IN THE SUPREME COURT OF FLORIDA CASE NO.: SC 06-1654 FOREST RIVER, INC. Petitioner/Defendant, vs. JOSEPH GELINAS, Respondent/Plaintiff. ON REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL WEST PALM BEACH, FLORIDA Case no.: 4D05-2656 RESPONDENT JOSEPH GELINAS S SECONDED AMENDED ANSWER BRIEF ON JURISDICTION Patrick S. Cousins for Joseph Gelinas Florida Bar no. 845469 COUSINS LAW FIRM, P.A. 330 Clematis Street, Suite 218 West Palm Beach, FL 33401 (561) 835-1727 (561) 835-0766 (fax) cuzlaw@yourlemon.com i
TABLE OF CONTENTS Table of Citations iii, iv Jurisdictional Questions Presented.. 1 There is no express and direct conflict between the Fourth District Court of Appeal opinion and any Supreme Court of Florida or any other Florida District Court of Appeal decision. The decision sought to be reviewed does not expressly affect a class of constitutional or state officers. Statement of the Case and Facts 1 Summary of the Argument...3 Argument..3 Conclusion 8 Certificate of Service 9 Certificate of Compliance with Font Requirement..9 ii
TABLE OF CITATIONS Cases Bohnsack v. Amsouth Bank, 731 So.2d 28 (Fla. 1 st DCA 1999)...5 Burns v. DaimlerChrysler Corp., 914 So.2d 451, 453-54 (Fla. 4 th DCA 2005)... 5, 8 Ford Motor Co. v. Kikas, 401 So.2d 1341 (Fla. 1981)...4 Gelinas v. Forest River, Inc., 931 So.2d 970 (Fla. 4 th DCA 2006)... 2, 3 Gordon v. Gordon, 59 So.2d 40 (Fla. 1952)... 5, 6 Greenstein v. Greenbrook, 443 So.2d 296 (Fla. 3 rd DCA 1982)... 5, 6 Hay v. Salisbury, 109 So.2d 617 (Fla. 1926)... 5, 6 In re Haskin s Estate, 63 So.2d 320 (Fla. 1953)...5 Jollie v. State, 405 So.2d 418 (Fla. 1981)...4 Mims v. Reid, 98 So.2d 498 (Fla. 1957)...5 Price v. Tyler, 890 So.2d 246 (Fla. 2004)...5 State Board of Health v. Lewis, 149 So.2d 41 (Fla. 1963)...7 State v. McBride, 848 So.2d 287 (Fla. 2003)...5 Woodson v. Woodson, 89 So.2d 665 (Fla. 1956)... 5, 6 Constitutional Provisions Florida Constitution, Article V, Section 3(b)(3)...4 iii
Other Authorities Harry Lee Anstead, et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, 512 (2005)... 4, 7 Rules Florida Rules of Appellate Procedure, Rule 9.030(a)(2)(A)(iv)...4 Statutes Florida Statutes Chapter 681... 2, 8 iv
JURISDICTIONAL QUESTIONS PRESENTED The Petitioner (hereinafter Forest River ) seeks discretionary review, in the Florida Supreme Court, of a decision by the Fourth District Court of Appeal, alleging two jurisdictional arguments (and a third argument on the merits) for this Court to take jurisdiction: 1. Does a decision that permits a consumer to seek civilly attorney s fees, pursuant to the Florida Lemon Law statute, expressly and directly conflict with any decision of this court or with any decision of any other circuit court of appeal court on the same question of law? The Fourth District Court of Appeal held (by implication): No conflict. 2. Does a decision that permits a consumer to seek civilly attorney s fees, pursuant to the Florida Lemon Law statute, expressly affect any constitutional officers or a class of state officers? The Fourth District Court of Appeal held (by implication): No effect on any constitutional officers or a class of state officers. STATEMENT OF THE CASE AND FACTS Nature of the case: The case is a civil claim by a Plaintiff/Appellant/ Respondent (hereinafter Gelinas ) against the Defendant/Appellee/Petitioner 1
(hereinafter Forest River ) for pecuniary losses incident to the purchase of a recreational vehicle ( RV ). R. Vol. 1, pp. 1-8. Gelinas experienced defects in the RV and completed arbitration proceedings under the Florida Lemon Law, Florida Statutes Chapter 681. Id. Gelinas won an award determining that the RV was a lemon and ordering Forest River to repurchase the vehicle. Id. Neither party appealed the arbitration award, which became final. In this civil action, Gelinas sought additional damages for pecuniary loss and attorney s fees (Id.) which were not eligible for compensation by the arbitration proceedings. After Summary Judgment in favor of Forest River, Gelinas appealed. Gelinas also appealed an award of attorney s fees and costs in favor of Forest River. R. Vol. 3, pp. 448-9. On appeal, the Fourth District Court of Appeal reversed the circuit court s rulings in Gelinas v. Forest River, Inc., 931 So.2d 970 (Fla. 4 th DCA 2006). Forest River now seeks supreme court discretionary review of that decision. Forest River argues that Gelinas submitted an arbitration application wherein a box was checked to indicate that Gelinas had no attorney fees or other incidental damages. (Petitioner s Brief on Jurisdiction, p. 4). Gelinas points out that Forest River relies on an Appendix now stricken from the record; examination shows the application was never signed; the application is dated April 4, 2000, before Gelinas incurred any of the damages sought; and this application has no bearing on either 2
of the jurisdictional issues before the court. Gelinas therefore urges this Court to disregard that portion of Forest River s Statement of the Case. SUMMARY OF THE ARGUMENT First issue: The decision at issue does not expressly and directly conflict with any decision of any district court of appeal or the supreme court. A. Petitioner fails to identify any decision in express and direct conflict with the case at issue. B. Cases cited by Petitioner are distinguishable. Second issue: The decision at issue does not affect any constitutional officers or class of state officers. A. The Florida New Motor Vehicle Arbitration Board is not a constitutional officer. B. The Florida New Motor Vehicle Arbitration Board is not a class of state officers. C. The decision at issue does not affect any state officer: The decision does nothing to expand or contract the powers of the Arbitration Board. ARGUMENT I. The Florida Supreme Court should decline discretionary jurisdiction because Gelinas v. Forest River, Inc., 931 So.2d 970 (Fla. 4 th DCA 2006) does 3
not expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law. This is the standard articulated in The Florida Constitution, Article V, Section 3(b)(3), and in Florida Rules of Appellate Procedure, Rule 9.030(a)(2)(A)(iv). The Gelinas case does not expressly conflict with any other decision. It has been written that: As a result of the 1980 [Constitutional] reforms and the cases construing them, the Court potentially has conflict jurisdiction only over a district court decision containing at least a statement by a majority or a majority citation to authority. Harry Lee Anstead, et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, 512 (2005) citing Jollie v. State, 405 So.2d 418 (Fla. 1981); Ford Motor Co. v. Kikas, 401 So.2d 1341 (Fla. 1981). By the terms of the Constitution and the Rule, there must be an express conflict and if the conflict is implicit or implied it is insufficient. As argued herein, there is no conflict with other applicable law, and certainly no express or identified conflict. Res judicata is not applicable here. Forest River urges a holding that a consumer may not seek attorney s fees or pecuniary loss damages in circuit court when Lemon Law arbitration does not award those elements. Gelinas responds that these items (1) as a matter of fact, were not sought in the arbitration, and (2) as a matter of law, could not be awarded by arbitration. The damages of attorney s fees Gelinas sued for, i.e., failure to re-title the RV, and an adjustment to the offset for 4
use, had not arisen when his arbitration took place. Moreover, the Arbitration Board lacks authority to decide these claims. See Burns v. DaimlerChrysler Corp., 914 So.2d 451, 453-54 (Fla. 4 th DCA 2005). Without this identity of the thing sued for the doctrine of res judicata has no application. Bohnsack v. Amsouth Bank, 731 So.2d 28 (Fla. 1 st DCA 1999). The cases Forest River relies on are not in conflict with the case sought to be reviewed. Forest River cites several cases allegedly conflicting with the case sought to be reviewed: Price v. Tyler, 890 So.2d 246 (Fla. 2004); State v. McBride, 848 So.2d 287 (Fla. 2003); Mims v. Reid, 98 So.2d 498 (Fla. 1957); Woodson v. Woodson, 89 So.2d 665 (Fla. 1956); In re Haskin s Estate, 63 So.2d 320 (Fla. 1953); Gordon v. Gordon, 59 So.2d 40 (Fla. 1952); Hay v. Salisbury, 109 So.2d 617 (Fla. 1926); and Greenstein v. Greenbrook, 443 So.2d 296 (Fla. 3 rd DCA 1982). Price, supra, is distinguishable because in that case there was no contract nor any statute providing for an award of attorney s fees. Here we have Florida Statutes Section 681.112, which specifically provides for an award of attorney s fees. In McBride, supra, a criminal defendant sought the same relief twice and the trial court denied relief. Here, Gelinas sought relief in circuit court that he never 5
