IN THE SUPREME COURT OF FLORIDA Case No. SCO5-284 LYNN HILLMAN, MARY PATRICIA BOSNER and ROBERTA JAMES, Petitioners, v. HCA HEALTH SERVICES OF FLORIDA, INC. d/b/a BLAKE MEDICAL CENTER, Respondent. RESPONDENT S JURISDICTIONAL BRIEF On Review from the District Court of Appeal, Second District, State of Florida Marie Tomassi, Esquire Florida Bar No. 772062 TRENAM, KEMKER, SCHARF, BARKIN, FRYE, O'NEILL & MULLIS, Professional Association Bank of America Tower, Suite 2100 200 Central Avenue St. Petersburg, FL 33701 Phone: (727) 898-7474 Facsimile: (727) 820-0835 Attorneys for Respondent
TABLE OF CONTENTS TABLE OF AUTHORITIES...ii STATEMENT OF THE CASE AND OF THE FACTS...1 SUMMARY OF THE ARGUMENT...3 ARGUMENT...3 I. THE SECOND DISTRICT S OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH ALACHUA COUNTY V. CHESHIRE AND WILLIAMS V. ALBERTSON S, INC...4 II. THE SECOND DISTRICT DID NOT MISAPPLY THIS COURT S DECISIONS SO THAT NO CONFLICT EXISTS...5 CONCLUSION...10 CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE...11 i
Cases TABLE OF AUTHORITIES Pages Alachua County v. Cheshire, 603 So. 2d 1334 (Fla. 1st DCA 1992)...4 Gandy v. State, 846 So. 2d 1141 (Fla. 2003)...3 Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000)... 5, 6, 8, 9 Hill v. Hill, 778 So. 2d 967 (Fla. 2001)...4 Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962)...4 Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988)... 5, 7, 8, 9 Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001)... passim Mystan Marine, Inc. v. Harrington, 339 So. 2d 200 (Fla. 1976)...3 Reaves v. State, 485 So. 2d 829 (Fla. 1986)...1 Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002)...1 State v. Klayman, 835 So. 2d 248 (Fla. 2002)...1 The Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988)...4 ii
Williams v. Albertson's, Inc., 879 So. 2d 657 (Fla. 5th DCA 2004)...4, 5 Miscellaneous Florida Rule of Appellate Procedure 9.210...11 Art. V, sec. 3(b)(3), Fla. Const....3 Florida Statute section 95.051... 6, 8, 9 iii
STATEMENT OF THE CASE AND OF THE FACTS In a brief on jurisdiction based on conflict of decisions, the only facts to be considered are those stated in the district court s opinion. State v. Klayman, 835 So. 2d 248, 250 (Fla. 2002) (the relevant facts are set forth in the district court opinion.... ). Even facts stated in a dissenting or concurring opinion are irrelevant. Stallworth v. Moore, 827 So. 2d 974, 977 (Fla. 2002). [I]t is pointless and mis leading to include a comprehensive recitation of facts not appearing in the decision below because the only facts relevant to whether to accept jurisdiction are those contained within the four corners of the decisions allegedly in conflict. Reaves v. State, 485 So. 2d 829, 830 fn.3 (Fla. 1986). Petitioners Statement of the Case and Facts improperly includes statements not found in the Second District opinion and excludes relevant portions of that opinion. 1 Respondent respectfully submits this Court should refer to the Second District opinion at issue herein for the actual facts relevant to the assertion of 1 For example, Petitioners claim to have filed their initial lawsuit after reporting violations of the law with respect to grossly substandard nursing care.... (Petitioners brief at p.1). The Second District decision does not contain this statement, one presumably made in an effort to prejudice this Court against Respondent. Similarly, Petitioners purport to characterize the motivation of Respondent in moving to dismiss the federal lawsuit for lack of jurisdiction, as well as to characterize the state court judge s thoughts and motivations in denying summary judgment. (Id. at p. 1-2). These statements are improper and should be disregarded.
