IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA DAVID M. POLEN, v. ROSA POLEN, Petitioner, Respondent. / CASE NO. SC06-1226 4 TH DCA CASE NO. 4D06-1002 AMENDED ANSWER BRIEF ON JURISDICTION Respectfully submitted, JOEL M. WEISSMAN, P.A. 515 N. Flagler Drive, Suite 1100 West Palm Beach, FL 33401 Office: (561) 655-4655 Fax: (561) 832-1421 Attorney for Respondent

TABLE OF CONTENTS TABLE OF CONTENTS.. i TABLE OF AUTHORITIES ii STATEMENT OF THE FACTS & CASE... 1 SUMMARY OF ARGUMENT 2 ARGUMENT 2 I. CONFLICT JURISDICTION DOES NOT EXIST IN THIS CASE, AS THE FOURTH DISTRICT S ORDERS ARE NOT DECISIONS THAT CONFLICT WITH ANY DECISION OF THIS COURT OR OF ANY OTHER DISTRICT COURT...2 CONCLUSION 10 CERTIFICATE OF SERVICE.11 CERTIFICATE OF COMPLIANCE 11 i

TABLE OF AUTHORITIES CASES: PAGE Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005) 10 Amendments to Rules of Judicial Administration -Rule 2.090-Electronic Transmission and Filing of Documents, and Rule 2.060-Attorneys, 701 So. 2d 1164 (Fla. 1997) 4 Ansin v. Thurston, 101 So. 2d 808 (Fla. 1958) 2 Aravena v. Miami-Dade County, 928 So. 2d 1163 (Fla. 2006) 9 Bain v. State, 730 So. 2d 296, 300 (Fla. 2d DCA 1999). 8 Capone v. Florida Bd. of Regents, 774 So. 2d 825 (Fla. 4th DCA 2000) 1 City of Jacksonville v. Florida First Nat. Bank of Jacksonville, 339 So. 2d 632 (Fla. 1976) 4 Diamond Berk Ins. Agency, Inc. v. Carroll, 102 So. 2d 129 (Fla.1958) 9 G.B.B. Invetsments, Inc. v. Hinterkopf, 343 So. 2d 899 (Fla. 3d DCA 1977). 7 Gibson v. Maloney, 231 So.2d 823 (1970).. 3 Hicks v. Hicks, 715 So. 2d 304 (Fla. 5 th DCA 1998).. 8 Kennedy v. Guarantee Management Services, Inc., 667 So. 2d 1013 (Fla. 3d DCA 1996). 7 Kincaid v. World Insurance Co., 157 So. 2d 517 (Fla. 1963). 9-10 Lehmann v. Cloniger, 294 So. 2d 344 (Fla. 1st DCA 1974)... 7,8,9 ii

Maffea v. Moe, 483 So. 2d 829 (Fla. 4th DCA 1986). 3 McCuiston v. Wanicka, 483 So. 2d 489 (Fla. 2d DCA 1986). 8 Metropolitan Dade County v. Vasquez, 659 So. 2d 355 (Fla. 1st DCA 1995) 1 Miami Transit Co. v. Ford, 155 So. 2d 360 (Fla. 1963). 8 Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960). 4 Rashard v. Cappiali, 171 So. 2d 581 (Fla. 3d DCA 1965). 7,9 R.J. Reynolds Tobacco Co. v. Kenyon, 882 So. 2d 986 (Fla. 2004).. 3 Swain v. Curry, M.D., 595 So. 2d 168 (Fla. 1st DCA 1992).. 7,8 Weinstock v. Groth, 629 So. 2d 835 (Fla. 1993) 8 OTHER AUTHORITIES: Fla. R. Civ. P. 1.530(b).. 8 Fla. R. Judicial Admin. 2.090 3-6 Fla. R. App. P. 9.030(a)(2)(A)(iv).. 3 Administrative Order Re Electronic Filing (Fla. 4 th DCA, Jun. 10, 2005). 6 iii

STATEMENT OF THE FACTS & CASE The trial court s order denying disqualification of Respondent s counsel was filed with the court clerk on February 8, 2006. The 30 th day after that rendition date was Friday, March 10, which was not a court holiday, and there was no other courtimposed restriction to filing on that day. Petitioner s certiorari petition challenging the trial court s order was not e-filed until after 6:00 PM on that day. The hard copy of the petition was not filed until Monday, March 13, -- the 31 st day 1 after rendition with a motion requesting the Fourth District to apply a night-box filing policy and accept the petition as timely filed, as the hard-copy petition had not been filed on March 10 due to (allegedly) a traffic jam. 2 (Petitioner did not argue, as he now does, that the rules regarding filing were ambiguous.) The court denied the motion and dismissed the petition as having been untimely filed, citing Capone. Petitioner moved for rehearing, and further requested the Fourth District to issue a written opinion. The court denied rehearing, stating that rule 2.090 does not apply. That court has not adopted any policy allowing for e-filing in lieu of hardcopy filing, and has not requested this Court for permission to do so. The Fourth District also noted that its July 10, 2005 Administrative Order explicitly does not 1 Excluding weekend days. 2 See Metropolitan Dade County v. Vasquez, 659 So. 2d 355 (Fla. 1st DCA 1995). 1

