JURISDICTIONAL BRIEF OF RESPONDENT, I & E GROUP, INC.

IN THE SUPREME COURT OF FLORIDA KATARINA LOIDL, Petitioner, Case No. SC06-992 v. DCA Case No. 2D05-3984 I & E GROUP, INC., and HARALD LOIDL Respondents. / JURISDICTIONAL BRIEF OF RESPONDENT, I & E GROUP, INC. ON PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE SECOND DISTRICT COURT OF APPEAL IN LOIDL V. I&E GROUP, CASE NO. 2D05-3984 Scott A. Beatty, Esq. Florida Bar No. 0084638 HENDERSON, FRANKLIN, STARNES & HOLT, P.A. Post Office Box 280 Fort Myers, Florida 33902-0280 Phone: 239.344.1169 Fax: 239.344.1536 E-mail: scott.beatty@henlaw.com

TABLE OF CONTENTS TABLE OF CITATIONS... ii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 I. The Second District Court of Appeal's Decision Does Not Expressly and Directly Conflict with the Decisions of the Fourth District in Community Federal Savings & Loan Ass'n of the Palm Beaches v. Wright, 452 So.2d 638 (Fla. 4th DCA 1984) and Archer v. Archer, 692 So.2d 1009 (Fla. 4th DCA 1997) or the Decision of the Florida Supreme Court in Chiusolo v. Kennedy, 614 So.2d 491 (Fla. 1993)... 3 II. III. A. The Community Federal Decision... 3 B. The Chiusolo and Archer Decisions... 6 Although there is Conflict between the Second District's Decision and the Third District Decision in Munilla v. Espinosa, 533 So.2d 895 (Fla. 3d DCA 1988), the Conflict had no Bearing on the Second District's Decision... 8 Even if there was an Express and Direct Conflict, the Florida Supreme Court Should Refrain from Exercising its Discretion and Decline Review... 9 CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE... 11 i

TABLE OF CITATIONS Cases Archer v. Archer, 692 So.2d 1009 (Fla. 4th DCA 1997)... 6, 7, 8 Chiusolo v. Kennedy, 614 So.2d 491 (Fla. 1993)... 6, 7 Community Federal Savings & Loan Ass'n of the Palm Beaches v. Wright, 452 So.2d 638 (Fla. 4th DCA 1984)...3, 4, 5, 6 Dep't of Revenue v. Johnston, 442 So.2d 950 (Fla. 1983)... 5, 6 Dep't of Health and Rehabilitative Services v. Nat'l Adoption Counseling Service, Inc., 498 So.2d 888, 889 (Fla. 1986)...7 Green v. Roth, 192 So.2d 537 (Fla. 2d DCA 1966)...5 Hopo Corp. v. Keller, 798 So.2d 889 (Fla. 4th DCA 2001)...6 M.G. Marine Supply Corp. v. Foreign Trade, Inc., 537 So.2d 696 (Fla. 3d DCA 1989)...6 Marbin v. Cohen, 789 So.2d 1993 (Fla. 4th DCA 2001)...6 Munilla v. Espinosa, 533 So.2d 895 (Fla. 3d DCA 1988)...8 Reaves v. State, 485 So.2d 829, 830 (Fla. 1986)...7 Constitutional Provisions and Statutes Art. V, 3(b)(3) FLA. CONST. (1980)...3 Rules Fla. R. App. P. 9.030(a)(2)(A)(iv)...3 ii

PRELIMINARY STATEMENT This jurisdictional brief is submitted on behalf of the Respondent, I&E Group, Inc., who will be hereinafter referred to as "I&E Group." The Petitioner, Katarina Loidl, will be referred to as "the Wife." References to the appendix (opinion) filed in conjunction with the jurisdictional brief of the Wife will be referred to as "OP" followed by the pertinent page number or numbers. STATEMENT OF THE CASE AND FACTS I&E Group does not contest the Statement of the Case and Facts as submitted by the Wife in her Jurisdictional Brief. 1

SUMMARY OF THE ARGUMENT The cases upon which the Wife relies to demonstrate an express and direct conflict are procedurally and factually distinguishable from the present decision for review. These distinctions were noted by the Second District Court of Appeal, and they preclude a finding of conflict jurisdiction. In addition, the Wife engages in speculation and assumption to assert the existence of a second basis for conflict. This asserted conflict, however, is not based upon the four corners of the earlier opinions, and cannot support a finding of conflict. I&E Group concedes that there is an express and direct conflict between the districts concerning the appropriate manner of review of orders discharging notices of lis pendens (interlocutory versus certiorari review), but the manner of review had no bearing on the outcome of this appeal. In such a circumstance, this Court should exercise its discretion to deny review. Finally, the decision of the Second District did not leave the Wife without a remedy or further recourse. Because the Wife still has significant alternative avenues of relief, this Court should decline to exercise its discretion, even if it finds an express and direct conflict, since the end result for the Wife is not significant enough to warrant review. 2

