Filing # 52860487 E-Filed 02/22/2017 10:20:05 PM IN THE SUPREME COURT OF FLORIDA JANE E. CAREY, ESQ., and JANE E. CAREY, P.A., Petitioners, CASE NO: SC17- v. RECEIVED, 02/22/2017 10:23:34 PM, Clerk, Supreme Court TRACIE CORISTINE, Respondent. / PETITIONERS PETITION TO INVOKE ALL WRITS JURISDICTION Jane E. Carey, Esquire Carlton Pierce, Esquire Attorney for Jane E. Carey, Esquire Attorney for Jane E. Carey, P.A. 905 W. Colonial Dr. P.O. Box 223723 Orlando, FL 32804 West Palm Beach, FL 33422-3723 Ofc.: (407) 425-2508 Ofc.: (407) 345-5258 Fax: (407) 423-1863 Fax: (407) 536-4333 Email: jane.e.carey@gmail.com Email: c_pierce1@hotmail.com Email: hhmorall@janeecarey.com FBN: 0610879 FBN: 361240
Table of Contents Table of Citations.........i-ii Introduction......1 Jurisdiction...... 1 Statement of the Case........1 Statement of the Facts......2-3 Relief Sought.........3 Supporting Argument...........3-10 Standard of Review...... 3-5 Issue I.......5-10 The Order upholds that trial court s order that Fabre invalidates 768.81 (sic) [ 768.31] and vitiates Petitioners statutory right to file an action for contribution. Conclusion.....11 Certificate of Service.....11 Certificate of Compliance.....11 Table of Citations and Other Authorities Cases Birge v. Charron, 107 So.3d 350 (Fla. 2012)....7 Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) passim Furqan v. State, 136 So.3d 636 (Fla. 2nd DCA 2013)..5 i
Gortz v. Lytal, Reiter, Clark, Sharpe, 769 So.2d 484 (Fla. 4th DCA 2000)..6 Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla. 1959).....5 Jenkins v. State, 385 So.2d 1356 (Fla. 1980).... 4 Morris v. Agricultural and Mechanical Univ., 23 So.3d 167 (Fla. 5th DCA 2009)..5 Stallworth v. Moore, 827 So.2d 974 (Fla. 2002)...4 State v. Nagurney, 687 So.2d 336 (Fla. 4th DCA 1997)...passim T&S Enters. Handicap Accessibility, Inc. v. Wink Indus. Maint. & Repair, Inc., 11 So.3d 411 (Fla. 2nd DCA 2009). 7,8,9 Williams v. State, 913 So.2d 541 (Fl. 2005)...3 Zasula v. Kimpton Hotels and Restaurants, L.L.C., No. 10-21381-CIV. 2011 WI 1741832, *2 (S.D. Fla. 2011)....7 Other Authorities Art. V 3(b)(1), Fla. Const. 1,3,4 Art. V 3(b)(7), Fla. Const 1 768.31, Fla. Stat. (2016).passim 768.81, Fla. Stat. (2016). passim 775.089, Fla. Stat. (2016)....6 Fla. R. App. P. 9.030(a)(1)(A)(ii)..1 Fla. R. App. P. 9.030(a)(3).1 Fla. R. App. P. 9.210....10 Fla. R. Civ. P. 1.180......passim ii
Introduction The Petitioners, Jane E. Carey, Esquire and Jane E. Carey, P.A., seek to invoke this Court s all writs jurisdiction review of the Fifth District Court of Appeal s Order denying their petition for certiorari review. Jane E. Carey, Esquire and Jane E. Carey, P.A., shall be referred to as Petitioners. Tracie Coristine, shall be referred to as Respondent. The Fifth District Court of Appeals shall be referred to as district court. Judge John E. Jordan, shall be referred to as judge and trial court. References to the Appendix will be made by using the symbol (A-x). References to the transcript dated June 21, 2016 shall be made using the symbol (T 1 -x). Jurisdiction This Court has jurisdiction pursuant to Art. V 3(b)(1), Art. V 3(b)(7), Fla. R. App. P. 9.030(a)(1)(A)(ii), and Fla. R. App. P. 9.030(a)(3). Statement of the Case This is a petition to invoke this Court s all writs jurisdiction to review the district court s Order denying Petitioners petition for writ of certiorari entered on January 24, 2017. Carey v. Coristine ~ (1 of 11)
Statement of the Facts On May 1, 2016, Petitioners filed their Motion for Leave to File Third Party Complaints and Join Third Party Defendants (Motion) requesting, inter alia, to join third-party defendants pursuant to 768.31. (A-4-5). On June 21, 2016, a hearing was conducted on Petitioners Motion and the trial court took same under advisement. (T 1-1-11). On July 6, 2016, the trial court entered its order that held, inter alia, 768.31 obsolete/invalid. (A-12-15). On July 26, 2016 Petitioners filed their Notice of Appeal of the order. (A-11). On August 1, 2016, Petitioners filed their Motion to Treat Notice of Appeal as Petition for Writ of Certiorari. (A-7-15). On August 2, 2016, the district court entered its order that the appeal would be treated as a Petition for Writ of Certiorari. (A-16). On August 9, 2016, Petitioners filed their Petition for Writ of Certiorari. (A-17-45). On August 9, 2016, Respondent filed her Response to the Petition for Writ of Certiorari. (A-46-59). On August 9, 2016, Petitioners filed their Reply to the Response. (A-60-72). On January 24, 2017, the district court entered its Order denying their petition for writ of certiorari. (A-1). Carey v. Coristine ~ (2 of 11)
