SUPREME COURT OF FLORIDA EMILY HALE, Petitioner, -vs- DEPARTMENT OF REVENUE, STATE OF FLORIDA, Case No.: SC08-371 L.T. Case No.: 98-107CA Respondent. ********************************************** PETITIONER, EMILY HALE S JURISDICTIONAL BRIEF *********************************************** H. GUY GREEN, ESQUIRE 4387 Clinton Street Marianna, Florida 32446 850/526-3707 - Telephone 850/526-5810 - Facsimile Florida Bar No.: 153300 ATTORNEY FOR PETITIONER
Table of Contents TABLE OF AUTHORITIES................. ii, iii JURISDICTIONAL STATEMENT.................. 1 STATEMENT OF THE CASE AND FACTS............... 1 SUMMARY OF ARGUMENT..................... 5 ARGUMENT.......................... 6 I. THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL CONFLICTS WITH THIS COURT S DECISION IN GANZ vs. HZJ, INC. CONCLUSION......................... 9 CERTIFICATE OF COMPLIANCE.................. 9 -i-
Table of Authorities Cases: Dean S. Rebich vs. Burdine s and Liberty Mutual Insurance Company, 417 So.2d 284 (1 st DCA 1982).....9 Ganz vs. HZJ, Inc., 605 So.2d 871 (Fla. 1992).............. 6, 7 Hale vs. Dept. of Revenue, 808 So.2d 237 (Fla. 1 st DCA 2001) Department of Revenue vs. Hale, 2992 Fla. Lexis 1815 (Fla. 2002)............2 Goodman vs. Martin County Health Department, 786 So.2d 661 (4 th DCA 2001).............7, 8 Hooper vs. State Road Department, 105 So.2d 515 (2 nd DCA 1958).............. 8 Heridia vs. Department of Safety and Motor Vehicles, 547 So.2d 107 (3 rd DCA 1989)............. 7, 8 Special Disability Trust Fund, Department of Labor and Employment Security, State of Florida vs. Motor and Compressor Company and Shelby Mutual Ins. Co., 46 So.2d 224 (1 st DCA 1984)............... 8 The Estate of Jeffcott vs. F. E. Starnes, 186 So.2d 80 (Fla. 2 nd DCA 1966).............8 Florida Statutes: Chapter 212, Florida Statutes............... 1 Section 57.11, Fla. Stat.................. 3 Section 57.105, Fla. Stat.................. 6 -ii-
Section 57.105(1)(b), Fla. Stat............... 3 Section 120.595, Fla. Stat................. 3 Section 120.73, Fla. Stat.................. 3 Section 120.80, Fla. Stat.................. 3 Section 212.03(7), Fla. Stat................ 2 Section 212.03(7)(a), Fla. Stat............... 2 Section 213.015, Fla. Stat................. 3 Section 213.015(13), Fla. Stat............... 3 Section 284.30, Fla. Stat................7, 8 Other Citations: Article I Section 9, Florida Constitution......... 9 Amendment XIV United States Constitution.......... 9 -iii-
JURISDICTIONAL STATEMENT Petitioner, Emily Hale, requests this Court to review the decision of the First District Court of Appeal in Emily Hale vs. Department of Revenue, Case No.: 1D07-193, dated December 20, 2007. This decision is within this Court s discretionary jurisdiction because it directly and expressly conflicts with the prior decision of this Court. STATEMENT OF CASE AND FACTS On August 18, 1997, the Department sent a letter to the Hales and requested certain records regarding their apartment rental business, so that these records could be examined by the Department. The Hales refused to provide the requested books and records, and on or about February 12, 1998, brought an action to oppose the disclosure of business records to the Department. In their Complaint, the Hales asserted they were not subject to tax and audit pursuant to Chapter 212, Florida Statutes, and that the Department by initiating a sales tax audit of the Hales business, was depriving them of their right to privacy. The Complaint sought a declaratory judgment finding the Hales were not subject to tax or audit, and also injunctive relief, both temporary and permanent, prohibiting the Department from auditing and subjecting the Hales to tax, now and in the future. The Complaint alleged that the services of an attorney had been secured and that reasonable attorney s fees were required to be 1 paid. In their prayer for relief the Hales asked to Court to award
reasonable attorney s fees. The Complaint did not allege that all conditions precedent to recovery of attorney s fees had been satisfied. The Department moved to transfer venue and to dismiss the Complaint for failing to state a cause of action. Following a denial of the Motion to Transfer Venue, an appeal of that Non-Final Order ensued which delayed litigation until that matter was resolved by the First District Court of Appeal in favor of the Hales. After issuance of the mandate, an Order was entered on May 24, 1999, denying the Department s Motion to Dismiss the Complaint. With the scope of the Hale s Complaint narrowed accordingly, eventually an Order was entered, by Judge Judy Pittman, granting summary final judgment in favor of the Department as to the requirements of an audit, that the sales tax exemption in Section 212.03(7), Fla. Stat., did not apply to the Hales, and that the Hales may be required to pay tax. The Hales appealed this Final Summary Judgment. In Hale vs. Dept. of Revenue, 808 So.2d 237 (Fla. 1 st DCA 2001), review denied, Dept. Of Revenue vs. Hale, 2992 Fla. Lexis 1815 (Fla. 2002), the District Court disagreed with the trial Court s legal analysis of Section 212.03(7)(a), Fla. Stat. 2 The Department sought rehearing, and being unsuccessful 6
