IN THE SUPREME COURT OF THE STATE OF FLORIDA

IN THE SUPREME COURT OF THE STATE OF FLORIDA Supreme Court Case No. SC02-2736 5th DCA Case Nos.: 5D01-1662, 5D01-1663, 5D01-1664, 5D01-1665 & 5D01-3426 GREAT AMERICAN RESTAURANTS, INC., et al, v. Petitioners/Appellants, C.L. DINKINS, JR., etc, et al, Respondents/Appellees. / RESPONDENTS' JURISDICTIONAL BRIEF Edwin C. Cluster, Esquire Florida Bar No. 014204 John B. Fuller, Esquire Florida Bar No. 161931 Robert H. McLean, Esquire Florida Bar No. 0098094 AYRES, CLUSTER, CURRY, McCALL, COLLINS & FULLER, P.A. 21 N.E. 1st Avenue Ocala, Florida 34470 Attorneys for Respondents/Appellees

TABLE OF CONTENTS Table of Contents... i Table of Citations... ii Table of Authorities... iv Preliminary Statement... 1 Statement of the Case and Facts... 1 Summary of Argument... 3 Legal Argument... 3 I. SINCE THE PETITIONER FAILS TO IDENTIFY ANY EXPRESS AND DIRECT CONFLICT WITH ANOTHER DISTRICT COURT OF APPEAL OR OF THE SUPREME COURT ON THE SAME ISSUE OF LAW FOUND WITHIN THE FOUR CORNERS OF THE DECISION, DISCRETIONARY JURISDICTION MUST BE DENIED...... 3 II. THE SUPREME COURT LACKS JURISDICTION TO REVIEW THE DECISION SINCE IT AMOUNTS TO A CITATION PCA... 8 Conclusion... i

10 Certificate of Service... 11 Certificate of Compliance... 11 ii

TABLE OF CITATIONS CASE LAW Allstate Insurance v. Langston, 655 So. 2d 91 (Fla. 1995)... 6 Alternative Networking, Inc. v. Solid Waste Authority of Palm Beach County, 758 So. 2d 1209 (Fla. 4th DCA 2000)... 7 Beaty v. State, 701 So. 2d 856 (Fla. 1997)... 9 Brevard County v. Ramsey, 658 So. 2d 1190 (Fla. 5th DCA 1995)... 6, 8 Caulk v. Orange County, 661 So. 2d 932 (Fla. 5th DCA 1995)... 6, 8 Department of Health and Rehabilitative Services v. National Adoption Counseling Service, Inc., 498 So. 2d 888 (Fla. 1986)... 4 Department of Transportation v. Ben Hill Griffin, Inc., 636 So. 2d 825 (Fla. 2d DCA 1994)... 7 Division of Administration v. Ely, 351 So. 2d 66 (Fla. 3d DCA 1977)... 7 Dodi Publishing Co. v. Editorial America, 385 So. 2d 1369 (Fla. 1980)... 9 Ford Motor Company v. Kikis, 401 So. 2d 1341 (Fla. 1981)... 5 iii

Great American Restaurants, Inc. v. Dinkins, 831 So. 2d 204 (Fla. 5th DCA 2002)... 1 Hill v. Hill, 778 So. 2d 967 (Fla. 2001)... 4 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 8 Jollie v. State, 405 So. 2d 418 (Fla. 1981), on remand 407 So.2d 1000 (Fla. 5th DCA 1981)... 9 North Dade Water Co. v. Florida State Turnpike Authority, 114 So. 2d 458 (Fla. 3d DCA 1959)... 7 Patrick v. Christian Radio, 745 So. 2d 578 (Fla. 5th DCA 1999)... 2, 5, 9 Reaves v. State, 485 So. 2d 829, 830 n.3 (Fla. 1986)... 1, 4, 8 Seminole County v. N.G. Investments of Orlando, Inc., 714 So. 2d 1066 (Fla. 5th DCA 1998)... 7 Walker v. State, 682 So. 2d 555 (Fla. 1996)... 9 iv

