In the Supreme Court of Florida CASE NO. SC12-362 A.K. GIFT SHOP, INC., Petitioner, v. DTRS INTERCONTINENTAL MIAMI, LLC, as Assignee of Intercontinental Hotels Corporation, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, THIRD DISTRICT OF FLORIDA PETITIONER S JURISDICTIONAL BRIEF ROY D. WASSON WASSON & ASSOCIATES, CHARTERED Courthouse Plaza Suite 600 28 West Flagler Street Miami, FL 33130 (305) 372-5220 Telephone (305) 372-8067 Facsimile roy@wassonandassociates.com GARY S. GLASSER GARY S. GLASSER, P.A. Courthouse Plaza, Suite 608 28 West Flagler Street Miami, FL 33130 (305) 377-4187 - Telephone (305) 358-7587 - Facsimile gsg50@msn.com Counsel for Petitioner
TABLE OF CONTENTS TABLE OF AUTHORITIES... : ii STATEMENT OF THE CASE AND OF THE FACTS... : 1 SUMMARY OF THE ARGUMENT... : 3 ARGUMENT: THE THIRD DISTRICT S OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH MANY CASES HOLDING THAT THE FAILURE TO SERVE COUNSEL WITH COPIES OF ORDERS STARTING JURISDICTIONAL DEADLINES NECESSITATES... RE-ST CONCLUSION... : 8 CERTIFICATE OF SERVICE... : 9 CERTIFICATE OF COMPLIANCE... : 9 APPENDIX... : App. 1 i
TABLE OF AUTHORITIES CASES PAGE 214 Main St. Corp. v. Tanksley, 947 So. 2d 490 (Fla. 2d DCA 2006)... :3 Bennett v. Ward, 667 So. 2d 378 (Fla. 1st DCA 1995)... :2, 6 Bien-Aime v. MSRH Board Walk, LLC, 41 So. 3d 1117 (Fla. 4th DCA 2010)... :2, 6 Boelter v. Boelter, 39 So. 3d 1282 (Fla. 4th DCA 2010)... :2, 6 Cohen v. Majestic Distilling Co., 765 So. 2d 276 (Fla. 4th DCA 2000)... :7 Gibson v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980)... :6 Hialeah Hotel, Inc. v. Woods, 778 So. 2d 314 (Fla. 3d DCA 2000)... :3 Park Adult Residential Facility, Inc. v. Dan Designs, Inc.,... 36 So. 3d 811 (Fla. 3d DCA 2010) :3 Phoenix Holding, LLC v. Martinez, 27 So. 3d 791 (Fla. 3d DCA 2010)... :2 Poal WK Taft, LLC v. Johnson Med. Ctr. Corp.,... 45 So. 3d 37 (Fla. 4th DCA 2010) :3 Rosso v. Golden Surf Towers Condo Ass n,... 711 So. 2d 1298 (Fla. 4th DCA 1998) :6 Spanish Oaks Condo Ass n, Inc. v. Compson of Florida, Inc.,... 453 So. 2d 838 (Fla. 4th DCA 1984) :7 Stetson Mgmt. Co. v. Fiddler s Elbow, Inc.,... 18 So. 3d 717 (Fla. 2d DCA 2009) :3 ii
OTHER AUTHORITIES PAGE 83.232, Fla. Stat... :1, 3 Florida Rule of Civil Procedure 1.080(h)... :passim iii
STATEMENT OF THE CASE AND FACTS This is a proceeding for review of a decision of the District Court of Appeal, Third District of Florida, holding that the Appellant/Respondent is entitled to an immediate writ of possession for failure of the Appellee/Petitioner to timely make the deposit of the full amount of rent into the court registry pursuant to 83.232, Fla. Stat. App. 4. The operative facts of this case taken verbatim from the opinion of the Third District are as follows: This is an appeal by DTRS Intercontinental Miami, LLC, the owner of a hotel located in Miami, Florida, from an order denying it immediate possession of commercial space in the hotel leased to A.K. Gift Shop, Inc., entered upon the failure of A.K. Gift Shop to comply with an Agreed Order Directing Tenant to Pay Rent Into Registry of Court Pursuant to 83.232, Florida Statutes. The order, signed by the trial court on April 5, 2011, and filed with the clerk on April 7, 2011, required A.K. Gift Shop to deposit specified rent into the court registry within five days of its entry, exclusive of weekends and holidays. Counsel for A.K. Gift Shop claimed he did not receive the order until April 13, 2011, one day after the deadline for compliance if calculating from the April 7 filing date of the order. The trial court reasoned that because DTRS Intercontinental provided envelopes for the court to send the agreed orders to counsel, it tacitly agreed the orders would not take effect until received by the parties. This was error. 1
