IN THE SUPREME COURT OF FLORIDA Case No. DCA No. 4D10-2310 KENNEDY TRINLEY & SANTINO, P.L., a Florida limited liability company, and EARL MAYER, JR., Petitioners, v. BARBARA SHULGASSER-PARKER, as Personal Representative of the Estate of Luba Shulgasser, and AIRPORT MOTEL ASSOCIATES, LTD., a Florida limited partnership, Respondents. On Notice to Invoke Discretionary Jurisdiction to Review A Decision by the Fourth District Court of Appeal JURISDICTIONAL BRIEF OF PETITIONERS REEDER & REEDER P.A. Gerry Gibson, FBN 261998 L. Martin Reeder, Jr., FBN 308684 C. Bryce Albu, FBN 657204 250 S. Central Blvd., Suite 200 Jupiter, Florida 33458 Tel: 561-575-9750 Fax: 561-575-9765 Attorneys for the Petitioners
TABLE OF CONTENTS TABLE OF CITATIONS... iii STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF ARGUMENT.. 4 ARGUMENT.. 4 I. The Decision Below Conflicts With DeMesme v. Stephenson, 498 So. 2d 673 (Fla. 1st DCA 1986) 5 II. The Court Should Exercise its Discretion to Review the Decision Below 6 CONCLUSION... 10 CERTIFICATES OF SERVICE AND COMPLIANCE... 11 ii
TABLE OF CITATIONS Cases Page Allen v. Shows, 532 So. 2d 1304 (Fla. 2d DCA 1988).....6 CIA Ecuatoriana de Aviacion C.A. v. U.S. and Overseas Corp., 144 So. 2d 338 (Fla. 3d DCA 1962)..... 6, 7 Carbonell v. BellSouth Telecomm., Inc., 675 So. 2d 705 (Fla. 3d DCA 1996)....6 DeMesme v. Stephenson, 498 So. 2d 673 (Fla. 1st DCA 1986).....1, 4, 5, 6 Farish v. Lum s, Inc., 267 So. 2d 325 (Fla. 1972)....7, 8, 9 Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981).2, 8, 10 Reaves v. State, 485 So. 2d 829 (Fla. 1986) 2 Shulgasser-Parker v. Kennedy Trinley & Santino, P.L., 2011 WL 3903182 (Fla. 4th DCA 2011).......passim Spatz v. Embassy Home Care, Inc., 9 So. 3d 697 (Fla. 4th DCA 2009)...10 Spolski General Contractor, Inc. v. Jett-Aire Corp. Aviation Mgmt. of Cent. Fla., 637 So. 2d 968 (Fla. 5th DCA 1994).6 The Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988)...2 Titusville Assoc., Ltd. v. Barnett Banks Trust Co., 591 So. 2d 609 (Fla. 1991)... 9 Other Authorities Rule 1.510, Florida Rules of Civil Procedure...1, 4, 5, 7, 9, 10 iii
STATEMENT OF THE CASE AND FACTS Statement of the Case Petitioners invoke the Court s discretionary jurisdiction to review a decision of the Fourth District Court of Appeal (copy appended hereto) that expressly and directly conflicts with a decision of the First District Court of Appeal on the same question of law. The common question of law is: whether the abuse of discretion standard of review governs a trial court s decision to deny additional time for discovery prior to the entry of a final summary judgment. The Fourth District s decision below usurped the trial court s discretion to decide whether the parties opposing summary judgment had shown sufficient cause for their failure timely to present competent counterevidence. Contra DeMesme v. Stephenson, 498 So. 2d 673, 676 (Fla. 1st DCA 1986) ( we do not believe it can be said the trial court abused its discretion in proceeding to summary judgment where plaintiff claimed he was unable to obtain an opposing affidavit from his own expert because In order to be entitled to a continuance under Fla.R.Civ.P. 1.510(f) the party opposing the motion for summary judgment should show by affidavit the existence and availability of additional evidentiary matter, what it is and its materiality, what steps have been taken to obtain it, and that failure to have obtained such evidence sooner did not result from inexcusable delay, which showing was not made). 1
Statement of the Facts The relevant facts and case history are in the district court s opinion, 1 Shulgasser-Parker v. Kennedy Trinley & Santino, P.L., 2011 WL 3903182 (Fla. 4th DCA 2011), appended hereto, and may be summarized as follows: Plaintiffs/Respondents (appellants below) Barbara Shulgasser-Parker ( BSP ), as the Personal Representative of the Estate of Luba Shulgasser, and Airport Motel Associates, Ltd, filed an amended complaint in September 2009. The matter was set for trial on an eight-week calendar starting May 17, 2010 with a discovery deadline of April 10, 2010. Defendants/Petitioners (appellees below) Kennedy Trinley & Santino, P.L. ( KTS ) and Earl Mayer, Jr. ( Mayer ) moved for summary judgment on January 19, 2010, on the ground that [t]he record contains the sworn admission of BSP that plaintiffs can prove no damages against defendants. In support of their 2 1 Conflict must be apparent from the four corners of the opinion to be reviewed. The Florida Star v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988); Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). Although Petitioners contend that the district court s opinion omits certain material facts, conflict jurisdiction is nonetheless apparent from the opinion itself. See Ford Motor Co. v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981) (discussion of the legal principles which the court applied supplies a sufficient basis for a petition for conflict review; quashing appellate decision for its failure to apply the correct abuse of discretion standard of review). 2 The decision below does not disclose when the action was commenced. 2
