RESPONDENT CDC BUILDERS, INC. S RESPONSE TO PETITIONERS RIVIERA BILTMORE, LLC AND RIVIERA SEVILLA LLC S JURISDICTIONAL BRIEF

Transcription

1 IN THE SUPREME COURT OF FLORIDA RIVIERA ALMERIA, LLC, RIVIERA BILTMORE, LLC, RIVIERA SEVILLA, LLC, Petitioner(s) CASE NO.: SC LOWER TRIBUNAL CASE NOS: 3D , CA10 vs. CDC BUILDERS, INC., Respondent(s), / RESPONDENT CDC BUILDERS, INC. S RESPONSE TO PETITIONERS RIVIERA BILTMORE, LLC AND RIVIERA SEVILLA LLC S JURISDICTIONAL BRIEF SIEGFRIED, RIVERA, LERNER, DE LA TORRE & SOBEL, P.A. Attorneys for Respondent 8211 West Broward Blvd., Suite 250 Plantation, Florida Phone: (954) Fax: (954) mkurzman@siegfriedlaw.com By: Michael J. Kurzman, Esq. Florida Bar Number: Tiffany M. Hurwitz, Esq. Florida Bar Number:

2 TABLE OF CONTENTS I. Statement of the Case... 1 II. Statement of the Facts... 2 III. Summary of the Argument... 3 IV. Argument... 4 A. Neither Ivey v. Allstate Ins., 774 So.2d 679 (Fla. 200) nor Wolf Creek Land Dev. Inc. v. Masterpiece Homes, Inc., 942 So.2d 995 (Fla. 5th DCA 2006), stand for the proposition that in order for certiorari to lie, there must be case law interpreting a specific statutory provision... 5 B. The Third DCA s Opinion outlines a sufficient basis for the Third DCA s certiorari review... 7 C. DEVELOPERS second argument that the Third DCA misinterpreted and incorrectly applied Zalay v. ACE Cabinets of Clearwater, 700 So.2d 15 (Fla. 2d DCA 1997) belies their first argument that there is no established precedent for the Third DCA s opinion... 8 V. Conclusion VI. Certificate of Compliance VII. Certificate of Service Page II

3 TABLE OF AUTHORITIES Fla. Stat , 3, 5, 7, 9 Fla. Stat , 3, 5, 7, 9 Fla. Stat Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla. 2003)... 5, 6, 7 Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla. 2006)... 4 CDC Builders v. Riviera Almeria et. al, 51 So.3d 510 (Fla. 3d DCA 2010)... 1 Colby Material, Inc. v. Caldwell Const., Inc., 926 So.2d 1181 (Fla. 2006). 4 Home Elec. of Dade County, Inc. v. Gonas, 547 So.2d 109 (Fla. 1989)... 9 In re Asbestos Litigation, 933 So.2d 613 (Fla. 3d DCA 2006)... 7 Ivey v. Allstate Ins., 774 So.2d 679 (Fla. 2000)... 3, 5 Trytek v. Gale Indus., Inc., 3 So.3d 1194 (Fla. 2009)... 8, 10 Wolf Creek Land Dev. Inc. v. Masterpiece Homes, Inc., 942 So.2d 995 (Fla. 5th DCA 2006)... 3, 5, 6 Zalay v. ACE Cabinets of Clearwater, 700 So.2d 15 (Fla. 2d DCA 1997)... 3, 8, 9, 10 Page III

4 CDC v. Riviera Page 1 of 11 I. STATEMENT OF THE CASE RIVIERA BILTMORE, LLC and RIVIERA SEVILLA, LLC ( DEVELOPERS ) filed a Notice to Invoke Discretionary Jurisdiction of the Supreme Court of Florida to review the Third DCA s Opinion in CDC Builders v. Riviera Almeria, LLC et. al, 51 So.3d 510 (Fla. 3d DCA 2010) ( Third DCA s Opinion ) granting CDC Builders Petition for Writ of Certiorari Review and quashing the lower court s order dated April 5, 2010 which granted DEVELOPERS motions for partial summary judgment and discharged CD BUILDERS, INC. s ( CDC ) claims of lien. DEVELOPERS argue that the Third DCA s Opinion expressly and directly conflicts with a decision of another district court of appeal or of the Florida Supreme Court. See Developers Notice of Discretionary Jurisdiction at p. 1. To make this argument, DEVELOPERS Jurisdictional Brief relies on an attenuated argument that the Third DCA was without jurisdiction to accept CDC s Petition for Writ of Certiorari (because there was no departure from the essential requirements of the law) and as such, there is a conflict between the Third DCA s Opinion and other decisions granting petitions for writ of certiorari. Conspicuously absent from DEVELOPERS Jurisdictional Brief is even one decision expressly and directly conflicting with the Third DCA s opinion.

