IN THE DISTRICT COURT OF APPEAL THIRD DISTRICT, STATE OF FLORIDA

Transcription

1 IN THE DISTRICT COURT OF APPEAL THIRD DISTRICT, STATE OF FLORIDA RECEIVED, 12/8/2016 1:37 PM, Mary Cay Blanks, Third District Court of Appeal LBMP HOLDINGS, LLC and AJK 21ST STREET, LLC, CASE NO.: 3D LT. CASE NO.: CA 22 Appellants, v. BIARRITZ GH, LLC and JHMB, LLC, Appellees, / APPELLEES OPPOSITION TO APPELLANTS JOINT MOTION TO RELINQUISH JURISDICTION Appellees, BIARRITZ GH, LLC and JHMB, LLC, through undersigned counsel, hereby file their Opposition to Appellants Joint Motion to Relinquish Jurisdiction (the Motion ), and state as follows: 1. Relinquishment is inappropriate under Fla. R. App. P (b). While appellate courts may permit relinquishment under Rule 9.600(b) when a party seeks relief from a judgment, Appellants have already had one bite at the apple. Following entry of the Order on appeal, Appellants failed to timely move for rehearing pursuant to Fla. R. Civ. P (b) and their motion for rehearing was stricken. The Motion is an inappropriate attempt to be relieved from compliance with the jurisdictional deadline regarding rehearing motions. Neither Rule 9.600(b) nor Fla. R. Jud.

2 Admin (h) contemplate permitting a party relief from failing to timely move for rehearing. 2. The Motion also seeks to create an absolute right for relinquishment from appellate review for a party to seek reconsideration of a final order pursuant to Rule 2.330(h) despite the fact that the final order is properly on appeal. There is no authority supporting such a rule. Rule 2.330(h) contemplates application to nonfinal, interlocutory orders, as opposed to final orders that are properly on appeal. See Rule 2.330(h) ( Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration. (emphasis added)). 3. The Motion also presupposes reversal of the Order on appeal based upon a due process violation. However, as noted above, Appellants have only themselves to blame. Appellants motion for rehearing was properly stricken as it is well established under Florida law that a trial court is without jurisdiction to rule upon an untimely motion for rehearing. See, e.g., Galvez v. Ramos, 941 So. 2d 475, 478 (Fla. 3d DCA App. 2006) (reversing order granting motion for rehearing under Rule 1.530(b) because trial court did not have authority or jurisdiction to grant untimely motion for hearing). 4. Appellants argument that Delmonico v. Traynor, 116 So. 3d 1205 (Fla. 2013) requires reversal of the Order on appeal is simply incorrect. The holding in 2

3 Delmonico v. Traynor did not disturb the holdings of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994) and Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007) with regard to the litigation privilege s application to alleged tortious acts that occur during or related to a judicial proceeding, including claims for abuse of process. As a result, Appellants counterclaims for abuse of process were properly dismissed To the extent that the Motion is granted, the Court should relinquish jurisdiction solely for the trial court to determine whether the Order on appeal should be reconsidered pursuant to Fla. R. Jud. Admin (h) based upon the arguments set forth in the Motion. To the extent the motion can be read to not only relinquish jurisdiction for the trial court to consider a Rule 2.330(h) motion for reconsideration, but also to direct a ruling on that motion, such a directive would be an inappropriate request for a summary reversal without full briefing. Further, Appellees object to an instruction that the trial court is required to conduct a hearing on Appellants 1 The subject matter of the abuse of process claims is prior litigation for which there were multiple appeals before this Court. See JHMB, LLC, etc. v. Charles Bernard, Ltd., etc., Case No. 3D12-415; JHMB, LLC v. Charles Bernard, Ltd., Case No. 3D ; Charles Bernard, Ltd. v. JHMB, LLC, Case No. 3D ; JHMB, LLC, etc. v. Charles Bernard, Ltd., etc., et al., Case No. 3D ; JHMB, LLC v. Charles Bernard, Ltd., Case No. 3D ; Charles Bernard, Ltd. v. JHMB, LLC, Case No. 3D15-949; and JHMB, LLC v. Charles Bernard, Ltd., Case No. 3D

4 motion for reconsideration. See, e.g., Rath v. Network Marketing, L.C., 944 So. 2d 485, 487 (Fla. 4th DCA 2006) (holding that trial court is not required to hold a hearing on a motion for reconsideration pursuant to Fla. R. Jud. Admin (h)). WHEREFORE, Appellees, BIARRITZ GH, LLC and JHMB, LLC, respectfully request that the Court deny the Motion in all respects or alternatively, relinquish jurisdiction solely for the trial court to determine whether the Order on appeal should be reconsidered pursuant to Fla. R. Jud. Admin (h) based upon the arguments set forth in the Motion, and for such other and further relief in Appellees favor as is just and proper. Respectfully submitted, KLUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE, P.L. Attorneys for Biarritz GH, LLC and JHMB, LLC 201 South Biscayne Boulevard Suite 2700, Miami Center Miami, Florida Telephone: (305) Facsimile: (305) By: /s/ Alan. J. Kluger Alan J. Kluger Fla. Bar No akluger@klugerkaplan.com Josh M. Rubens Florida Bar No jrubens@klugerkaplan.com 4

5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via on this 8th day of December, 2016 to: Jason R. Alderman, Esq. and Troy A. Tolentino, Esq., jalderman@thealdermanlawfirm.com and ttolentino@thealdermanlawfirm.com, The Alderman Law Firm, 9999 N.E. 2nd Avenue, Suite 211, Miami Shores, FL 33138; Michael Higer, Esq. and Colleen A. Maranges, Esq., mhiger@bergersingerman.com and cmaranges@bergersingerman.com, Berger Singerman, 350 East Las Olas Boulevard, Suite 1000, Fort Lauderdale, Florida 33301; and Mark F. Raymond, Esq., Amy Steele Donner, Esq., and Patricia Baloyra, Esq., mraymond@broadandcassel.com, adonner@broadandcassel.com, and pbaloyra@broadandcassel.com, Broad and Cassel, One Biscayne Tower, 21st Floor, 2 S. Biscayne Blvd., Miami, Florida By: /s/ Josh M. Rubens Josh M. Rubens 5