IN THE SUPREME COURT OF THE STATE OF FLORIDA

IN THE SUPREME COURT OF THE STATE OF FLORIDA NICHOLAS J. MORANA and ANN L. MORANA, Petitioners, v. Case No.: SC-08-988 HERNANDO COUNTY, etc., and KAREN NICOLAI, in her Official Capacity as the Hernando County Clerk of the Court, Respondents. On Petition for Discretionary Review Directed to the Fifth District Court of Appeal RESPONDENTS= JOINT AMENDED ANSWER BRIEF ON JURISDICTION Jon A. Jouben, Esq. George G. Angeliadis, Esq. FBN: 149561 FBN: 080081 Garth C. Coller, Esq. Thomas S. Hogan, Jr., Esq. FBN: 374849 FBN: 338125 Office of the County Attorney The Hogan Law Firm 20 N. Main Street, Suite 462 20 S. Broad Street Brooksville, FL 34601 Brooksville, FL 34601 (352) 754-4122 (352) 799-8423 (352) 754-4001 Fax (352) 799-8423 Fax Attorneys for Hernando County, et al. Attorneys for the Clerk

OF CONTENTS TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii I. INTRODUCTION... 1 II. STATEMENT OF THE CASE AND THE FACTS... 1 III. SUMMARY OF ARGUMENT... 3 IV. ARGUMENT... 3 A. THE MORANAS FAILED TO PRESERVE ANY OF THEIR LEGAL ARGUMENTS.... 4 B. THE FIFTH DCA=S OPINION IN THIS CASE DOES NOT CONFLICT WITH ANY OF PRECEDENTS CITED BY THE MORANAS.... 5 V. CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 9 iitable

OF AUTHORITIES Cases Burkhart v. Gowin, 98 So. 140 (Fla. 1922)... 5, 6 Galen of Florida, Inc. v. Arscott, 629 So.2d 856 (Fla. 5 itable th DCA 1993)... 6, 7 Galencare, Inc. v. Blanton, 636 So.2d 547(Fla. 2 nd DCA 1994)... 5, 7 Galencare, Inc. v. Blanton, 650 So.2d 42 (Fla. 1995)... 5, 7, 8 Hernando County, et al., v. Morana, 979 So.2d 276 (Fla. 5 th DCA 2008)... 1-3, 5-7 Johnson v. Plantation Gen. Hosp. Ltd. Partnership, 641 So.2d 58 (Fla. 1994)... 5-7, 8 Metropolitan Dade County v. Chase Fed. Housing Corp., 737 So.2d 494 (Fla. 1999)... 5 Reaves v. State, 485 So.2d 829 (Fla. 1986)... 4 State ex rel. City of West Palm Beach v. Chillingworth, 129 So. 816 (Fla. 1930)... 5, 6 Sunset Harbour Condominium Ass=n v. Robbins, 914 So.2d 925 (Fla. 2005)... 5 i

Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988)... 3, 4 Tillman v. State, 471 So.2d 32 (1985)... 5 Florida Constitution Fla. Const. Article V, ' 3(b)(3)... 3 Rules of Court Fla. R. App. P. 9.030... 3 Fla. R. App. P. 9.210... 8 Fla. R. Civ. P. 1.220... 6 ivthe

INTRODUCTION Petitioners have asked this Court to exercise its conflict jurisdiction and review Hernando County, et al., v. Morana, 979 So.2d 276 (Fla. 5 1I. th DCA 2008). In this Brief, Respondent, HERNANDO COUNTY, shall be referred to as Athe COUNTY,@ Respondent, KAREN NICOLAI, shall be referred to as Athe CLERK,@ and Petitioners, NICHOLAS J. MORANA and ANN L. MORANA, shall hereinafter be collectively referred to as Athe MORANAS.@ II. STATEMENT OF THE CASE AND THE FACTS Between 1993 and 2003, the COUNTY regulated the activities of Florida Water Services (AFlorida Water@), a private company that provided water utility services for the Spring Hill region of Hernando County. The COUNTY, to subsidize its regulatory burden, charged Florida Water franchise fees on its gross receipts derived from Spring Hill. After collection, the COUNTY deposited the franchise fees into a trust fund maintained by the CLERK. This arrangement ceased after the COUNTY condemned Florida Water=s Hernando County assets in 2003. Approximately $3,000,000.00 remains in the CLERK=s trust fund. 1 In 2004, the MORANAS, on behalf of themselves and as representatives of approximately 35,000 former Florida Water customers, filed a lawsuit against the COUNTY and the CLERK in the Hernando County Court. The MORANAS= class action complaint sought an accounting and a refund of the franchise fees deposited 1 Morana, 979 So.2d at 277.