5 CDC v. Riviera Page 2 of 11 The cases relied upon by DEVELOPER in attempting to establish an express and direct conflict with the Third DCA s Opinion do not expressly and directly conflict with the Third DCA s Opinion. Rather, DEVELOPERS have too narrowly presented the law on the standard for certiorari review. Moreover, the Third DCA s Opinion establishes that the lower court departed from the essential requirements of the law and thus, certiorari was appropriate. II. STATEMENT OF THE FACTS The relationship and factual history between the Parties is outlined in the Third DCA s Opinion and as such, CDC will not reiterate same. Procedurally, on April 5, 2010, the lower court issued an order granting DEVELOPER s motion for partial summary judgment as to the claims of lien finding that CDC s liens were violative of and , Fla. Stat. (2006) and discharged CDC s claims of lien. On May 5, 2011, CDC filed its Notice of Appeal of the April 5, 2010 lower court s order. 1 On December 8, 2010, the Third District Court of Appeal rendered its opinion which found that CDC did not violate either or , Florida Statutes, but that regardless, a violation of 1 On July 21, 2010, the Third District Court of Appeals denied DEVELOPERS Motion to Dismiss CDC s Appeal and elected to treat CDC s Notice of Appeal as a Petition for Writ of Certiorari.

6 CDC v. Riviera Page 3 of or , Florida Statute does not justify the discharge or invalidation of an otherwise valid claim of lien. Third DCA s Opinion at p.6. On December 23, 2010, DEVELOPERS filed a Motion for Rehearing, Rehearing en Banc and/or for Certification with the Third DCA arguing that the Third DCA s opinion in the present case conflicted with current Third DCA precedent. Like here, DEVELOPERS cited no case law directly and expressly conflicting with the Third DCA s opinion. The Third DCA denied DEVELOPERS Motions on February 4, This Petition (DEVELOPERS third bite at the apple) ensued. III. SUMMARY OF THE ARGUMENT DEVELOPERS have failed to invoke the discretionary review of this Court where DEVELOPERS have failed to establish a direct and express conflict between the Third DCA s Opinion and another district court or Florida Supreme Court opinion where: (1) Neither Ivey v. Allstate Ins., 774 So.2d 679 (Fla. 2000) nor Wolf Creek Land Dev. Inc. v. Masterpiece Homes, Inc., 942 So.2d 995 (Fla. 5th DCA 2006), stand for the proposition that in order for certiorari to lie, there must be case law interpreting a specific statutory provision; (2) The Third DCA s Opinion outlines a sufficient basis for the Third DCA s certiorari review; and (3) DEVELOPERS second argument that the Third DCA misinterpreted and incorrectly relied on Zalay v. ACE Cabinets of Clearwater, 700 So.2d 15 (Fla. 2d

7 CDC v. Riviera Page 4 of 11 DCA 1997) is incorrect and belies their first argument that there is no established precedent for the Third DCA s opinion. IV. ARGUMENT The Supreme Court of Florida has the authority as the highest court of the state to resolve express and direct conflicts created by the district courts of appeal. Colby Materials, Inc. v. Caldwell Const., Inc., 926 So.2d 1181 (Fla. 2006). One test utilized by the Florida Supreme Court to determine whether decisions are considered to be in express and direct conflict is whether the decisions are irreconcilable. Aravena v. Miami-Dade County, 928 So.2d 1163, (Fla. 2006). DEVELOPERS argue that the Third DCA s Opinion is in express and direct conflict to the Florida Supreme Court s decision in Ivey (supra) and the Fifth DCA s decision in Wolf Creek (supra). DEVELOPERS reliance on Ivey and Wolf Creek is misplaced as these cases do not stand for the proposition that an appellate court cannot accept a petition for writ of certiorari which involves review of a statutory provision where there is no direct case law interpreting same. This is simply not the law. Rather, certiorari is appropriate where there is a departure from the essential requirements of the law, which can be derived from a variety of legal sources including case law dealing with the same issue, an interpretation or application of