Florida Rule of Civil Procedure 1.080(h)(1) provides, A copy of all orders... shall be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment. However, subdivision (h)(3) of the rule states, This subdivision is directory and a failure to comply with it does not affect the order or judgment or its finality or any proceedings arising in the action. The dispute in this case revolves around whether the trial court timely transmitted the order to counsel. Rule 1.080(h)(3), however, makes the dispute irrelevant, as the order was effective on April 5, 2011, and any alleged failure of the trial court to transmit the order did not excuse A.K. Gift Shop s duty to comply therewith. See Phoenix Holding, LLC v. Martinez, 27 So. 3d 791, 792 (Fla. 3d DCA 2010)(declining to set aside judicial sale where mortgagors contended they were served at the wrong address with a copy of the final judgment on the basis that Rule 1.080(h)(3) is directory and the trial court s failure to comply with Rule 1.080(h) does not affect the order or judgment or its finality). 1... 1 In contrast, a trial court errs in refusing to vacate orders that are not mailed to the parties where it affects a party s right to appeal. See, e.g., Bien-Aime v. 2
App. 2-3. (Emphasis and footnote by court). The Third District in its opinion reversed the trial judge for extending the time for payment of the rent into the court registry, holding as follows: Section 83.232(5), Florida Statutes (2011), provides, Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon. In Park Adult Residential Facility, Inc. v. Dan Designs, Inc., 36 So. 3d 811, 812 (Fla. 3d DCA 2010), this court confirmed that trial courts have no discretion in entering an immediate default for possession under these circumstances. The trial court may not consider the reasons why the deposit was not timely made. We further stated, [T]he law is the law. It is not our job to carve exceptions into an otherwise clear and imperative statute. Id. at 812 n.1. Under the plain language of section 83.232(5), DTRS Intercontinental is entitled to an immediate writ of possession. See id.; see also Poal WK Taft, LLC v. Johnson Med. Ctr. Corp., 45 So. 3d 37 (Fla. 4th DCA 2010); Stetson Mgmt. Co. v. Fiddler s Elbow, Inc., 18 So. 3d 717 (Fla. 2d DCA 2009); 214 Main St. Corp. v. Tanksley, 947 So. 2d 490 (Fla. 2d DCA 2006). Reversed and remanded for entry of an immediate writ of possession. App. 3-4. MSRH Board Walk, LLC, 41 So. 3d 1117, 1117 (Fla. 4th DCA 2010); Boelter v. Boelter, 39 So. 3d 1282, 1284 (Fla. 4th DCA 2010); Hialeah Hotel, Inc. v. Woods, 3
SUMMARY OF THE ARGUMENT The Third District s opinion under review expressly and directly conflicts with numerous opinions from other districts holding that the failure of a party to receive a conformed copy of an order, the entry of which (as opposed to the receipt of which) triggers a jurisdictional deadline, requires that the time deadline be extended by re-starting the period for taking the required action. Most, but not all of those cases, involve the procedure of vacating the order that was not timely received and re-entering a new order to re-start the deadline in question. Other cases recognize that the trial court has the power and duty to extend the time for necessary action without formally vacating the order that was not timely received. The Third District justified its decision by attempting to distinguish this case from those involving the failure to provide counsel with an order that starts the deadline to file a notice of appeal, noting that Fla. R. Civ. P. 1.080(h)(3) provides that failure to comply with the requirement of providing copies of orders to the parties does not affect the order or judgment or its finality or any proceedings arising in the action. That is no basis to distinguish this case from the decisions of other districts involving failure to provide a copy of a final judgment triggering an 778 So. 2d 314, 316 (Fla. 3d DCA 2000); Bennett v. Ward, 667 So. 2d 378, 380 n.3 (Fla. 1st DCA 1995). 4
