IN THE SUPREME COURT OF FLORIDA Case No.: SC11- ALBERTO G. DAVID, JR., Petitioner, vs. LORETTA L. DAVID, Respondent. On Review from the District Court of Appeal, Fifth District, State of Florida Case No.: 5D09-4126 JURISDICTIONAL BRIEF OF PETITIONER THE SCHWARTZ LAW GROUP, P.A. Seth Schwartz, Esquire Florida Bar. No.: 739421 Caleb D. Rowland, Esquire Florida Bar No.: 49936 10365 Hood Road, Suite 105 Jacksonville, FL 32257 (904) 292-0222 (904) 292-0044 fax Attorneys for the Petitioner
TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 JURISDICTIONAL ARGUMENT 3 CONCLUSION... 10 CERTIFICATE OF COMPLIANCE 11 CERTIFICATE OF SERVICE 12 APPENDIX
TABLE OF AUTHORITIES Cases Love v. Hannah, 72 So.2d 39 (Fla. 1954) Passim Mancini v. State, 312 So.2d 732, 733 (Fla. 1975) 3 Pedersen v. Pedersen, 892 So.2d 1125 (Fla. 2d DCA 2004) 9 Perlow v. Berg-Perlow, 875 So.2d 383 (Fla. 2004) 8 Ross v. Botha, 867 So.2d 567 (Fla. 4th DCA 2004) Passim Spivey v. Battaglia, 258 So.2d 815 (Fla. 1972) 4 State ex rel. Personal Finance Co. v. Lewis, 191 So. 295 (Fla. 1939) Passim Walker v. Walker, 873 So.2d 565 (Fla. 2d DCA 2004) 8 ii
STATEMENT OF THE CASE AND FACTS On October 15, 2009, the parties Final Judgment of Dissolution of Marriage (hereinafter, Final Judgment ) was entered by the Putnam County Circuit Court. The Final Judgment dissolved the parties nine (9) year marriage, awarded Respondent permanent, periodic alimony with no termination on death or remarriage, distributed the parties marital assets, awarded Respondent a special equity in the parties marital home, required Petitioner to acquire life insurance to secure his alimony obligation, and awarded Respondent approximately fifty thousand dollars ($50,000.00) in attorney s fees and costs. Petitioner timely sought review of the Final Judgment, and the Fifth District Court of Appeal issued its Opinion in David v. David on March 25, 2011. Opinion at 1. The Fifth District reversed the trial court s unequal distribution of marital credit card debt, Id. at 3, Respondent s award of special equity in the marital residence, Id. at 4, and the life insurance requirement. Id. at 6, and required the trial court to revisit the entire equitable distribution scheme. Id. at 7. The Fifth District affirmed all other points raised on appeal. Id. at 7. Petitioner requested the Fifth District review the propriety of the trial court entering a thirty two (32) page Final Judgment that was substantially similar to Respondent s proposed final judgment. Id. at 1. The Fifth District denied this argument, and found the lack of verbal rulings resulted in no reversible error by the 1
trial court, citing Ross v. Botha, 867 So.2d 567 (4th DCA 2004). Moreover, the Fifth District found Petitioner s submission of a proposed final judgment including the issues of distribution of appreciation in Respondent s business, and an award of attorney s fees and costs to Respondent, bars Petitioner from appellate review on such issues. Opinion at 3-4, 6. The Fifth District failed to cite to any statutory or caselaw authority in support of this contention. SUMMARY OF ARGUMENT Petitioner s position is simple: the Fifth District s Opinion expressly and directly conflicts with this Court s prior opinions regarding stipulations by counsel, as the Opinion allows trial counsel s stipulation of facts and law to bind the client. See Opinion at 3-4, 6; see also Love v. Hannah, 72 So.2d 39 (Fla. 1954) and State ex rel. Personal Finance Co. v. Lewis, 191 So. 295 (Fla. 1939). Such conflict creates jurisdiction in this Court. Moreover, the Fifth District s Opinion misconstrues and misapplies the Fourth District s decision in Ross v. Botha, 867 So.2d 567 (Fla. 4th DCA 2004), by refusing to acknowledge the intent of Botha and account for the lack of verbal findings of fact and conclusions of law. The Fifth District s Opinion virtually forecloses appellate review of final judgments where the trial court fails or refuses to make findings of fact and conclusions of law, seeks proposed final judgments from the parties, then enters a final judgment substantially similar to one of the 2
proposed final judgments. Additionally, the Fifth District s Opinion misapplies the Botha prong related to whether the trial judge remembered the case or exercised independent judgment, as is clearly evident from its reversal of Petitioner s life insurance requirement. Opinion at 6. JURISDICTIONAL ARGUMENT This Court should exercise its discretionary jurisdiction to review the Fifth District s Opinion because it directly and expressly conflicts with prior opinions of this Court. Specifically, the Fifth District found Petitioner s submission of a proposed final judgment acts as bar to appellate review of the trial court s awards of attorneys fees, Id. at 6, and distribution of appreciation in Petitioner s dental practice. Id. at 3-4. However, such decision directly conflicts with this Court s prior decisions in Love v. Hannah, 72 So.2d 39 (Fla. 1954) and State ex rel. Personal Finance Co. v. Lewis, 191 So. 295 (Fla. 1939). Consequently, this Court has jurisdiction to review the Fifth District s decision in the instant case. See Mancini v. State, 312 So.2d 732, 733 (Fla. 1975). Moreover, the Fifth District s decision that the trial court s entry of Respondent s proposed final judgment essentially verbatim does not constitute reversible error, misapplies the Fourth District Court of Appeals decision in Ross v. Botha, 867 So.2d 567 (Fla. 4th DCA 2004). This Court has jurisdiction to review the Fifth District s decision in the instant case, as misapplication of another 3
District Court of Appeals decision creates conflict jurisdiction. Spivey v. Battaglia, 258 So.2d 815, 816 (Fla. 1972). I. The Fifth District s Decision Directly and Expressly Conflicts With This Court s Prior Decisions In its Opinion, the Fifth District affirmatively states submission of a proposed final judgment acts as a bar to appellate review. Essentially, the Fifth District takes the position Appellant s submission of a proposed final judgment bars appellate review on any issues included therein. Specifically, the Fifth District states: Id. at 3-4. However, in his proposed final judgment, the husband suggested that the trial court distribute the appreciation in value of the dental practice equally between the parties. Since the husband recognized that the wife was entitled to receive one-half interest in the appreciated value of the dental practice he cannot successfully argue on appeal that the wife failed to sustain her burden of proof on this issue. Further, the Court states: The husband lastly argues that the trial court reversibly erred by entering an award of attorney s fees in favor of the wife. We disagree. The husband s proposed final judgment specifically stated: Based upon his superior income, Husband shall pay Wife s reasonable attorney s fees and costs incurred in these proceedings. This proposed order operates to bar the husband from now claiming that the trial court erred in awarding the wife attorney s fees. Id. at 6. (emphasis added). The Fifth District held an attorney may bind his or her client on substantive 4
factual and legal issues by submitting a proposed final judgment, and the client is without any recourse in the appellate court. Such holding directly and expressly conflicts with well-settled law regarding the effect of stipulations as to factual and legal matters before the trial court. State ex rel. Personal Finance Co. v. Lewis, 191 So. 295, 296 (Fla. 1939) (stating It is quite true that in matters of procedure or practice which affect solely the conduct of a cause, an attorney may bind his client but this is not the rule as affecting the merits. ) (emphasis added); see also Love v. Hannah, 72 So.2d 39 (Fla. 1954) (finding the power of an attorney to make admissions regarding facts and law binding the client is very doubtful. ). In Lewis, this Court reviewed an order striking a praecipe of dismissal. 1 191 So. 295, 296. The plaintiffs filed a complaint against the defendant, defendant moved to dismiss the complaint, and the matter sat undisturbed until plaintiff s attorney moved to dismiss the action. Id. After the matter was dismissed, plaintiff moved to withdraw the praecipe and re-institute the cause. Id. The trial court granted plaintiff s motion, and entered an order striking the praecipe and declaring the order of dismissal null and void. Id. Defendant moved this Court for an order of prohibition, and a rule nisi was entered. Id. This Court quashed the rule nisi, stating: It is quite true that in matters of procedure or practice which 1 In its Lewis Opinion, issued in 1934, this Court used the antiquated terms praecipe and rule nisi. 5
