IN THE SUPREME COURT OF FLORIDA CASE NO. SC04-338

IN THE SUPREME COURT OF FLORIDA CASE NO. SC04-338 R. BRENT MAGGIO, CRESTVIEW INVESTMENTS, INC., d/b/a CRESTVIEW NURSING AND CONVALESCENT HOME, FT. WALTON BEACH INVESTMENTS, INC., d/b/a FT. WALTON BEACH HEALTH AND REHABILITATION CENTER, EMERALD LANDMARK, INC., d/b/a LANDMARK HEALTH & REHABILITATION CENTER, EMERALD-CEDAR HILLS, INC., d/b/a CEDAR HILLS NURSING CENTER, EMERALD GOLFVIEW, INC., d/b/a GOLFVIEW NURSING HOME, and EMERALD-SOUTHERN PINES, INC., d/b/a SOUTHERN PINES NURSING CENTER, Petitioners, v. MINDY MYERS and STATE OF FLORIDA, Respondents. ON REVIEW FROM THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA CASE NO.: 1D03-541 RESPONDENT MINDY MYERS AMENDED RESPONSIVE BRIEF ON JURISDICTION

DAVID L. MCGEE Fla. Bar No. 220000 TERRIE L. DIDIER Fla. Bar No. 0989975 P.O. Box 12950 Pensacola, FL 32591-2950 BEGGS & LANE Attorneys for Respondent Mindy Myers

TABLE OF CONTENTS TABLE OF CONTENTS... TABLE OF AUTHORITIES... i iii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...2 ARGUMENTS...3 I: PETITIONERS ARE SEEKING REVIEW OF AN UNPUBLISHED/UNEXPLAINED DECISION OF THE FIRST DISTRICT COURT OF APPEAL, WHICH IS A SITUATION THIS COURT HAS PREVIOUSLY FOUND WILL NOT SUPPORT REVIEW BY THE FLORIDA SUPREME COURT UNDER ITS CONFLICT JURISDICTION... 3 II: THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL IN THIS CASE DOES NOT CONFLICT WITH THE DECISION OF THIS COURT IN RANDLE-EASTERN AMBULANCE SVS., INC. V. VASTA, 360 SO. 2D 68 (FLA. 1978), OR THE DECISIONS OF OTHER DISTRICT COURTS OF APPEAL IN TOBKIN V. STATE, 777 SO. 2D 1160 (FLA. 4 TH DCA 2001); AERO TOY STORE, INC. V. SHERWIN-WILLIAMS CO., 725 SO. 2D 1267 (FLA 4 TH DCA 1999); ROMAR INT L, INC. V. JIM RATHMAN CHEVROLET/ CADILLAC, INC., 420 SO. 2D 346 (FLA. 5 TH DCA 1982); BEVAN V. D ALESSANDRO, 395 SO. 2D 1285 (FLA. 2D DCA 1981); OR RICH MOTORS, INC. V. LOYD COLE i

PRODUCE EXPRESS, INC., 244 SO. 2D 526 (FLA. 4 th DCA 1970)... 5 CONCLUSION...9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF TYPE SIZE AND STYLE...10 ii

TABLE OF AUTHORITIES Constitution Art. V, 3(b)(3), Fla. Const...3, 9 Statutes Section 68.081, et seq., Fla. Stat. (2002)...............................7 Section 68.084(2)(b), Fla. Stat. (2002)...1, 8 Rules Fla. R. App. P. 9.030(a)(2)(A)(iv)...3, 9 Fla. R. App. P. 9.210(a)(2)...10 Cases *Aero Toy Store, Inc. v. Sherwin-Williams Co., 725 So. 2d 1267 (Fla. 4 th DCA 1999)...5, 6 Barner v. Barner, 673 So. 2d 886 (Fla. 4 th DCA 1996)...8 *Bevan v. D Alessandro, 395 So. 2d 1285 (Fla. 2d DCA 1981)...5, 7 Dreher v. American Fire and Casualty Co., 220 So. 2d 435 (Fla. 4 th DCA 1969)...9 Grate v. State, 750 So. 2d 625 (Fla. 1999)...4 Middlebrooks v. St. Johns River Water Management District, 529 So. 2d 1167 (Fla. 5 th DCA 1988)...8 iii

Our Gang, Inc. v. Commvest Securities, Inc., 608 So. 2d 542 (Fla. 4 th DCA 1992)...8 Persaud v. State, 838 So. 2d 529 (Fla. 2003)...4, 6 *Randle-Eastern Ambulance Svs., Inc. v. Vasta, 360 So. 2d 68 (Fla. 1978)...5, 6 Reaves v. State, 485 So. 2d 829 (Fla. 1986)...6 *Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So. 2d 526 (Fla. 4 th DCA 1970)...5, 7 *Romar Int l, Inc. v. Jim Rathman Chevrolet/Cadillac, Inc., 420 So. 2d 346 (Fla. 5 th DCA 1982)...5, 7 Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002)...4 *Tobkin v. State, 777 So. 2d 1160 (Fla. 4 th DCA 2001)...5, 6 * Cases cited by petitioners as creating conflict. iv

PRELIMINARY STATEMENT Mindy Myers (hereinafter Myers ), respondent herein, was the qui tam plaintiff at the trial court and the appellant at the First District Court of Appeal. The State of Florida was a plaintiff at the trial court and an appellee at the First District Court of Appeal. The State of Florida is a respondent before this court. R. Brent Maggio and all businesses listed on the cover page (hereinafter collectively petitioners ) were the defendants at the trial court and the appellees at the First District Court of Appeal. STATEMENT OF THE CASE AND FACTS Petitioners statement of the case and facts is incomplete and misleading with respect to the relevant posture of the case in the trial court at the time the notice of voluntary dismissal was filed. Petitioners submitted a settlement agreement to the court for judicial approval, as is required by section 68.084(2)(b), Fla. Stat., (2002). At the hearing, the trial judge approved the settlement agreement based upon an incorrect standard for review. (A-1) While the trial judge believed that the settlement did not pass the smell test, he did not think he could deny approval of the settlement unless the relator established fraud in the settlement negotiations. The district court reversed the trial court s decision because the trial court incorrectly concluded only that the 1

settlement had not been obtained through fraud and it failed to take into proper consideration the requirements that the settlements be fair, adequate and reasonable. (A-1) Petitioners moved to dismiss the appeal alleging that the appellate court lacked jurisdiction to hear the appeal. The reason for the court s decision not to dismiss the appeal was not memorialized in writing. Rather, the district court entered a one-sentence unpublished order simply denying the motion to dismiss the appeal. (Pet. s Brief 2 n.2) SUMMARY OF THE ARGUMENT The petitioners are seeking review of an unpublished/unexplained decision of the First District Court of Appeal. (Pet. s Brief 2 n.2) ( The perfunctory, onesentence order denying the State s motion to dismiss Myer s appeal is unpublished. ) This court has previously determined that it does not have conflict jurisdiction to review such decisions. Thus, this court need not look any further. However, in an abundance of caution, respondent will address the argument made by petitioners in their jurisdictional brief. Petitioners cite six cases which they claim are in conflict with the decision on appeal. None of the cases cited by petitioner address the only legal issue addressed by the district court in its January 29, 2004 opinion whether the trial 2

court applied the correct statutory standard when considering whether to accept or reject the settlement agreement. The opinion of the district court provides no recitation of facts or discussion of the issue raised by petitioners as conflicting with the six cited cases under what conditions and at what stage of a proceeding will a notice of voluntary dismissal divest the trial court of jurisdiction. Petitioners omit from their brief relevant facts that must be considered by a court when discussing the issue raised by petitioners. These facts are omitted (1) because they are not within the four corners of the opinion entered by the First District Court of Appeal, as the issue was not discussed in the opinion and (2) because the relevant facts are fatal to petitioner s argument. As a result of the foregoing, this court does not have conflict jurisdiction pursuant to Art. V, 3(b)(3), Fla. Const. and Fla. R. App. P. 9.030(a)(2)(A)(iv). ARGUMENT I: PETITIONERS ARE SEEKING REVIEW OF AN UNPUBLISHED/UNEXPLAINED DECISION OF THE FIRST DISTRICT COURT OF APPEAL, WHICH IS A SITUATION THIS COURT HAS PREVIOUSLY FOUND WILL NOT SUPPORT REVIEW BY THE FLORIDA SUPREME COURT UNDER ITS CONFLICT JURISDICTION. The petitioners are seeking review of an unpublished/unexplained decision of the First District Court of Appeal. Petitioners allege they are seeking review of the 3

opinion of the district court published on January 29, 2004. In reality, what they are seeking to have reviewed is an unpublished/ unexplained prior decision of the district court denying the petitioners motion to dismiss. That decision is referenced in a footnote in the district court s January 29, 2004 opinion. This court has previously determined that it does not have conflict jurisdiction to review unexplained orders or opinions. In Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980), this Court held that it does not have jurisdiction to review a per curiam affirmed decision without a written opinion where the basis for review is an alleged conflict between that decision and an opinion issued by either this Court or another district court of appeal. Grate v. State, 750 So. 2d 625, 626 (Fla. 1999) (citing St. Paul Title Insurance Corp. v. Davis, 392 So. 2d 1304, 1304-5 (Fla. 1980)). In Grate, this court extended the ruling in St. Paul to hold that those provisions of the Florida Constitution governing this Court s jurisdiction to issue extraordinary writs may not be used to seek review of an appellate court decision issued without a written opinion. Id. See also Persaud v. State, 838 So. 2d 529 (Fla. 2003) ( [T]his Court does not have jurisdiction to review per curiam decisions of the district courts of appeal that merely affirm with citations to cases not pending review in this Court. ); Stallworth v. Moore, 827 So. 2d 974, 978 (Fla. 2002) ( In the interest of clarity, we therefore hold that this Court does not have 4

discretionary review jurisdiction or extraordinary writ jurisdiction to review per curiam denials of relief, issued without opinion or explanation, whether they be in opinion form or by way of unpublished order. (Emphasis added.)) Thus, this court need not look any further. However, in an abundance of caution, respondent will address the argument made by petitioners in their jurisdictional brief. II: THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL IN THIS CASE DOES NOT CONFLICT WITH THE DECISION OF THIS COURT IN RANDLE-EASTERN AMBULANCE SVS., INC. V. VASTA, 360 SO. 2D 68 (FLA. 1978), OR THE DECISIONS OF OTHER DISTRICT COURTS OF APPEAL IN TOBKIN V. STATE, 777 SO. 2D 1160 (FLA. 4 TH DCA 2001); AERO TOY STORE, INC. V. SHERWIN-WILLIAMS CO., 725 SO. 2D 1267 (FLA 4 TH DCA 1999); ROMAR INT L, INC. V. JIM RATHMAN CHEVROLET/ CADILLAC, INC., 420 SO. 2D 346 (FLA. 5 TH DCA 1982); BEVAN V. D ALESSANDRO, 395 SO. 2D 1285 (FLA. 2D DCA 1981); OR RICH MOTORS, INC. V. LOYD COLE PRODUCE EXPRESS, INC., 244 SO. 2D 526 (FLA. 4 TH DCA 1970). [T]his court s discretionary review jurisdiction can be invoked only from a district court decision that expressly addresses a question of law within the four corners of the opinion itself by contain[ing] a statement or citation effectively establishing a point of law upon which the decision rests. Persaud v. State, 838 So. 2d at 532 (quoting Florida Star v. B.J.F., 530 So. 2d 286, 5

288 (Fla. 1988). The opinion of which the petitioners seek review does not expressly address within the four corners of the opinion the question of law upon which petitioners base the alleged conflict. The petitioners allege only that a trial court does not have jurisdiction to enter a final judgment in a case after the plaintiff has filed a notice of voluntary dismissal. (Pet. s Brief 3) The opinion of the First District Court of Appeal addresses only the proper statutory standard for reviewing a settlement proposal in a qui tam action. Petitioners have not argued in their brief that the statutory standard found by the First District Court of Appeal to be the proper standard is in conflict with any decision of this court or any other district court. See Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986) (denying review in case where [t]he district court decision correctly states and applies the law based on the facts given, and noting that [c]onflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority decision ). Petitioners suggest that the following decisions conflict with the First District Court of Appeal s decision in this case: Randle-Eastern Ambulance Svs., Inc. v. Vasta, 360 So. 2d 68 (Fla. 1978); Tobkin v. State, 777 So. 2d 1160 (Fla. 4 th DCA 2001); Aero Toy Store, Inc. v. Sherwin-Williams Co., 725 So. 2d 1267 (Fla. 4 th DCA 1999); Romar Int l, Inc. v. Jim Rathman Chevrolet/Cadillac, Inc., 420 So. 2d 6

