IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA PINES LEARNING CENTER, INC., SC CASE NO.: 08-1945 a Florida corporation, d/b/a CAMBRIDGE DCA CASE NO.: 4D06-4904 LEARNING CENTRE, v. Appellant/Petitioner, MARK SHIPMAN and SANDRA SHIPMAN, Individually and as Personal Representatives of the Estate of Alexandra Rose Shipman, deceased, Appellees/Respondents. / APPELLANT/PETITIONER S AMENDED BRIEF ON JURISDICTION DONALD W. ST. DENIS, ESQUIRE Florida Bar No.: 0794864 BENJAMIN C. MOORE, ESQUIRE Florida Bar No.: 0773581 ST. DENIS & DAVEY, P.A. 1300 Riverplace Blvd., Suite 101 Jacksonville, Florida 32202 (904) 396-1996 (904) 396-1991 Facsimile

TABLE OF CONTENTS TABLE OF AUTHORITIES i STATEMENT OF THE CASE AND OF THE FACTS.. 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT AND CITATION OF AUTHORITIES 4 ISSUE: I ISSUE: II THE FOURTH DISTRICT S DECISION CONFLICTS WITH THIS COURT S DECISION IN FRAZIER v. SEABOARD SYS. R.R., INC. AND THE THIRD DISTRICT S DECISION IN VOLUMES IN VALUE, INC. v. BUY MAIL INT L, INC... 4 THE PROPER BASIS FOR RELIEF FROM AN ORDER DENYING A MOTION FOR NEW TRIAL IS SET FORTH IN RULE 1.530 AND 1.540, NEITHER OF WHICH WERE INVOKED BY THE PARENTS OR THE TRIAL COURT BEFORE THE ORDER WAS VACATED. 5 A. The trial court did not have a basis to vacate the Order under rule 1.530. 6 B. The trial court did not have a basis to vacate the Order under rule 1.540. 7 i. The Fourth District s description of the Order as inadvertent and unintended was erroneous and did not qualify as a clerical error under rule 1.540(a). 7 ii. The trial court had no basis to vacate the Order on its own initiative under rule 1.540(b) because there was no record of fraud.. 8

ISSUE: III A STRICT IMPLEMENTATION OF RULE 1.530 AND 1.540 IS AN IMPORTANT AND COMPELLING POLICY IN ORDER TO ENSURE AN EARLY FINAL END TO LITIGATION... 9 CONCLUSION.. 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE.. 11

TABLE OF AUTHORITIES ACA Brandon, Inc. v. Hooyman, 823 So. 2d 874 (Fla. 2d DCA 2002).6 Bolton v. Bolton, 787 So. 2d 237 (Fla. 2d DCA 2001). 6 Bortz v. Bortz, 675 So. 2d 622 (Fla. 1st DCA 1996) 7 Bustos v. Fleet, 461 So. 2d 1039 (Fla. 4th DCA 1985), affirmed, 482 So. 2d 1368 (Fla. 1968). 10 Curbelo v. Ullman, 571 So. 2d 443 (Fla. 1990)... 7 Francisco and B & E Found, Inc. v. Victory Marine Ship, Inc., 486 So. 2d 1386 (Fla. 3d DCA 1986).. 5, 10 Frazier v. Seaboard Sys. R.R., Inc., 508 So. 2d 345 (Fla. 1987).. 2, 3, 4, 9 Padot v. Padot, 891 So. 2d 1079 (Fla. 2d DCA 2004). 8 Shelby Mut. Ins. Co. v. Pearson, 236 So. 2d 1 (Fla. 1970).. 6 State of Fla. v. Morris, 359 So. 2d 478 (Fla. 1st DCA 1978).. 6 Town of Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla. 1979). 7 Volumes in Value, Inc. v. Buy Mail Int l, Inc., 177 So. 2d 511 (Fla. 3d DCA 1965) 2, 3, 4, 5, 9 Fla. R. Civ. P. 1.540 passim Fla. R. Civ. P. 1.540(a) passim Fla. R. Civ. P. 1.540(b) passim Fla. R. Civ. P. 1.530 passim Fla. R. Civ. P. 1.530(b). 5 Fla. R. Civ. P. 1.530(d). 5 i

