page number. 1

Murthy v. N. Sinha Corp., 644 So. 2d 983 (Fla. 1994) and issued its opinion in express and direct conflict with this Honorable Court s decision in Murthy. 2

SUMMARY OF THE ARGUMENT The Florida Supreme Court should exercise its discretionary jurisdiction as the Second District s decision is a misapplication of Murthy, 644 So. 2d 983 (Fla. 1994) and therefore expressly and directly conflicts with this Honorable Court s decision in said case. The Second District, relying upon its own interpretation of Murthy in reversing the trial court, incorrectly held the Florida Supreme Court was confronted with exactly this scenario and therefore was controlling. Contrary to the Second District s opinion, the factual scenario and pleadings at issue are not identical and the Murthy Court did not make conclusions of law apart from stating Chapter 489 does not create a private cause of action. In Murthy, this Honorable Court was confronted with the sole question of whether a claim brought pursuant to Chapter 489, Florida Statutes, could sustain a cause of action against a corporation s qualifying agent. The Florida Supreme Court did not hold that the qualifying agent is forever insulated from liability under statutes other than Chapter 489, such as 553.84, or common law causes of action. This Honorable Court did, however, clarify Chapter 489 does not, alone, create a private cause of action against the qualifying agent and recognized a private cause of action could be brought against a qualifying agent under other theories of recovery. 3

I. THE SECOND DISTRICT COURT OF APPEAL S DECISION IS A MISAPPLICATION OF THIS COURT S DECISION IN MURTHY AND CREATES EXPRESS AND DIRECT CONFLICT AS THIS COURT DID NOT LIMIT OR ABSOLVE QUALIFYING AGENTS FROM LIABILITY BROUGHT UNDER FLORIDA STATUTES OTHER THAN CHAPTER 489. This Honorable Court should exercise its discretionary jurisdiction to resolve the Second District Court of Appeal s misapplication of the Florida Supreme Court s decision in Murthy v. N. Sinha Corp., 644 So. 2d 983 (Fla. 1994) resulting in express and direct conflict with said decision. The misapplication of this Court s decision creates conflict jurisdiction for this Court to invoke its discretionary jurisdiction pursuant to Art. V, 3(b)(3), Fla. Const.; see also Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006)(express and direct conflict may be based upon the misapplication of a decision); Knowles v. State of Florida, 848 So. 2d 1055 (Fla. 2003)(district court s misapplication of Florida Supreme Court decision conferred jurisdiction); Robertson v. State of Florida, 829 So. 2d 901 (Fla. 2002)(district court misapplied Florida Supreme Court s holding and was in conflict with another district opinion creating conflict by misapplication and conferring jurisdiction under Art. V of Florida Constitution). Upon the District Court of Appeal s misapplication of the principles and points of law appearing in the Murthy case, a direct conflict on the same point of 4

law within the meaning and intent of Article V. of the Florida Constitution is created. Pinkerton-Hays Lumber Company, Inc. v. Pope, 127 So. 2d 441 (Fla. 1961). The District Court in Pinkerton-Hays accepted a decision of the Supreme Court as controlling precedent, but then attributed to that decision a patently erroneous and unfounded principal of law creating direct conflict. Id. at 442. In the case at issue, the District Court attributed to the Murthy case a point of law which was simply not an issue presented or decided by the Florida Supreme Court. The Murthy case is not, therefore, controlling precedent on the issue presented to the Second District Court. Furthermore, even if the Murthy case was accepted by the Second District as controlling precedent, the factual situation under review is materially distinguishable from that in Murthy. The misplaced reliance upon the Murthy case constitutes a misapplication of law and vests this Honorable Court with conflict certiorari jurisdiction. Wale v. Barnes, 278 So. 2d 601, 602-604 (Fla. 1973). In 1994, this Honorable Court held Chapter 489, the regulatory and penal statutes governing the construction industry, does not, in and of itself, create a private cause of action against the statutory qualifying agent. Murthy, 644 So. 2d 983 (Fla. 1994). The Florida Supreme Court clarified no private cause of action is created against the qualifying agent under Chapter 489. Nowhere in the Murthy 5

decision, however, did this Court find the primary qualifying agent may never be held liable for his action or inaction in performing his duties enumerated in Chapter 489 pursuant to another Florida Statute, such as 553.84 or under common law theories. The Second District, however, incorrectly misapplied Murthy and relied upon speculation as to the underlying Murthy factual scenario and presumptions not commented upon or otherwise at issue, in subsequently reversing the trial court s decision. The result, albeit with the Second District s expressed frustration, provides the individual qualifying agent an absolute shield to liability under all statutes and results in the erroneous bar to any liability. In reaching its opinion, the Second District speculated the reason the Florida Supreme Court affirmed the dismissal at the pleading stage of the 553 claim in Murthy was because the owners had not alleged that Sinha himself committed a building code violation. However, nowhere in Murthy was this allegation discussed or relied upon. It does not appear the Second District was confident in the underlying factual scenario to support the reasoning behind the Supreme Court s decision to affirm the motion to dismiss, stating it seems to us that the supreme court followed this course because the owners had not alleged that Sinha himself committed a building code violation. (A. 5). The Second District went on to 6