On February 6, 2017, Petitioners filed their Motion for Written Opinion citing, inter alia, the trial court s invalidation of 768.31. (A-73-76). On February 16, 2017, Respondent filed her Response to Petitioners Motion for Written Opinion. (A-77-80). Relief Sought Petitioners seek issuance of a writ quashing the district court s Order and directing the trial court to allow Petitioners to use their statutory right to contribution pursuant to 768.31 and serve third-party complaints related thereto. Supporting Argument Standard of Review A petitioning party for all writs must demonstrate that this Court will have ultimate jurisdiction imposed [elsewhere in the constitution]. See Williams v. State, 913 So.2d 541, 543 (Fl. 2005). The all writs provision does not constitute a separate source of original or appellate jurisdiction. Rather, it operates as an aid to the Court in exercising its "ultimate jurisdiction," conferred elsewhere in the constitution. Id. The Court s ultimate constitutional jurisdiction pursuant to Art. V 3(b)(1) is implicated herein since this case involves a decision of the district court of appeal that let stand the trial court s order that held a statute obsolete/invalid. Carey v. Coristine ~ (3 of 11)
This Court has held that it would not review per curiam decisions with the single word affirmed as same was not a method of expressing. See Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980). This holding and reasoning were extended to per curiam denied decisions in Stallworth v. Moore, 827 So.2d 974, 976-978 (Fla. 2002). The decision herein is not a per curiam denied decision as defined in Stallworth but a decision that expresses that it is denied on the merits raised in the petition, amended petition, response, reply, and the trial court s order. In an abundance of caution, Petitioners filed a Motion for Written Opinion in the district court but a decision on the motion had not been rendered before this Petition. Respondent also filed a response to Petitioners' Motion for Written Opinion and did not discuss Jenkins, Stallworth, the invalidation of 768.31, or the impact of the on the merits decision entered by the district court. Her statement that the Order appears to be a per curiam denial reinforces the fact that the decision is something more than a per curiam denial and that same should be addressed by this Court. (A-79). This case is distinguished from Jenkins and Stallworth as it presents facts that demonstrate that the Court s all writs jurisdiction is properly raised as the trial court and district court have passed on the validity of a statute and same directly implicates this Court s ultimate jurisdiction as Art. V 3(b)(1) states that this Court Shall hear appeals from final judgments of trial courts imposing the death penalty Carey v. Coristine ~ (4 of 11)
and from decisions of district courts of appeal declaring invalid a state statute or a provision of the state constitution. Emphasis added. Moreover, the doctrine of inherency further demonstrates that this matter is properly before the Court as the decision of the trial court passes on through the district court s decision. See Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439, 441-442 (Fla. 1959). Issue I The Order upholds the trial court s order that Fabre invalidates 768.81 (sic) [ 768.31] and vitiates Petitioners statutory right to file an action for contribution. The case sub judice is a suit for malpractice where the trial court found that third parties may be liable for Respondent s loss and named them Fabre defendants; however, the trial court entered an order that, inter alia, denied Petitioners request to have the Fabre defendants joined as defendants in the action because Fabre made 768.81 (sic) [ 768.31] obsolete/invalid. The trial court consistently ruled in reference to 768.81; however, Petitioners never sought contribution under that statute but contribution pursuant to 768.31. There is a statutory right to contribution pursuant to 768.31. 768.31(2). An order that denies a statutory right is reversed on review. State v. Nagurney, 687 So.2d 336, 336 (Fla. 4th DCA 1997); Furqan v. State, 136 So.3d 636, 639 (Fla. 2nd DCA 2013); and, Morris v. Agricultural and Mechanical Univ., 23 So.3d 167, 169- Carey v. Coristine ~ (5 of 11)
170 (Fla. 5th DCA 2009). Florida Rule of Civil Procedure 1.180 provides that at any time after commencement of the action a defendant may have a summons and complaint served on a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff s claim against the defendant, and may also assert any other claim that arises out of the transaction or occurrence that is the subject matter of the plaintiff s claim. The policy behind the rule is to avoid multiple actions. Gortz v. Lytal, Reiter, Clark, Sharpe, 769 So.2d 484,486 (Fla. 4th DCA 2000). In Nagurney, the state appealed an order that denied restitution for the victim s hospital bills. See Nagurney at 337. The trial court s basis of denial was that it found restitution inapplicable on the sole grounds [it] had denied the State s request to reserve jurisdiction for restitution. Id. The trial court s refusal to reserve jurisdiction effectively denied the victim his statutory right to restitution pursuant to 775.089(1)(a). Id. In reversing the trial court, the appellate court held that the victim s right to restitution was statutorily mandatory absent clear and compelling reasons not to do so and said denial must be done in accordance with the statute. Id. In the case at bar, the applicable portion of the trial court s order relating to 768.81 (sic) [ 768.31] reads as follows: 2. Based on Defendants theory regarding appellate counsel s potential liability, this Court previously classified appellate counsel as Carey v. Coristine ~ (6 of 11)
Fabre Defendants. (sic) pursuant to Fabre v. Marin, 623 So.2d 1182, 1186 (Fla. 1993). Generally, Fabre Defendants are non-parties who are deemed partially responsible for Plaintiff s damages, and by adequately naming Fabre Defendants and proving their fault, a defendant can diminish his liability to the plaintiff based on the comparative fault of others... Birge v. Charron, 107 So.3d 350, 356 (Fla. 2012). See also 768.81(3), Fla. Stat. (2016). 3. Defendants wish to assert third-party claims in indemnity, contribution, and equitable subrogation against appellate counsel. With respect to the contribution and equitable subrogation claims, a third-party complaint is wholly unnecessary and obsolete with respect to Fabre Defendants. Contribution claims only allow recovery when a tortfeasor has paid more than his or her pro rata share of common liability. T&S Enters. Handicap Accessibility, Inc. v. Wink Indus. Maint & Repair, Inc, 11 So.3d 411, 412 (Fla. 2d DCA 2009). Thus, because in negligence actions governed by section 768.81, such as this one, a defendant s liability is limited to its own portion of fault, thirdparty contribution claims appear to have been rendered obsolete. Id. at 413. See also, Zasula v. Kimpton Hotels and Restaurants, L.L.C., No. 10-21381-CIV. 2011 WI 1741832, *2(S.D. Fla. 2011). The order states 768.81; however, this Petition will presume that the trial court actually meant 768.31 since the Motion clearly alleged that they had a right to contribution pursuant to 768.31 and that said contribution claim could be brought by third-party complaint under Rule of Civil Procedure 1.180. Paragraphs 2 and 3 appear to state that 768.31 contribution claims are the same as 768.81 comparative negligence claims although they are not. Further, the trial court appears to have misperceived, misconstrued, and or misunderstood the holding of T&S by finding that third-party claims for contribution appear to have been rendered obsolete as the actual language in T&S states: Carey v. Coristine ~ (7 of 11)
The rationale was that rule 1.180, Florida Rules of Civil Procedure, provides for third-party actions against a person not a party to the main action who is or may be liable to a named defendant for all or a part of the plaintiff's claim. The opinions reasoned that the Uniform Contribution Among Tortfeasors Act does not provide that the Act is the only procedural vehicle available to a defendant seeking contribution. Since the Act was, at least in part, procedural, it was subject to the rule making authority of the supreme court, and rule 1.180 permitted the third-party action as part of the original plaintiff's case. All of these cases, however, were decided before the current version of section 768.31 was enacted. That section now provides that in negligence cases such as this one, the court shall enter judgment against each party liable on the basis of such party's percentage of fault "and not on the basis of the doctrine of joint and several liability." 768.81(3). In order to allocate any fault to a nonparty, a defendant must affirmatively plead this fault and prove it at trial "by a preponderance of the evidence." 768.81(3)(a) & (b). In this case, very similar procedures are available to T & S, except that Wink would not be a named party. T & S has the opportunity to plead that Wink is partially or completely at fault and the cause of the plaintiffs' injuries. The evidence would presumably be the same whether presented in this case under the provisions of section 768.81(3) or in an action brought under the Uniform Contribution Among Tortfeasors Act. The jury would determine the same issues under section 768.81(3) as it would in a third-party action, and it is unlikely that T & S will be required to pay more than its pro rata share of any common liability. While the cases cited in this opinion may not have been overruled by the enactment of the current version of section 768.81, they appear to have been rendered obsolete, at least in cases like this one. T&S 412-413. The language of the trial court s order passes upon the validity of 768.81 Carey v. Coristine ~ (8 of 11)