appellate deadline. Many of those cases cite rule 1.080(h)(1), and reverse trial courts for not re-entering orders which were not timely received within the jurisdictional deadline. 2 The deadline for filing a notice of appeal is no less of a jurisdictional limit than the time for paying rent into the court registry. The fact that most of the cases involving this issue deal with the failure of a party to receive an order in time to file a notice of appeal while this case involves the failure to receive it in time to pay rent into the court registry is a distinction without a difference. In both categories of cases, the jurisdictional time deadline commences to run upon the entry of the order, not its receipt by counsel. However, the failure of counsel to receive the order in time to take the required action necessitates that the time be extended to permit that action to be taken. ARGUMENT THE THIRD DISTRICT S OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH MANY CASES HOLDING THAT THE FAILURE TO SERVE COUNSEL WITH COPIES OF ORDERS STARTING JURISDICTIONAL DEADLINES NECESSITATES RESTARTING OF THOSE DEADLINES The Third District s opinion holding that the trial court lacked the power to forestall issuance of a writ of possession because the tenant s attorney did not 2 Here it is uncontroverted that counsel for A.K. Gift Shop, Inc. did not receive a copy of the order in question until after the expiration of the five day 5
receive the order directing payment of rent into registry of court until after the expiration of the statutory deadline conflicts with numerous cases holding that the failure to provide counsel with a copy of an order from which a jurisdictional deadline is established requires the trial court to restart the time clock for compliance with that deadline. Those cases, just like this one, deal with deadlines that commence upon entry of the orders in question, not the receipt of those orders. Yet they clearly and uniformly hold that the failure to provide a copy of the order within the time for the required action necessitates extension of the time deadline to permit compliance. The opinion under review recognizes that many cases from other districts stand for the proposition that when a party demonstrates that he or she did not receive a copy of a final order within time to appeal the trial court abuses its discretion in refusing to vacate and re-enter that order to permit that party to appeal. A long line of precedent holds that where a party does not received a court order until the time for appeal has run, the process requires that the order be re-entered so that the adversely affected party can file a notice of appeal. Hialeah Hotel, Inc. v. Woods, 778 So. 2d 314, 316 (Fla. 3d DCA 2000)(emphasis period for paying rent into the court registry. 6
added). 3 Some of those cases, cited by the Third District, are Bien-Aime v. MSRH Board Walk, LLC, 41 So. 3d 1117, 1117 (Fla. 4th DCA 2010). Accord, e.g., Boelter v. Boelter, 39 So. 3d 1282 (Fla. 4th DCA 2010); Bennett v. Wood, 667 So. 2d 378 (Fla. 1st DCA 1995). The Bien-Amie and Boelter cases expressly and directly conflict with the decision of the Third District under review because those cases from the Fourth District cite Rule 1.080(h)(1) as authority for the proposition that the failure to timely receive an order renders it invalid for purposes of starting the jurisdictional time deadline, even though that deadline is triggered by the filing of the order rather than its receipt by counsel. The fact that the time deadline in those cases is for filing an appeal, instead of paying money into the court registry, is not a material distinction. In addition to the cases cited by the Third District in the opinion under review, numerous other cases from other districts support the proposition that the failure of a party to timely receive a copy of an order that commences a jurisdictional deadline such as the filing of a notice of appeal necessitates the vacation of that order and its re-entry to restart the jurisdictional countdown. E.g., 3 Due process is no less implicated where a party is deprived of the right to possession of real property, as in this case. 7