35,000 class members. Multiplied out, the MORANAS= class action complaint sought aggregate damages of approximately $3,500,000.00. 2 The COUNTY and the CLERK subsequently moved to dismiss the MORANAS= lawsuit. The COUNTY and the CLERK argued that the MORANAS= complaint facially sought aggregated damages in excess of the County Court=s monetary jurisdictional limit of $15,000.00. The County Court denied the motion to dismiss, Aconcluding that aggregation of individual claims in a class action suit is permissive, not mandatory.@ 3 The COUNTY and the CLERK then petitioned the Circuit Court for a writ of prohibition to be directed to the County Court. The COUNTY and the CLERK again argued that the amount in controversy exceeded the County Court=s monetary jurisdictional limit of $15,000.00. The circuit court denied the petition. 4 The COUNTY and the CLERK appealed the Circuit Court=s ruling to the Fifth District Court of Appeal. The MORANAS, however, chose not to file an answer brief despite being granted multiple extensions to do so. 5 2 3 4 5 See Request for Judicial Notice at Exhibit AA,@ passim. Respondents are filing this Request with the Court contemporaneously with this brief. 2into the trust fund. The MORANAS sought approximately $100.00 for each of the

February 22, 2008. 6 That Court A[held] that if the aggregated individual claims of class plaintiffs do not exceed $15,000, exclusive of costs, interest and attorney=s fees, the action belongs in the county court.@ 7 The Fifth DCA further held that A[i]f the aggregated class claims exceed the circuit court[ s minimum] threshold, jurisdiction belongs exclusively in the circuit court.@ 8 III. SUMMARY OF ARGUMENT Petitioners have failed to establish that this Court has the discretion to review the Fifth DCA=s opinion in Morana. 9 First, the MORANAS waived any grounds for review in this Court when they failed to file a brief in the lower court. The Fifth District Court of Appeal=s decision does not conflict with any opinions of this Court or any of the other district courts. Accordingly, this Court should deny the MORANAS petition. IV. ARGUMENT Article V, Section 3(b)(3) of the Florida Constitution grants this Court jurisdiction to review Aany decision of a district court of appeal... that expressly and directly conflicts with a decision of another district court of appeal or of the supreme 6 Morana, 979 So.2d at 278. 7 8 9 The COUNTY concedes that this Court has subject matter jurisdiction over the instant action. See The Florida Star v. B.J.F., 530 So.2d 286, 288 (Fla. 1988). 3The Fifth DCA quashed the Circuit Court=s order in a written opinion dated

on the same question of law.@ 10 An actual conflict need not exist for this Court to have jurisdiction to review a district court opinion.@ 4court 11 The Florida Constitution, however, limits this Court=s discretion to exercise its conflict jurisdiction to situations when an Aexpress and direct@ conflict between opinions appears "within the four corners of the majority decision" to be reviewed. 12 This Court lacks the discretion to hear the instant appeal for two reasons. First, the MORANAS have waived all of their legal arguments when they failed to file a brief in the proceedings below. Second, no conflict exists between the Fifth DCA=s opinion in this case and any of the five precedents cited by the MORANAS. A. THE MORANAS FAILED TO PRESERVE ANY OF THEIR LEGAL ARGUMENTS. The MORANAS have waived all of the arguments contained in their Amended Brief on Jurisdiction. This Court has held that Aan issue must be presented to the lower and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.@ 13 The MORANAS, by not filing a brief, failed to present any arguments to the Fifth DCA 10 Fla. Const. Article V, ' 3(b)(3); see also Fla. R. App. P. 9.030(a)(2)(A)(iv). 11 The Florida Star, 530 So.2d at 288. 12 E.g., Reaves v. State, 485 So.2d 829, 830 (Fla. 1986). 13 Tillman v. State, 471 So.2d 32, 35 (1985).

the proceedings below. 14 This Court does not consider legal arguments that have not been preserved for appellate review. 5during 15 B. THE FIFTH DCA=S OPINION IN THIS CASE DOES NOT CONFLICT WITH ANY OF PRECEDENTS CITED BY THE MORANAS. Contrary to the MORANAS= assertions, the Fifth DCA=s opinion in Morana does not conflict with Galencare, Inc. v. Blanton, 650 So.2d 42 (Fla. 1995); Johnson v. Plantation General Hospital Limited Partnership, 641 So.2d 5 (Fla. 1994); State ex rel. City of West Palm Beach v. Chillingworth, 129 So. 816 (Fla. 1930); Burkhart v. Gowin, 98 So. 140 (Fla. 1922); or Galencare, Inc. v. Blanton, 636 So.2d 547(Fla. 2 nd DCA 1994). In Burkhart, this Court held that the monetary jurisdictions of circuit and county courts could not Abe violated by splitting demands, or by aggregating demands that are in fact not joint or composite, and that are in no way related, but are wholly distinct and several their character.@ 16 The MORANAS allege that Burkhart bars the 14 See Request for Judicial Notice at Exhibit AA,@ passim. Respondents are filing this Request with the Court contemporaneously with this brief. 15 See Sunset Harbour Condominium Ass=n v. Robbins, 914 So.2d 925, 928 (Fla. 2005); see also Metropolitan Dade County v. Chase Fed. Housing Corp., 737 So.2d 494, 499, n.7 (Fla. 1999); Tillman, 471 So.2d at 35. 16 Burkhart, 98 So. at 142.

of their class members= claims for jurisdictional purposes because they did not arise from the same transaction. 6aggregation 17 Burkhart, however, does not limit aggregation to claims arising from the same transaction. This Court merely listed claims arising from the same transaction among the types of claims that could be aggregated to confer jurisdiction. 18 Thus, this Court=s holding in Burkhart does not conflict with the Fifth DCA=s opinion in Morana. In Chillingworth, this Court held that Awhen several parties sue jointly... claiming under a common right... it is the aggregate sum of their several claims which [determine] the amount in controversy, but persons having distinct and separate interests cannot join their actions for purpose of making the jurisdictional amount to appear.@ 19 Since the Florida Rules of Civil Procedure preclude the certification of a class whose members have Adistinct and separate interests,@ this Court=s holding in Chillingworth cannot conflict with the Fifth DCA=s opinion in Morana. 20 In Johnson, this Court held Athat [the] purpose [of a class action] is served best if jurisdiction is conferred the circuit court when the aggregated claims of the class meet the monetary jurisdictional requirement even though an individual claim of a 17 Petitioners= Amended Brief Jurisdiction at 4. 18 Burkhart, 98 So. at 142. 19 Chillingworth, 129 So.2d at 816 (Fla. 1930). 20 See Fla. R. Civ. P. 1.220(a) (making Acommonality@ a prerequisite for class certification).

member does not reach that threshold.@ 7class 21 This Court then explicitly approved the Fifth DCA=s opinion in Galen of Florida, Inc. v. Arscott. 22 In Galen of Florida, the Fifth DCA held that A[i]f the aggregated individual claims do not exceed the $15,000 jurisdictional amount, the action belongs in county court,@ while A[i]f it exceeds the circuit court threshold, it belongs in circuit court.@ Accordingly, Johnson cannot conflict with Morana because both cases stand for the same legal principle B the circuit court has jurisdiction over actions in which the aggregate claims of the members exceed the circuit court=s jurisdictional threshold. Finally, this Court made no substantive ruling in Galencare with which Morana could conflict. Justice Wells, in his two-paragraph opinion, simply pointed out that this Court had decided Johnson after the Second DCA had issued the opinion being reviewed. 23 Justice Wells then noted that in Johnson, this Court had approved the reasoning of Galen of Florida. 24 This Court then affirmed the lower court opinion in light of Johnson=s holding. 25 As shown above, this Court=s opinion in Johnson does not conflict with the Fifth DCA=s opinion in Morana B both opinions held that class claims must be 21 Johnson, 641 So.2d at 60. 22 Galen of Florida, Inc. v. Arscott, 629 So.2d 856 (Fla. 5 th DCA 1993) (Order of Motion to Vacate and Dismiss). 23 Id at 42. 24 25

to determine monetary jurisdiction. The MORANAS now claim that the Second DCA=s opinion in Galencare stands for the proposition that the aggregation of class claims is permissive. 8aggregated 26 The Second DCA=s ruling in Galencare, however, predates this Court=s ruling on the same legal issue in Johnson. Thus, Johnson controls over the Second DCA=s ruling in Galencare to the extent that the opinions conflict on the issue of claim aggregation. V. CONCLUSION As this Court lacks the discretion to hear the instant action, this Court should deny the MORANAS= petition for discretionary review. (The Remainder of This Page Has Been Intentionally Left Blank) 26 Petitioners= Amended Brief on Jurisdiction at 4.

OF SERVICE I HERBY CERTIFY that a true and correct copy of the foregoing has been furnished by U. S. Mail to JOSEPH M. MASON, JR., ESQ., 101 South Main Street, Brooksville, FL 34605 on this 29 9CERTIFICATE th day of July, 2008. /s/ /s/ Jon A. Jouben, Esq. George G. Angeliadis, Esq. Fla. Bar No. 149561 Fla. Bar No. 080081 Garth C. Coller, Esq. Thomas S. Hogan, Jr., Esq. Fla. Bar No. 374849 Fla. Bar No. 338125 Office of the County Attorney The Hogan Law Firm 20 N. Main Street, Ste. 462 20 S. Broad Street Brooksville, FL 34601 Brooksville, FL 34601 (352) 754-4122 (352) 799-8423 (352) 754-4001 (Fax) (352) 799-8423 (Fax) Attorneys for Hernando County Attorneys for the Clerk CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of Fla. R. App. P. 9.210. /s/ Jon A. Jouben, Esq.