conflict jurisdiction, as well as those facts omitted by Petitioners demonstrating the fairness of the outcome below. For example, Petitioners strongly suggest that Respondent somehow tricked them into missing their jurisdictional defect in federal court, despite their counsel s express concession that the doctrine of equitable estoppel does not apply in this case. Second District opinion at p. 4 fn.3. The Second District opinion, however, recounts the many ways in which Respondent repeatedly advised Petitioners that Respondent was not a foreign corporation, beginning with pre-suit correspondence and including thereafter an answer denying the complaint s jurisdictional allegations, denying the allegation that Respondent was a foreign corporation and raising the express affirmative defense of lack of subject matter jurisdiction, and an answer to an interrogatory expressly stating that Respondent was a Florida corporation. Second District opinion at pp. 4-5. As the Second District noted, all of these disclosures should have placed opposing counsel on notice that diversity jurisdiction did not exist. Second District Opinion at p. 7 fn.7. As the Second District opinion makes clear, the instant case does not involve equitable estoppel, but only the doctrine of equitable tolling. The Second District correctly concluded that equitable tolling could not be applied to allow Petitioners to pursue their claim after the statute of limitations expired in this civil action. 2
SUMMARY OF THE ARGUMENT This Court lacks jurisdiction because there simply is no conflict between the Second District opinion in this case and any of the cases on which Petitioners rely. The Second District correctly recognized and applied existing precedent from this Court in reaching the decision below. The two district court of appeal cases on which Petitioners rely do not actually conflict with the instant case and are improperly characterized by Petitioners. Moreover, Petitioners tortured definition of tolling is contrary to this Court s prior decisions and simply wrong. The petition for review should be denied because this Court has no basis for conflict jurisdiction and review is not warranted. ARGUMENT The jurisdiction of this Court extends only to the narrow class of cases enumerated in Article V, Section 3(b) of the Florida Constitution. Gandy v. State, 846 So. 2d 1141, 1143 (Fla. 2003). See also Mystan Marine, Inc. v. Harrington, 339 So. 2d 200, 201 (Fla. 1976) ( Time and again we have noted the limitations on our review and we have refused to become a court of select errors. ). Conflict jurisdiction is limited to decisions that expressly and directly conflict with a decision of another district court of appeal or of the Supreme Court on the same question of law. See Art. V, sec. 3(b)(3), Fla. Const. Conflict exists only if the same issue of law is decided and the cases are not factually 3
distinguishable. See Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962). The conflict must appear within the four corners of the decision brought up for review. See Hill v. Hill, 778 So. 2d 967 (Fla. 2001). Absent a conflict, this Court lacks jurisdiction to review the district court s decision. See The Florida Star v. B.J.F., 530 So. 2d 286, 288-89 (Fla. 1988). I. THE SECOND DISTRICT S OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH ALACHUA COUNTY V. CHESHIRE AND WILLIAMS V. ALBERTSON S, INC. Petitioners lead argument asserts that the Second District opinion conflicts with Alachua County v. Cheshire, 603 So. 2d 1334, 1337 (Fla. 1st DCA 1992) and Williams v. Albertson s, Inc., 879 So. 2d 657 (Fla. 5th DCA 2004). There is no conflict between these decisions, however, because neither case stands for the proposition that equitable tolling can be applied in a civil action, despite Petitioners assertions to the contrary. In Alachua County v. Chesire, 603 So. 2d at 1334, the First District held that equitable estoppel precluded Alachua County from raising a statute of limitations defense. Although that decision loosely refers to the doctrine of equitable estoppel and/or equitable tolling, id. at 1335, the entirety of the discussion and the basis of the court s decision rests solely on equitable estoppel based on the county s repeated oral and written representations to the opposing party. Alachua County cannot be fairly characterized as making any holding in regard to the 4
application of equitable tolling in a civil action, but instead is a mere recitation of the well-recognized rule that equitable estoppel can be applied to prevent a defendant from raising the statute of limitations defense. In Williams v. Albertson s, Inc., 879 So. 2d at 657, the Fifth District never addressed whether equitable tolling could apply in a civil action because the Court first determined that the facts of the case did not fit within those facts required even to invoke the equitable tolling doctrine in the first instance. Williams does not address, in any manner, whether equitable tolling could apply as a matter of law in a civil action. Thus, on the face of that opinion and the instant decision, there simply is no express and direct conflict. II. THE SECOND DISTRICT DID NOT MISAPPLY THIS COURT S DECISIONS SO THAT NO CONFLICT EXISTS. Petitioners assert as the second basis for a finding of express and direct conflict that the instant decision from the Second District misapplies this Court s holdings in Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000), Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001) and Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988). Once again Petitioners are simply wrong, as the Second District opinion makes clear. The Second District recognized, correctly characterized and properly applied all three of these decisions in reaching the result below. 5
Petitioners argument turns, in short, on their assertion that these three Florida Supreme Court cases make clear a critical distinction between equitable tolling and tolling as set forth in Florida Statute section 95.051. Petitioners argue that equitable tolling does not actually toll the statute of limitations but instead only excuses a late filing and that the three referenced cases demonstrate that this is a critical difference in regard to section 95.051. Petitioners tortured analysis fails to recognize the very language used by this Court in these decisions, evidencing that doctrines affecting the duration of the statute of limitations once it has begun to run are precluded unless enumerated in Florida Statute section 95.051, whereas doctrines that delay the beginning of the statute of limitations (for example, accrual in Hearndon) or that operate on a party by preventing the assertion of the statute of limitations defense (estoppel in Morsani) are not precluded by the statute. For example, in Hearndon, this Court stated that the tolling of a limitation period would interrupt the running thereof subsequent to accrual.... Furthermore, the tolling statute specifically precludes application of any tolling provision not specifically provided therein.... While accrual pertains to the existence of a cause of action which then triggers the running of a statute of limitations, tolling focuses directly on limitations periods and interrupting the running thereof. Hearndon v. Graham, 767 So. 2d at 1185. 6