and 768.31 by holding same were made obsolete/invalid by Fabre. T&S s holding never states or suggests that Fabre made 768.31 or 768.31 obsolete/invalid; rather, it reenforces a party s right to implead third parties pursuant to rule 1.180 and 768.31. Thus, the trial court s finding and rationale are contradicted by the very case upon which they rely. Moreover, there is nothing in any of the cases cited by the trial court that finds or holds that Fabre vitiates a petitioner s statutory right to file an action for contribution pursuant to 768.31 or comparative negligence pursuant to 768.81 or invalidates the aforementioned statutes. The trial court s reliance on the Fabre language in 768.81(3)(a)1 as controlling for 768.31 is misplaced. The Fabre language in 768.81(3)(a)1 is [i]n order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable, either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure. However, a cursory review of 768.31 demonstrates that there is no such corresponding language and the word nonparty is never used; therefore, the statute is designed specifically for parties and third-parties where third-parties are appropriately joined pursuant to Fla. R. Civ. P. 1.180. The case at bar is on all fours with Nagurney as the trial court herein, like Carey v. Coristine ~ (9 of 11)
the trial court therein, denied a party s statutory right without articulating a legitimate basis supported by competent, substantial evidence. This case is more compelling as the trial court herein, unlike the trial court therein, has relied on the incorrect statute and caselaw to deny that statutory right. This Court, like the Nagurney court, should quash the district court s Order and remand with directions to order the trial court to allow Petitioners to exercise their statutory right to bring an action for contribution pursuant to 768.31. The trial court's order and the district court's affirmance would have far reaching impact in the Ninth Judicial circuit and potentially beyond as defendants armed with the trial court's decision could claim that they should not be joined as direct parties pursuant to 768.31 and 768.81 because they could simply be named Fabre defendants. Then, after judgment, the Fabre defendants could make the claim that they were not parties to the action when the plaintiff(s) attempted to collect on the judgment. The holding would upset contract and statutory law as 768.31 and 768.81 are two of the bulwarks therein. Precluding a party from using 768.31 and 768.81 is of exceptional importance as it would prevent a party from utilizing a statutory right that could impact thousands of civil cases each day and result in denying litigants their fundamental legal and due process rights. Carey v. Coristine ~ (10 of 11)
Conclusion The review and writ should be granted and the district court s Order should be quashed as it supports the trial court s invalidation of 768.81 and 768.31. WHEREFORE, Petitioners, Jane E. Carey, Esquire and Jane E. Carey, P.A., pray that this Court will grant their Petition to Invoke All Writs Jurisdiction to review the Order that invalidates 768.81 and 768.31. Certificate of Service I certify that a copy hereof has been furnished to James P. Kelaher, Esquire, 800 N. Magnolia Ave., Suite 1301, Orlando, FL 32803 and Jane E. Carey, Esquire, 905 W. Colonial Dr., Orlando, FL 32804 via Email on February 22, 2017. Certificate of Compliance I certify that this Petition is computer-generated in Times New Roman 14- point font and complies with Fla. R. App. P. 9.210. s/ Jane E. Carey Jane E. Carey, Esquire Carlton Pierce, Esquire Attorney for Jane E. Carey, Esquire Attorney for Jane E. Carey, P.A. 905 W. Colonial Dr. P.O. Box 223723 Orlando, FL 32804 West Palm Beach, FL 33422-3723 Ofc.: (407) 425-2508 Ofc.: (407) 345-5258 Fax: (407) 423-1863 Fax: (407) 536-4333 Email: jane.e.carey@gmail.com Email: c_pierce1@hotmail.com Email: hhmorall@janeecarey.com FBN: 0610879 FBN: 361240 Carey v. Coristine ~ (11 of 11)