Electronically Filed 09/04/2013 02:39:00 PM ET RECEIVED, 9/4/2013 14:43:34, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA Case No. SC13-968; SC13-1028 LT Case Nos. 1D12-1654, 2010CA2918 LICENSE ACQUISITIONS, LLC, WEST VOLUSIA RACING, INC., F/K/A VOLUSIA JAI-ALAI, INC. and FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION Appellants, v. DEBARY REAL ESTATE HOLDINGS, LLC and STEVEN COSTA Appellees. REPLY BRIEF OF APPELLANTS BARRY RICHARD GREENBERG TRAURIG, P.A. 101 East College Avenue Tallahassee, FL 32301 Counsel for Appellant License Acquisitions, LLC J. RILEY DAVIS THOMAS A. RANGE AKERMAN SENTERFITT 106 East College Avenue Suite 1200 Tallahassee, FL 32301 J. LAYNE SMITH GARNETT W. CHISENHALL DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION 1940 North Monroe Street Suite 42 Tallahassee, FL 32399 Counsel for Appellant Department of Business and Professional Regulation Counsel for Appellant West Volusia Racing, Inc.
TABLE OF CONTENTS Table of Authorities... ii Correction to Statement of the Case...1 Argument...1 I. The Act is a Valid General Law... 1 II. & III. The Appellees Lacked Standing and Waived Their Right to Challenge... 6 Conclusion... 12 Certificate of Service... 14 Certificate of Compliance... 14 i
TABLE OF AUTHORITIES Case Page 1000 Friends of Florida v. Palm Beach County, 69 So. 3d 1123 (Fla. 4 th DCA 2011)... 2 Alachua County v. Scharps, 855 So. 2d 195 (Fla. 1 st DCA 2003)... 10 Carriage Hills Condominium v. JBH Roofing & Constructors, Inc., 109 So. 2d 329 (4 th DCA 2013)... 4 Department of Revenue v. Kulen, 646 So. 2d 717 (Fla. 1994)... 10 Florida Ass'n of Nurse Anesthetists v. Department of Professional Regulation, Board of Dentistry, 500 So. 2d 324 (Fla. 1 st DCA 1986)... 7 Florida First Nat. Bank of Jacksonville v. Dent, 350 So. 2d 481 (Fla. 1 st DCA 1977)... 7 North Broward Hospital District v. Fornes, 476 So. 2d 154 (Fla. 1985)... 10 Palm Beach County Canvassing Board v. Harris, 772 So. 2d 1220 (Fla. 2000) vacated on other grounds, 121 S. Ct. 471... 5 Parker v. Miracle Strip Boat & Motors Headquarters, Inc., 341 So. 2d 197 (Fla. 1 st DCA 1976)... 4 Renard v. Dade County, 261 So. 2d 832 (Fla. 1972)... 9, 11 State v. Hankerson, 65 So. 3d 502 (Fla. 2011)... 2, 8 ii
Totten v. Okaloosa County Gas District, 164 So. 2d 15 (Fla. 1964)... 9, 11 Vaughan v. First Union National Bank of Florida, 740 So. 2d 1260 (2 DCA 1999)... 8 Weaver v. Weaver, 95 So. 2d 1029 (Fla. 2d DCA 2012)... 7 West Flagler Kennel Club, Inc. v. Florida State Racing Commission, et al., 153 So. 2d 5 (Fla. 1963)... 9, 11 West Port Recovery Corp. v. Midas, 954 So. 2d 750 (Fla. 4 th DCA 2007)... 9 Wheeler v. Powers, 972 So. 2d, 285 (Fla. 5 th DCA 2008)... 9 Florida Statutes 550.054(9)(a), (10), Fla. Stat.... 10 550.054(14), Fla. Stat.... 6, 8, 9 Florida Rules of Civil Procedure Fla. R. Civ. P. 1.310(b)(6)... 3 iii
CORRECTION TO STATEMENT OF THE CASE The plaintiff correctly notes that the defendants Statement of the Facts erroneously stated that there are 21 jai-alai permits in Florida. As the chart immediately following the statement shows, there are 11 jai-alai permits in 9 counties and a total of 22 pari-mutuel permits in those counties. ARGUMENT I. The Act is a Valid General Law The plaintiffs myopically insist that the word only has just one meaning in the English language and that the district court interpreted the statutory text according to its plain language when it utilized that meaning. The plaintiffs ignore the fact, argued in defendants Initial Brief, that only can be used as either an adjective or an adverb and that the meaning differs depending upon which usage and upon its context. The plaintiffs ignore the multiple definitions contained in commonly used English dictionaries and thesauruses cited in the defendants Initial Brief. They ignore as well the fact that one of those definitions is not more than, and the fact that the Florida Legislature has used the word to mean exactly that in multiple statutes. 1 1 Plaintiffs argue that defendants should not be permitted to make this argument because it was not preserved in the trial court. This Court has recently made clear that an appellee is permitted to advance any legal basis 1
The case cited both by the District Court and the defendants, 1000 Friends of Florida v. Palm Beach County, 69 So. 3d 1123 (Fla. 4 th DCA 2011) is a good illustration of the importance of context. There the plaintiff challenged a development order that allowed mining in the Everglades. The comprehensive plan provided that development in the relevant area may be permitted only to support public roadway projects or agricultural activities or water management projects ***. Id. at 69 So. 3d 1125. The court concluded that the plain meaning of the word only in the comprehensive plan was solely, nothing else. Within the context of the comprehensive plan, that made good sense. Defining the word to mean no more than in that context would have made the sentence gibberish and would not have served any rational purpose related to the plan. Nothing in the 1000 Friends opinion suggested that only could not have a different meaning in another context. As noted in the Initial Brief, within the context of the Act, defining only as solely renders the word useless and the provision irrational. Defining only to mean not more than in the Act causes the word to serve a grammatical purpose and a historically consistent legislative purpose limiting the number of pari-mutuel permits within a county. to uphold the trial court s judgment regardless of whether it was raised in the trial court. State v. Hankerson, 65 So. 3d 502 (Fla. 2011). 2