346 (Fla. 5 th DCA 1982); Bevan v. D Alessandro, 395 So. 2d 1285 (Fla. 2d DCA 1981), and Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So. 2d 526 (Fla. 4 th DCA 1970). Petitioners allege [t]he holding in each of these cases was that a trial court loses jurisdiction to enter any further orders in a case after a plaintiff files a notice of voluntary dismissal including a putative final order such as the purported final judgment that the trial court entered in this case. (Pet. s Brief 4) It should be noted first that none of the cases cited by petitioners involve qui tam actions, which are specifically governed by The Florida False Claims Act ( Act ), sections 68.081 through 68.09, Fla. Stat. (2002). 1 None of the alleged conflict cases address the only issue addressed by the First District Court of Appeal in its January 29, 2004 opinion whether the trial court applied the correct statutory standard when considering whether to accept or reject the settlement proposal. Finally, there are insufficient facts before this court which would provide this court with the relevant information to decide whether a conflict exists with respect to the cases cited by petitioners because the posture of the case at the time the motion was filed 1 The Florida False Claims Act, section 68.081 et seq., Fla. Stat., was enacted in 1994. It has remained unchanged since that time except for minor revisions in 1995, which are not applicable to this appeal. The misconduct alleged in this case began about September 1994 and continued through the date the complaint was filed. 7

cannot be determined from the facts cited. It is clear that if the matter had been submitted to the trial court for decision and nothing remained to be done by the parties or the court other than the ministerial act of memoralizing in writing the trial court s oral decision, a notice of voluntary dismissal would be ineffective. E.g., Our Gang, Inc. v. Commvest Securities, Inc., 608 So. 2d 542, 543-44 (Fla. 4 th DCA 1992) (nunc pro tunc order simply memorialized court s oral order); Barner v. Barner, 673 So. 2d 886, 888 (Fla. 4 th DCA 1996) (preparation of nunc pro tunc order is merely a ministerial act; in dicta noting that right to dismiss under Fla. R. Civ. P. 1.420(a) is gone when matter has been submitted to court for decision, and court has orally stated its decision). See also Middlebrooks v. St. Johns River Water Management District, 529 So. 2d 1167 (Fla. 5 th DCA 1988). As required by statute, section 68.084(2)(b), Fla. Stat. (2002), the settlement agreement in this case was submitted to the court for approval, and a hearing was held. (A-1 p.3) Petitioners fail to mention that nothing but a ministerial act remained to be done either (1) because the opinion of the district court does not address this relevant fact (because it was irrelevant to the issue actually addressed by the court) or (2) because the answer is fatal to their argument. There cannot be conflict between district court opinions in which facts critical to the issue on review 8

are not discussed in a district court s opinion here because the issue raised by petitioners was not addressed in the opinion. Petitioners claim that Dreher v. American Fire and Casualty Co., 220 So. 2d 435 (Fla. 4 th DCA 1969), is particularly instructive is correct, but not for the proposition petitioners suggest. Rather, the case is particularly instructive to establish a distinction between cases in which the matter has been submitted to the court and those where the matter has not been submitted to the court for a final decision. CONCLUSION Petitioners have failed to establish conflict between the district courts of appeal or between a district court of appeal and this court. An unpublished/ unexplained decision of a district court of appeal is not subject to review by this court. The issue addressed by the First District Court of Appeal in the opinion for which petitioners seek review is clearly not the same issued addressed in the cases presented by petitioners as raising conflict. Thus, this court does not have discretion pursuant to Art. V, 3(b)(3), Fla. Const. or Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv), to review this matter. Respectfully submitted, 9

DAVID L. MCGEE Fla. Bar No. 220000 TERRIE L. DIDIER Fla. Bar No. 0989975 P.O. Box 12950 Pensacola, FL 32591-2950 BEGGS & LANE Attorneys for Respondent Mindy Myers CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing responsive brief on jurisdiction has been furnished by U.S. Mail to John R. Hamilton, Esq., counsel for petitioner; James F. Mcauley, Esq., Senior Assistant Attorney General, counsel for respondent State of Florida; and William F. Sutton, Jr., Esq., counsel for Diversicare Management Services, Inc., on this the day of April, 2004. TERRIE L. DIDIER CERTIFICATE OF TYPE SIZE AND STYLE The undersigned attorney hereby certifies that this brief was prepared using a Times New Roman 14-point font in accordance with Rule 9.210(a)(2), Florida Rules of Appellate Procedure. TERRIE L. DIDIER 10

INDEX TO APPENDIX Myers v. State of Florida, et. al, 1D03-0541 (Opinion filed Jan. 29, 2004)... A-1