motion, Defendants relied, in part, on the following interrogatory question and sworn answer: QUESTION: State the amount of each item of damages you seek to recover in this action, and for each such item list the documents used or referred to in making the damage calculation, and state the name and address of the person who made the calculation. ANSWER: Because Defendants have failed to produce itemized invoices representing legal services performed by Defendants EARL E. MAYER, JR. ( MAYER ) and KTS during Defendants representation of AIRPORT MOTEL ASSOCIATES, LTD. ( AIRPORT ) and/or Luba Shulgasser ( Shulgasser ), BSP is unable to respond to Interrogatory No. 1 at this time and will not be able to do so until such information is provided. Defendants summary judgment motion was heard March 31, 2010. The day before the hearing, the Plaintiffs moved to continue the trial. The trial court granted a continuance and rolled the case to a July docket. The trial court did not continue the summary judgment hearing, which had been noticed since January 19. The Plaintiffs filed opposing affidavits, but these did not state the damage amounts sought. Instead, they referred to ongoing damage calculations purportedly being made by Plaintiffs experts, contrary to Plaintiffs prior sworn interrogatory answer that damages could never be calculated without documents that did not exist. The trial court entered summary judgment in favor of the Defendants based on the Plaintiffs failure timely to come forward with evidence of their damages. 3
On appeal, the district court below held: We find granting summary judgment with ten days remaining before the discovery cutoff and after having rolled the case to a July docket due to ongoing discovery was premature and as such reverse the trial court s order granting summary judgment. SUMMARY OF ARGUMENT The Court has conflict jurisdiction pursuant to Art. V, 3(b)(3), Fla. Const., and Fla. R. App. P. 9.030(a)(2)(A)(iv). The decision below conflicts with a decision of the First District Court of Appeal because it fails to apply the abuse of discretion standard of review in connection with its conclusion that summary judgment was premature relative to ongoing discovery. Compare DeMesme v. Stephenson, 498 So. 2d 673 (Fla. 1st DCA 1986) (decision whether to postpone or deny summary judgment to allow additional discovery is reviewed for abuse of discretion). The Court should review the decision below because it adopts a rule of law that usurps the exercise of lawful discretion accorded to trial judges by Rule 1.510, Fla. R. Civ. P. The Court previously has reviewed district court decisions in analogous situations where a district court adopted a rule substituting its judgment for that of the trial court. This Court should seize this opportunity to affirm the discretion of trial judges to grant summary judgment where grounds for deferring consideration of the motion have not been shown. The district court s decision, if 4
allowed to stand, will send the wrong message to the Bench and Bar that summary judgments can be deemed premature and therefore reversed in circumstances where the opposing party has evaded its obligation to disclose forthrightly its opposing evidence and has failed to demonstrate cause for delaying summary judgment. ARGUMENT I. The Decision Below Conflicts With DeMesme v. Stephenson, 498 So. 2d 673 (Fla. 1st DCA 1986) The Court has jurisdiction to review the decision below pursuant to Art. V, 3(b)(3), Fla. Const., and Fla. R. App. P. 9.030(a)(2)(A)(iv) because it conflicts with DeMesme v. Stephenson, 498 So. 2d 673 (Fla. 1st DCA 1986). In DeMesme, the First District held that it cannot be said the trial court abused its discretion by refusing to postpone a summary judgment entered in favor of the defendant, even though the plaintiff asserted that he had been unable to obtain an affidavit from the expert retained by the plaintiff. Id. at 674-76. The First District reasoned: In order to be entitled to a continuance under Fla.R.Civ.P. 1.510(f) 3 the party opposing the motion for summary judgment should show by affidavit the existence and availability of additional evidentiary 3 Fla. R. Civ. 1.510(f) states: If it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. 5