substitute e-filing for hard-copy filing, but is intended to test a process for an e-filing system that may be adopted in the future. SUMMARY OF ARGUMENT As the Fourth District s orders do not have precedential value, and affect Petitioner s case, alone, they do not raise a concern with precedents, as required for conflict review. Further, no ambiguity arises from the orders, which are in compliance with this Court s rules relating to court filings. Petitioner failed to meet the filing requirements established by those courts for invocation of the Fourth District s jurisdiction. The dismissal of the petition therefore was in compliance with the rules, such that the dismissal does not conflict with the factually distinguishable cases that apply a liberal-construction policy to the ability of a person to access courts of this State. ARGUMENT I. CONFLICT JURISDICTION DOES NOT EXIST IN THIS CASE, AS THE FOURTH DISTRICT S ORDERS ARE NOT DECISIONS THAT CONFLICT WITH ANY DECISION OF THIS COURT OR OF ANY OTHER DISTRICT COURT. Conflict jurisdiction evinces a concern with decisions as precedents as opposed to adjudications of the rights of particular litigants. Ansin v. Thurston, 101 So. 2d 808, 811 (Fla. 1958). The Fourth District s orders in this case do not constitute an opinion. Nor do they otherwise have precedential value. They merely address Petitioner s individual motions. Petitioner now requests this Court to require, establish, and apply as to his case, and only his case a mechanism for e-filing 2

with the Fourth District, imposing such mechanism on the Fourth District in advance of that court deciding to do so and obtaining this Court s approval, as required by rule 2.090. 3 This does not evince[] a concern with precedents, as required for conflict review, but addresses Petitioner s situation, alone. Consequently, this case does not rise o, even slightly, to the intended realm of conflict jurisdiction. 4 Even if district court orders could supply conflict jurisdiction, it does not exist in this case. Rule 9.030(a)(2)(A)(iv) provides for this Court s review of district court decisions that expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law. The conflict must be of decisions, not of opinions or reasons, Gibson v. Maloney, 231 So.2d 823, 824 (1970), cert. denied, 398 U.S. 951 (1970), and must be obvious and patently reflected in the decisions upon which the petitioner relies. Decisional conflict occurs: (1) where an announced rule of law conflicts with other appellate expressions of law, or (2) where the rule of law is applied to produce 3 E-filing procedures cannot be retroactively applied to allow Petitioner s petition to proceed as if timely filed, as this would improperly create jurisdiction where none exists. See Maffea v. Moe, 483 So. 2d 829, 830 (Fla. 4th DCA 1986). 4 R.J. Reynolds Tobacco Co. v. Kenyon, 882 So. 2d 986 (Fla. 2004), addresses not conflict jurisdiction, but extraordinary-writ jurisdiction to review denial of a motion to enter a written opinion (which Petitioner does not seek). 3

a result different from that in another case involving substantially the same facts. City of Jacksonville v. Florida First Nat. Bank of Jacksonville, 339 So. 2d 632 (Fla. 1976) (England, J., concurring). Under the first situation the facts are immaterial. It is the announcement of a conflicting rule of law that conveys jurisdiction to us to review the decision of the Court of Appeal. Nielsen v. City of Sarasota, 117 So. 2d 731, 734 n.1 (Fla. 1960). Petitioner does not cite any Florida decision addressing facts that are substantially the same as those in the present underlying case. Thus, Petitioner appears to be arguing a category-1 conflict (a conflict of laws), i.e., that the Fourth District s orders which apply the rules relating to timely jurisdictional filing conflict with Florida cases applying the rule of law that provides that restrictions on the right of court access, and any ambiguities arising from the rules addressing that right, should be liberally construed in favor of protecting said right. Petitioner argues that this Court s and the Fourth District s e-filing requirements create conflict with rule 2.090, as amended. Amendments to Rules of Judicial Administration-Rule 2.090-Electronic Transmission and Filing of Documents, and Rule 2.060-Attorneys, 701 So. 2d 1164 (Fla. 1997). If Petitioner is arguing conflict between that decision and the Fourth District s orders, Respondent notes that such conflict does not exist. This Court s decision amending the rule allows the Florida District Courts, at their discretion, to adopt procedures for e-filing. Specifically, subsection (b) of the rule provides that a court 4

clerk may accept the electronic transmission of documents for filing after the clerk, together with input from the chief judge of the circuit, has obtained approval of the procedures and program for doing so from the Supreme Court of Florida. (Emphasis added). The Fourth District s decision not to adopt such procedures (as yet) fully complies with that provision, and therefore does not conflict with the rule or with this Court s above-cited decision adopting the amendments to the rule. Nonetheless, Petitioner attempts to support his claim of conflict by relying on a contingent portion of rule 2.090(c), which requires an e-filer to additionally file a hard copy of the e-filed document. Subsection (c) provides that documents may be e- filed provided the court or clerk has the ability to accept such documents and the clerk, together with input from the chief judge of the circuit, has obtained approval to do so from the Supreme Court of Florida, and requires that a hard copy be filed within 10 days after e-filing. Petitioner argues that this subsection and the Fourth District s filing procedures create ambiguities. However, there is no such ambiguity. This Court has established a rule allowing the district courts -- at their options, after certain requirements are met -- to adopt a procedure allowing for the e-filing of appellate documents, and for the critical filing date to be that e-filing date, rather than the date the hard copy is filed. A review of the rule makes clear that the provision requiring the additional filing of a hard copy is contingent, and applies only when rules for e-filing have 5

been adopted by the district court at its option -- and approved by this Court. Thus, where no such rules have been adopted and approved, the e-filing date is not the critical filing date; the date of filing of the hard copy remains the critical date. 5 The Fourth District has not yet opted to establish the e-filing date as the critical date, and has not yet met the criteria for implementing such procedure. 6 Thus, there is no ambiguity: the hard-copy filing date remains the critical date. In fact, the court s June 10, 2005 Administrative Order Re Electronic Filing, section 1, provides, The official filing date [for the documents required to be e-filed] shall remain as the day of filing the paper original. Further, the fact that the court has established a non-jurisdiction-invoking e-filing procedure, as a possible pre-cursor to implementing jurisdiction-invoking e-filing does not create any ambiguity. As 5 Even if jurisdiction-invoking e-filing applied, Petitioner s e-filing occurred after 6:00 PM on the petition s due date. The Fourth District s procedures presently require jurisdictional filings to occur by 5:00 PM on the last possible filing day Petitioner s certiorari petition therefore is untimely under any set of circumstances. 6 Although Petitioner asserts that the face of the two orders show that the Fourth District has the technology to receive e-filings (one of the requirements for implementation of critical-date e-filing), he neglects to note that there is an absence of any indication from the court that it has the ability to retain such documents, as required by rule 2.090 before e-filing may be used as the critical filing. 6

Petitioner recognizes in his brief, this Court has permitted exactly this step. That establishment therefore does not create any ambiguity in the law. This lack of ambiguity is reflected in Petitioner s own actions. Petitioner evidently knew that the Fourth District required the filing of a hard copy of the petition by the 30 th day for invocation of that court s jurisdiction, as Petitioner attempted to file a hard copy, by courier, on the 30 th day, and immediately thereafter filed (without prompting by order or by motion of Respondent) a motion to accept the late-filed hard copy pursuant to a night box filing procedure. As no ambiguity relating to the Fourth District s filing procedures exists, those cases relied on by Petitioner and addressing the resolving of ambiguities in favor of access to the courts, Lehmann v. Cloniger, 294 So. 2d 344 (Fla. 1 st DCA 1974); Swain v. Curry, M.D., 595 So. 2d 168 (Fla. 1 st DCA 1992), are not in conflict with the present case. Additionally, the cases addressing access to courts in relation to nonjurisdiction-invoking requirements do not conflict with the present case, 7 as the present case addresses the filing of a document necessary to invoke jurisdiction, and the rules pertaining such filings are more exacting than those pertaining to the 7 See Kennedy v. Guarantee Management Services, Inc., 667 So. 2d 1013 (Fla. 3d DCA 1996); Rashard v. Cappiali, 171 So. 2d 581 (Fla. 3d DCA 1965); G.B.B. Invetsments, Inc. v. Hinterkopf, 343 So. 2d 899 (Fla. 3d DCA 1977). 7

