IN THE SUPREME COURT OF FLORIDA Jerome S. Rydell and Dale E. Krueger, individually and derivatively, on behalf of the shareholders of Surf Tech International, Inc., and Sigma Financial Corporation, a Michigan corporation, Petitioners Docket No. SC03-3280 v. Fifth District Docket No. 5D02-3280 Gorham Rutter, Jr., K. Michael Swann, Esq., Snyderburn, Rishoi & Swann, And Surf Tech International, Inc., a Florida corporation, Respondents. / JURISDICTIONAL BRIEF OF PETITIONERS On Discretionary Review of the District Court of Appeal, Fifth District, State of Florida Jack W. Shaw, Jr. Florida Bar # 124802 MOTES & CARR, P. A. 3751 Maguire Blvd., Ste. 104 P. O. Box 194205 Orlando, Florida 32814-9205 (407) 897-6909 Fax: (407) 897-6949 Attorneys for Petitioners TABLE OF CONTENTS PAGE
Table of Contents I Table of Authorities....ii Statement of the Case and Facts.. 1 Summary of Argument 2 Argument THE DECISION OF THE FIFTH DISTRICT IN THE INSTANT CASE IS IN DIRECT AND EXPRESS CONFLICT WITH A PRIOR DECISION OF THE FOURTH DISTRICT COURT OF APPEAL AS TO WHETHER A TRIAL COURT ORDER STAYING FURTHER PROCEEDINGS UNTIL A SANCTIONS AWARD IS PAID CONSTITUTES IRREPARABLE INJURY SUFFICIENT TO SUPPORT REVIEW BY COMMON LAW CERTIORARI...3 Conclusion...5 Certificate of Service...6 Certificate of Font Size...7 i
TABLE OF AUTHORITIES Page Cases: Malone v Costin, 410 So.2d 569 (Fla. 1 st DCA 1982) 3, 4 Rydell v Rutter, 2002 WL 31729328, 27 FLW D2598 (Fla. 5 th DCA 2002).3 Tuccicaselli v Greene, 474 So.2d 1288 (Fla. 4 th DCA 1985)..2, 4, 5 Constitutional Provisions: Article V, Section 3(b)(3), Florida Constitution.2, 5 Statutes: Florida Statutes Section 57.105...1 ii STATEMENT OF THE CASE AND FACTS
This cause arises out of a shareholders derivative legal malpractice action by Petitioners against Respondents. A discovery dispute arose during the proceedings in the trial court, and Respondents filed a motion requesting sanctions against Petitioners under Florida Statutes Section 57.105, both in connection with the discovery dispute and in connection with a claim by Respondents that Petitioners had instituted a shareholders derivative suit in the name of two corporate entities when Petitioners had never been officers, directors, or shareholders of those corporations, and had thereby committed a fraud on the court. (Appendix, page 2) After a hearing, the trial court entered its order awarding sanctions, reserving the determination of the amount of the sanction to be awarded for resolution after an additional hearing, and staying all proceedings until the amount of the sanction was determined and the amount awarded as sanctions was paid in full. (Appendix, pages 2-3) Petitioners sought review in the Fifth District Court of Appeal by petition for writ of common law certiorari. By decision dated December 6, 2002, the Fifth District Court of Appeal held that Petitioners had failed to show the irreparable injury required for certiorari review, and denied the 1 petition. (Appendix, pages 1-5). A timely motion for rehearing was likewise denied on January 10, 2003. (Appendix, page 6). Petitioners filed their Notice Invoking Discretionary Jurisdiction, accompanied by a Motion for Stay of Mandate Pending Review, on January 27, 2003.
SUMMARY OF ARGUMENT In the present case, the Fifth District Court of Appeal has held that there is no irreparable injury sufficient to support review by common law certiorari when a trial court imposes sanctions on a party and expressly stays all further proceedings until such time as the sanction award has been determined and then paid. That decision is in direct and express conflict with the decision of the Fourth District Court of Appeal in Tuccicaselli v Greene, 474 So.2d 1288 (Fla. 4 th DCA 1985), in which the Fourth District held that the imposition of a stay pending payment of such a sanctions award does constitute an irreparable injury which will support review by common law certiorari. Accordingly, this Court has jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, and should exercise its jurisdiction to resolve that conflict and harmonize Florida law on this issue. 2 ARGUMENT THE DECISION OF THE FIFTH DISTRICT IN THE INSTANT CASE IS IN DIRECT AND EXPRESS CONFLICT WITH A PRIOR DECISION OF THE FOURTH DISTRICT COURT OF APPEAL AS TO WHETHER A TRIAL COURT ORDER STAYING FURTHER PROCEEDINGS UNTIL A SANCTIONS AWARD IS PAID CONSTITUTES IRREPARABLE INJURY SUFFICIENT TO SUPPORT REVIEW BY COMMON LAW CERTIORARI.
