SUPREME COURT OF FLORIDA. Supreme Court Case No.: District Court Case No.: 3D HACIENDA LOMA LINDA, Petitioner,

Transcription

1 SUPREME COURT OF FLORIDA Supreme Court Case No.: District Court Case No.: 3D HACIENDA LOMA LINDA, Petitioner, v. THE SCOTTS COMPANY, SCOTTS-SIERRA HORTICULTURAL PRODUCTS COMPANY, and BOB SANTANA, Respondents. PETITIONER S BRIEF ON JURISDICTION Michael R. Josephs, Esquire Susan S. Lerner, Esquire JOSEPHS JACK Attorneys for Petitioner 2950 S.W. 27 th Avenue Suite 100 Miami, FL (305) / Fax: (305)

2 TABLE OF CONTENTS PAGE TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 THE THIRD DISTRICT S OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH KINNEY SYSTEM, INC. v. CONTINENTAL INSURANCE CO., 674 So.2d 86 (Fla. 1996); CSX TRANSPORTATION, INC. v. DEEM, 933 So.2d 673 (Fla. 1 st DCA 2006); IRA MEX, INC. v. SOUTHEASTERN INTERIOR CONSTRUCTION, INC., 777 So.2d 1107 (Fla. 4 th DCA 2001); OWENS-CORNING FIBERGLAS CORPORATION v. BALLARD, 739 So.2d 603 (Fla. 4 th DCA 1998), APPROVED ON OTHER GROUNDS, 749 So.2d 483 (Fla. 1999); AND CANAKARIS v. CANAKARIS, 382 So.2d 1197 (Fla. 1980). CONCLUSION... 9 CERTIFICATE OF SERVICE...10 i

3 CERTIFICATE OF COMPLIANCE...10 ii

4 TABLE OF AUTHORITIES CASES PAGE Aerolineas Argentinas, S.A. v. Gimenez, 807 So.2d 111 (Fla. 3d DCA), rev. denied, 828 So.2d 386 (Fla. 2002)... 7 Brown v. Estate of Stuckey, 749 So.2d 490 (Fla. 1999)... 7 Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980)...2,3,6 CSX Transportation, Inc. v. Deem, 933 So.2d 673 (Fla. 1 st DCA 2006)...2,3,4 Del Campo Bacardi v. de Lindzon, 845 So.2d 33 (Fla. 2002)... 4 Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla. 2000)...5,7 IRA Mex, Inc. v. Southeastern Interior Construction, Inc., 777 So.2d 1107 (Fla. 4 th DCA 2001)...2,3,4 Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla. 1996)... 2,3,4,6,7 Owens-Corning Fiberglas Corporation v. Ballard, 739 So.2d 603 (Fla. 4 th DCA 1998), approved on other grounds, 749 So.2d 483 (Fla. 1999)...2,3,4 Florida Rule of Civil Procedure iii

5 STATEMENT OF THE CASE AND FACTS The petitioner Hacienda Loma Linda is a Panamanian orchid grower that sells ninety-one percent of its orchids to Miami-Dade County customers. (Slip opinion pg. 2-3). Its president Dr. Juan Arias frequents Florida to promote his business and has a home in Miami where he maintains an office and company business records. (Slip opinion pg. 2). The respondent Scotts Company, an Ohio corporation, has a research facility in Apopka, Florida where the product that is the subject of this lawsuit was tested. (Slip opinion pg. 3). Scotts also markets its product extensively in Florida with great economic success. (Slip opinion pg. 5). The parties paths converged when Scotts Florida regional representative Mr. Santana and Dr. Arias met at a trade show in Florida. (Slip opinion pg. 3). There, Scotts introduced Dr. Arias to the product at issue. (Slip opinion pg. 3). After the Scotts product damaged and destroyed its orchid crops, Hacienda Loma Linda sued Scotts and Mr. Santana. (Slip opinion pg. 2). The defendants moved to dismiss based upon forum non conveniens. The trial court denied their motion and they appealed. The Third District engaged in de novo review and reversed. (Slip opinion pg. 6). 1