speculate from the absence of facts...suggesting otherwise that the qualifying agent was not the party who committed the alleged building code violation. (A. 5). The confusion is understandable, however, in the case at hand, the trial court was not looking at the 553.84 claim on a motion to dismiss, but had conducted a nonjury trial, heard all evidence including specifically Clark Scherer s actions and inaction, and found him liable for the violations of the Florida Building Code. Contrary to the Second District s opinion, the trial court did not hold that Clark Scherer s failure to supervise was a violation of the Florida Building Code. The trial court held that Clark Scherer, through his actions or inactions, committed specifically enumerated violations of the Florida Building Code. The difference is absolute. This Court, in Murthy, specifically recognized the viability of other causes of action such as a common law theory of negligence. Exactly such a cause of action for violation of the Florida Building Code under Florida Statute 553.84, and not Chapter 489, was pled and proven in the case at issue. Other than the fact that a cause of action was also pled under Chapter 553 in Murthy, the Murthy Court s affirmance of the dismissal of the Chapter 553 action after motion to dismiss cannot be properly extended to result in the absolute bar of claims against a qualifying agent brought under Florida Statutes other than Chapter 489. 7

The Florida Supreme Court in Murthy recognized Chapter 489 provides administrative remedies against a qualifying agent but that it does not expressly provide for a civil cause of action. Id. at 983. This Court chose not to, in any way, limit or absolve the qualifying agent of individual liability pursuant to statutes outside of Chapter 489, or via common law causes of action. The civil cause of action brought and proven in the case at issue, however, was provided for and brought pursuant to Chapter 553. The very possibility of such civil claims against the statutory qualifying agent has been recognized by District Court s subsequent to Murthy. The Third District Court of appeal in Evans v. Taylor, decided after Murthy and cited by Clark Scherer, clearly confirms a civil cause of action against the qualifying agent brought pursuant to another Chapter is absolutely permissible. 711 So. 2d 1317 (Fla. 3d DCA 1998). In Evans, the plaintiff brought its action against the qualifying agent under Chapter 501 and not Chapter 489. The plaintiff, however, did absolutely rely upon the duties imposed on a qualifying agent under Chapter 489. The Third District Court of Appeal stated: The trial court erred in entering summary judgment in favor of Taylor, as the action is not barred by Murthy. In this case, unlike the plaintiffs in Murthy, the homeowners did not seek relief against the qualifying agent pursuant to Chapter 489, Florida Statutes; they sought relief under Chapter 501 for unfair and deceptive trade practices. 8

(Emphasis added) Both Clark Scherer, and the Second District, appear to read the case to the contrary relying entirely upon the Third District s subsequent statement in acknowledging the plaintiff also alleged the qualifying agent performed work on the project. This statement, however, does not alter the Florida Supreme Court s holding recited above in recognizing the relief sought was pursuant to Chapter 501 and not 489 and that Murthy, therefore, did not bar the claim. Count VII of the Villas Amendment to the Amended Complaint is not brought pursuant to Chapter 489, rather Chapter 553 (neither a construction industry regulatory or penal statute). As such, Murthy offers no support for Clark Scherer s attempt to relieve himself of individual liability for violations of the Florida Building Code when he should have known existed, through the dispatch of his nondelegable duty as the primary qualifying agent. The statutory cause of action brought pursuant to 553.84 uses language that is unmistakably clear that the remedy provided therein is in addition to any other remedies that may be available. Comptech International, Inc. V. Milam Commerce Park, Ltd., 753 so.2d 1219 (Fla. 2000). It is undisputed, this Court s decision in Murthy clarified no private cause of action is created by Chapter 489. The Florida Supreme Court s decision did not, however, insulate a qualifying agent such as Clark Scherer for violations of the Florida Building Code pursuant to 553.84 as pled and proven at trial in this 9

case. The Second District s misapplication of Murthy to provide such insulation from liability, even begrudgingly, is in direct and express conflict with this Court s decision and the invocation of discretionary jurisdiction is appropriate. CONCLUSION In light of the Second District Court of Appeal s misapplication of this Court s opinion in Murthy, resulting in express and direct conflict, Petitioner respectfully submits this Honorable Court invoke its discretionary jurisdiction and accept this case for review. 10

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Answer Brief has been furnished by U.S. Mail to Raymond T. Elligett, Jr. Esq., Buell & Elligett, 3003 W. Azeele Street, Suite 1000, Tampa, Florida 33609 and Brian A. Leung, Esq., Holcomb & Mayts, P.L., 201 N. Armenia Avenue, Tampa, Florida 33609, Attorneys for Appellee, on this day of March, 2011. DEEB & DURKIN, P.A. By: BRIAN P. DEEB, ESQUIRE FLA BAR NO.: 500534 NICOLE E. DURKIN, ESQUIRE FLA BAR NO.: 0078069 5999 Central Avenue, Suite 202 St. Petersburg, FL 33710 (727) 384-5999 (727) 384-5979 (facsimile) CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Answer Brief complies with the requirements of Rule 9.210, Fla.R.App.P. and has been prepared using 14-point Times New Roman type, a font that is proportionately spaced. DEEB & DURKIN, P.A. By: BRIAN P. DEEB, ESQUIRE FLA BAR NO.: 500534 11