Gibson v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980); Rosso v. Golden Surf Towers Condo Ass n, 711 So. 2d 1298 (Fla. 4th DCA 1998); Spanish Oaks Condo Ass n, Inc. v. Compson of Florida, Inc., 453 So. 2d 838 (Fla. 4th DCA 1984). The present case is not distinguishable from the foregoing cases (and many others like them) by reason of the fact that there was no express request in this case that the trial court vacate the order that was not timely received and re-enter another order to restart the subject time period. The courts are free to employ other mechanisms to provide relief to a party who does not receive an order the entry of which commences a jurisdictional deadline before the expiration of that deadline. One such example of the proposition that other forms of relief to extend the time periods in question is Cohen v. Majestic Distilling Co., 765 So. 2d 276 (Fla. 4th DCA 2000). There the trial court did not vacate the first order that was not timely received, but entered a second final judgment to restart the deadline in question. That method of providing additional time was affirmed by the Fourth District. Likewise, in the present case, the trial court s extension of time 4 to comply with the order of payment of rent into the court registry had the same effect as 4 Petitioner notes that the Third District s opinion in criticizing counsel for not making payment of the rent until six days after receiving the untimely order 8
vacating the first order and re-entering a new one, so the decision is in conflict with Cohen. This Court should accept jurisdiction to resolve the conflict. CONCLUSION WHEREFORE, the decision of the Third District expressly and directly conflicting with many decisions of other district courts of appeal on the same question of law whether the failure of the court to provide a party with an order as required by Fla. R. Civ. P. 1.080(h)(1) within the jurisdictional time period for an action required to be taken from the entry of that order requires affording the party additional time to comply with the time deadline this Court should accept jurisdiction and review the decision on the merits. ROY D. WASSON WASSON & ASSOCIATES, CHARTERED Courthouse Plaza Suite 600 28 West Flagler Street Miami, FL 33130 Respectfully submitted, (305) 372-5220 Telephone (305) 372-8067 Facsimile roy@wassonandassociates.com GARY S. GLASSER (because his first effort to make the payment within five days of receipt was rebuffed by the clerk for lack of a clerk s fee) fails to recognize that the cases involving untimely receipt of an order commencing an appellate deadline do not require the filing of a notice of appeal within thirty days of receipt of the order, but within thirty days of the trial court s grant of relief by re-entering the order to restart the time. The Third District s criticism also overlooks the fact that the payment of rent into the court registry on April 19, 2011 was within five days of the tenant s counsel s receipt of that order, as the time is to be computed under the trial court s order, which states that the five-day period is exclusive of weekends and holidays. See App. 2. 9
GARY S. GLASSER, P.A. Courthouse Plaza, Suite 608 28 West Flagler Street Miami, FL 33130 (305) 377-4187 - Telephone (305) 358-7587 - Facsimile gsg50@msn.com Counsel for Petitioner By: ROY D. WASSON Fla. Bar No. 0332070 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served by U.S. Mail upon Barry R. Davidson and Anna Lazarus, Hunton & Williams, LLP, Counsel for Appellant, 1111 Brickell Avenue, Suite 2500, Miami, FL 33131, and hand delivery upon Gary S. Glasser, Gary S. Glasser, P.A., Co- Counsel for Appellee, 28 West Flagler Street, Suite 608, Miami, FL 33130; on this the 5th day of March, 2012. By: ROY D. WASSON Fla. Bar No. 0332070 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief has been computer generated in 14 point Times New Roman font and complies with the requirements of Rule 9.210(a)(2). By: ROY D. WASSON Fla. Bar No. 0332070 11