thereafter filed a Petition for Writ of Certiorari to the Supreme Court, which petition was denied August 21, 2002. In September of 2002, the Hales filed their first motion for attorney s fees, styled Motion to Implement Appellate Decision and for Attorney Fees Entitlement, alleging entitlement pursuant to Sections 120.595, 120.73, 120.80, 213.015, and 57.11, Fla. Stat. The Department filed its response in opposition thereto, and since the remand necessarily required the examination of the books and records of the Hales, again moved for summary judgment as against the Complaint as plead. The Hales, too, moved for summary judgment. On April 14, 2003, Judge Michael D. Miller (now assigned to the case) continued the hearing on the Hales Motion for Attorney s Fees. The Department s Motion for Summary Judgment was denied at that time. On April 6, 2004, the Hales filed their second motion requesting attorney s fees styled Motion for Plaintiff s Entitlement to Attorney s Fees, this time alleging entitlement pursuant to Sections 213.015(13), (14), and 57.105(1)(b), Fla. Stat., and scheduled it for hearing on June 28, 2004. On June 8, 2004, the Department filed its Response to Plaintiff s Motion for Attorney Fees, a Motion to Strike Plaintiff s Demand for Attorney 3 Fees, and a Motion to Dismiss Complaint for Lack of Subject Matter Jurisdiction. 7
At the June 28, 2004 hearing, the Court denied the Hales Motion for Summary Judgment, determined their Motion for Entitlement to Attorney s Fees to be premature, and denied the Department s Motion to Dismiss Complaint for Lack of Subject Matter Jurisdiction. On July 8, 2004, the Hales served a copy of their Complaint on the Department of Financial Services, and on October 5, 2004, re-noticed their Motion for Entitlement to Attorney Fees for October 21, 2004. The Department re-noticed their June 8, 2004 motions for the same day. On May 11, 2005, the Hales filed a Motion to Enter Final Order. On March 14, 2006, the Hales filed their third motion requesting attorney s fees, in a motion styled Motion to Enter Final Order Determining Prevailing Party and Renewed Motion for Attorney Fees, and Motion for Summary Judgment. At the June 16, 2006 hearing, the trial court set the matter or a non-jury trial, to begin September 14, 2006. At the same time, the Court explained to counsel for the Hales, that since their demand for attorney s fees had been previously struck, until there was a new or an amended Complaint, the previous demand remained stricken. At the conclusion of the non-jury trial, the Department 4 moved for a directed verdict, which was denied, and a Final Judgment entered in favor the Hales on September 21, 2006 was entered. 8
Three days after the Final Judgment was filed, the Hales filed their fourth motion directed towards an award of attorney s fees, in a motion styled Plaintiff s Renewed Motion for Entitlement to Attorney Fees and Costs and Injunctive Relief, in addition to various other motions including seeking to amend the Complaint to add an additional cause of action and to establish a class, and a renewed motion to compel directed towards interrogatory responses which had been served almost three years earlier. The Department timely moved for a new trial, or in the alternative for an amendment to the Final Judgment. The Department also filed motions in opposition to the motions recently filed by the Hales. On December 1, 2006, a hearing was held before Judge Hentz McClellan, the trial judge, and, thereafter all motions, filed by either party, were denied, save for an award of costs granted to the Hales. An appeal followed. The decision was rendered on December 20, 2007 and the mandate was entered on February 19, 2008, attached as Appendix A, and Appendix B, respectively. SUMMARY OF ARGUMENT The decision of the First District Court of appeal conflicts 5 with this Court s decision in Ganz vs. HZJ, Inc., 605 So.2d 871 (Fla. 1992). The Supreme Court decision in Ganz, supra, provided it is 9
difficult if not impossible, for a party to plead in good faith its entitlement to attorney s fees under Section 57.105 Fla. Stat., before the case is ended. ARGUMENT The decision expressly and directly conflicts with this Court s decision in Ganz vs. HZJ, Inc., supra. In Ganz, supra, this Court discussed the feasibility of complying with Section 57.105 Fla. Stat., attorney s fees, prior to the completion and the case. And, this Court at page 872 held: It is expressly difficult, if not impossible, for a party to plead in good faith its entitlement to attorney s fees under Section 57.105 before the case is ended. We agree with the Third District s observation in Autorico, Inc. Vs. Government Employees Insurance Co., 398 So.2d 485, 487-88 (Fla. 3d DCA 1981). This Court found that notice to the Department of Insurance must be given at the commencement of the action pursuant to Section 284.30 Florida Statutes (1997). This section does not require that notice be given at the commencement of the action as set forth by the District Court. The Department of Financial Services was served on July 8, 2004 and was subsequently 6 defaulted on September 14, 2006. Section 284.30, Florida Statutes (1997), was complied with, although it was not at the commencement of the action, which was not required. 10
The Trial Court, in its Order dated June 28, 2004, set forth that the Appellant s Motion for Attorney s Fees was premature, commenting that these issues could not be determined until after the action has been completed. This was initially consistent with Ganz, supra, but the subsequent Order and the First Distrit Court of Appeal opinion is contrary to Ganz, supra. There is a presumption that the legislature does not pass laws inconsistent with each other. In this case, the legislature did not provide that notice must be given to the Department of Insurance/Financial Services at the commencement of this action, Section 284.30, Fla. Stat. This is a judicial legislation beginning with Heridia vs. Department of Safety and Motor Vehicles, 547 So. 2d 107 (3 rd DCA 1989) followed by Goodman vs. Martin County Health Department, 786 So 2d 661 (4 th DCA 2001)and other courts including this court in this present decision. This concept is contrary to the Supreme Court. In Ganz, supra, at page 872, the Supreme Court finds: It is extremely difficult, if not impossible, for a party to plead in good faith that it is entitled to attorneys fees under Section 57.105 before the case has ended. 7 The phrase at the commencement of the action initiated by Heridia, supra, and followed by Goodman, supra, is improper judicial legislation. Section 284.30 Florida Statutes, is clear and 11
unambiguous. In The Estate of Jeffcott vs. F. E. Starnes, 186 So. 2d 80 (Fla. 2 nd DCA 1966), the court held that: Where the statute is clear and unambiguous a court should refrain form engaging in speculation as to what the legislature intended. In addition, When there is doubt as to the legislative intent or where speculation is necessary, then the doubts should be resolved against the power of the courts to supply missing words. Likewise in Hooper vs. State Road Department, 105 So. 2d 515 (Fla. 2 nd DCA 1958),the court held that: The plain meaning of a statute will not be disturbed in the absence of ambiguity or conflict. Section 284.30 Florida Statutes is unambiguous. As such, the court is not allowed to add additional language to interpret the statute. The District Court in Special Disability Trust Fund, Department of Labor and Employment Security, State of Florida vs. Motor and Compressor Company and Shelby Mutual Insurance Company 46 So. 2d 224 (Fla. 1 st DCA 1984), entailed: Usually, courts in construing statute may not insert words or phrases in that statute or supply omission that to all appearances was not in mind of legislators when law was enacted; when there is doubt as to 8 legislative intent, doubts should be resolved against power of court to supply missing words. See also, Dean S. Rebich vs. Burdine s and Liberty Mutal 12
Insurance Company, 417 So. 2d 284 (Fla. 1 st DCA 1982). The effect of the District Court s decision is to deny Appellant Hale her due process rights, pursuant to Article I Section 9 Florida Constitution and Amendment XIV United States Constitution. CONCLUSION Petitioner, Emily Hale expressly requests that this Court will accept jurisdiction to resolve the conflict presented. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the Petitioner, Emily Hale, has used Courier New Point 12 type size in her Jurisdiction Brief. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to John Mike, Assistant Attorney General, Office of the Attorney General, PL-01, The Capitol, Revenue Litigation Section, Tallahassee, Florida 32399-1050 by United States Mail this 10th day of March, 2008. H. Guy Green 4387 Clinton Street Marianna, Florida 32446 850/526-3707 - Telephone 850/526-5810 - Facsimile Florida Bar No.: 153300 ATTORNEY FOR PETITIONER EMILY HALE 9 SUPREME COURT OF FLORIDA EMILY HALE, Petitioner, 13
-vs- DCA Case No.: 1D07-193 L.T. Case No.: 98-107CA DEPARTMENT OF REVENUE, STATE OF FLORIDA, Respondent. ********************************************** PETITIONER, EMILY HALE S APPENDIX TO JURISDICTIONAL BRIEF *********************************************** H. GUY GREEN, ESQUIRE 4387 Clinton Street Marianna, Florida 32446 850/526-3707 - Telephone 850/526-5810 - Facsimile Florida Bar No.: 153300 ATTORNEY FOR PETITIONER DOCUMENT(S) INDEX TO APPENDIX Emily Hale vs. Department of Revenue, Opinion Case No.: 1D07-0193 (1 st DCA, December 20, 2007)..... A 14
Emily Hale vs. Department of Revenue, Mandate Case No.: 1D07-0193 (1 st DCA, February 19, 2008)..... B 15