Plaintiffs correctly state that the district court decision completely relies upon Mr. Barnes testimony as the undisputed predicate for granting summary judgment for the Appellees, Answer Brief, p. 28, and argue that Barnes testimony is binding on the defendants. Barnes was an investigator with the Division of Pari-Mutuel Wagering who was produced as a deposition witness in response to a Rule 1.310(b)(6) notice. The notice defined the scope of testimony as: 1. Which counties in Florida are affected by Section 6 of Chapter 2009-170, Laws of Florida, now codified as Section as Section 550.054(14), Fla. Stat. (2010). 2. Whether, under the provisions of Chapter 550, the class of eligible permits created by Section 6 of Chapter 2009-170, Laws of Florida, now codified as section 550.054(14), Fla. Stat. (2010), is constitutionally closed. [R. 1665-66] The notice did not indicate that the witness was expected to testify to the Division s interpretation of the language of the Act, and Barnes was not asked for the Divisions interpretation of the word only. 2 He was just asked to indicate which counties had jai-alai permits that would be eligible to convert under the Act [R. 137-149, 1328-29, 1333-35], and he based his answers on his personal judgment as to the meaning of the word only. 2 In several other questions not involving the interpretation of only, Barnes was specifically asked for the agency s official interpretation of language in the statute. [R. 1333-36, 1350] 3
Even if the notice had been sufficiently specific, the binding effect of his testimony would not have been as absolute as plaintiffs claim. In support of their argument, plaintiffs cite Carriage Hills Condominium v. JBH Roofing & Constructors, Inc., 109 So. 2d 329 (4 th DCA 2013). There the court did state that the testimony of a corporate representative was binding on the entity, but was quick to note important limitations on the rule: That does not, however, mean that the testimony is akin to a judicial admission which conclusively establishes a fact and estops the corporate party from offering other evidence on the matter. [citations omitted] Rather, testimony given at a [Rule 1.310(b)(6)] deposition is evidence which, like other deposition testimony, can be contradicted. [citation omitted] As one court put it: It is true that a corporation is bound by its rule 30(b)(6) testimony, in the same sense that any individual deposed under Rule 30(b)(1) would be bound by his or her testimony. All this means is that the witness has committed to a position at a particular point in time. It does not mean that the witness has made a judicial admission that formally decides an issue. Carriage Hills at 109 So. 3d 335. Accord: Parker v. Miracle Strip Boat & Motors Headquarters, Inc., 341 So. 2d 197 (Fla. 1 st DCA 1976). This should particularly be true when the witness is being asked for an agency legal interpretation that can affect non-parties. Even if Barnes personal understanding of the language had reflected the agency s official interpretation, it would not be entitled to judicial 4
deference if determined by a court to be contrary to law. Palm Beach County Canvassing Board v. Harris, 772 So. 2d 1220 (Fla. 2000) vacated on other grounds, 121 S. Ct. 471. In any case, whatever binding effect Barnes testimony may have had on the Division, it would not have been binding on License Acquisitions and Volusia, which were not asked to and did not produce Barnes. The plaintiffs cite cases holding that, within the context of the statutes being analyzed, only means solely, but plaintiffs do not and cannot deny that the word can also be defined in appropriate context as not more than. While the plaintiffs insist that the statute must be construed according to its plain language, they fail to recognize several simple truisms regarding what is the statute s plain language. First, the usage of only as an adverb meaning not more than is an acceptable English usage, and the Florida Legislature uses the word in this manner. 3 Second, only was used in the Act as an adverb modifying the word issued, and construing it to mean 3 Plaintiffs state that the defendants have identified only a few statutes in support of this point (there were actually 6), and decries the failure of the defendants to cite any reported decisions from any jurisdictions that support such usage. The reason for such failure is logistical, not legal. It is difficult to construct a search query that limits the results to statutes or cases in which the particular issue is presented. In order to find the 6 cited statutes, defendants counsel had to review every Florida statute in which the word only appears. In any case, the plaintiffs never deny that only can be used in appropriate context as an adverb meaning not more than. 5
