IN THE SUPREME COURT OF FLORIDA CASE NO.:

IN THE SUPREME COURT OF FLORIDA CASE NO.: ARNALDO VELEZ, an individual, TAYLOR, BRION, BUKER & GREENE, a general partnership, vs. Petitioners, BIRD LAKES DEVELOPMENT CORP., a Panamanian corporation, Respondent. / RESPONDENT S BRIEF ON JURISDICTION On Review from the District Court of Appeal Third District of Florida Respectfully submitted, HALL, DAVID AND JOSEPH, P.A. 1428 Brickell Avenue, Penthouse Miami, Florida 33131 Tel: 305-374-5030 Fax: 305-374-5033 Attorneys for Respondent

Table of Contents Table of Citations... iii Statement of the Case and Facts... 1 Argument... 2 I. This Court Lacks Jurisdiction over this Matter. 2 II. No Conflict Exists and No Conflict Can Be Demonstrated... 3 A. The Third District s Opinion Does Not Expressly and Directly Conflict with Layne Dredging Co. v. Regus, Inc., 622 So. 2d 7 (Fla. 2d DCA 1993).... 3 B. The Third District s Opinion Is Also Not in Conflict with Watson v. G&C Ford Company, 293 So. 2d 101 (Fla. 1 st DCA 1974)..... 7 C. The Letter Attached to the Petitioners Brief Does Not Establish Conflict Jurisdiction..... 9 Conclusion.... 9 Certificate of Compliance...10 Certificate of Service... 10 ii

Table of Citations CASES PAGES Department of Revenue v. Johnston, 442 So.2d 950 (Fla. 1983) 3 Gonzalez v. Mulreany, 375 So.2d 621 (Fla. 3d DCA 1979).. 5 Gonzalez v. Turner, 427 So.2d 1123 (Fla. 3d DCA 1983).. 4 Kyle v. Kyle, 139 So.2d 885 (Fla. 1962)... 3 Layne Dredging Company v. Regus, Inc., 622 So.2d 7 (Fla. 2nd DCA 1993)...3, 4, 10 Randle-Eastern Ambulance Service v. Vasta, 360 So.2d 68 (Fla.1978... 4 Ryder System, Inc. v. O'Connor, 369 So.2d 980 (Fla. 4th DCA 1979)... 4 Watson v. G & C Ford Company, 293 So.2d 101 (Fla. 1st DCA 1974)...3, 7, 10 CONSTITUTIONAL PROVISIONS PAGES Art. v, 3(b) (3)... 2 COURT RULES... PAGES Rule 1.170... 5 Rule 9.030(a) (2) (A) (iv)... 2 Rule 9.120(d)... 9 iii

STATEMENT OF THE CASE AND FACTS On August 29, 1994, Bird Lakes Development Corporation ( Bird Lakes ) filed a legal malpractice action against Defendants Arnaldo Velez ( Velez ), Taylor, Brion, Buker & Greene (the Taylor Brion law firm ) and others. (R.Vol. I, 1-20). On May 13, 1996, after a substantial amount of discovery was completed in the Bird Lakes v. Velez action, the Home Insurance Company, the insurer of the Taylor Brion law firm and Velez, filed an action in the Circuit Court of Miami-Dade County, Florida seeking declaratory judgment and other relief. (R. Vol. IV, 650-763). The Home Insurance Company s complaint sought to void the policy of insurance issued to the Taylor Brion law firm. Bird Lakes was named as a party to this action along with James Feltman, as liquidating trustee of Aerial Transit Company. (Id.). In response, Bird Lakes filed its answer, affirmative defenses, counterclaim, cross claim and third party claims. (R. Vol. IV, 764-787) In early 1999, the Home Insurance Company settled the claim brought by James Feltman, as liquidating trustee for Aerial Transit Company, against the Taylor Brion law firm (R. Vol. V, 985-988; 989-998). In response to this settlement, Bird Lakes filed a motion for judgment on the pleadings contending that the consummation of the Feltman settlement constituted a waiver of the Home Insurance Company s right to contest coverage. The 1

trial court agreed and entered a judgment in favor of Bird Lakes on its counterclaim. (R. Vol. V, 1006). On June 10, 1999, the trial court entered an order giving effect to the voluntary dismissal filed by Home Insurance Company but leaving intact the Bird Lakes counterclaim, cross claims and third party claims. Thereafter, the consolidated case proceeded. 1 On February 1, 2002, the trial court held a status conference and later entered an Order on Status Conference which provided that the cross claims and third party claim brought by Bird Lakes did not survive the voluntary dismissal filed by the Home Insurance Company. Accordingly, the cross claims and third party claims are not a part of the [Bird Lakes v. Velez] suit. (R. Vol. V, 1009-1013). By its opinion dated April 16, 2003, the Third District Court of Appeal reversed the trial court and concluded that the cross claims and third party claims filed by Bird Lakes remained pending. ARGUMENT I. This Court Lacks Jurisdiction over this Matter. This Court has no jurisdiction over this matter and should dismiss the same. In order to establish conflict jurisdiction, the Petitioners must satisfy the dictates of Art. V, 3(b)(3) of the Florida Constitution and Rule 9.030(a)(2)(A)(iv) which 1 The Home Insurance matter was consolidated with the Bird Lakes v. Velez matter by order dated March 31, 2001. 2

require that an express and direct conflict be established as a condition to this Court s exercise of jurisdiction. Where the cases are distinguishable in controlling factual elements or if the points of law settled by the cases are not the same, no conflict arises. Department of Revenue v. Johnston, 442 So.2d 950 (Fla. 1983) (Where cause was distinguishable on its facts from those cited in conflict, Supreme Court would discharge jurisdiction.). II. No Conflict Exists and No Conflict Can Be Demonstrated. The Petitioners have failed to demonstrate any conflict between the Third District Court of Appeal s decision below and either Watson v. G & C Ford Company, 293 So.2d 101 (Fla. 1 st DCA 1974). The Petitioners cite the Layne Dredging case for the proposition that cross claims do not survive dismissal of the main action and cite the Watson case for the proposition that third-party claims do not survive dismissal of the main action. These cases, however, do not support the broad propositions stated by the Petitioners. A. The Third District s Opinion Does Not Expressly and Directly Conflict with Layne Dredging Co. v. Regus, Inc., 622 So. 2d 7 (Fla. 2d DCA 1993). The opinion in Layne reveals little by way of facts and even less by way of procedural history. What the opinion does reveal is that it is wholly distinguishable from the facts of this case and does not present this Court with an express and direct conflict in need of resolution. 3

In Layne, the CIT Group filed suit against several defendants including Layne and Regus, Inc. Regus, Inc. answered the complaint and thereafter filed a motion to amend its answer to assert a cross claim against Layne. Unlike the facts of this case, the proposed cross claim was not filed and the opinion leaves the nature of the cross claim a mystery. CIT then filed a notice of voluntary dismissal of the complaint. After the filing of the dismissal, apparently long after, the lower court entered an order allowing Regus, Inc. to file its cross claim against Layne. The Second District Court of Appeal found the trial court to have erred. The Layne court stated [A]ny purpose Regus may have had to transfer its liability through a cross claim to Layne was nullified at the moment when CIT accomplished the voluntary termination of its lawsuit. 622 So.2d at 8. The facts of Layne reveal that the lower court had no jurisdiction to adjudicate the cross claim because the action was no longer pending by virtue of the voluntary dismissal. The law is quite clear that once a party files a proper notice of voluntary dismissal, the court is automatically divested of jurisdiction. Randle-Eastern Ambulance Service v. Vasta, 360 So.2d 68 (Fla.1978); Ryder System, Inc. v. O'Connor, 369 So.2d 980 (Fla. 4 th DCA 1979) It appears that Regus cross claim must have sounded in indemnity, contribution or some other type of claim designed to shift the liability for the CIT claims from Regus to Layne. 4

That being the case, it is obvious that the dismissal of the CIT complaint obliterated the need for the cross claim s attempt to shift liability; if there can be no liability, none can be shifted. In this case, the facts are completely distinguishable from Layne. Bird Lakes, along with the lawyer and law firm defendants, was sued by the Home Insurance Company which sought a declaratory judgment that the Home Insurance Company properly rescinded its policy of insurance. Bird Lakes filed a counterclaim against the Home Insurance Company seeking a declaratory judgment that the Home Insurance Company was obligated to provide a defense to the lawyer and law firm defendants for the Bird Lakes claims. Bird Lakes also filed a cross claim which arose from the subject matter of the Home Insurance Company claims as well as third party claims arising from the subject of the Home Insurance claim. The Third District Court of Appeal s holding below, that the dismissal of the Home Insurance Company complaint, did not require the dismissal of the cross claims and third party claims is not in conflict with Layne and is distinguishable both factually and legally. Rule 1.170(g) provides, in part, as follows: Cross claim against Co-Party. A pleading may state as a cross claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of either the original action or a counterclaim therein,.. (Emphasis supplied). 5

The Bird Lakes cross claims and third party claims are clearly related to the transaction or occurrence that is the subject matter of the Home Insurance Action. The application of Rule 1.170 by the Third District is not inconsistent with Layne and Watson and no conflict is presented. Rule 1.170(g) does not limit cross claims to those seeking indemnity or contribution and therefore dependent upon the main action. Rather, the rule specifically provides that a wider variety of claims are properly asserted as cross claims. The holding in Layne was premised on the theory that any purpose Regus, Inc. had to transfer its liability to Layne was extinguished when CIT dismissed its complaint. The Layne court s logic is based upon the perception that the Regus, Inc. cross claim was an effort to shift liability or an attempt at contribution or indemnification. Because the facts of this case are substantially different than the facts presented in Layne, no conflict can be shown. B. The Third District s Opinion Is Also Not in Conflict with Watson v. G&C Ford Company, 293 So. 2d 101 (Fla. 1 st DCA 1974). Watson, just as Layne, presents a fact pattern much different from this case. In Watson, Toner, filed a complaint against G & C Ford Company and its insurer, Universal Insurance Company. G & C Ford and Universal filed a third party complaint against Watson. The matter came to trial and at the end of Toner s case, the trial court directed a verdict in favor of G 6

& C Ford. As a consequence of that ruling, the court dismissed with prejudice G & C Ford and Universal s third party complaint against Watson, which was not at issue and was not involved in the trial terminated by the directed verdict. Toner appealed the judgment against him. There was no appeal taken of the dismissal of the third party claims. On appeal, the appellate court reversed the trial court s directed verdict and remanded for a new trial. Importantly, the third-party plaintiffs never appealed the dismissal of the third-party claims and never requested that the third-party claims be reinstated upon reversal of the directed verdict. Following remand, Toner s action against G & C Ford and Universal proceeded to trial. The third party claims were never reinstated and were not pursued. The second trial resulted in the entry of a judgment against the defendants. One week after the judgment, the trial court, without notice, entered an order vacating its order which dismissed the third-party complaint with prejudice. Watson appealed the order of reinstatement. The appellate court reversed the order of reinstatement and held that because the third party claim against Watson was not renewed until after the retrial of Toner s claim for damages, the claims did not survive. The court reasoned that Watson was prejudiced because he did not have an opportunity to exercise his rights under Rule 1.180, i.e. raising defenses before a judgment had been rendered in the original lawsuit. Importantly, the court also held that because no appeal was 7

taken of the prior dismissal, said dismissal was a final order which precluded such a reinstatement. The facts of Watson are wholly distinguishable from the facts of this case. In Watson, and like Layne, the third-party plaintiff alleged their claims after the resolution of the dispute between the defendant and the plaintiff, or, attempted to assert the same when to do so would have unfairly prejudiced the rights of the third party defendants. In the instant case, the third-party claim and the cross claim were filed well before the dismissal of the Home Insurance Company complaint. As a result, unlike Layne, the trial court, indisputably, had jurisdiction over the cross claims. In addition, unlike Watson, all of the third party defendants defenses were available and unaffected. The facts of this case as well as the Third District Court of Appeal s application of the law to those facts, reveal that no conflict with either Layne or Watson is presented. C. The Letter Attached to the Petitioners Brief Does Not Establish Conflict Jurisdiction. As a threshold matter, the letter from counsel for Bird Lakes to the trial court should not be considered by this Court and it is not properly part of the Petitioners appendix. Rule 9.120(d) clearly precludes attaching any documents to the brief on jurisdiction other than a conformed copy of the decision of the district court of appeal. Accordingly, the letter should not be considered. 8

The Petitioner s also contend that Bird Lakes counsel admitted in a November 3, 1999 letter to the trial judge that the cross claims and third party claims were no longer pending. In that letter, in which Bird Lakes counsel candidly withdrew a motion for attorney s fees, he stated that the only issue remaining for determination in this action is whether Bird Lakes is entitled to recover the attorneys fees and costs... By using the term this action, Bird Lakes counsel was clearly referring to Bird Lakes counterclaim against the Plaintiff and not to the cross claim and third-party claim, which had not yet adjudicated and which had no effect on the motion for attorney s fees discussed in the letter. 9

CONCLUSION The Petitioners have failed to demonstrate any express and direct conflict between the decision of the Third District Court of Appeal below and either Layne Dredging Company v. Regus, Inc., 622 So.2d 7 (Fla. 2 nd DCA 1993) or Watson v. G & C Ford Company, 293 So.2d 101 (Fla. 1 st DCA 1974). As a result, this Court should decline to accept jurisdiction over this matter and dismiss the same. Respectfully submitted, HALL, DAVID AND JOSEPH, P.A. Attorneys for Respondent 1428 Brickell Avenue Penthouse Miami, Florida 33131 Telephone: (305) 374-5030 Facsimile: (305) 374-5033 By: CHRISTOPHER M. DAVID Florida Bar No.: 985163 10

CERTIFICATE OF COMPLIANCE WE HEREBY CERTIFY that the foregoing brief complies with Rule 9.210(a)(2) and is printed in Courier New 12-point font. HALL, DAVID AND JOSEPH, PA 1428 Brickell Avenue Penthouse Miami, Florida 33131 Telephone: (305) 374-5030 By: CHRISTOPHER M. DAVID Florida Bar No.: 985163 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by mail this day of July 2003 to: RODERICK COLEMAN, ESQ., Coleman & Associates, P.A., 122 Minorca Avenue, Coral Gables, Florida 33134. HALL, DAVID AND JOSEPH, PA 1428 Brickell Avenue Penthouse Miami, Florida 33131 Telephone: (305) 374-5030 By: CHRISTOPHER M. DAVID Florida Bar No.: 985163 A:\Respondent, Bird Lakes, Brief on Jurisdiction.wp 11