sought before; nor could he, in the arbitration below. 1 Mims, supra, was a classic case of res judicata. A plaintiff in a personal injury case settled with a consent decree, and then attempted to sue again on the same accident. Unlike the instant case, the same issues were resolved below. Similarly, Woodson, supra, was a case where plaintiff s first case alleged gross negligence and failed. The plaintiff tried to re-sue, the second time for simple negligence. The trial court there, unlike the arbitrator here, had the power to decide all issues in the first case. In Haskin s, a woman filed for recognition as a common law wife in the probate court, where she lost. She appealed to the circuit court and the district court of appeal next, losing at each step. When she finally sued in the circuit court, she was barred by res judicata. Unlike the case at bar, Ms. Haskins asked for identical relief at each level, before tribunals with jurisdiction to hear her issues. The Gordon case, supra, was a divorce case. A woman who had been denied a divorce in another state was actually permitted to sue for divorce, again, in Florida. In Hay, supra, a party attempted to attack collaterally an order for specific performance. In the case at bar, Gelinas does not attack the arbitration result at all. In Greenstein, supra, also a specific performance case, the plaintiff lost his specific performance action and then later tried to sue for damages on the same contract. He failed because the first court, unlike the arbitrator in the instant case, had full power to decide all issues. 1 Gelinas requested the adjustment for use from the Arbitration Board, which declined to rule, stating that this was a matter for civil litigation. 6
II. The Supreme Court should decline jurisdiction because the decision at issue does not affect any constitutional officers or a class of state officers. The Florida New Motor Vehicle Arbitration Board is not a constitutional officer. A constitutional officer is defined as A government official whose office is created by a constitution, rather than by a statute; one whose term of office is fixed and defined by a constitution. Black s Law Dictionary, 8 th Ed. 2004. See, also, Ballentine s Law Dictionary, 3 rd Ed. 1969. The Florida New Motor Vehicle Arbitration Board is not a class of state officers. A single board (the Florida New Motor Vehicle Arbitration Board is a single board) is not a class of state officers even if that board has multiple members, all of whom may be affected. State Board of Health v. Lewis, 149 So.2d 41 (Fla. 1963); see, also, Harry Lee Anstead, et al., supra, pp. 509-10. The decision sought to be reviewed does not affect any state officers. The decision at issue does not affect the Florida New Motor Vehicle Arbitration Board. The Board was not a party and is not ordered to do anything or to stop doing anything. At most, the observation that the Board lacks the power to determine attorney s fee awards was dicta. The Board will continue to act as it always has. This kind of dicta does not rise to the level of requiring discretionary jurisdiction. See Harry Lee Anstead, et al., supra, p 510. 7
III. Third issue: The Fourth DCA correctly decided this case. This issue, not properly a jurisdictional issue at all, was briefed by Forest River. The thrust of the Forest River argument is that the damages sought in this civil case could have been claimed in the arbitration and were not. As determined in Burns, supra, the Gelinas procedure is not improper. The Arbitration Board did not have the power to decide the issue of attorney s fees. The Board itself declined to rule on the mileage adjustment, referring the parties to the court system instead. The costs of Forest River s failure to transfer title did not arise until long after the arbitration was completed. If a consumer is to recover attorney fees at all, as he is entitled under Florida Statutes 681.112, then it must be in the manner Gelinas sought his remedy. Conclusions (1) There is no direct and express conflict between the case at bar and any other District Court of Appeal or Supreme Court decision; (2) The decision sought to be reviewed does not affect any constitutional officers or a class of state officers; (3) The decision was correct and requires no further review. For all the foregoing reasons, this Court should decline to accept jurisdiction over this case. Respectfully submitted, Patrick S. Cousins for Respondent Joseph Gelinas COUSINS LAW FIRM, P.A. 330 Clematis Street, Suite 218 West Palm Beach, FL 33401 8
(561) 835-1727 (561) 835-0766 (fax) CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing RESPONDENT JOSEPH GELINAS S SECOND AMENDED ANSWER BRIEF ON JURISDICTION was furnished to the Supreme Court by electronic transmission, and by U.S. Mail and/or facsimile, to John J. Glenn, Esquire, AndersonGlenn, LLC, 2201 NW Corporate Boulevard, Suite 100, Boca Raton, FL 33431-7337 on this October 6, 2006. BY: Patrick S. Cousins Florida Bar no.: 845469 Attorney for Plaintiff COUSINS LAW FIRM, P.A. 330 Clematis Street, Suite 218 West Palm Beach, FL 33401 (561) 835-1727 (561) 835-0766 (fax) cuzlaw@yourlemon.com CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT I certify that this brief was typed in 14-point Times New Roman font. BY: Patrick S. Cousins 9