IN THE SUPREME COURT OF FLORIDA ANGELO KYRELIS, Petitioner, S.C. Case No. SC12-642 DCA Case No. 3D11-1730 v. L.T. Case No. 08-CA-45992 ONEWEST BANK, FSB (SUBSTITUTED PARTY FOR FORMER PLAINTIFF INDYMAC FEDERAL BANK, FSB, SUCCESSOR IN INTEREST TO INDYMAC BANK, FSB), AND DOME ENTERPRISES, INC., Respondents. / APPENDIX TO RESPONDENT'S BRIEF ON JURISDICTION On Review From A Decision Of The Third District Court of Appeal KATHERINE E. GIDDINGS (949396) NANCY M. WALLACE (65897) KRISTEN M. FIORE (25766) 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Telephone: (850) 425-1626 Telecopier: (850) 325-2526 E-mail: katherine.giddings@akerman.com nancy.wallace@akerman.com kristen.fiore@akerman.com WILLIAM P. HELLER (987263) Las Olas Centre II, Suite 1600 350 East Las Olas Boulevard Fort Lauderdale, Florida 33301 Telephone: 954-759-8945 Telecopier: 954-463-2224 william.heller@akerman.com 1
Attorneys for Respondent, OneWest Bank, FSB STATEMENT OF CASE AND FACTS 1 Petitioner Angelo Kyrelis, pro se, filed a notice of appeal seeking review in this Court of the Third District Court of Appeal's decision affirming a final judgment of foreclosure. This Court treated the notice of appeal as a notice to invoke discretionary jurisdiction. The Third District's opinion summarily affirms the final judgment, stating nothing more than the following: [App. 1] Upon consideration of the parties' briefs, the record, and applicable law, the Court summarily affirms the final judgment of foreclosure pursuant to Florida Rule of Appellate Procedure 9.315(a). The record demonstrates that during the non-jury trial, OneWest Bank, FSB, established that it was holder of the note, and introduced into evidence the original note and mortgage dated July 9, 2007, and Kyrelis' loan payment history, which reflects no payment since March 2008. Mr. Kyrelis filed his "Initial Brief of Appellant" "Envoking [sic] Discretionary [J]urisdiction" ("jurisdictional brief") on May 2, 2012. The jurisdictional brief is difficult to comprehend, and, as noted on this Court's docket, it does not comply with the Florida Rules of Appellate Procedure. 1 References to Mr. Kyrelis's jurisdictional brief are to sequential page numbers because the brief lacks pagination (e.g., [Pet. Br. 1] references page 1). OneWest has attached a copy of the Third District's opinion because Mr. Kyrelis failed to attach the opinion in violation of Florida Rule of Appellate Procedure 9.120(d). 2
SUMMARY OF ARGUMENT Nothing in the district court's one paragraph opinion summarily affirming the final judgment of foreclosure provides any basis whatsoever for review. This Court lacks jurisdiction to hear this appeal because none of the criteria for discretionary review under article V, section 3 of the Florida Constitution are met, and the decision does not require mandatory review. ARGUMENT Standard of Review. This Court has discretionary review over decisions from a district court of appeal that: (1) expressly declare valid a state statute; (2) expressly construe a provision of the state or federal constitution; (3) expressly affect a class of constitutional or state officers; (4) expressly and directly conflict with a decision of another district court of appeal or this Court on the same question of law; (5) certify a question of great public importance; or (6) certify the decision is in direct conflict with another district court of appeal. See Art. V, 3(b)(3)&(4), Fla. Const. The only possible basis for seeking jurisdiction in this case would be "express and direct conflict," because none of the other categories of review apply. This Court only has discretionary jurisdiction to review a district court's decision under "express and direct" conflict jurisdiction if that decision expressly and directly conflicts with a decision from another district court on the same 3
question of law. Art. V, 3(b)(3), Fla. Const. The basis for conflict must appear within the four corners of the district court's decision. Beaty v. State, 701 So. 2d 856, 857 (Fla. 1997). Argument. THIS COURT LACKS JURISDICTION TO HEAR THIS APPEAL BECAUSE PETITIONER HAS CITED NO BASIS FOR REVIEW. This Court lacks jurisdiction to review the Third District's decision because none of the discretionary review criteria are met. The jurisdictional brief is nonsensical, but that is of no consequence because, under the relevant facts, Mr. Kyrelis cannot show this Court has jurisdiction. Mr. Kyrelis has "appealed" to this Court the Third District's summary affirmance of a foreclosure judgment entered in favor of OneWest. See Kyrelis v. OneWest Bank, FSB, So. 3d, 2012 WL 385476 (Fla. 3d DCA Feb. 8, 2012). [A 2.] The Third District's opinion provides in its entirety: Upon consideration of the parties' briefs, the record, and applicable law, the Court summarily affirms the final judgment of foreclosure pursuant to Florida Rule of Appellate Procedure 9.315(a). The record demonstrates that during the non-jury trial, OneWest Bank, FSB, established that it was holder of the note, and introduced into evidence the original note and mortgage dated July 9, 2007, and Kyrelis' loan payment history, which reflects no payment since March 2008. Id. As this Court recognized in treating the notice of appeal as a petition to invoke discretionary jurisdiction, this case does not fall within any of the categories of cases for which mandatory review or an appeal to this Court is appropriate under 4
article V, section 3 of the Florida Constitution. Instead, the only possible basis for review would be asserted "express and direct" conflict jurisdiction. Because no express and direct conflict with another case could possibly occur given the limited, factually based nature of the Third District's decision, discretionary review on this basis is inappropriate. In effect, the decision constitutes nothing more than a "per curiam" affirmance without written opinion. "This Court has long recognized that it lacks jurisdiction over unelaborated per curiam decisions in the context of discretionary review jurisdiction." Jackson v. State, 926 So. 2d 1262, 1265 (Fla. 2006). In addition, this Court generally will not exercise jurisdiction over a case that is not of significant importance. Here, the Third District's decision establishes no precedence of any kind; instead, it simply finds, on the particular facts of this case, that final judgment was appropriate. No public policy reasons exist for this Court to exercise jurisdiction in this case. 5
CONCLUSION OneWest respectfully requests this Court deny review of this appeal because no basis for jurisdiction exists and the Third District's decision is a factually based determined limited to the particular facts of this case. Respectfully submitted, KATHERINE E. GIDDINGS (949396) NANCY M. WALLACE (65897) KRISTEN M. FIORE (25766) 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Telephone: (850) 224-9634 Telecopier: (850) 222-0103 katherine.giddings@akerman.com nancy.wallace@akerman.com kristen.fiore@akerman.com WILLIAM P. HELLER (987263) Las Olas Centre II, Suite 1600 350 East Las Olas Boulevard Fort Lauderdale, Florida 33301 Telephone: (954) 463-2700 Telecopier: (954) 463-2224 william.heller@akerman.com Attorneys for Respondent, OneWest Bank, FSB 6
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing and the attached appendix has been furnished by U.S. Mail to Angelo Kyrelis, 12951 Auralia Road, North Miami, FL 33181 (Pro se Petitioner) and Raymond L. Robinson, Esq. and Douglas C. Hiller, Esq., Robinson & Associates, P.A., 1501 Venera Avenue, Suite 300, Coral Gables, FL 33146 (Attorney for Appellee, Dome Enterprises, Inc.) on this day of May, 2012. NANCY M. WALLACE CERTIFICATE OF FONT COMPLIANCE I hereby certify the font used in this brief is the Times New Roman 14-point font and the brief complies with the font requirements of Rule 9.210(a)(2). NANCY M. WALLACE 7