affect solely the conduct of a cause, an attorney may bind his client but this is not the rule as affecting the merits. The question of dismissal is one that goes to the merits and cannot be effectively done without the consent of the client. Id. (emphasis added). This Court reasoned the praecipe of dismissal was filed without plaintiff s consent, and therefore could not bind plaintiff. Id. In Love v. Hannah, this Court reviewed, inter alia, whether statements made by trial counsel as to the issues properly presented to a jury for decision were concessions by him that all issues were determined except that of damages [ ], and whether such stipulations precluded appellate review. 72 So.2d 39, 43. This Court determined the matter was properly presented to the court below, preserving the issue for appellate review. Id. Additionally, this Court stated: Then, again, an effective admission imparts knowledge of the legal effect of the fact admitted and we are convinced that neither plaintiffs' attorney nor defendants' attorney realized the legal effect of the alleged admission when it was made. Furthermore, the power of an attorney to make such an admission which would effectively bind his principal is very doubtful. Id. at 44. The Court then quoted its opinion from Lewis (in fact, the exact quote from above), and reversed the trial court s decision refusing to set aside the final judgment and grant a new trial. Id. Notably, this Court used the term effective admission in discussing the effect of the same, and then quoted the language from Lewis regarding an attorney s inability to bind his or her client on issues affecting the merits of an action. Id. The only logical conclusion to be drawn from Lewis 6
and Love is an attorney cannot bind his or her client on issues effecting the merits of a cause, unless the client specifically consents to the same. Here, the Fifth District decided arguments made by Petitioner s counsel, which unquestionably go[] to the merits, can and do bind Petitioner as to factual and legal issues. Opinion at 3-4, 6. The Fifth District made no finding Petitioner consented to, or even reviewed, the proposed final judgment prior to its submission to the trial court. Moreover, the Fifth District s decision effectively creates law in direct contradiction to this Court s Lewis and Love decisions, by stating submission of a proposed final judgment acts as a bar to appellate review. Opinion at 6. Consequently, the Fifth District s Opinion clearly conflicts with this Court s decisions in Lewis and Love. II. The Fifth District s Opinion Misapplies Precedential Caselaw In finding no reversible error related to the trial court s entry of a Final Judgment substantially similar to Respondent s proposed final judgment, the Fifth District purportedly relied on factors enumerated in Ross v. Botha, 867 So.2d 567 (Fla. 4th DCA 2004). Opinion at 2. However, the Fifth District misapplied the Botha factors, and therefore erred in deciding the trial court s nearly verbatim adoption of Respondent s proposed final judgment was not reversible error. In its Opinion, the Fifth District stated: In this case, each party submitted a proposed final judgment setting forth his or her desired resolution of the case and the opposing party 7
was provided time to respond. The final judgment entered by the trial court, although not a verbatim adoption of the wife s proposed final judgment, was substantially similar to said judgment. Yet the judgment was not inconsistent with any verbal rulings of the trial court, and there is no indication that the trial court did not remember the case or did not exercise independent judgment entering the dissolution order. As such, we find no reversible error related to the trial court s entry of its final judgment. See Ross v. Botha, 867 S.2d 567 (Fla. 4th DCA 2004). Opinion at 2. (emphasis added). However, this statement misapprehends and misapplies Botha on two points: whether the Final Judgment was inconsistent with verbal rulings, and whether the Final Judgment indicates the trial judge did not remember the facts of the case or exercise independent judgment. First, the Fifth District found the Final Judgment was not inconsistent with any verbal rulings of the trial court [ ] Id. While a factually true statement, the Fifth District essentially holds where a trial court makes no verbal rulings, the Botha standard cannot be met. Even a cursory review