ARGUMENT I. The Second District Court of Appeal's Decision Does Not Expressly and Directly Conflict with the Decisions of the Fourth District in Community Federal Savings & Loan Ass'n of the Palm Beaches v. Wright, 452 So.2d 638 (Fla. 4th DCA 1984) and Archer v. Archer, 692 So.2d 1009 (Fla. 4th DCA 1997) or the Decision of the Florida Supreme Court in Chiusolo v. Kennedy, 614 So.2d 491 (Fla. 1993) In this case, the Florida Supreme Court only has discretionary jurisdiction to review the Second District's decision if that decision expressly and directly conflicts with a decision of the Supreme Court or another district court of appeal on the same point of law. Art. V, 3(b)(3) Fla. Const. (1980); Fla. R. App. P. 9.030(a)(2)(A)(iv). Here, there is no express and direct conflict, and the supreme court lacks jurisdiction. A. The Community Federal Decision The greater part of the Wife's jurisdictional brief focuses on an alleged conflict between the Second District's decision and the decision of the Fourth District in Community Federal Savings & Loan Ass'n of the Palm Beaches v. Wright, 452 So.2d 638 (Fla. 4th DCA 1984). A careful review of the Community Federal decision reveals that there is no express and direct conflict. It is important to note that the Second District factually distinguished Community Federal from the case on appeal. (OP 3). Moreover, the procedural setting in Community Federal was entirely different than the instant case. 3

Community Federal involved a lawsuit to foreclose on a mortgage. Community Fed., 452 So.2d at 640. The parties to the lawsuit were the mortgagee/bank and the mortgagor. Id. After the trial court entered a final judgment in foreclosure, and after the property was sold at a foreclosure sale, the defendant/mortgagor moved to set aside the judgment and the foreclosure sale. Id. After the trial court set aside the judgment, the bank/mortgagee appealed, arguing that the purchaser at the foreclosure sale was an indispensable party to any proceedings that may result in an order setting aside a foreclosure sale. The bank/mortgagee further argued that until the purchaser was added as a party, the court could not grant any relief that may affect the purchaser. Id. In its opinion, the Fourth District did not address whether a purchaser is an indispensable party, but ruled that the purchaser had become a party to the action when he filed a motion to set aside a notice of lis pendens subsequent to the judicial sale. Id. The Community Federal decision provides no clues as to why the purchaser moved to set aside the notice of lis pendens or whether that motion was granted or denied. Id. In fact, the purchaser's motion to set aside the notice of lis pendens, and any order thereon, is relevant only in the context of the bank's argument that the purchaser is an indispensable party. Id. That is, the substantive basis of the purchaser's motion to set aside lis pendens is unknown and inconsequential to the issues on appeal. 4

In contrast, the substantive basis of I&E Group's motion to dissolve lis pendens in this case (that it was not a formal party to the marital dissolution action) is paramount. The Second District's decision noted these important factual distinctions between Community Federal and the instant appeal, by stating that in Community Federal the new owner attended hearings in the proceeding, may not have been directly affected by the order on appeal, was not named as a party in the appeal, was never identified by name in the opinion, and never had counsel on the appeal. (OP 4). In light of these crucial factual distinctions, there is no express and direct conflict, and the supreme court has no jurisdiction to review. Dep't of Revenue v. Johnston, 442 So.2d 950 (Fla. 1983) (where a case for review is distinguishable on its facts from those cited in conflict, the supreme court must discharge its jurisdiction). The Second District's decision also further distinguished Community Federal to the extent it relied on the earlier case of Green v. Roth, 192 So.2d 537 (Fla. 2d DCA 1966) in concluding that a motion to set aside a lis pendens subjects the movant to the jurisdiction of the court. As correctly noted by the Second District, Roth was factually distinguishable from both Community Federal and the instant case. (OP 4). In Roth, the persons challenging the notice of lis pendens were the named defendants, who had also moved to dismiss the lawsuit against them for insufficient service of process. Roth, 192 So.2d at 539 (emphasis added). To the 5

extent that Community Federal purported to rely on Roth to extend its holding to non-parties, the Second District disagreed. The Second District once again stressed the important factual and procedural differences between Community Federal, Roth and the instant appeal -- factual differences which preclude a finding of conflict jurisdiction. Dep't of Revenue, 442 So.2d at 950. B. The Chiusolo and Archer Decisions As an ancillary to the above-alleged conflict, the Wife asserts that the Second District's opinion is in direct and express conflict with the Florida Supreme Court's decision in Chiusolo v. Kennedy, 614 So.2d 491 (Fla. 1993), and the Fourth District's decision in Archer v. Archer, 692 So.2d 1009 (Fla. 4th DCA 1997). In making this assertion, the Wife engages in pure speculation that these cases hold, contrary to the established and unambiguous holdings of the courts in Hopo Corp. v. Keller, 798 So.2d 889 (Fla. 4th DCA 2001), Marbin v. Cohen, 789 So.2d 1993 (Fla. 4th DCA, 2001) and M.G. Marine Supply Corp. v. Foreign Trade, Inc., 537 So.2d 696 (Fla. 3d DCA 1989), that a lis pendens against a property owner is without legal basis where the property owner is not named as a party to the action in the complaint (OP 3). Based upon the style of the case in Chiusolo, the Wife argues that the landowner was "apparently" not a party to the lawsuit and because the notice of lis pendens was upheld, this means the property owner need not be a party to the 6