not more than would have been reasonable and consistent with probable legislative intent. Third, such use would not have led to the unconstitutional result reached by the district court. The plaintiffs fail to offer an effective response to these truisms and their consequence is that the district court, given the choice of constructions, was duty-bound to adopt the one that was more reasonable and that would not result in a holding of unconstitutionality. The plaintiffs own county-bycounty analysis shows that the class would have been open to all but one county had the district court chosen the alternative construction. II. & III. The Appellees Lacked Standing and Waived Their Right to Challenge While the appellees appealed and sought review of every order entered by the trial court, the appellees elected only to argue in their initial brief the issue as to the appropriateness of the trial court's decision to deny the appellees' motion for summary judgment and the granting of the appellants' motion for summary judgment. In so doing, the appellees ignored the clear rulings of the trial court that specifically stated that the court would defer ruling on the affirmative defense of Appellant License Acquisitions maintaining that appellees had not demonstrated the requisite standing to challenge the constitutionality of Section 550.054(14), Fla. Stat., 6
because of lack of special injury. No affirmative relief was ever granted by the trial court to the appellees and, therefore, there never existed a need to determine whether appellees had standing. The appellees maintain that when they filed their notice of appeal they specifically sought review of all orders of the trial court and that, under the de novo standard of review, the First District Court of Appeal had the implicit authority to review every decision made by the trial court below. Such position confuses the issue of standard of review with preservation of the issues. Instead, it is clear that in Florida jurisprudence the failure to argue in a brief a question assigned as error, i.e. the trial court's failure to rule on the issue as to whether the appellees had standing to challenge the constitutionality of the subject statute, precludes the appellate court's consideration of the issue. Florida First Nat. Bank of Jacksonville v. Dent, 350 So. 2d 481 (Fla. 1 st DCA 1977); Weaver v. Weaver, 95 So. 2d 1029 (Fla. 2d DCA 2012). Accordingly, the failure of an appellant to argue an issue in its initial brief renders moot any question of the validity of the lower tribunal s ruling as to that issue. Florida Ass'n of Nurse Anesthetists v. Department of Professional Regulation, Board of Dentistry, 500 So. 2d 324 (Fla. 1 st DCA 1986). Under such circumstances it was improper for the District Court to impliedly grant the affirmative relief requested by the 7
appellees by instructing the trial court to enter a summary judgment in favor of the appellees regarding the constitutionality of Section 550.054(14), Fla. Stat. The appellees, and apparently the District Court, have failed to appreciate that when the issue of standing of a party is raised in the trial court, that issue must be resolved before any affirmative relief can be granted to a plaintiff. See Vaughan v. First Union National Bank of Florida, 740 So. 2d 1260 (2 DCA 1999). The decision of the trial court denying appellees motion for summary judgment should be affirmed because appellees failed to refute the affirmative defense of License Acquisitions. Summary judgment in favor of a movant cannot be granted until each and every affirmative defense has been conclusively refuted. (See citations in appellants initial brief). A trial court's ruling must be upheld where the record supports any legal basis for the ruling regardless of whether an argument that would support the ruling was made in the lower court. State v. Hankerson, 65 So. 3d 502 (Fla. 2011). Contrary to appellees assertion that the appellants did not preserve the standing issue by not having appealed the ruling of the trial court denying the appellants motions to dismiss, such appeal is not required under the facts of this case. The appellants were simply maintaining that the trial 8
court's decision to deny the plaintiffs motion for summary judgment should be upheld because the plaintiffs failed to refute the affirmative defense of License Acquisitions. Regardless of the inappropriateness of the appellees maintaining that they have standing, the reasons advanced by the appellees to support standing fall short of the mark. The appellee, Debary, maintains it has standing because it holds a pari-mutuel permit. The appellee Costa, a taxpayer and resident of Volusia County, maintains that he has standing simply because he is taxpayer in Volusia County and if he had had a notice of the intent of the legislature to enact Section 550.054(14), Fla. Stat., he would have opposed such enactment. In support of their position, the appellees cite the cases of Renard v. Dade County, 261 So. 2d 832 (Fla. 1972), West Flagler Kennel Club, Inc. v. Florida State Racing Commission, et al., 153 So. 2d 5 (Fla. 1963) and Totten v. Okaloosa County Gas District, 164 So. 2d 15 (Fla. 1964). None of these cases support the position of the appellees. A party must have a sufficient interest in the controversy which will be affected by the outcome of the litigation, Wheeler v. Powers, 972 So. 2d, 285 (Fla. 5 th DCA 2008); West Port Recovery Corp. v. Midas, 954 So. 2d 750 (Fla. 4 th DCA 2007) and the party must demonstrate an injury in fact, 9