STATEMENT OF THE CASE AND OF THE FACTS The parents (Appellees/Respondents) of a young student filed a wrongful death action against the School (Appellant/Petitioner). The case went to trial and the jury returned a verdict in favor of the School. The parents filed a Motion for New Trial on November 7, 2005 and the trial court entered Final Judgment for the School on November 15, 2005. The trial court entered an Order Denying the Motion for New Trial on May 22, 2006. Eighteen days later the parents filed a Motion to Vacate Order Denying Motion for New Trial ( Motion to Vacate ) asking the trial court to rehear and reconsider the Order Denying the Motion for New Trial. The trial court granted the Motion, vacated the Order and subsequently entered an Order granting a new trial without stating the grounds. The School appealed. The Fourth District rendered two decisions. In the first decision rendered on April 16, 2008 1 the Fourth District referred to the trial court s original May 22, 2006 Order Denying the Motion for New Trial as inadvertent and unintended thus affirming the trial court s decision to vacate this Order even though the trial court did not have a jurisdictional basis to vacate this Order as set forth in Florida Rule of Civil Procedure 1.530 and 1.540. The Fourth District relinquished the case back to the trial court and requested that the 1 Pines Learning Centre, Inc. v. Mark Shipman and Sandra Shipman, 979 So. 2d 1143, 1144, n.2 (Fla. 4th DCA April 16, 2008) attached to the Appendix as A-1.

trial court specify reasons for entering the second Order Granting the Motion for New Trial while ignoring the effect of the inadvertent and unintended Order. The decision was made final on July 2, 2008 when the Fourth District affirmed the trial court s Amended Order Granting the Motion New Trial. See, Pines Learning Centre, Inc. v. Shipman, 988 So. 2d 33 (Fla. 4th DCA 2008). The Fourth District would not have arrived at this decision but for its April 16, 2008 decision to disregard the trial court s May 22, 2006 Order Denying the Motion for New Trial by classifying it as inadvertent and unintended. The April 16, 2008 decision could not be appealed since the Fourth District relinquished the case back to the trial court. On July 2, 2008, the Fourth District s ruling made the April 16, 2008 decision final and appealable. The direct and express conflict resides in the Fourth District s April 16, 2008 decision wherein the Fourth District classified the trial court s May 22, 2006 Order Denying the Motion for New Trial as inadvertent and unintended and affirmed the trial court s decision to vacate this Order without a jurisdictional basis grounded in fraud or clerical error. See A-1. This decision directly conflicts with decisions from the Florida Supreme Court and Third District which hold that an order denying a motion for new trial should not be vacated or reheard absent fraud or clerical error. Frazier v. Seaboard Sys. R.R., Inc., 508 So. 2d 345, 347 (Fla. 1987); Volumes in Value, Inc. v. Buy Mail Int l, Inc., 177 So. 2d 511, 512 (Fla. 3d

DCA 1965). SUMMARY OF THE ARGUMENT I. The Fourth District upheld the trial court s Order Vacating the Order Denying the Motion for New Trial pursuant to the parents request that the trial court reconsider and rehear the Motion for New Trial without a finding of fraud or clerical error providing a basis for vacating the Order. The Fourth District s decision is in direct conflict with the Florida Supreme Court in Frazier and the Third District in Volumes in Value holding that an order denying a motion for new trial should not be vacated or reheard absent fraud or clerical error. Frazier, 508 So. 2d at 347; Volumes in Value, 177 So. 2d at 512. II. The Fourth District wrongly affirmed the trial court s Order Vacating the Order Denying the Motion for New Trial because the trial court did not provide a basis for relief under rule 1.530 and/or 1.540. There was no basis for relief under rule 1.530 since the trial court previously denied the first Motion for New Trial and was outside the ten-day time limit to modify or vacate the Order. There was no basis for relief under rule 1.540 since there was no record of clerical mistake, inadvertence, excusable neglect, newly discovered evidence or fraud. Fla. R. Civ. P. 1.540(a) & (b). The Fourth District s assertion that the Order Denying the Motion for New Trial was inadvertent and unintended was erroneous. The vacating of the Order changed the substantive outcome of the case and was not

clerical in nature. There was no record of fraud on the court allowing for relief under 1.540(b). III. It is necessary that this Court exercise its discretionary jurisdiction and resolve the conflict as it is a compelling policy to ensure an early final end to litigation. ARGUMENT AND CITATIONS OF AUTHORITIES I. THE FOURTH DISTRICT S DECISION CONFLICTS WITH THIS COURT S DECISION IN FRAZIER v. SEABOARD SYS. R.R., INC. AND THE THIRD DISTRICT S DECISION IN VOLUMES IN VALUE, INC. v. BUY MAIL INT L, INC. The Fourth District wrongfully affirmed the trial court s Order Vacating the Order Denying the Motion for New Trial. The Fourth District s decision directly conflicts with this Court s decision in Frazier where this Court held [t]he overwhelming weight of authority in Florida has long adhered to the rule that a new-trial order is not subject to a motion for rehearing absent fraud or clerical error. Frazier, 508 So. 2d at 347. There was no fraud or clerical error providing the trial court with a basis to vacate the Order Denying the Motion for New Trial. Likewise, the Fourth District s decision directly conflicts with the Third District s decision in Volumes in Value. Similar to the procedural history of the case at bar, in Volumes in Value the defendants filed a motion for new trial after the jury returned a verdict and the trial court entered an order denying the motion. Volumes in Value, 177 So. 2d at 512. The defendants filed a motion to vacate the