8 CDC v. Riviera Page 5 of 11 the statute, a procedural rule, or a constitutional provision. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003) (emphasis added). Further, DEVELOPERS second argument that the Third DCA failed to correctly apply lien law precedent is incorrect and at odds with DEVELOPERS contention that the Third DCA improperly granted certiorari based on a lack of precedent. A. DEVELOPERS Mischaracterize Wolf, Ivey & the Standards for Certiorari Review DEVELOPERS contend that because there is no case law interpreting whether or , Florida Statutes authorize a discharge of an otherwise valid claim of lien, the Third DCA s decision to accept certiorari review is contrary to the precedent of Ivey and Wolf Creek. Jurisdictional Brief at p. 4. This is simply not supported by Ivey or Wolf Creek. Ivey does not stand for a broad proposition that there must be case law precedent interpreting a statute in order for certiorari review to be proper. Rather, Ivey held that the Third DCA inappropriately exercised its certiorari review where the Third DCA s opinion indicated that it merely disagreed with the circuit court s interpretation of the PIP law and did not make any finding of a departure from the essential requirements of the law. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003) (discussing the limitation of the Ivey decision).

9 CDC v. Riviera Page 6 of 11 In Wolf Creek, Wolf Creek sought certiorari review of an order of the trial court granting the defendant s motion to dismiss Wolf Creek s count to foreclose its construction lien and dissolve the lis pendens. The court held that certiorari was inappropriate because Wolf Creek had not established a departure from the essential requirements of law where there was no case law pointed out by either side and Wolf Creek had not shown irreparable harm. Id. at 997. However, nowhere in the Wolf Creek opinion does the Court outline the statutory issue raised in the petition for writ of certiorari or even the legal basis for the dismissal by the lower court, and as such, it is impossible to discern from the opinion the statute in question or the ruling in question. Thus, this case offers no help to support DEVELOPERS argument. In Kaklamanos, (supra, and also cited in the Wolf Creek opinion) this Court articulated the accurate standard for determining a departure from clearly established law. This Court specifically found that the Second DCA had interpreted the certiorari requirement too narrowly where it refused to grant certiorari where no appellate cases specifically repudiated the policy endorsement at issue. Id. at 890. Specifically, this Court stated: After reviewing a number of cases involving certiorari review, we conclude that the Second District has too narrowly interpreted what constitutes clearly established law for purposes of certiorari review. [internal citations omitted] These cases illustrate that clearly established law can derive from a variety of legal sources,

10 CDC v. Riviera Page 7 of 11 including recent controlling case law, rules of court, statutes, and constitutional law. Thus in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule or a constitutional provision may be the basis for granting certiorari review. Kaklamanos, 843 So.2d at 890 (emphasis added). Accordingly, DEVELOPERS have mischaracterized the law in their Jurisdictional Brief. Florida law does not require that there be a case interpreting the particular statutory provision in order to establish a departure from the essential requirements of the law. There must only be a departure from clearly established law which may be established by case law, the express language of a statute, constitutional law and/or rules of court. Kaklamanos, 843 So.2d at 889. Moreover, certiorari review is proper when the circuit court s interpretation of the statute fails to follow the dictates of the statute and the error is sufficiently egregious to result in the miscarriage of justice. In re Asbestos Litigation, 933 So.2d 613 (Fla. 3d DCA 2006). Here, the Third DCA s opinion articulates that the grounds for certiorari review were established. Specifically, the Third DCA s opinion found that the trial court departed from the essential requirements of law where it imposed remedies not contained in the express language of and , Florida Statutes and where the lower court failed to interpret Chapter 713 consist with the express statutory requirement and case law providing that the statute is not subject to

11 CDC v. Riviera Page 8 of 11 liberal construction. See Opinion at pp.6-7. Moreover, the Third DCA s Opinion articulated the gravity of the court s error and the miscarriage of justice. Id. Accordingly, the Third DCA properly exercised its jurisdiction to grant certiorari and quash the April 5, 2010 Order. Failing to cite to a single case holding otherwise, DEVELOPERS have failed to establish a direct and express conflict of law so as to invoke the discretionary jurisdiction of the Florida Supreme Court. B. The Third DCA did not Misapply Zalay DEVELOPERS second argument is that the Third DCA misapplied lien law precedent and thus, created a conflict with the Zalay v. Ace Cabinets of Clearwater, Inc., 700 So.2d 15 (Fla. 2d DCA 1997) and Trytek v. Gale Indus. Inc., 3 So.3d 1194 (Fla. 2009). This argument undermines DEVELOPERS initial argument that the Third DCA was improper to grant certiorari where there was no precedent. If the Third DCA misapplied case law precedent, DEVELOPERS initial argument necessarily fails. Further, a misapplication of the law is not the standard for the discretionary review of the Florida Supreme Court. Notwithstanding, DEVELOPERS argument is also substantively without merit. The Third DCA s opinion does not create a conflict with Zalay or Trytek. The Third DCA s Opinion clearly notes that while the lien law must be read as a whole, the statutory language and case law articulates that Florida s lien law must be strictly construed. Third DCA Opinion pp The Third DCA cites ,

12 CDC v. Riviera Page 9 of 11 Florida Statutes, Zalay, and Home Elec. of Dade County, Inc. v. Gonas, 547 So.2d 109 (Fla. 1989) for the proposition that the lien law must be strictly construed. DEVELOPERS make the attenuated argument that Zalay actually supports their position that if the lien law is read as a whole, CDC did not properly perfect a valid construction lien because CDC allegedly failed to comply with the entirety of the Construction Lien Law. Not only did the Zalay opinion deal with an entirely factually distinct issue and different provisions of the lien law, but the court in Zalay was able to find authority in the lien law (Fla. Stat ) and within the legislature s intended policies for the lien law to support its ruling. Zalay, 700 So.2d at Here, the Third DCA acknowledged DEVELOPERS suggestion that the lien law must be read as a whole in light of the legislature s intended policies, but simply found no authority in the lien law, no authority based on the established purpose of the lien law, and no violation of and , Florida Statutes to support the lower court s ruling discharging CDC s claims of lien. There is nothing irreconcilable between the Zalay case and the Third DCA s opinion in the present case. Similarly, the Third DCA s Opinion noted the dual purpose of Florida s Construction Lien Law as outlined in Trytek and found that the purpose of protecting lienors who furnish labor or material to the property would be frustrated

13 CDC v. Riviera Page 10 of 11 by the lower court s opinion. The Trytek case dealt with the determination of the prevailing party on a lien claim for purposes of awarding attorney s fees. Similarly, there is nothing irreconcilable between the Trytek case and the Third DCA s opinion in the present case. V. CONCLUSION DEVELOPERS have established no direct and express conflict of law so as to invoke the discretionary review of the Florida Supreme Court. DEVELOPERS have created a very tortuous argument in an attempt to establish a conflict, but said argument fails where the Third DCA found that the lower court s order departed from the essential requirements of law as established by the statutory language and case law. Similarly, DEVELOPERS second argument not only belies its initial position, but is insufficient to trigger jurisdiction. There is simply no direct and express conflict between the Third DCA s opinion in this case and the Zalay or Trytek cases so as to invoke the discretionary jurisdiction of this Court. WHEREFORE, Respondent CDC respectfully requests that this Honorable Court deny Petitioner s Notice to Invoke Discretionary Jurisdiction and Jurisdictional Brief, and award CDC any other or further relief this Court deems just.

14 CDC v. Riviera Page 11 of 11 CERTIFICATE OF COMPLIANCE WITH FLA. R. APP. P In accordance with Fla. R. App. P (a)(2), the undersigned certifies that this brief complies with the font requirements of Fla. R. App. P as well as Administrative Order AO04-84 regarding Mandatory Submission of Electronic Copies of Documents, dated September 13, By: Michael J. Kurzman, Esq. Florida Bar Number: Tiffany M. Hurwitz, Esq. Florida Bar Number: CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via facsimile and U.S. Mail this 15th day of April, 2011 to JEREMY C. DANIELS, ESQ., and MADELYN SIMON LOZANO, ESQ., for Daniels, Kashtan, Downs, Robertson, & McGirney, Attorneys for Defendants, 3300 Ponce de Leon Blvd., Coral Gables, FL 33134; and BRUCE ALAN WEIL, ESQ., for Boies, Schiller, & Flexner, LLP, 100 S.E. 2nd Street, Suite 2800, Miami, Florida SIEGFRIED, RIVERA, LERNER, DE LA TORRE & SOBEL, P.A. Attorneys for Plaintiff 8211 West Broward Blvd., Suite 250 Plantation, Florida Phone: (954) Fax: (954) mkurzman@siegfriedlaw.com By: Michael J. Kurzman, Esq. Florida Bar Number: Tiffany M. Hurwitz, Esq. Florida Bar Number: