IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA THE VILLAS DEL VERDE HOMEOWNERS ASSOCIATION, INC., Petitioner, CASE NO.: SC11-352 vs. L.T. CASE NO.: 2D09-5547 CLARK H. SCHERER, III, Respondent. / RESPONDENT S BRIEF ON JURISDICTION Raymond T. Elligett, Jr., Esq. Florida Bar No. 261939 Buell & Elligett, P.A. 3003 W. Azeele Street Suite 100 Tampa, Florida 33609 Tel: (813) 874-2600 Fax: (813) 874-1760 Victor W. Holcomb, Esq. Florida Bar No. 326453 Brian A. Leung, Esq. Florida Bar No. 14510 Holcomb & Associates 201 N. Armenia Avenue Tampa, Florida 33609 Tel: (813) 258-5835 Fax: (813) 258-5124 ATTORNEYS FOR RESPONDENT
TABLE OF CONTENTS TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 The Second District s opinion does not conflict with Murthy v. N. Sinha Corp.... 3 CONCLUSION... 7 CERTIFICATE OF SERVICE... 8 CERTIFICATE OF COMPLIANCE... 8 i
TABLE OF AUTHORITIES CASES Comptech Int l, Inc. v. Milam Commerce Park, LTD., 753 So. 2d 1219 (Fla. 1999)...5, 6 Dep t of Bus. and Prof l Regulation v. Henry, 2000 WL248376 (January 19, 2000), affirmed (amended final order June 13, 2000)... 5 Evans v. Taylor, 711 So. 2d 1317 (Fla. 3d DCA 1998)... 5 Murthy v. N. Sinha Corp., 618 So. 2d 307 (Fla. 3d DCA 1993)... 4 Murthy v. N. Sinha Corp., 644 So. 2d 983 (Fla. 1994)... passim Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 2 Sierra v. Allied Stores Corp., 538 So. 2d 943 (Fla. 3d DCA 1989)... 6 ii
OTHER AUTHORITIES 553.84, Florida Statutes... 4, 5, 6 Chapter 489, Florida Statutes...2, 3 Chapter 501, Florida Statutes... 5 Chapter 553, Florida Statutes...2, 3 iii
PRELIMINARY STATEMENT Respondent/Appellant below, Clark H. Scherer, III, refers to himself as Scherer or Clark Scherer. Scherer refers to the Petitioner/Appellee below, The Villas Del Verde Homeowner s Association, Inc., as the Association. Scherer refers to the Association s brief by the prefix IB/page number. All references to Florida Statutes are to the 2002 version, although there have been no material changes. STATEMENT OF THE CASE AND FACTS Petitioner Association s statement of the case and facts is wrong when it states, the trial court determined Clark Scherer, by his action and inaction, committed violations of the Florida Building Code (A. 3). (IB 2). The cited page of the opinion does not state that Scherer himself committed violations of the building code. On the contrary, the Second District expressly stated that Scherer s alleged failure to supervise was not a violation of the building code. (A 4). As discussed below, if Scherer had personally committed building code violations, that would be a different situation. The opinion actually says the Association introduced evidence that Scherer was the qualifying agent for the general contractor, and that Scherer failed to 1
supervise the construction (A 3). The Second District opinion then makes clear that Chapter 553 addresses the building codes, and that qualifying agents are governed under Chapter 489, Florida Statutes (A 3). There was no finding that Clark Scherer, individually, violated any provision of the Florida Building Codes. The Association repeats this mistake at IB 8, when it asserts that Clark Scherer committed specifically enumerated violations of the building code. In addition to this statement not being true, it is not found on the face of the Second District opinion, and thus cannot be relied upon as a basis for jurisdiction. 1 SUMMARY OF ARGUMENT The Second District correctly found that Clark Scherer s situation here was indistinguishable from that of the general contractor in Murthy. Contrary to the Association s unsupported and erroneous claim that Clark Scherer individually committed building code violations, as the Second District opinion makes clear, that was not the case. That the Association would feel it has to make such an unsupported assertion to invoke the jurisdiction of this Court, confirms the absence of any conflict. 1 The express or direct conflict must appear on the face of the opinion. E.g., Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). 2
ARGUMENT The Second District s opinion does not conflict with Murthy v. N. Sinha Corp. In Murthy v. N. Sinha Corp., 644 So. 2d 983 (Fla. 1994), this Court held that Chapter 489 does not create a private cause of action against a qualifying agent. In Murthy, the complaint against Mr. Sinha contained claims that included a violation of Florida s minimum building codes, Chapter 553, and sued Mr. Sinha as the corporation s president, sole stockholder, and qualifying agent. 644 So. 2d at 984-985. This Court observed the Third District had affirmed the dismissal of the claim asserting a violation of the minimum building codes. 644 So. 2d at 985. After discussing in detail why Chapter 489 did not create a private cause of action, this Court concluded by stating, we approve the decision below to the extent that it is consistent with this opinion. 644 So. 2d at 987. That is, this Court approved the affirmance of the dismissal of the Chapter 553 building code claim against Mr. Sinha as the qualifying agent. The Third District opinion had held that because Chapter 489 did not create a private cause of action against qualifying agents individually, the trial court s dismissal of the claim 3