order denying the motion for new trial and the trial court entered final judgment and thereafter entered a new order vacating the order denying the motion for a new trial. Id. The Third District reversed the trial court and held that defendants motion to vacate the order was in reality a motion for rehearing of the order denying the motion for new trial and the trial court proceeded in a procedurally unauthorized manner. Id. This Court should accept jurisdiction to resolve the conflict. II. THE PROPER BASIS FOR RELIEF FROM AN ORDER DENYING A MOTION FOR NEW TRIAL IS SET FORTH IN RULE 1.530 AND 1.540, NEITHER OF WHICH WERE INVOKED BY THE PARENTS OR THE TRIAL COURT BEFORE THE ORDER WAS VACATED The Fourth District wrongly affirmed the trial court s Order Vacating the Order Denying the Motion for New Trial which did not invoke rule 1.530 and/or 1.540 as the basis for relief from the Order. There are two mechanisms by which a trial court can reconsider and correct its prior decision denying a motion for new trial. The first mechanism is set forth in rule 1.530. This rule provides the trial court with an opportunity to consider matters which it overlooked or failed to consider and to correct any error if it becomes convinced that it has erred as long as the motion is brought within ten days of the return of the jury verdict, or, if the ruling is made on the court s own initiative, within ten days of entry of the judgment. See Fla. R. Civ. P. 1.530(b) & (d); see also Francisco and B & E

Found, Inc. v. Victory Marine Ship, Inc., 486 So. 2d 1386, 1389 (Fla. 3d DCA 1986). The second mechanism is the motion for relief from judgment, decrees or orders as set forth in rule 1.540. Rule 1.540 provides relief for reasons of clerical mistakes, inadvertence, excusable neglect, newly discovered evidence and fraud among others. Fla. R. Civ. P. 1.540(a) & (b). A. The trial court did not have a basis to vacate the Order under rule 1.530 The trial court denied the parents first Motion for New Trial. After denying the Motion for New Trial, the trial court lost jurisdiction to consider any further motions except for motions filed under rule 1.540 since the ten-day time frame in which a court may vacate or modify an order under rule 1.530 had passed. Bolton v. Bolton, 787 So. 2d 237, 239 (Fla. 2d DCA 2001); see also Shelby Mut. Ins. Co. v. Pearson, 236 So. 2d 1, 3-4 (Fla. 1970); State of Fla. v. Morris, 359 So. 2d 478, 480 (Fla. 1st DCA 1978) ( When the trial court has considered on its merits a timely motion for new trial, and thereafter enters its order denying such motion, the court has no authority to entertain or consider a subsequently filed motion or petition for rehearing which merely asks the court to reconsider the same matter. ). The trial court did not have jurisdiction to consider the parents Motion because it was a request for the trial court to rehear and reconsider its previous ruling. Rule 1.530 does not authorize the filing of a motion for rehearing or a supplemental motion pertaining to an order denying a motion for new trial. See,

ACA Brandon, Inc. v. Hooyman, 823 So. 2d 874, 875 (Fla. 2d DCA 2002) ( The Florida Rules of Civil Procedure do not provide for supplemental motions for new trial or for motions for rehearing of orders denying motions for new trial [o]nce the trial court denied [the] motion for new trial, it had no authority to rehear the matter. ); see also Volumes in Value, Inc., 177 So. 2d at 512. B. The trial court did not have a basis to vacate the Order under rule 1.540 Rule 1.540 was intended to provide relief from judgments, decrees or orders only under a limited set of circumstances and was not intended to serve as a substitute for the new trial mechanism prescribed by rule 1.530 nor as a substitute for appellate review of judicial error. Curbelo v. Ullman, 571 So. 2d 443, 444 (Fla. 1990). i. The Fourth District s classification of the Order as inadvertent and unintended is erroneous and did not qualify as a clerical error under rule 1.540(a) Section (a) allows a trial court to correct clerical mistakes in judgments, decrees, or other parts of the record on its own initiative but does not allow for corrections that change the substantive outcome of the case. See, e.g., Town of Hialeah Gardens v. Hendry, 376 So. 2d 1162, 1164 (Fla. 1979) ( The clerical mistakes referred to in section (a) of Rule 1.540 include only errors or mistakes arising from accidental slip or omission, and not errors or mistakes in the substance of what is decided by the judgment or order, the latter of which must be