of the relevant caselaw on this point indicates the clear intent of Botha is to ensure continuity between the findings of a trial judge and the judgments and orders entered, by requiring consistency between verbal findings and those reduced to writing. See, e.g., Perlow v. Berg-Perlow, 875 So.2d 383, 384 (Fla. 2004) (stating [P]rior to requesting proposed final judgments, the trial judge should, when possible, indicate on the record the court s findings of fact and conclusion of law. ); Walker v. Walker, 873 So.2d 565 (Fla. 2d DCA 2004) (discussing this Court s Perlow decision, stating The court held that prior to requesting proposed final judgments, the trial court 8
should, when possible, indicate on the record the court s findings of fact and conclusions of law. We can conceive of no scenario when it would not be possible for the trial court to indicate its findings of fact and conclusions of law. ) (internal citations omitted) (emphasis added); Pedersen v. Pedersen, 892 So.2d 1125, 1126 (Fla. 2d DCA 2004) (reiterating and approving the above statement from Walker v. Walker). The Botha decision makes clear findings of fact and conclusions of law announced on the record must be consistent with those contained in a final judgment entered by the trial court. 867 So.2d 567, 572-573. Where, as here, the trial court makes no findings or conclusion, the clear intent of Botha is frustrated, and litigants are necessarily unable to meet the standard for reversal. The Fifth District s Opinion is intellectually dishonest in stating the judgment was not inconsistent with any verbal rulings of the trial court as there were no findings of fact or conclusions of law announced on the record to guide the parties counsel. Opinion at 2. To determine whether findings of fact and conclusions of law announced by the trial court are inconsistent with those included in a final judgment, the trial court must actually make findings of fact and conclusions of law on the record. Based on the Fifth District s Opinion, should the trial court fail or refuse to announce findings and conclusions, litigants are estopped from obtaining relief from the appellate courts under Botha. This issue requires an admittedly difficult decision, as Florida courts have 9
refused to establish a bright-line rule on verbal pronouncement of findings and conclusions relative to final judgments. However, where effective appellate review requires such pronouncements under the standard set in Botha, and the trial court fails or refuses to make such findings, the Fifth District s Opinion virtually forecloses the possibility of relief on appeal, and reinforces the appearance of impropriety and unfairness. Second, the Fifth District s Opinion is internally inconsistent, finding no indication the trial court did not remember the case or did not exercise independent judgment entering the dissolution order, Opinion at 2, then reversing Petitioner s life insurance requirement, stating [n]either party presented any evidence concerning the need to secure the alimony obligation, the husband s insurability, the cost of the proposed insurance, or the husband s ability to afford the insurance. As such, the obligation must be stricken. Opinion at 6. Clearly, the Fifth District misapplied the Botha factors as to whether the trial court remembered the case or exercised independent judgment. 867 So.2d at 572-573. CONCLUSION For the foregoing reasons, Petitioner respectfully requests this Court find it has discretionary jurisdiction to review the Fifth District s Opinion in the instant cause, and allow briefing on the merits. 10
CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY Petitioner s Jurisdictional Brief complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. THE SCHWARTZ LAW GROUP, P.A. Seth Schwartz, Esquire Caleb D. Rowland, Esquire 11
CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of Petitioner s Jurisdictional Brief was furnished via United States First Class Mail this day of April, 2011, to: Sean P. Sheppard, Esquire, Attorney for the Appellant, 1301 Plantation Island Drive South, Suite 204A, St. Augustine, Florida 32080. THE SCHWARTZ LAW GROUP, P.A. Seth Schwartz, Esquire Florida Bar. No.: 739421 Caleb D. Rowland, Esquire Florida Bar No.: 49936 10365 Hood Road, Suite 105 Jacksonville, FL 32257 (904) 292-0222 (904) 292-0044 fax Attorneys for the Petitioner 12