As this Court further noted in Major League Baseball v. Morsani, 790 So. 2d at 1077, tolling operates on the statute of limitations; equitable estoppel operates on the party. The Morsani Court explained that equitable estoppel does not toll anything because it simply bars a party from asserting a right that the party otherwise would be entitled to assert. In a footnote, the Court recognized that equitable tolling, which involves no misconduct on the part of the defendant, may delay the running of the limitations period.... Id. at fn.11. In the instant case, Petitioners assert that equitable tolling merely excuses a late filing. In reality, however, equitable tolling operates on the statute of limitations by delaying its running or extending its ending date to accommodate a late filing. There simply is no other way to characterize equitable tolling except as a doctrine operating on the statute of limitations after it has started to run as opposed to operating on a party or delaying the start of the time period. As the Morsani Court later noted, tolling is concerned with the circumstances in which the running of the limitations period may be suspended while equitable estoppel operates on a defendant without regard to the running of the limitations period provided by statute. Id. at 1079. 2 2 Although Petitioners also rely on an alleged misapplication of Machules v. Department of Administration, 523 So. 2d at 1132, Machules clearly is limited to applying equitable tolling in administrative proceedings and cannot serve as a basis for conflict with the instant decision. 7
The Second District opinion expressly addresses each of the cases on which Petitioners rely, correctly explaining their holdings and relationship to the instant decision. For example, the Second District discusses Machules and ultimately concludes that, because Machules was limited to Florida administrative proceedings, it did not address application of the doctrine [equitable tolling] to toll a statute of limitation governed by the provisions of Chapter 95, Florida Statutes. Second District opinion at p. 9. The Second District properly characterized Machules and simply declined to expand its holding to such cases. Id. at p. 8. The Second District similarly addressed both Hearndon and Morsani, which the court found to be examples of deference by this Court to the legislature s expressed intentions in Florida Statute section 95.051. In discussing Hearndon, the Second District correctly noted that this Court determined that the delayed discovery doctrine may only be applied to the accrual of a cause of action. Second District opinion at p. 12. The Second District noted language in Hearndon regarding Florida Statute section 95.051 s preclusion of any additional tolling provisions not specifically set forth therein. The Second District also addressed Morsani, noting that the decision recognized the exclusive list of conditions that can toll the running of the statute of limitations in section 95.051, but concluded that the statute does not prohibit 8
application of the doctrine of equitable estoppel because equitable estoppel is a common law doctrine that does not toll anything. Second District opinion at p. 13. Once again the Second District opinion demonstrated a correct understanding and application of this Court s precedent. Petitioners have failed to demonstrate any express and direct conflict between the Second District opinion and any decision of this Court. The Second District did not misapply existing precedent, nor did it confuse the meaning of tolling either in consideration of Florida Statute section 95.051 or equitable tolling. Petitioners assertion that the equitable tolling doctrine is not actually a tolling provision must be rejected. Indeed, in Morsani, this Court referred to equitable tolling as a doctrine that operates to toll the running of the limitations period when characterizing the holding of Machules. Morsani, 790 So. 2d at 1077 fn.11. As further language in both Morsani and Hearndon make clear, because equitable tolling operates to affect the running of the actual statute of limitations time period, whether stated as a tolling or as an excusing of a late filing or in any other way that operates to allow that period to be extended, it is in effect a tolling doctrine and its application to civil actions is precluded by statute. 3 3 This result is not unfair or inequitable. The Florida legislature has determined the conditions under which equitable tolling should apply and has 9
CONCLUSION Petitioners have failed to demonstrate express and direct conflict between the Second District opinion and any existing district court of appeal or Florida Supreme Court case. Instead, the Second District expressly recognized the Florida Supreme Court cases on which Petitioners rely, correctly characterized those decisions and correctly applied them. In the absence of an express and direct conflict, this Court is without jurisdiction and Petitioners petition for review should be denied. Respectfully submitted, Marie Tomassi, Esquire Florida Bar No. 772062 TRENAM, KEMKER, SCHARF, BARKIN, FRYE, O'NEILL & MULLIS, Professional Association Bank of America Tower, Suite 2100 200 Central Avenue St. Petersburg, FL 33701 Phone: (727) 898-7474 Facsimile: (727) 820-0835 Attorneys for Respondent expressly rejected the use of any additional tolling provisions or the adoption of a savings statute. The Florida Supreme Court has not adopted a rule to address actions improvidently filed in federal rather than state court and the doctrine of equitable estoppel remains viable to protect plaintiffs from bad conduct by defendants that should preclude reliance on a statute of limitations defense. 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Respondent s Jurisdictional Brief has been furnished by U.S. mail to Tricia B. Valles, Esquire, Morgan, Lamb, Goldman & Valles, P.A. 2701 N. Rocky Point Drive, Ste. 410, Tampa, FL 33607; Lisa L. Cullaro, Esquire, Lisa L. Cullaro, P.A. P.O. Box 273794, Tampa, FL 33688; and to Debra M. Metzler, Esquire, Newman, Levine & Metzler, P.A., 400 N. Tampa Street, Suite 2900, Tampa, FL 33602, on March, 2005. Marie Tomassi, Esquire CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the font requirements set forth in Florida Rule of Appellate Procedure 9.210. Marie Tomassi 11