6 SUMMARY OF ARGUMENT This court and other district courts of appeal have clearly articulated the correct standard of review of trial court decisions granting or denying forum non conveniens motions: The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion. Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86, 94 (Fla. 1996); CSX Transportation, Inc. v. Deem, 933 So.2d 673 (Fla. 1 st DCA 2006); IRA Mex, Inc. v. Southeastern Interior Construction, Inc., 777 So.2d 1107 (Fla. 4 th DCA 2001); Owens-Corning Fiberglas Corp. v. Ballard, 739 So.2d 603 (Fla. 4 th DCA 1998), approved on other grounds, 749 So.2d 483 (Fla. 1999). The Third District engaged in its own independent Kinney analysis instead of reviewing the trial court s decision within the confines of: If reasonable men could differ as to the proprietary of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). The Third District s de novo review is in direct and express conflict with these decisions. The Third District s pronouncement in its opinion that we do not afford the plaintiff s choice of forum any special weight because the plaintiff is 2

7 foreign, also expressly and directly conflicts with this court s unqualified pronouncement in Kinney that the reviewing court always should remember that a strong presumption favors the plaintiff s choice of forum. 674 So.2d at 91. Accordingly, this court has jurisdiction and should exercise it to place the Third District back in line with the rest of our courts. ARGUMENT THE THIRD DISTRICT S OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH KINNEY SYSTEM, INC. v. CONTINENTAL INSURANCE CO., 674 So.2d 86 (Fla. 1996); CSX TRANSPORTATION, INC. v. DEEM, 933 So.2d 673 (Fla. 1 st DCA 2006); IRA MEX, INC. v. SOUTHEASTERN INTERIOR CONSTRUCTION, INC., 777 So.2d 1107 (Fla. 4 th DCA 2001); OWENS-CORNING FIBERGLAS CORPORATION v. BALLARD, 739 So.2d 603 (Fla. 4 th DCA 1998), APPROVED ON OTHER GROUNDS, 749 So.2d 483 (Fla. 1999); AND CANAKARIS v. CANAKARIS, 382 So.2d 1197 (Fla. 1980). In Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla. 1996), this court plainly and unambiguously articulated the correct standard of review: The decision to grant or deny the motion for dismissal rests in the sound 3

8 discretion of the trial court, subject to review for abuse of discretion. 674 So.2d at 94. See also, Del Campo Bacardi v. de Lindzon, 845 So.2d 33 (Fla. 2002)(reaffirmed application of abuse of discretion standard). CSX Transportation Inc. v. Deem, 933 So.2d 673 (Fla. 1 st DCA 2006) recited and applied this very same standard: The evidence supports denial of the motion to dismiss on grounds of forum non conveniens, and the appellant has not demonstrated that the trial judge abused his discretion in denying the motion. 933 So.2d at 674. Likewise, in IRA Mex, Inc. v. Southeastern Interior Construction, Inc., 777 So.2d 1107 (Fla. 4 th DCA 2001), the Fourth District applied the abuse of discretion standard when reviewing a forum non conveniens order, citing its earlier decision, Owens-Corning Fiberglas Corporation v. Ballard, 739 So.2d 603 (Fla. 4 th DCA 1998) ( This discretionary power is subject only to the test of reasonableness, which, in turn, requires a determination of whether there is logic and justification for the result ), approved on other grounds, 749 So.2d 483 (Fla. 1999). In contrast and in direct and express conflict, the Third District in our case engaged in a de novo review of the trial court s order denying respondents motion to dismiss for forum non conveniens. On page three of the slip opinion, the court states, When we subject the facts recited above to the test enunciated in Kinney, we conclude that the court should have granted the forum non conveniens 4

9 dismissal motion. Later, the opinion recites, [O]ur review of the record evidence leads us to conclude that under the circumstances of this case, there is no preemption and Panama will be an adequate alternate forum available to resolve this dispute. (Slip opinion at pg. 4). The appellate court also concludes that We see no ties to Florida in the record that would merit retention of the lawsuit here. (Slip opinion at pg. 5). The Third District s opinion is reminiscent of the circumstances that caused this court to accept conflict jurisdiction in Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla. 2000). There, the appellate court misapplied the standard of review of a circuit court sitting in its appellate capacity and this court observed: In this case, it is clear that the Third District merely disagreed with the circuit court s interpretation of the applicable law... The Third District s decision did not even purport to consider why the circuit court s decision constituted a denial of procedural process, application of incorrect law, or a miscarriage of justice, as is required by this Court s precedents... District courts have never been allowed to review decisions, under the guise of certiorari jurisdiction, simply because they are dissatisfied with the result... 5