filing of non-jurisdiction-invoking documents. The remaining cases relied on by Petitioner also do not create conflict, as they all involve procedural issues different that that existing in the underlying case. Several of them address trial-level issues, and none address the question of whether an initial filing was sufficient to invoke the court s jurisdiction. 8 While Bain v. State, 730 So. 2d 296, 300 (Fla. 2d DCA 1999), addressed appellate-level jurisdiction, that decision was based (in relevant part) on the constitutional right to appeal all final orders, and the present case involved certiorari review of an interlocutory order. Also, unlike the present case, Bain did not address the question of whether an initial filing was sufficient to invoke jurisdiction, but, rather, whether the appellate court could exercise its jurisdiction over a criminal appeal raising a fundamental error that had not been preserved for appeal. Id. Only one case cited by Petitioner, Lehmann v. Cloniger, 294 So. 2d 344 (Fla. 1st DCA 1974) (motion for new trial found timely, as rendition was on date judgment was filed, rather than on date of jury verdict), addresses the timeliness of a filing, but that case does not address the issue presented in the underlying case. 8 See Hicks v. Hicks, 715 So. 2d 304 (Fla. 5th DCA 1998); Swain v. Curry, M.D., 595 So. 2d 168 (Fla. 1st DCA 1992); Weinstock v. Groth, 629 So. 2d 835 (Fla. 1993); McCuiston v. Wanicka, 483 So. 2d 489 (Fla. 2d DCA 1986); Miami Transit Co. v. Ford, 155 So. 2d 360 (Fla. 1963). 8

In Petitioner s own citing of cases to this Court, Petitioner illustrates the conditional nature of the ability to access the court. Petitioner thereby agrees that dismissal may be proper where the litigant fails to follow a court s rules. See Rashard v. Cappiali, 171 So. 2d 581 (Fla. 3d DCA 1965) (affirming the dismissal of a complaint that was based on the plaintiff s failure to answer interrogatories). Thus, there is no absolute right to access to the courts. As the First District relying on this Court s decision in Diamond Berk Ins. Agency, Inc. v. Carroll, 102 So. 2d 129 (Fla.1958) -- noted: It is fundamental that timely filing of the notice of appeal is jurisdictional, and that an appellate court is without authority to exercise its jurisdiction unless the notice is filed within the time and in the manner prescribed by the rules. Lehmann v. Cloniger, 294 So. 2d 344 (Fla. 1st DCA 1974) (emphasis added). Petitioner failed to invoke the Fourth District s jurisdiction in the manner prescribed by the rules, as he did not file the essential pleading (a hard copy of his certiorari petition) within the 30-day time limit set out in this Court s rules. Nor did he accomplish the non-jurisdictional e-filing of the petition before the Fourth District s 5:00 PM filing-termination time on the day in question. Conversely, the Fourth District s orders abide, without ambiguity, by the rules controlling the invoking of appellate jurisdiction. That abidance does not constitute a violation of the liberal construction policy, which is subject to those rules. 9

The cases cited by Petitioner therefore are not irreconcilable with the Fourth District s orders, see Aravena v. Miami-Dade County, 928 So. 2d 1163 (Fla. 2006) (noting that case holdings being irreconcilable is one of the tests for conflict jurisdiction), and do not invoke this Court s narrow conflict jurisdiction. See Kincaid v. World Insurance Co., 157 So. 2d 517, 518 (Fla. 1963) (noting that for conflict jurisdiction, "[t]he constitutional standard is whether the decision of the District Court on its face collides with a prior decision of this Court, or another District Court, on the same point of law so as to create an inconsistency or conflict among precedents"); Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005) (noting that [m]isapplication conflict is a narrow constitutional basis for this Court's jurisdiction..., only provid[ing] for jurisdiction for any decision of a district court that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law ") (Wells, J., dissenting). CONCLUSION Respondent requests this Court to enter an order declining to address the merits of Petitioner s substantive case, based on the lack of conflict (or any other) jurisdiction of this Court to consider such claim. 10

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was furnished via Facsimile and US Mail; Facsimile only; Facsimile only as to Motion or Notice (depending on the pleading), attachments by US Mail; US Mail only; or Hand-Delivery to: Jonathan L. Gaines, Russo Appellate Firm, P.A., 6101 Southwest 76 th Street, Miami, FL 33143 and to Jeffrey D. Fisher, Esq., Fisher & Bendeck, P.A., 501 South Flagler Drive, Suite 450, West Palm Beach, FL 33401 on this day of August, 2006. JOEL M. WEISSMAN, P.A. 515 N. Flagler Drive, Suite 1100 West Palm Beach, FL 33401 Office: (561) 655-4655 Fax: (561) 832-1421 Attorney for Respondent By: Joel M. Weissman Florida Bar No. 212830 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the above brief has been prepared in accordance with rule 9.210 in New Times Roman 14 point font. Joel M. Weissman 2397\appeal-sct\answer brief on juris.4 11