matter, what it is and its materiality, what steps have been taken to obtain it, and that failure to have obtained such evidence sooner did not result from inexcusable delay. Thus, where the plaintiff in DeMesme failed to bring himself within Rule 1.510(f), the First District affirmed the summary judgment. Id. at 676. Here, rather than applying an abuse of discretion analysis as was done in DeMesme, the Fourth District concluded that granting summary judgment with ten days remaining before the discovery cutoff and after having rolled the case to a [future] docket due to ongoing discovery [is] premature. The district court s decision conflicts with DeMesme because it usurped the trial judge s discretion to grant summary judgment where the opposing party failed to show that more time for discovery was necessary and justified. Accordingly, this Court has jurisdiction to review the decision below because it conflicts with DeMesme. 4 II. The Court Should Exercise its Discretion to Review the Decision Below For its conclusion that no abuse of discretion had been shown, the First District in DeMesme relied on CIA Ecuatoriana de Aviacion C.A. v. U.S. and Overseas Corp., 144 So. 2d 338 (Fla. 3d DCA 1962) (trial judge did not err by 4 The decision below also conflicts with decisions from other district courts of appeal on this same point of law. See, e.g., Carbonell v. BellSouth Telecomm., Inc., 675 So. 2d 705 (Fla. 3d DCA 1996); Spolski General Contractor, Inc. v. Jett- Aire Corp. Aviation Mgmt. of Cent. Fla., 637 So. 2d 968 (Fla. 5th DCA 1994); Allen v. Shows, 532 So. 2d 1304 (Fla. 2d DCA 1988). 6
granting summary judgment prior to an allegedly vital deposition where the opposing party failed to show diligence in not taking it sooner). CIA Ecuatoriana correctly recognized that: The fundamental purpose of the summary judgment procedure is to expedite litigation. It is an integral part of the judicial system of this State. In order to effect its salutary purpose, discovery must be expeditiously undertaken, and hearings regularly noticed need not be delayed except for good cause shown. 144 So. 2d at 340 The Fourth District s decision below severely erodes the salutary purpose of summary judgment procedure by mandating a timeframe before which summary judgments are premature without regard for whether the opposing party showed just cause for avoiding the duly noticed hearing. Cf Fla. R. Civ. P. 1.510 (b) (summary judgment may be sought at any time ), (c) (the movant shall serve the motion at least 20 days before the time fixed for the hearing; if the party opposing summary judgment fails thereafter timely to present competent counterevidence, The judgment sought shall be rendered forthwith ) and (f) (however, the trial court may postpone summary judgment If it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify opposition ) (emphasis added). The district court s decision below is an example of the kind of overreaching this Court previously has deemed appropriate for review. See, e.g., Farish v. 7
Lum s, Inc., 267 So. 2d 325 (Fla. 1972) (quashing reversal of summary judgment on the ground that appellate court s decision improperly eliminated the trial court s discretion, contrary to the spirit of the Rules ); Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981) (quashing appellate decision for its failure correctly to apply the abuse of discretion standard, which the court characterized as an issue which we have never stopped addressing ). The Court s decision in Farish is especially apt. There, the trial court granted summary judgment based on a technical admission arising from a party s failure to respond properly to a discovery request. The district court reversed the judgment on the ground that the trial judge erred in failing to permit [the party] to file properly executed answers to the request for admissions. This Court quashed the district court s decision, explaining its rationale as follows: The decision of the District Court in the instant case requires the trial court to excuse noncompliance with Rule 1.370 on a base allegation of inadvertence. The Court s discretion in the matter is eliminated. It is this holding of the District Court, rather than the trial court s decision, which does violence to the spirit of the Rules. *** In considering the exercise of discretion courts must recognize that litigants may not properly be allowed with impunity to disregard the process of the court; and, indeed, it would be an abuse of discretion to vacate a judgment where the moving party shows no legal ground therefor and offers no excuse for his own negligence or default. The exercise of discretion by a trial judge who sees the parties firsthand and is more fully informed of the situation, is essential to the just and proper application of procedural rules. In the absence of facts 8
showing an abuse of that discretion, the trial court s decision excusing, or refusing to excuse, noncompliance with rules, such as Rule 1.370, must be affirmed. The record before us is devoid of any facts that would require the trial court to excuse defendant s failure to comply with Rule 1.370. It cannot be held that, as a matter of law, inadvertence is sufficient to excuse compliance it may be in some instances, but in other instances, not. It is the duty of the trial court, and not the appellate courts, to make that determination. Like Farish, review is appropriate here because the decision below reflects that the district court improperly usurped the trial court s discretion. It cannot be said as a matter of law that granting summary judgment with ten days remaining before the discovery cutoff [etc.] [is] premature. As this Court put it, it may be in some instances, but in other instances, not. Pursuant to Rule 1.510(f), it was the duty of the trial judge, not the district court, to decide whether sufficient cause was shown to justify a postponement to allow additional discovery. Review is also appropriate because the decision below presents a conflicting interpretation of summary judgment procedure on a topic not previously addressed by this Court. Cf, Titusville Assoc., Ltd. v. Barnett Banks Trust Co., 591 So. 2d 609 (Fla. 1991) (reviewing a decision that applied a conflicting interpretation of the rule requiring summary judgment motions to be served at least 20 days before time fixed for hearing and commenting in dicta that, [h]ad [the non-movant] required further time to oppose the motion, it could have sought a continuance pursuant to Florida Rule of Civil Procedure 1.510(f). ). 9
Finally, the Court should accept jurisdiction because the decision below reflects bad policy. Even at this stage where Petitioners are limited by the four corners of the written opinion, it is evident that reasonable men could differ 5 as to the propriety of allowing Respondents more time for discovery where (1) it was patently unnecessary for Respondents to take discovery from their own experts; (2) Respondents had two and a half months to obtain and file affidavits from those purported experts to oppose summary judgment, but did not do so; and (3) Respondents hypothetical expert testimony would, in any event, improperly contradict their prior sworn interrogatory answer. 6 Thus, the decision below unwisely discourages adherence to the process prescribed by Rule 1.510 and encourages evasive discovery practices, as it will be read by the Bench and Bar as signaling that summary judgments will be reversed in similar contexts. CONCLUSION Based on the foregoing, the Court has jurisdiction to resolve the inter-district conflict and should exercise its discretion to accept review of the decision below. 5 Cf Kikis, 401 So. 2d at 1342 ( If reasonable men could differ as to the propriety of the action taken by the trial court, then there is no abuse of discretion. ). 6 It is well settled that a party cannot avoid a summary judgment by contradicting its prior sworn testimony. See, e.g., Spatz v. Embassy Home Care, Inc., 9 So. 3d 697 (Fla. 4th DCA 2009). 10
CERTIFICATES OF SERVICE AND COMPLIANCE The undersigned counsel certifies that a copy of the foregoing Jurisdictional Brief of Petitioners was served by U.S. Mail on Jan Douglas Atlas, Esq., John J. Shahady, Esq. and Kristen Lake Cardoso, Esq., Kopelowitz, Ostrow, Ferguson, Weiselberg, Keechl, P.A., 200 S.W. 1st Avenue, 12th Floor, Fort Lauderdale, FL 33301 on this 21st day of November, 2011. The undersigned counsel further certifies pursuant to Fla. R. App. P. 9.210(a)(2) that this brief complies with the font requirements of Rule 9.210. REEDER & REEDER, P.A. By: s/ Gerry S. Gibson Gerry S. Gibson, L. Martin Reeder, Jr. and C. Bryce Albu Florida Bar Nos. 261998, 308684, and 657204 250 S. Central Blvd., Suite 200 Jupiter, Florida 33458 Telephone: (561) 575-9871 Facsimile: (561) 575-9765 Attorneys for Petitioners 11