TABLE OF AUTHORITIES Fla.R.App.P. 9.030(a)(2)(A)(iv)... 3, 8 Philip J. Podovano, West's Florida Practice Series, 2 Fla. Prac., Appellate Practice 3.10 (2003 ed.)... 4, 8 Fla.R.Civ.P.1.230... 6 v

PRELIMINARY STATEMENT The Petitioners/Appellees, Great American Restaurants, Inc., Kwik King Food Stores, Inc., Hebico, Inc., Ralph W. Pressley, Jr. and William H. Tuck, Jr., will be referred to collectively as Petitioners. The Respondents/Appellants, C.L. Dinkins, Jr., as Trustee under Trust Agreement dated August 21, 1986, Bradford L. Dinkins and Dinkins & Dinkins, Inc., will be referred to collectively as Respondents. The Fifth District Court of Appeal s September 20, 2002 decision, cited as Great American Restaurants, Inc. v. Dinkins, 831 So. 2d 204 (Fla. 5th DCA 2002), will be referred to as the decision. STATEMENT OF THE CASE AND FACTS The "STATEMENT OF THE CASE AND FACTS" appearing on pages 1-4 of Petitioner's Corrected Jurisdictional Brief contains numerous citations to the record below, as well as counsel's own characterization of the record. Inclusion of such information in a Jurisdictional Brief is improper. See Reaves v. State, 485 So. 2d 829, 830 n.3 (Fla. 1986), where this Court stated: This case illustrates a common error made in preparing jurisdictional briefs based on alleged decisional conflict. The 1

only facts relevant to our decision to accept or reject such petitions are those contained within the four corners of the decisions allegedly in conflict. As we explain in the text above, we are not permitted to base our conflict jurisdiction on a review of the record or on facts recited only in dissenting opinions. Thus, it is pointless and misleading to include a comprehensive recitation of facts not appearing in the decision below, with citations to the record, as petitioner provided here. Similarly, voluminous appendices are normally not relevant. Therefore, Respondents have elected to restate the facts relevant to this Court's consideration of jurisdiction On September 20, 2002, the Fifth District Court of Appeal entered its per curiam decision affirming the Trial Court s intervention order. The decision, which was entered in consolidated cases 5D01-1662, 1663, 1664, 1665 and 3426, also affirmed the Trial Court s order denying motion for relief from judgment. The entire text of the decision reads as follows: We affirm the order allowing a limited intervention by the appellees in the proceedings below because it is supported by competent substantial evidence. See e.g., Patrick v. Christian Radio, 745 So. 2d 578 (Fla. 5th DCA 1999). Furthermore, in appeal number 5D01-3426, we see no abuse of discretion in the denial of the motion for relief from judgment. The Petitioners motion for rehearing was denied by the Fifth District Court of Appeal on November 27, 2002. The instant petition to invoke the discretionary jurisdiction of this Court followed. 2

SUMMARY OF ARGUMENT The Petitioners jurisdictional brief fails to address any conflict with a decision of the another district court of appeal or of the Supreme Court on the same issue of law found within the four corners of the decision. Because the jurisdictional brief fails to identify such a conflict, the petition to invoke discretionary jurisdiction must fail. Petitioners attempt to demonstrate conflict by alluding to facts and legal conclusions not found within the four corners of the decision is improper, and should not be considered by this Court. In the alternative, the decision amounts to a per curiam affirmance followed by citation to a controlling precedent. A citation PCA cannot form the basis for Supreme Court jurisdiction. LEGAL ARGUMENT I. SINCE THE PETITIONER FAILS TO IDENTIFY ANY EXPRESS AND DIRECT CONFLICT WITH ANOTHER DISTRICT COURT OF APPEAL OR OF THE SUPREME COURT ON THE SAME ISSUE OF LAW FOUND WITHIN THE FOUR CORNERS OF THE DECISION, DISCRETIONARY JURISDICTION MUST BE DENIED Petitioners attempt to invoke the discretionary jurisdiction of this Court based upon the authority of Fla.R.App.P. 9.030(a)(2)(A)(iv), which 3