which is concrete, distinct and palpable, and actual or imminent. Department of Revenue v. Kulen, 646 So. 2d 717 (Fla. 1994) Moreover, a taxpayer can only avoid demonstrating the requisite special injury to challenge the constitutionality of a statute where that taxpayer is challenging the constitutional validity of an Act on the basis that the Act violates a specific taxing and spending power under the state or federal constitution. Alachua County v. Scharps, 855 So. 2d 195 (Fla. 1 st DCA 2003). Costa has not alleged that the Act is unconstitutional in violation of a special taxing and spending power under the state or federal constitution. He thus lacked standing. North Broward Hospital District v. Fornes, 476 So. 2d 154 (Fla. 1985). Likewise Debary has not alleged or made an evidentiary showing of any special injury that is required to demonstrate standing. All Debary has done is allege that it is a permit holder and erroneously alleged that as a result of being a permit holder it is authorized to conduct pari-mutuel performances. In order to operate performances and conduct pari-mutuel activity, a permit holder must have constructed a pari-mutuel facility and obtained a "license" to conduct pari-mutuel performances. Section 550.054(9)(a), (10), Fla. Stat. Appellee Debary has never alleged that it constructed any pari- 10
mutuel facility or operated any racing dates in the State of Florida or that it obtained a license to do so. The cases cited by the appellees in support of their standing do not, in fact, support their standing. Appellee Debary relies upon West Flagler Kennel Club v. Florida State Racing Commission, supra, to support its standing. There, the Florida Supreme Court used the word permit loosely in ruling that a pari-mutuel permittee had the standing to challenge constitutionality. The case did not deal with the issue of whether the racing establishments had been issued licenses. The reliance by appellee Costa on Totten v. Okaloosa County Gas District, supra, in support of standing is also misplaced. In that case the taxpayer was actually challenging revenue issues, and therefore, had the requisite standing. Renard v. Dade County, supra, dealt with the issue of whether the county had followed the requisite procedures for enacting a zoning ordinance. Zoning ordinances impact individual residents of a county in a direct manner and whether a zoning ordinance is properly enacted is totally distinct from the standing requirement to challenge the constitutionality of an existing state statute. 11
CONCLUSION The decision of the district court should be reversed with appropriate instructions depending upon this Court s determination: (1) vacate the mandate and affirm the judgment for the defendants; (2) vacate the mandate and remand to the trial court for further proceedings to determine whether the class is reasonably open; (3) vacate the mandate and remand to the trial court for dismissal on the ground of lack of standing of the plaintiffs; (4) vacate the mandate and remand to the trial court for further proceedings to determine whether the plaintiffs have standing. 12
S/ BARRY RICHARD BARRY RICHARD FLORIDA BAR NO. 105599 GREENBERG TRAURIG, P.A. 101 EAST COLLEGE AVENUE TALLAHASSEE, FL 32301 TELEPHONE: (850) 222-6891 FACSIMILE: (850) 681-0207 RICHARDB@GTLAW.COM S: ABBUHLC@GTLAW.COM Counsel for Appellant License Acquisitions, LLC S/ J. RILEY DAVIS J. RILEY DAVIS Florida Bar No. 778121 Akerman Senterfitt 106 East College Avenue Suite 1200 Tallahassee, FL 32301 riley.davis@akerman.com angie.gaff@akerman.com tom.range@akerman.com cindy.hildebrandt@akerman.com S/ J. LAYNE SMITH J. LAYNE SMITH Florida Bar No. 712930 General Counsel Garnett W. Chisenhall Florida Bar No. 0184373 Chief Appellate Counsel Department of Business and Professional Regulation 1940 North Monroe Street Suite 42 Tallahassee, FL 32399 Layne.Smith@dbpr.state.fl.us Garnett.Chisenhall@ dbpr.state.fl.us Counsel for Appellant Department of Business and Professional Regulation Counsel for Appellant West Volusia Racing, Inc. 13
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by REGISTERED ELECTRONIC MAIL this 4 th day of September, 2013 to the following: David S. Romanik David S. Romanik, P.A. P.O. Box 650 Oxford, FL 34484 davidromanik@mac.com S/ BARRY RICHARD BARRY RICHARD CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing document is in compliance with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). This document is submitted in Times New Roman 14-point font. TAL 451779030v1 S/ BARRY RICHARD BARRY RICHARD 14