In the instant case, the trial court stayed all further proceedings in this matter until the amount of sanctions to be awarded has been determined and that award has thereafter been paid in full. Petitioners sought review of that order by petition for common law certiorari, but the Fifth District Court of Appeal denied the petition on the grounds that Petitioners had failed to show any irreparable injury not subject to correction on plenary appeal. Rydell v Rutter, 2002 WL 31729328, 27 FLW D2598 (Fla. 5 th DCA 2002). After noting that the determination that an award of fees is appropriate does not itself constitute an irreparable injury, citing Malone v Costin, 410 So.2d 569 (Fla. 1 st DCA 1982), the Fifth District reasoned that the ultimate amount of the fee award could be an important factor in determining if there was irreparable injury. The Fifth District rejected the claim that the imposition of 3 a stay until the award was paid in full constituted the required irreparable injury. The Fifth District stated (slip opinion at 4-5) that if the amount eventually awarded was unreasonably high in relation to the misconduct, thereby leading to financial hardship or effectuating a permanent stay due to [Petitioners ] inability to make payment certiorari review might then be appropriate. In Tuccicaselli v Greene, 474 So.2d 1288 (Fla. 4 th DCA 1985), the court held that certiorari was available to review an order which not only imposed attorneys fees as sanctions for a discovery violation (failing to proceed in the taking of certain depositions the sanctioned party had scheduled), but also prohibited the petitioner in that case from taking any additional depositions until the sanctions were paid; the District Court distinguished the holding of the First District in Malone v Costin, 410 So.2d 569 (Fla. 1 st DCA 1982), and held that this additional aspect of the order caused harm which could not be remedied by appeal following final judgment, and thus that review by certiorari was appropriate. The Fourth District stated (474 So.2d at 1289): That aspect of the order, in our judgment, warrants the granting of certiorari review because the harm caused, if any, cannot necessarily be rectified on plenary appeal.
4 Thus, if a litigant in the Fourth District has sanctions imposed as a result of a discovery violation, and the trial court enters a stay of further proceedings in the cause until the award is paid, that litigant has suffered irreparable injury not subject to remedy on plenary appeal and may seek review by common law certiorari. However, if the same litigant is in the Fifth District, that litigant has not suffered irreparable injury and may not seek review by common law certiorari. The Fourth and Fifth District Courts of Appeal are in direct and express conflict on this question of law, and this Court has jurisdiction to resolve this conflict of decisions. CONCLUSION The decision of the Fifth District Court of Appeal in the instant cause is in express and direct conflict with the decision of the Fourth District Court of Appeal in Tuccicaselli v Greene, 474 So.2d 1288 (Fla. 4 th DCA 1985), on the same question of law. This Court accordingly has jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, and should exercise that jurisdiction to resolve the conflict and harmonize the law of Florida on this issue. 5 Respectfully Submitted, MOTES & CARR, P. A. Richard E. Whitaker Florida Bar No. 547220
Jack W. Shaw, Jr., P. A. Florida Bar No. 124802 3751 MAGUIRE BLVD., STE. 104 P. O. Box 149205 Orlando, FL 32814-9205 Telephone: (407) 897-6909 Facsimile: (407) 897-6949 and JOSEPH H. SPIEGEL, P.C. Joseph H. Spiegel (P39048) 825 Victors Way, Ste. 300 Ann Arbor, Michigan 48108 (734) 761-8475 Attorneys for Petitioners CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF THE FOREGOING WAS FURNISHED BY U. S. MAIL, POSTAGE PREPAID, TO THE HONORABLE TED COLEMAN, CIRCUIT JUDGE, 425 N. ORANGE AVE., STE. 1720, ORLANDO, FL 32801; WILLIAM M. RISHOI, ESQUIRE, AND PHILIP J. SNYDERBURN, ESQUIRE, SNYDERBURN, RISHOI & SWANN, CAPITAL PLAZA TWO BUILDING, 301 E. PINE STREET, SUITE 1020, ORLANDO, FL 32801; GORHAM RUTTER, JR., ESQUIRE, POST OFFICE BOX 915454, LONGWOOD, FL 32791-5454; BOGIN, MUNNS & MUNNS, 250 N. ORANGE AVE., SUITE 1001, ORLANDO, FL 32803; AND TO KENNETH D. MORSE, ESQUIRE, 390 NORTH ORANGE AVE., SUITE 2100, ORLANDO, FL 32801, THIS DAY OF JANUARY, 2003. 6 ATTORNEY CERTIFICATE OF FONT SIZE I HEREBY CERTIFY that this brief was prepared in 14 point Times New Roman type. Attorney
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