states as follows: The discretionary jurisdiction of the supreme court may be sought to review (A) decisions of district courts of appeal that (iv) expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law To invoke discretionary jurisdiction of the Supreme Court, a petitioner must point to an express and direct conflict between the decision under review and a decision of another district court of appeal or the Supreme Court. Department of Health and Rehabilitative Services v. National Adoption Counseling Service, Inc., 498 So. 2d 888, 889 (Fla. 1986); Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). The express and direct conflict must appear within the four corners of the majority decision. Id.; Hill v. Hill, 778 So. 2d 967 (Fla. 2001). An inherent or implied conflict between decisions allegedly flowing from the decision under review cannot form the basis of jurisdiction. National Adoption Counseling Service, Inc., 498 So. 2d at 889. The term expressly requires some written representation or expression of the legal grounds supporting the decision under review. Philip J. Podovano, West s Florida Practice Series, 2 Fla. Prac., Appellate Practice 4

3.10 (2003 ed.). While it is not necessary for the district court opinion to explicitly identify a conflicting opinion, it must at least address the legal principles that the petitioner attempts to use as a basis for jurisdiction. Id., citing Ford Motor Company v. Kikis, 401 So. 2d 1341 (Fla. 1981)(discussion of the legal principles which the [district] court applied supplies a sufficient basis for a petition for conflict review). The decision at issue consists of two sentences. Petitioners take issue with only one of those sentences in their jurisdictional brief (pages 4 5): We affirm the order allowing limited intervention by the appellees in the proceedings below because it is supported by competent substantial evidence. See, e.g., Patrick v. Christian Radio, 745 So. 2d 578 (Fla. 5th DCA 1999). Petitioners state: This single sentence shows that the panel misapprehended the facts of this case, and further shows that the opinion is in conflict with well-established precedent. The statement regarding the panel misapprehending the facts of the case must be treated as surplusage, since alleged misapprehension of facts is not a ground for Supreme Court jurisdiction. Petitioners state that the single sentence shows the decision is in conflict with well-established precedent. However, they spend little of their argument explaining how the sentence demonstrates a conflict. 5

In only one instance do the Petitioners allude to the actual language of the decision. On page 5, they argue that this case does not represent limited intervention, and in support they cite Fla.R.Civ.P. 1.230 for the proposition that intervention must be in recognition of, and in subordination to, the main proceeding. Even if Petitioners are arguing here that the decision conflicts with Rule 1.230, which is not entirely clear, conflict with a rule of procedure cannot support Supreme Court jurisdiction. Allstate Insurance v. Langston, 655 So. 2d 91 (Fla. 1995). Petitioners spend the majority of their legal argument asserting that the facts of the case demonstrate the district court s opinion is in conflict with controlling precedent. On page 6, they argue that since Respondents claim they received an assignment of the proceeds of eminent domain litigation, and since an assignment cannot support intervention, the decision conflicts with Caulk v. Orange County, 661 So. 2d 932 (Fla. 5th DCA 1995). On page 6 and 7, they argue that since Respondents were merely shareholders of the condemned corporation, they were not entitled to compensation for the corporate land taken via eminent domain, and the decision conflicts with Brevard County v. Ramsey, 658 So. 2d 1190 (Fla. 5th DCA 1995). Finally, Petitioners argue on pages 7 and 8 that since Respondents claim to hold an 6

interest in condemned property that is collateral to the property and not immediately concerned with it, they have not asserted a sufficient interest to support intervention, and the decision conflicts with Seminole County v. N.G. Investments of Orlando, Inc., 714 So. 2d 1066 (Fla. 5th DCA 1998); Alternative Networking, Inc. v. Solid Waste Authority of Palm Beach County, 758 So. 2d 1209 (Fla. 4th DCA 2000); Department of Transportation v. Ben Hill Griffin, Inc., 636 So. 2d 825 (Fla. 2d DCA 1994); Division of Administration v. Ely, 351 So. 2d 66 (Fla. 3d DCA 1977); North Dade Water Co. v. Florida State Turnpike Authority, 114 So. 2d 458 (Fla. 3d DCA 1959). As stated above, conflicts between decisions must be apparent from the four corners of the decision under review. However, nowhere within the decision does the Fifth District Court of Appeal state that the limited intervention was based upon an assignment, the Respondents position as shareholders in the corporation, or their interest in land condemned. 1 The 1 Even if the Fifth District Court of Appeal s opinion did recite these facts as the basis for the decision, conflict with Caulk, Ramsey, and N.G. Investments of Orlando, Inc. does not support Supreme Court jurisdiction, since the opinions in these three cases were issued by the Fifth District. Fla.R.App.P. 9.030 does not contemplate Supreme Court discretionary review based upon conflict within a district court of appeal. Fla.R.App.P. 9.030, Padovano, supra, 3.10. 7