lawsuit. In order for the Second District's decision to constitute an express and direct conflict with the Chiusolo opinion, the conflict must appear within the four corners of the majority decision. Reaves v. State, 485 So.2d 829, 830 (Fla. 1986). "Inherent or so called 'implied' conflict may no longer serve as a basis for [Supreme Court] jurisdiction." Dep't of Health and Rehabilitative Services v. Nat'l Adoption Counseling Service, Inc., 498 So.2d 888, 889 (Fla. 1986). The Wife's furtive attempt to create conflict based upon pure speculation, gleaned from the style of the case on appeal, cannot support jurisdiction. The Wife asserts another strained, overreaching conflict with respect to the Archer decision. In Archer, the Fourth District denied a motion to strike a lis pendens against property owned by a non-party. Archer, 692 So.2d at 1009. As the Second District noted, however, Archer is distinguishable because the property owner did not attempt to intervene in the trial court and did not participate in the appeal 1. The Second District refused to speculate on the result the Fourth District would have reached if the property owner had appeared and objected. (OP 4, fn.2) There is no indication in Archer that the property owner ever challenged the court's jurisdiction or the notice of lis pendens itself, unlike in the present case where I&E Group expressly challenged the notices of lis pendens because it was 1 The Archer decision itself reflects that the husband (a party to the dissolution proceeding) filed the motion to strike the lis pendens. 7

not a party to the dissolution proceeding. (OP 2). As a result of these critical factual distinctions (which the Wife implies beyond the four corners of the Archer opinion), this Court should not exercise its jurisdiction. II. Although there is Conflict between the Second District's Decision and the Third District Decision in Munilla v. Espinosa, 533 So.2d 895 (Fla. 3d DCA 1988), the Conflict had no Bearing on the Second District's Decision There is no question that there has been a conflict between the districts concerning the manner of review of orders discharging a lis pendens. As reflected in the decision, since at least 1987, the Second District (and all other Districts except the Third District) has held that certiorari review is the only proper method of review. (OP 2). Contrarily, since at least 1988, the Third District has held that such orders are reviewed by interlocutory review. See, e.g., Munilla v. Espinosa, 533 So.2d 895 (Fla. 3d DCA 1988); (OP 2). In this case, however, this express and direct conflict had no bearing on the outcome. Consistent with established precedent, the Second District treated the interlocutory appeal as one for certiorari and reviewed the arguments made by the Wife on the merits. There is no indication in the Second District's decision that the result was based upon the Wife's failure to meet any of the heightened burdens justifying certiorari review, including the requirement to show a material injury that cannot be remedied on appeal or a departure from the essential requirements of the law. Moreover, the Second District accepted certiorari jurisdiction and 8

resolved the case on the merits, as it would have pursuant to interlocutory review. The manner of review was immaterial to the ultimate disposition of this case, and this Court should decline to exercise its discretion on this point. III. Even if there was an Express and Direct Conflict, the Florida Supreme Court Should Refrain from Exercising its Discretion and Decline Review Assuming, arguendo, that the Court is able to determine that an express and direct conflict exists with any of the cases discussed in part I of this brief, this Court should decline to exercise its discretion because the issues in this case are simply not significant to warrant further review. Even after declining the Wife's petition for writ of certiorari, the Second District did not leave her without a remedy or further recourse. As expressly stated by the Second District, "our ruling does not prevent [the Wife] from attempting to refile the notices of lis pendens if and when [I&E Group] becomes a proper party to the proceedings, or from filing some separate proceeding to protect her interests." (OP 4). Because the Wife has other avenues for relief, the issues raised by her petition do not warrant review by the supreme court. 9

CONCLUSION In view of the foregoing, and the absence of any express or direct conflict that is material or relevant to the decision reached by the Second District, the Respondent, I&E Group, respectfully requests that the Florida Supreme Court decline to exercise its jurisdiction for discretionary review. 10

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the day of June, 2006, the foregoing was filed with the clerk with a copy sent via U.S. Mail to Robert L. Donald, Esq., 1375 Jackson St., Suite 402, Fort Myers, FL 33901-2841; Sonja Burkard, Esq., 12535 New Brittany Blvd., Bldg. 28, Fort Myers, FL 33907; and to John Holloway, Esq., 700 Eleventh St. S, Suite 202, Naples, FL 34102. HENDERSON, FRANKLIN, STARNES & HOLT, P.A. Attorneys for Respondent, I & E Group, Inc. Post Office Box 280 Fort Myers, FL 33902-0280 Phone: 239.344.1100 Fax: 239.344.1200 E-mail: scott.beatty@henlaw.com By: Scott A. Beatty Florida Bar No. 0084638 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Answer Brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210 (a)(2). Scott A. Beatty, Esq. Florida Bar No. 0084638 11