10 774 So.2d at 683. The same holds true of our case. The Third District merely disagreed with the circuit court s ruling. The Third District s opinion did not even purport to consider whether the denial of the motion to dismiss for forum non conveniens constituted an abuse of discretion. If it had, the court would not have reversed even based upon the modest revelation of facts revealed in the opinion. 1 Thus, the Third District s decision also expressly and directly conflicts with Canakaris that teaches: If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). We also respectfully believe the Third District s pronouncement in its slip opinion at page 5 that we do not afford the plaintiff s choice of forum any special weight because the plaintiff is a foreign corporation, also expressly and directly conflicts with this court s unqualified pronouncement in Kinney that the reviewing court always should remember that a strong presumption favors the 1 Both parties have substantial contacts within the State of Florida that have a strong nexus to this lawsuit. Their relationship started here. Ninety-one percent of the orchids that were damaged would have been sold to Miami-Dade County customers. Scotts has a research facility in Florida that tested the product at issue and Scotts markets the very product at issue extensively in Florida with great economic success (Slip opinion pg. 5). 6

11 plaintiff s choice of forum, 674 So.2d at 91; and the same unqualified language that this court placed in Rule 1.061(2) that was part of its appendix in Kinney. By blessing of geography, South Florida is the Gateway to the Americas and thus, the Third District decides most of the forum non conveniens appeals that arise in this state. But, respectfully, the court is not in step with this court and the other intermediate appellate courts on how it decides these important cases. While not a separate basis for this court to accept jurisdiction here, the Third District s de novo approach has been its professed practice in forum non conveniens appeals as far back as Judge Sorondo, in his special concurrence in Aerolineas Argentinas, S.A. v. Gimenez, 807 So.2d 111 (Fla. 3 d DCA 2002), rev. denied, 828 So.2d 386 (Fla. 2002), pointed out how the Third District had diverged from the abuse of discretion standard into a de novo review and even suggested that it may be time for the Florida Supreme Court to revisit and clarify this issue. 807 So.2d at It is not uncommon for this court to accept conflict jurisdiction to clarify the standard of review. See e.g. Brown v. Estate of Stuckey, 749 So.2d 490 (Fla. 1999) (this court granted conflict review to clarify the standard that appellate courts must apply on an appeal of the trial judge s decision to grant a new trial); Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla. 2000). 7

12 The abuse of discretion standard exists in recognition of the trial judge s superior vantage point on relevant issues such as assessing first hand the ease with which discovery is actually progressing, evaluating whether its circuit can and should accommodate a particular case, and determining whether a defendant s accusation of forum shopping is really a fair attack on the plaintiff. The abuse of discretion standard also promotes efficient resolution to what should be a quick procedure. The trial judge hears a motion early on, makes his or her decision and then, with a fair degree of certainty, counsel can advise the client on the likely outcome of an appeal. This predictability is absent when the review is de novo where outcomes can even shift from appellate panel to appellate panel. Quick resolutions are not the norm as the losing party currently has a clean shot at a different result on appeal. This court should exercise its jurisdiction to clarify and revisit if necessary just which standard of review the intermediate appellate court with the largest caseload of these matters should employ. Adherence to this court s pronouncements and uniformity among the district courts of appeal across the State of Florida demand it. 8

13 CONCLUSION Based upon the foregoing, Hacienda Loma Linda respectfully requests this court to accept jurisdiction of this case. Respectfully submitted, JOSEPHS JACK Attorneys for Petitioner 2950 S.W. 27 th Avenue, Suite 100 Miami, Florida (305) / Fax: (305) By: MICHAEL R. JOSEPHS FBN: SUSAN S. LERNER FBN:

14 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. Mail this 1 st day of December, 2006, upon Dennis M. Campbell, Esq. and Karen H. Curtis, Esq., Clarke Silverglate Campbell Williams & Montgomery, Attorneys for Respondents, 799 Brickell Plaza, Suite 900, Miami, FL JOSEPHS JACK Attorneys for Petitioner 2950 S.W. 27 th Avenue, Suite 100 Miami, Florida (305) / Fax: (305) By: MICHAEL R. JOSEPHS FBN: SUSAN S. LERNER FBN: CERTIFICATE OF COMPLIANCE WE HEREBY CERTIFY that this brief is printed in Times New Roman, 14 point font, a true type face font with 10 characters per inch. By: SUSAN S. LERNER FBN: