SUPREME COURT OF THE STATE OF FLORIDA

Transcription

1 SUPREME COURT OF THE STATE OF FLORIDA JOHN D. DUDLEY, Petitioner, CASE NO.: SC vs. DCA CASE NO.: 5D ELLEN F. SCHMIDT, Respondent. / PETITIONER S AMENDED JURISDICTIONAL BRIEF Richard J. D Amico, Esquire 555 Ballough Road Daytona Beach, FL (386) Florida Bar No.: COUNSEL FOR PETITIONER TABLE OF CONTENTS

2 PAGE NO. TABLE OF CONTENTS... i TABLE OF CITATIONS... ii ISSUE PRESENTED: Whether a conflict exists between the First District Court of Appeal case of Castaway Lounge -v-philip Reid and the instant Fifth District Court of Appeal case on the question of whether F. S is applicable to all civil legal proceedings and not selected proceedings... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 1 ARGUMENT... 1 CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 9 i TABLE OF CITATIONS PAGE NO.

3 CASES: Abraham-v-Abraham 700 So. 2d 421 (Fla. 3 rd DCA 1997) 6, 7, 8 Bane-v-Bane 775 So. 2d 938 (Fla. 2000) 6, 7 Baumgartner-v-Baumgartner 693 So. 2d 84 (2 nd DCA 1997) 6, 7 Belmont-v-Belmont 761 So. 2d 406 (Fla. 2 nd DCA 2000) 6, 7 Castaway Lounge -v-philip Reid 411 So. 2d 282 (Fla. 1 st DCA 1982) 1,2,3,4, 5,6, 7, 8, 9 Cisneros-v-Cisneros 831 So. 2d 257 (Fla. 3 rd DCA 2002) 6, 7, 8 Davis-v-Christmas 705 So. 2d 38 (Fla. 3 rd DCA 1997) 5 Davis-v-Williams 765 So. 2d 114 (Fla. 1 st DCA 2000) 5 Diaz-v-Diaz 826 So. 2d 229 (Fla. 2002) 2 Galbraith-v-Inglese, 402 So. 2d 574 (Fla. 4 th DCA 1981) 5 Geiger-v-Schrader 926 So. 2d 432 (Fla. 1 st DCA 2006) 6 Israel-v-Lee 470 So. 2d 861 (Fla. 2 nd DCA 1985) 3 Kassier-v-Kipins 571 So. 2d 54 (Fla. 3 rd DCA 1990) 5 Lehman-v-Joseph 757 So. 2d 614 (Fla. 3 rd DCA 2000) 5 Lewis-v-Lewis 689 So. 2d 1271 (Fla. 1 st DCA 1997) 6, 7, 8 ii Moakley-v-Smallwood 826 So. 2d 221 (Fla. 2002) 2 O Hara Gallery-v- Nader 892 So. 2d 512 (Fla. 3 rd DCA 2004) 5

4 Ratigan-v-Stone 947 So. 2d 607 (Fla. 3 rd DCA 2007) 6 Sykes-v- St Andrews School 625 So. 2d 1317 (Fla. 4 th DCA 1993) 5 Weatherby-v-Ballack 783 So. 2d 1138 (Fla. 4 th DCA 2001) 5 Zweibach-v-Gordimer 884 So. 2d 244 (Fla. 2 nd DCA 2004) 5 STATUTES: Section , Florida Statutes (2005) 1,2,3,4,5,6,7,8,9 Section , Florida Statutes (1982) 3 Section 61.16, Florida Statutes (2005) 7 iii ISSUE PRESENTED

5 Whether a conflict exists between the First District Court of Appeal case of Castaway Lounge-v-Philip Reid and the instant Fifth District Court of Appeal case on the question of whether F. S is applicable to all civil legal proceedings and not selected proceedings. STATEMENT OF THE CASE AND FACTS This matter was originally commenced as a Petition for Repeat Violence in the Circuit Court. After the Petition was denied summarily upon a Motion to Dismiss. The Petitioner then requested attorney's fees under F.S Thereafter, the Petitioner moved to set aside that Order under Rule of Civil Procedure That motion was denied. Petitioner then appealed to the Fifth District Court of Appeals which affirmed the ruling of the Circuit Court. The facts are as set forth in the opinion of the Fifth District court of Appeal dated August 19, 2007 attached at A-1. SUMMARY OF THE ARGUMENT The instant decision and the decision of Castaway Lounge -v-philip Reid 411 So. 2d 282 (Fla. 1 st DCA 1982) expressly and directly conflict on the same question 1

6 of law. This conflict is express and direct because one line of cases (including the instant case) creates an exception in domestic violence cases to F.S while Castaway stands for the rule of law that F.S applies to any civil action. ARGUMENT The instant decision and the decision of Castaway Lounge -v-philip Reid 411 So. 2d 282 (Fla. 1 st DCA 1982) expressly and directly conflict on the same question of law. In the instant case, the Fifth District determined that F. S does not apply to a repeat violence injunction thus creating an exception to F. S The First District in Castaway Lounge determined that F. S applies to all civil proceedings, and refused to carve out an exception for contempt proceedings in an injunction case. It is not the type of action which creates the conflict. Rather, the issue is whether any action may be excepted from the statute. In Moakley-v- Smallwood 826 So. 2d 221 (Fla. 2002) the court determined that cases conflicted on the issue of whether trial courts possess inherent authority to assess attorneys fees as monetary sanctions against counsel for bad faith conduct during litigation. On the same day, Diaz-v-Diaz 826 So. 2d 229 (Fla. 2002) was decided upon almost identical 2

7 grounds. Both of these cases conflicted with Israel-v-Lee 470 So. 2d 861 (Fl 2 nd DCA 1985). The instant conflict is similar. In order for cases to conflict, the conflict must be express and direct but not exact. No question exists that the cases are irreconcilable on any theory. Either the statute is to be strictly construed in accordance with its plain terms or any court has the discretion to make exceptions. That is the essence of the conflict. In relevant part, F. S reads as follows: (1) Upon the court s initiative or motion of any party, the court shall award a reasonable attorney s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of the then-existing law to those material facts. This statute, on its face, appears to apply to every civil proceeding, not certain targeted proceedings. The specific language is that a court shall award attorneys fees on any claim or defense at any time during a civil proceeding or action. In Castaway Lounge -v-philip Reid 411So. 2d 282 (Fla. 1 st DCA 1982) an injunction 3

8 had issued that had been violated. The party accused of contempt argued to the court that the predecessor statute to F. S did not apply to contempt proceedings. The court stated at p. 284 as follows: We reject that argument because the fee was reasonable, based on the hours the plaintiff s attorney spent in seeking and enforcing the injunction, and because Section applies to any civil action without excluding contempt. While Castaway Lounge was decided under a prior version of F. S the language which formed the basis of the ruling, any civil action, is virtually identical to the present statute. The prior statute read The court shall award a reasonable attorney s fee...in any civil action. (F.S , 1982). The holding in the instant case exempts repeat violence injunction proceedings from the statute while the statute itself contains no language that any exceptions apply as it applies to any claim or defense at any time during a civil proceeding or action. The opinion sought to be reviewed, however, relies upon cases which create a blanket exception to F. S in domestic violence cases. In addition to the obvious express conflict between Castaway Lounge and the instant case, numerous conflicts exist because a significant number of cases apply F.S in a variety of cases while another line of cases creates an exemption 4

9 from F. S The cases which follow uniformly uphold F. S without exemption. Sykes-v- St Andrews School 625 So. 2d 1317 (Fla. 4 th DCA 1993) (tort action against parents for negligent failure to exercise parental control over a child), Galbraith-v-Inglese 402 So. 2d 574 (Fla. 4 th DCA 1981) (suit against city attorney for damage to property for negligently installing roadway), O Hara Gallery-v- Nader 892 So. 2d 512 (Fla. 3 rd DCA 2004) (defendant, in a civil suit for balance due for artwork, delayed litigation and eventually acquiesced to most of the amount in dispute), Davis-v-Christmas 705 So. 2d 38 (Fla. 3 rd DCA 1997 (negligence where the party who caused an accident sued the other driver for damages), Lehman-v-Joseph 757 So. 2d 614 (Fla. 3 rd DCA 2000) (vicarious liability in auto accident), Davis-v- Williams 765 So. 2d 114 (Fla. 1 st DCA 2000) (filing lawsuit for embezzlement without any factual basis), Zweibach-v-Gordimer 884 So. 2d 244 (Fla. 2 nd DCA 2004) (corporate litigation involving return of assets, injunction and statute of limitations defense), Weatherby-v-Ballack 783 So. 2d 1138 (Fla. 4 th DCA 2001) (breach of employment agreement and tortious interference), Kassier-v-Kipins 571 So. 2d 54 ( Fla. 3 rd DCA 1990) (action on promissory note and impleader for fraud). Six cases which supposedly supported an exception to F.S in domestic 5

10 violence cases were cited in both the County Court order and the Opinion of the Fifth District Court of Appeal presently under review. Upon a detailed analysis of the six cases, it is clear that these cases do not support the proposition that fees may never be collected in a domestic violence injunction case. One of these cases, however, conflicts with the holding in Castaway Lounge. The six cases are Cisnerosv-Cisneros 831 So. 2d 257 (Fla. 3 rd DCA 2002), Belmont-v-Belmont 761 So. 2d 406 (Fla. 2 nd DCA 2000), Bane-v-Bane 775 So. 2d 938 (Fla. 2000), Baumgartner-v-Baumgartner 693 So. 2d 84 (2 nd DCA 1997), Abraham-v-Abraham 700 So. 2d 421 (Fla. 3 rd DCA 1997) and Lewis-v-Lewis 689 So. 2d 1271 (Fla. 1 st DCA 1997). Two additional cases were cited in the opinion of the Fifth District Court of Appeal for the same proposition, Ratigan-v-Stone, 947 So.2d 607 (Fla. 3 rd DCA 2007) and Geiger-v-Schrader 926 So.2d 432 (Fla. 1 st DCA 2006). It is important to note that Petitioner s motion for attorneys fees was specifically filed under F. S , and not upon the theory that Petitioner was entitled to recover attorneys fees in an injunction proceeding. Under Petitioner s theory, six of these cases are completely distinguishable as no mention whatsoever is made of F. S in Abraham, Lewis, Belmont, Baumgartner, Ratigan or Geiger. These cases 6

11 were all decided based upon the fact that attorneys fees are not recoverable for domestic violence injunctions under the dissolution statute, F. S without reference to F. S Bane, the only Supreme Court case, again does not support the proposition advanced by the trial judge or the District Court of Appeal. Bane involved an entirely different issue, but, in dicta, the court reviewed Belmont, Baumgartner, Lewis, and Abraham. The court reaffirmed the law, not disputed by the Petitioner, that a domestic violence injunction is a separate action and is not covered by the attorneys fees provision of the dissolution statute, F. S However, in dicta at p. 942, the court stated as follows: In making this distinction, we note that the issue of whether attorneys fees are authorized in a domestic violence proceeding is not before us, and therefore, we neither approve nor disapprove these cases. Thus, the Supreme Court has recognized in this 2000 case that entitlement to attorneys fees in a domestic violence case had not yet been decided. Despite this language, the Fifth District and the trial court cited Bane for the proposition that 7 attorneys fees are not permitted in a domestic violence injunction action under F. S

12 Cisneros, the only case that mentions F. S , using convoluted reasoning, states as follows at p. 258 : The trial court was also without jurisdiction to award trial level attorneys fees pursuant to section , Florida Statutes for the domestic violence proceeding. See Abraham-v-Abraham, 700 So. 421 (Fla. 3 rd DCA 1997); Lewis-v-Lewis 689 So. 2d 1271 (Fla. 1 st DCA 1997). Yet neither Abraham nor Lewis make any mention whatsoever of F. S fees. Thus, Cisneros is the only case that appears to decide the issue but in reliance upon cases that have nothing to do with F S Cisneros and the instant case are in accord but both conflict with Castaway Lounge. The conflict in this case is clear, express and direct. The Fifth District and other districts have issued decisions which have mistakenly created an exception to a statute where no such exception exists in the law. Castaway Lounge specifically holds that F. S is not subject to any exceptions and applies to any civil proceeding. The instant case creates an exception since a repeat violence or domestic violence injunction is a civil proceeding and the statute applies to any civil action. Therefore, the cases are diametrically opposite. 8 At least eight cases have come down on this issue, all of which allow an exception while Castaway and the statute do not permit an exception of any kind. This conflict should be resolved and a determination made as to whether a party to a

13 frivolous injunction proceeding may recover attorney s fees if the requirements of F.S are met. CONCLUSION The court is respectfully requested to accept discretionary jurisdiction of this appeal upon the grounds of an express and direct conflict with another District Court of Appeal on the same question of law. 9 CERTIFICATE OF SERVICE

14 I HEREBY CERTIFY that a copy of the foregoing has been furnished by U. S. mail delivery this 5 th day of November, 2007 to Bruce Hochstetler, 227 Seabreeze Blvd., Daytona Beach, Florida CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the size and style of this brief is Times New Roman, 14 point, in compliance with Florida Rule of Appellate Procedure 9.210(a)(2). Richard J. D Amico, Esquire 555 Ballough Road Daytona Beach, FL Florida Bar No COUNSEL FOR PETITIONER 10 SUPREME COURT OF THE STATE OF FLORIDA

15 JOHN D. DUDLEY, Petitioner, CASE NO.: SC vs. DCA CASE NO.: 5D ELLEN F. SCHMIDT, Respondent. / APPENDIX Index to Appendix Opinion of Fifth District Court of Appeals A So. 2d 297; 2007 Fla. App. LEXIS 12374, *; 32 Fla. L. Weekly D 1911 JOHN D. DUDLEY, Appellant, v. ELLEN F. SCHMIDT, Appellee.

16 Case No. 5D COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT 963 So. 2d 297; 2007 Fla. App. LEXIS 12374; 32 Fla. L. Weekly D 1911 Non Final Appeal from the Circuit Court for Volusia County David Beck, Acting Circuit Judge August 10, 2007, Opinion Filed Richard J. D'Amico, Daytona Beach, for Appellant. Bruce A. Hochstetler, Daytona Beach, for Appellee. THOMPSON, J. The appellant, John Dudley, challenges the trial court's order denying his motion for relief from judgment or to set aside the court's order denying him attorney's fees pursuant to section , Florida Statutes (2005), based upon allegedly false statements made by the appellee, Ellen Schmidt, in her petition for injunction against repeat violence. We affirm. A-1 There is no basis for the imposition of attorney's fees in a proceeding for injunction against repeat violence under section , Florida Statutes (2005).

17 Attorney's fees cannot be awarded in a domestic violence injunction case. See Bane v. Bane, 775 So. 2d 938, 942 n.4 (Fla. 2000) (citing Belmont v. Belmont, 761 So. 2d 406 (Fla. 2d DCA 2000), Abraham v. Abraham, 700 So. 2d 421 (Fla. 3d DCA 1997), Lewis v. Lewis, 689 So. 2d 1271 (Fla. 1st DCA 1997), and Baumgartner v. Baumgartner, 693 So. 2d 84 (Fla. 2d DCA 1997)). See also Ratigan v. Stone, 947 So. 2d 607, 608 (Fla. 3d DCA 2007) [*2] (holding trial court erred in awarding attorney's fees in the domestic violence injunction proceeding because there is no statutory authority to award fees as sanctions in such case); Geiger v. Schrader, 926 So. 2d 432, 433 (Fla. 1st DCA 2006) (holding there is no provision for an award of attorney's fees in a section proceeding); Cisneros v. Cisneros, 831 So. 2d 257, 258 (Fla. 3d DCA 2002) (holding trial court was without jurisdiction to award trial level attorney's fees pursuant to section for domestic violence proceeding). AFFIRMED PALMER, C.J., and MONACO, J., concur. A-2