arguments for conflict jurisdiction are based entirely upon Petitioners characterization of the facts of the case and by reference to the record on appeal. The record cannot be used to establish Supreme Court jurisdiction. Reaves, 485 So. 2d at 830. Therefore, discretionary jurisdiction based upon conflict with the decisions of other courts of appeal or the Supreme Court does not exist in this case, and the petition for discretionary review should be denied. II. THE SUPREME COURT LACKS JURISDICTION TO REVIEW THE DECISION SINCE IT AMOUNTS TO A CITATION PCA Since discretionary jurisdiction must be based upon a conflict found within the four corners of the decision under review, the Supreme Court lacks jurisdiction to review per curiam decisions of the district courts of appeal rendered without an opinion. Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980); Beaty v. State, 701 So. 2d 856 (Fla. 1997). Similarly, the Supreme Court does not have jurisdiction to review a per curiam affirmed decision that merely cites a precedent as controlling, even if it could be argued that the precedent is in conflict with a decision of another district court of appeal or the Supreme Court. Dodi Publishing Co. v. Editorial America, 385 So. 2d 1369 (Fla. 1980). The only exception to this rule is 8

when the cited precedent has either been reversed, or is pending review by the Supreme Court. Jollie v. State, 405 So. 2d 418 (Fla. 1981), on remand 407 So. 2d 1000 (Fla. 5th DCA 1981); Walker v. State, 682 So. 2d 555 (Fla. 1996). The decision consists of a general statement of law (that the limited intervention order is supported by competent substantial evidence), followed by a citation standing for that statement of law - See, e.g., Patrick v. Christian Radio, 745 So. 2d 578 (Fla. 5th DCA 1999). It is, in effect, a per curiam affirmed opinion with citation to controlling precedent or a citation PCA. Since Patrick v. Christian Radio has not been reversed, nor is it currently under review by the Supreme Court, the Supreme Court lacks jurisdiction to review the decision. CONCLUSION The Petitioners jurisdictional brief fails to identify any express and direct conflict with another district court of appeal or the Supreme Court within the four corners of the decision. The Petitioners reference to the record on appeal is improper and cannot support discretionary jurisdiction. Since the Petitioners fail to identify an express and direct conflict within the four corners of the decision, and since the decision amounts to a citation 9

PCA, the petition for discretionary jurisdiction should be denied. Respectfully Submitted, AYRES, CLUSTER, CURRY, McCALL, COLLINS & FULLER, P.A. Edwin C. Cluster, Esquire Florida Bar No. 014204 John B. Fuller, Esquire Florida Bar No. 161931 Robert H. McLean, Esquire Florida Bar No. 0098094 21 N.E. 1st Avenue Ocala, Florida 34470 Attorneys for Respondents/Appellees 10

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was mailed to: Michael G. Takac, Esquire, 520 S.E. Ft. King Street, Suite B- 4, Ocala, Florida 34471; Pamela S. Leslie, Esquire and Marianne A. Trussell, Esquire, State of Florida, Department of Transportation, Haydon Burns Building MS 58, 605 Suwannee Street, Tallahassee, Florida 32399-0458; and Gary M. Farmer, Jr., Esquire, Gillespie, Goldman, Kronengold & Farmer, P.A., Tower 101, 101 N.E. Third Avenue, Suite 1700, Ft. Lauderdale, Florida 33301 this day of, 2003. Robert H. McLean, Esquire CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY, in compliance with Fla.R.App.P. 9.210(a)(2), that this brief has been prepared using Times New Roman 14 point font. Robert H. McLean, Esquire 11