SUPREME COURT OF FLORIDA. v. Lower Tribunal No.: 2D RESPONDENTS AMENDED RESPONSE TO PETITIONERS JURISDICTIONAL BRIEF

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1 SUPREME COURT OF FLORIDA AKERMAN, SENTERFITT & EIDSON, P.A. a Florida professional service corporation, and JOSEPH RUGG, an individual, Petitioners, CASE NO. SC v. Lower Tribunal No.: 2D BOBBY L. COATES, an individual DEBORAH R. COATES, an individual, BREDEL CORPORATION, a Florida corporation, BREDEL MANAGEMENT COMPANY, INC., a Florida Corporation, and TRUST UNDER BREDEL COMPENSATION PLAN, a Florida grantor trust, Respondents. RESPONDENTS AMENDED RESPONSE TO PETITIONERS JURISDICTIONAL BRIEF Barry A. Cohen, Esq. Bar No.: Christopher P. Jayson, Esq. Bar No.: Kevin J. Darken, Esq. Bar No: Cohen, Jayson & Foster, P.A. 201 East Kennedy Blvd., Suite 1000 Tampa, FL (813) Attorneys for Respondents bcohen@tampalawfirm.com cjayson@tampalawfirm.com kdarken@tampalawfirm.com

2 TABLE OF CONTENTS I. STATEMENT OF THE CASE AND FACTS. 1 II. SUMMARY OF THE ARGUMENT. 1 III. ARGUMENT 2 A. The Second District Court of Appeal s decision in this case does not expressly and directly conflict with the First District s opinion in First Southern Baptist Church of Mandarin, Florida v. First National Bank of Amarillo on the same question of law. B. First Southern Baptist Church of Mandarin is distinguishable because here, unlike in that case, the respondents have not injected into the litigation issues going to the very heart of the litigation... 2, 3, 4 4, 5 IV. CONCLUSION 5 i

3 TABLE OF CITATIONS Cases: Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504, (Fla. 2 nd DCA 2006) passim Emergency Amendments to Rules of Appellate Procedure, 381 So.2d 1370, 1373 (Fla. 1980).. 2 First Southern Baptist Church of Mandarin, Florida, Inc. v. First National Bank of Amarillo, 610 So.2d 452, 454 (Fla. 1 st DCA 1992) passim Home Insurance Co. v. Advance Machine Co., 443 So.2d 165 (Fla. 1 st DCA 1983) passim Martin v. State, 833 So.2d 756, 758 (Fla. 2002). 2 Shafnaker v. Clayton, 680 So.2d 1109, 1111 (Fla. 1 st DCA 1996). passim Other: Article V of the Florida Constitution.. 2 Fla.R.App.P (a)(2)(iv). 2, 3 ii

4 I. STATEMENT OF THE CASE AND FACTS The relevant facts are summarized in the Second District Court of Appeal's opinion in this case. Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504, (Fla. 2nd DCA 2006). The key facts found by the Second DCA relevant to Petitioners' jurisdictional claim are (1) that "the clients' claims against the lawyers are based upon the legal advice the lawyers allegedly gave to the clients concerning the [proprietary tax savings] plan and joint venture", and (2) that "[o]n the other hand, the clients have not placed at issue their communications with other professionals about the plan and joint venture simply by suing the lawyers." Id. at II. SUMMARY OF ARGUMENT The Second District Court of Appeal's decision in this case does not expressly and directly conflict with the First District's decision in First Southern Baptist Church of Mandarin, Florida, Inc. v. First National Bank of Amarillo, 610 So.2d 452, 454 (Fla. 1st DCA 1992) on the same question of law, as required for jurisdiction to be conferred under Fla.R.App.P (a)(2)(iv). 2 In both cases, the 1 In its opinion in this case, the Second DCA jointly referred to Respondents Akerman, Senterfitt & Eidson, P.A. and Joseph Rugg as "the lawyers." 940 So.2d at Respondent Temple Drummond was an Akerman associate before he eventually left Akerman. 2 As this Court has noted, it has discretionary review jurisdiction under Article V of the Florida Constitution only to review several narrow classes of district court 1

5 attorney-client privileged documents remained privileged and were not required to be turned over because the seeking party had not established a connection between the privileged communications and an issue in the litigation. Moreover, Petitioners reliance on First Southern Baptist Church of Mandarin is undermined by the First DCA s later decision in Shafnaker v. Clayton, 680 So.2d 1109, 1111 (Fla. 1 st DCA 1996) (refusing to allow discovery by an attorney of a former client s file with other attorneys ; Proof of privileged communications may well be relevant to the defense in this case, but that alone does not waive the privilege ). Finally, First Southern Baptist Church of Mandarin is distinguishable because here, unlike in that case, the respondents have not "injected into the litigation issues going to the very heart of the litigation." 610 So.2d at 454, quoting Home Insurance Co. v. Advance Machine Co., 443 So.2d 165, 168 (Fla. 1st DCA 1983) (emphasis in original). III. ARGUMENT A. The Second District Court of Appeal's decision in this case does not expressly and directly conflict with the First District's opinion in First Southern Baptist Church of Mandarin, Florida v. First National Bank of Amarillo on the same question of law. decisions. Martin v. State, 833 So.2d 756, 758 (Fla. 2002). The result of this Court s limited discretionary review jurisdiction is that [t]he district courts of appeal will constitute the courts of last resort for the vast majority of litigants. Emergency Amendments to Rules of Appellate Procedure 381 So.2d 1370, 1373 (Fla. 1980). 2

6 A close analysis of the Second DCA opinion in this case and the First DCA opinion in First Southern Baptist Church of Mandarin shows that there is no express and direct conflict between those decisions. In this case, the Second DCA ruled that the attorney-client privilege was not waived because "[petitioners] have not shown that [respondents] must necessarily introduce communications with other counsel to prove their claims against [petitioners]." Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504, 511 (Fla. 2 nd DCA 2006). Similarly, in First Southern Baptist Church of Mandarin the First DCA held that attorney-client privileged documents "shall remain privileged" until the seeking party established a connection between a privileged transaction and an issue in that litigation. In both cases, the appellate court upheld the attorney-client privilege because the seeking party failed to establish the relevance of the privileged documents to the petitioners' affirmative defenses. Therefore, there is no express and direct conflict as required to confer jurisdiction under Fla.R.App.P (a)(2)(iv). Furthermore, Petitioners' argument is fatally undermined by Shafnaker v. Clayton, 680 So.2d 1109, 1111 (Fla. 1st DCA 1996), which the First District decided four years after First Southern Baptist Church of Mandarin. In that case, a law firm being sued for legal malpractice attempted to obtain the files of a former client's prior lawyer and subsequent lawyer. As in this case, the defendant law firm claimed that there should be no attorney-client privilege between the former 3

7 client and any of the former client's attorneys. The First District disagreed, holding that Florida's statutory attorney-client privilege does not permit "discovery by an attorney of a former client's files with other attorneys." Id. Moreover, contrary to petitioners' argument here, the First District also held that "[p]roof of privileged communications... may well be relevant to the defense in this case, but that alone does not waive the privilege." When the First DCA's Shafnaker opinion is compared to the Second DCA's opinion in this case it should be obvious that there is in fact no express and direct conflict between the First and Second District Courts of Appeal on this issue. B. First Southern Baptist Church of Mandarin is distinguishable because here, unlike in that case, the respondents have not injected into the litigation issues going to the very heart of the litigation. Petitioners argue that First Southern Baptist Church of Mandarin applies here because "[t]he advice Respondents received concerning the [tax savings] plan, whether it came from Akerman or some other attorneys, goes to 'the very heart of the litigation.'" Petitioners' Jurisdictional Brief at 5. But the First DCA applies this "heart of the litigation rule" only "where the party seeking to avoid discovery has injected into the litigation issues going to the very heart of the litigation." Home Insurance Co. v. Advance Machine Co., 443 So.2d 165, 168 (Fla. 1st DCA 1983) (emphasis added). In this case, however, respondents have not injected the advice of lawyers other than Akerman Senterfitt into this case. Rather, as the 4

8 Second DCA recognized, respondents' "claims are not based on the advice they received from their other counsel..." Coates, 940 So.2d at 511. Since respondents have never injected the advice of other lawyers into this case, First Southern Baptist Church of Mandarin does not apply here. Consequently, there is no express and direct conflict necessary for this Court s jurisdiction. IV. CONCLUSION This Court should decline jurisdiction because the Second District Court of Appeal s decision does not expressly and directly conflict with the First District s decision in First Southern Baptist Church of Mandarin, Florida, Inc. v. First National Bank of Amerillo, 610 So.2d 452, 454 (Fla. 1 st DCA 1992). Dated: March 8, 2007 Respectfully submitted, /s/ Kevin J. Darken Barry A. Cohen Florida Bar No Christopher P. Jayson Florida Bar No Kevin J. Darken Florida Bar No COHEN, JAYSON & FOSTER, P.A. 201 East Kennedy Boulevard Suite 1000 Tampa, Florida (813) Attorneys for Respondents bcohen@tampalawfirm.com cjayson@tampalawfirm.com kdarken@tampalawfirm.com 5

9 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true copy of the foregoing Respondents Amended Response to Petitioners Jurisdictional Brief has been provided by U.S. Mail, postage prepaid, on the 8 th day of March, 2007, upon the following counsel of record, addressed as follows: Benjamin H. Hill, III David M. Caldevilla Dennis P. Waggoner Ronald Christaldi Hill, Ward & Henderson, P.A. de la Parte & Gilbert, P.A. Post Office Box E. Kennedy Blvd., Suite 3400 Tampa, Florida Tampa, FL Attorneys for Akerman, Senterfitt & Attorneys for Temple Drummond Eidson, P.A. and Joseph Rugg John A. Schifino Edward O. Savitz Williams Schifino Mangione Carter Anderson & Steady, P.A. Bush, Ross, Gardner, Warren P. O. Box 380 & Rudy, P.A. Tampa, FL South Frank Street Attorneys for Lex J. Byers and Tampa, FL IFL Capital Attorneys for Gregory, Sharer & Stuart, P.A. Michael C. Addison Addison & Delano, P.A. 400 N. Tampa Street, Suite 1100 Tampa, FL Attorneys for Brian Smooke, Smooke & Drummond, P.C., and Smooke Associates, P.C. /s/ Kevin J. Darken Attorney 6

10 CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT I certify that this Respondents Amended Response to Petitioners Jurisdictional Brief is typed in 14-Point Times New Roman font. /s/ Kevin J. Darken Barry A. Cohen Florida Bar No Christopher P. Jayson Florida Bar No Kevin J. Darken Florida Bar No COHEN, JAYSON & FOSTER, P.A. 201 East Kennedy Boulevard Suite 1000 Tampa, Florida (813) Attorneys for Respondents bcohen@tampalawfirm.com cjayson@tampalawfirm.com kdarken@tampalawfirm.com 7