corrected pursuant to Rule 1.540(b). ); see also Bortz v. Bortz, 675 So. 2d 622, 624 (Fla. 1st DCA 1996) (holding rule 1.540(a) is not designed to permit substantive changes in final orders, especially changes which reverse the outcome ). There was no clerical error cited in the Order Vacating the Order Denying the Motion for New Trial, nor was rule 1.540 even referenced in the Order. The Fourth District s classification of the Order as inadvertent and unintended placed the trial court s decision under the auspices of section (a) as a clerical mistake. See A-1. The vacating of the Order did not merely modify the Order for a clerical mistake but completely changed the substantive outcome of the case by awarding a new trial to the parents. Similarly, in Padot v. Padot, the Second District vacated the trial court s clarification order and held that a clarification order which changed the substance of a prior order on rehearing was not an authorized clerical correction under rule 1.540 and the trial court had no basis to vacate the order under rule 1.530 or 1.540. 891 So. 2d 1079, 1084-85 (Fla. 2d DCA 2004). For this reason, the trial court did not have grounds under section (a) to vacate the Order Denying the Motion for New Trial and the Fourth District s affirmation of this Order conflicts with this Court and the Third District. ii. The trial court had no basis to vacate the Order on its own initiative under rule 1.540(b) because there was no record of fraud Rule 1.540(b) mandates that a party seeking relief from the judgment or

order must file a motion invoking section (b). The parents Motion to Vacate did not invoke sections (a) or (b). Contrarily, the parents specifically represented to the trial court during the hearing on the Motion that their Motion to Vacate was not being brought under rule 1.540. (PR4 18, 32). 2 They were seeking to have the trial court rehear and reconsider the Order Denying the Motion for New Trial without invoking rule 1.540 contrary to Frazier. Under section (b), the trial court does not have the ability to entertain an independent action on its own initiative to relieve a party from the order denying a new trial except in cases involving fraud. The trial court acknowledged that there was no record of fraud. (PR4 18). The trial court did not have a basis to vacate its order under section (b). The Fourth District s affirmation of the trial court is erroneous and in direct conflict with this Court s prior decision rendered in Frazier and the Third District s decision in Volumes in Value and it is imperative that this Court accept jurisdiction to resolve the conflict. III. A STRICT IMPLEMENTATION OF RULE 1.530 AND 1.540 IS AN IMPORTANT AND COMPELLING POLICY IN ORDER TO ENSURE AN EARLY FINAL END TO LITIGATION The School urges this Court to consider the compelling policy reasons justifying the exercise of its discretionary jurisdiction to review this case and 2 PR is the prior record on appeal.

resolve the conflict because it has the potential of affecting all litigation involving motions for new trials. The issue in this case involving a trial court s Order Vacating an Order Denying a Motion for New Trial without a basis under rule 1.530 and without invoking rule 1.540 is one of exceptional importance. The goal of the implementation of restrictions on the authority of trial courts promulgated by this Court in rule 1.530 and 1.540 is to ensure an early final end to litigation. Francisco, 486 So. 2d at 1389. Without these restrictions, this goal would be thwarted and litigants and/or trial courts could vacate an order for any reason resulting in a considerable impact on the administration of justice. See Bustos v. Fleet, 461 So. 2d 1039 (Fla. 4th DCA 1985), aff d, 482 So. 2d 1368 (Fla. 1968). As the Third District held: [a] litigant is not only entitled to have his cause decided; he is entitled to know that an order deciding it is final and will not be disturbed, except on appeal, or under the conditions prescribed by the rules. Francisco, 486 So. 2d at 1389. Conclusion For the above reasons, Petitioner urges the court to exercise its discretionary jurisdiction to accept the case and resolve the conflict set forth above.

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by Federal Express, on this 10th day of November, 2008, to Pamela A. Chamberlin, Esquire, Mitrani, Rynor & Adamsky, P.A., 2200 SunTrust International Center, One Southeast Third Avenue, Miami, FL 33131, and Michael Schiffrin, Esquire, Michael Schiffrin & Associates, P.A., 9130 S. Dadeland Boulevard, Suite 1109, 2 Datran Center, Miami, FL 33156-7848. DONALD W. ST. DENIS, ESQUIRE Florida Bar No.: 0794864 BENJAMIN C. MOORE, ESQUIRE Florida Bar No.: 0773581 ST. DENIS & DAVEY, P.A. 1300 Riverplace Blvd., Suite 101 Jacksonville, Florida 32202 (904) 396-1996 (904) 396-1991 Facsimile CERTIFICATE OF COMPLIANCE I CERTIFY that the foregoing Brief on Jurisdiction of Appellant/Petitioner complies with the font requirement of Fla. R. App. P. 9.120(2) and is printed in Times New Roman 14 font. Attorney