alleging a violation of Florida s minimum building codes must be affirmed. Murthy v. N. Sinha Corp., 618 So. 2d 307, 308-309 (Fla. 3d DCA 1993). The Second District correctly analyzed the situation in this case, which is indistinguishable from Murthy. As the Second District observed, Clark Scherer was in the same position as Mr. Sinha in Murthy (A 5). There is no conflict between the Second District decision and this Court s decision in Murthy. The Second District s decision correctly interprets 553.84, Florida Statutes, which limits the cause of action for damages as a result of a violation of the Florida Building Code to a claim against the person or party who committed the violation. As the Second District correctly observed, Scherer s alleged failure to supervise was not a violation of the building code. (A 4). The Association s erroneous claim, unsupported on the face of the opinion, that Clark Scherer individually committed a building code violation does not create a conflict because it is unsupported and erroneous. 2 2 Clark Scherer s position is that not only did he not commit a violation of Chapter 553, but that he also did not violate Chapter 489, in that the contractor here had hired another licensed contractor for onsite supervision of the work. The Florida Division of Adminstrative Hearings has held with regard to the qualifying agent s duty of supervision under Chapter 489 that it is reasonable for a person to rely on other qualified individuals in the performance of such supervision. Dep t of Bus. and Prof l Regulation v. Henry, 2000 WL248376 (January 19, 2000), affirmed (amended final order June 13, 2000). 4
Although not expressly asserting the case as a basis for conflict, the Association cites Evans v. Taylor, 711 So. 2d 1317 (Fla. 3d DCA 1998). First, Evans makes clear there was evidence that the qualifying agent himself had performed work on the project. 711 So. 2d at 1318. Thus, this distinguishes Evans from this case, where Scherer did not perform any work on the project. The Association appears to suggest Evans is somehow different because the qualifying agent was sued under Chapter 501 for unfair and deceptive trade practices (IB 9). Whether or not that would make a difference is irrelevant here. The Association made no Chapter 501 claim against Scherer, as the absence of any discussion of such in the Second District opinion confirms. Finally, the Association selectively quotes one sentence from this Court s opinion in Comptech Int l, Inc. v. Milam Commerce Park, LTD., 753 So. 2d 1219 (Fla. 1999). Comptech did nothing to change the clear holding in Murthy. Rather, Comptech held the notwithstanding any other civil remedies available language in 553.84, meant the economic loss rule did not bar that section s statutory cause of action. 753 So. 2d at 1221. Comptech recognized the plain language of 553.84 limits the cause of action to one against the person or party who committed the violation. Comptech recognized this limitation when it described 553.84 as providing a cause of action when a person or entity is injured by a defendant who is engaged in 5
construction without obtaining the required building permits or who violates the building code. 753 So. 2d at 1222. 4 Under the discussion in Comptech, and by the plain language of 553.84, Clark Scherer could not be held individually liable because he did not violate the building code. The claimed violations of the building code were committed by subcontractors (A 2, 3). Therefore, there was no basis to hold Clark Scherer individually liable, and the Second District correctly ruled he is entitled to a judgment in his favor. 4 See also Sierra v. Allied Stores Corp., 538 So. 2d 943, 944 (Fla. 3d DCA 1989) (while building code made compliance the responsibility of the owner, there could be no claim against the owner based on 553.84, as that statute imposed liability on the person or party who committed the violation. ). 6
CONCLUSION There is no conflict. The Second District correctly followed this Court s decision in Murthy. Respectfully submitted, Victor W. Holcomb, Esq. Florida Bar No. 326453 Brian A. Leung, Esq. Florida Bar No. 14510 Holcomb & Associates 201 N. Armenia Avenue Tampa, Florida 33609 Tel: (813) 258-5835 Fax: (813) 258-5124 ATTORNEYS FOR RESPONDENT Raymond T. Elligett, Jr., Esq. Florida Bar No. 261939 Buell & Elligett, P.A. 3003 W. Azeele Street Suite 100 Tampa, Florida 33609 Tel: (813) 874-2600 Fax: (813) 874-1760 7
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to: BRIAN P. DEEB, ESQ. and NICOLE E. DURKIN, ESQ., Deeb & Durkin, P.A., 5999 Central Avenue, Suite 202, St. Petersburg, Florida 33710, Attorneys for Petitioner, on March 9, 2011. Attorney CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief has been prepared using 14-point Times New Roman type, a font that is proportionately spaced. Attorney 8