In the Supreme Court of the State of Florida ______

Home , Martin Atkins

IN THE SUPREME COURT OF THE STATE OF FLORIDA ______

B. MARTIN ATKINS, DERIVATIVELY, Plaintiff/Petitioner,

vs.

TOPP TELECOM, INC., ET AL., Defendants/Respondents.

______

Case No. SC 04-1449

Lower Tribunal Case No. 4D03-1489 ______

RESPONDENT TOPP COMM, INC’S BRIEF ON JURISDICTION

DAVID P. ACKERMAN Florida Bar No. 374350 CARLA L. BROWN HARWARD, OF COUNSEL Florida Bar No. 813184

ACKERMAN, LINK & SARTORY, P.A. Attorneys for Respondent Topp Comm, Inc. 222 Lakeview Avenue, Suite 1250 West Palm Beach, Florida 33401 (561) 838-4100 (561) 838-5301 [fax] TABLE OF CONTENTS

TABLE OF CONTENTS ...... i-ii

TABLE OF AUTHORITIES ...... iii-iv

PREFACE ...... 1

STATEMENT OF THE CASE AND FACTS ...... 1

JURISDICTIONAL STATEMENT ...... 2

I. Whether Conflict Jurisdiction Exists to Review a Decision of the Fourth District Court of Appeal that Does Not Conflict with Any Decision of Another District Court of Appeal But Rather Allegedly Conflicts Only with Another Decision From the Fourth District Court of Appeal and Two Federal Court Decisions (Fla. R. App. P. 9.030 (a)(2)(A)(iv)) ...... 2

II. Whether Discretionary Jurisdiction May be Exercised to Pass on a Question Which Has Not Been Certified of Great Public Importance (Fla. R. App. P. 9.030 (a)(2)(A)(v)) ...... 2

III. Whether Petitioner’s Arguments Regarding “General Public Policy” Permit this Court to Exercise its Discretionary Jurisdiction (Fla. R. App. P. 9.030 (a)(2)(A)) ...... 2

SUMMARY OF THE ARGUMENT ...... 3

ARGUMENT ...... 4

I. The Decision Under Review Does Not Expressly and Directly Conflict with (and Petitioner Does Not Even Cite) a Decision from Another District Court of Appeal or of this Court on the Same Question of Law Therefore Conflict Jurisdiction Does Not Exist...... 4

i II. Discretionary Jurisdiction May Not Be Exercised to Pass on a Question Which Has Not Been Certified of Great Public Importance ...... 7

III. Petitioner’s Arguments Regarding “General Public Policy” Do Not Present a Basis for the Court’s Exercise of Discretionary Jurisdiction...... 8

CONCLUSION ...... 9

CERTIFICATE OF SERVICE ...... 10

CERTIFICATE OF COMPLIANCE ...... 11

ii TABLE OF AUTHORITIES

Case Authority Page No.

Adams v. Seaboard Coast Line Railroad Co. 296 So.2d 1 (Fla. 1974) ...... 4, 5

Atkins v. Topp Comm, Inc. 874 So.2d 626 (Fla. 4th DCA 2004) ...... 1, 6

Bunkley v. State 2004 WL 1171315 (Fla. 2004) ...... 6, 8

City of Jacksonville v. Fla. First Nat’l Bank of Jacksonville 339 So.2d 632 (Fla. 1976) ...... 4

De Moya v. Fernandez 559 So.2d 644 (Fla. 4th DCA 1990) ...... 5, 6

Dept. of Health & Rehab. Serv. v. Nat’l Adopt. Counsl. Serv. 498 So.2d 888 (Fla. 1986) ...... 4

Ellsworth v. Nash Miami Motors, Inc. 142 So. 2d 733 (Fla. 1962) ...... 6

Klein v. FPL Group, Inc. 2003 WL 22768424 (S.D. Fla. Sept. 26, 2003) ...... 5

McDonough v. Americom Int’l Corp. 905 F. Supp. 1016 (M.D. Fla. 1995) ...... 5, 6

Reaves v. State 485 So.2d 829 (Fla. 1986) ...... 2, 4

Times Publ. Co. v. Russell 615 So.2d 158 (Fla. 1993) ...... 4

iii Whitaker v. Jacksonville Expressway Authority 131 So.2d 22 (Fla. 1961) ...... 7, 8

Zapata Corp. v. Maldonado, 430 A. 2d 779 (Del. 1981) ...... 2, 6

Statutes/Court Rules

Article V, § 3(b), Fla. Const...... 8

Article V, § 3(b)(3), Fla. Const...... 4

Article V, § 3(b)(5), Fla. Const...... 7

Fla. R. App. P. 9.030 ...... 2, 4, 5, 8

Fla. R. App. P. 9.330 ...... 7

Fla. R. App. P. 9.331 ...... 5

§ 607.07401(3), Fla. Stat...... 1, 6

iv PREFACE

As used in this brief, Petitioner, Martin B. Atkins, will be referred to as “Atkins” or “Petitioner.” Respondent, Topp Comm, Inc., will be referred to as “Topp

Comm.” The other respondents, David Topp, Rebecca Orand and Greenberg

Traurig, P.A., will be referred to as “Topp,” “Orand,” and “Greenberg Traurig,” respectively. STATEMENT OF THE CASE AND FACTS

This is a shareholder derivative action which was appropriately dismissed with prejudice by the trial court as to three of the defendants, Topp, Orand and Greenberg

Traurig, because an independent investigator appointed by the lower court with full agreement of the parties determined, after conducting a reasonable investigation in good faith, that it was not in the best interest of the corporation (Topp Comm) to bring the action. Under the deferential, guiding standards of review, the Fourth District

Court of Appeal considered all issues raised and found no reversible error or abuse of discretion in the trial court’s determination. Atkins v. Topp Comm, Inc., 874 So.2d

626, 628 (Fla. 4th DCA 2004). Further, appropriately applying the plain language of

Florida’s shareholder derivative action statute, Section 607.07401(3), Florida Statute, to the facts before it in accordance with principles of stare decisis, the Appellate Court refused to adopt a principle of law that derives from the Delaware state court decision

1 of Zapata Corp. v. Maldonado, 430 A. 2d 779 (Del. 1981). Id. The Fourth District

Court of Appeal concluded “that trial courts in this state are not required to evaluate the reasonableness of an independent investigator’s final recommendation, pursuant to the second-step analysis in Zapata.” 874 So.2d at 627. As Petitioner’s Brief on

Jurisdiction inappropriately recites facts outside those facts contained in the Appellate

Court’s opinion, see Reaves v. State, 485 So.2d 829, 830, n. 3 (Fla. 1986), Topp

Comm adopts that facts stated in the decision of the Fourth District Court of Appeal as its Statement of the Case and the Facts.

JURISDICTIONAL STATEMENT

II. Whether Discretionary Jurisdiction May be Exercised to Pass on a Question Which Has Not Been Certified of Great Public Importance (Fla. R. App. P. 9.030 (a)(2)(A)(v)).

III. Whether Petitioner’s Arguments Regarding “General Public Policy” Permit this Court to Exercise its Discretionary Jurisdiction (Fla. R. App. P. 9.030 (a)(2)(A)).

2 SUMMARY OF ARGUMENT

There can be no conflict jurisdiction in this case because on its face, the decision under review by the Fourth District Court of Appeal does not expressly or directly conflict with any decision from another District Court of Appeal or of this

Court on the same question of law, which it must in order for discretionary, conflict jurisdiction to exist. The DeMoya, McDonough and Klein cases relied upon by

Petitioner to establish “conflict” are not even from another district court of appeal and do not either: (1) announce a rule of law that conflicts with the Fourth District Court’s opinion in Atkins, or (2) apply a rule of law to substantially the same controlling facts to produce a different result. Moreover, Petitioner’s repeated assertion that the decision under review constitutes “a case of first impression” belies his present argument for this Court’s exercise of conflict jurisdiction exists. As for Atkins’ claim of great public importance, discretionary review is not appropriate because the Fourth

District Court of Appeal did not certify the question under review as one of great public importance. Finally, Atkins’ remaining arguments based upon general public policy do not give rise to discretionary jurisdiction under the Florida Constitution. The petition under review therefore should be dismissed.

3 ARGUMENT

Article V, § 3(b)(3), Florida Constitution, permits the exercise of discretionary jurisdiction only where, unlike here, the decision under review “expressly and directly conflicts with a decision of another district court of appeal or of this Court on the same question of law.” Fla. R. App. P. 9.030 (a)(2)(A)(iv) (emphasis supplied). The conflict must appear on the “face” of the different decisions, within the “four corners of the majority decision,” and “inherent” or “implied conflict” is not a basis for jurisdiction. Reaves 485 So.2d at 830; Dept. of Health & Rehab. Serv. v. Nat’l

Adopt. Counsl. Serv., 498 So.2d 888, 889 (Fla. 1986)(finding no express and direct conflict and dismissing petition for review); Times Publ. Co. v. Russell, 615 So.2d

158 (Fla. 1993)(declining to exercise discretionary jurisdiction to decide case that did

“not present the necessary express and direct conflict”). Further, the general rule is that “conflict may exist either (1) where an announced rule of law conflicts with other appellate expressions of law, or (2) where a rule of law is applied to produce a different result in a case which involves “‘substantially the same controlling facts as a prior case’” – neither of which are present here. City of Jacksonville v. Florida First

4 Nat’l Bank of Jacksonville, 339 So.2d 632, 633 (Fla. 1976), quoting Adams v.

Seaboard Coast Line Railroad Co., 296 So.2d 1 (Fla. 1974).

In support of his effort to invoke this Court’s discretionary jurisdiction, Atkins points to no decision of another district court of appeal or of this Court that is in express or direct conflict with the decision of which he seeks review. Rather, Atkins relies upon a prior decision of the Fourth District Court of Appeal, DeMoya v.

Fernandez, 559 So.2d 644, 645 (Fla. 4th DCA 1990) – not another district court of appeal – and two federal court decisions: McDonough v. Americom Int’l Corp.,

905 F. Supp. 1016, 1020-21 (M.D. Fla. 1995) and Klein v. FPL Group, Inc., 2003

WL 22768424 (S.D. Fla. Sept. 26, 2003) – not decisions of this Court. This Court’s jurisdiction over purely intra-district conflicts, was terminated by the 1980 Amendment to Florida Rule of Appellate Procedure 9.030, and the resolution of such conflicts is addressed in Florida Rule of Appellate Procedure 9.331. See Committee Notes.

Obviously, under the express provisions of Florida Rule of Appellate Procedure 9.030

(a)(2)(A)(iv),the federal court decisions simply do not create a basis of discretionary jurisdiction.

For what it is worth, although Atkins tries to insist otherwise, the DeMoya,

McDonough and Klein cases do not either: (1) announce a rule of law that conflicts with the Fourth District Court’s opinion in Atkins, or (2) apply a rule of law to

5 substantially the same controlling facts to produce a different result. On the contrary,

DeMoya was a case decided prior to the enactment of Section 607.07401(3), Florida

Statute, involved patently different controlling facts regarding the reasonableness of the investigative committee’s investigation, and did not even address whether Florida law required courts to apply the second-step in Zapata and exercise its own independent business judgment before accepting the final recommendation of the committee. DeMoya, 559 So.2d at 645-656; Atkins, 874 So.2d at 628. McDonough was of the same effect. In Klein, the federal district court simply declined to make a determinative ruling as to the application of Zapata. 2003 WL 22768424 *8; Atkins,

874 So.2d at 628.

Without belaboring the point, it merits noting that in his argument on the “great public importance” of this Court’s exercise of discretionary jurisdiction, Petitioner repeatedly asserts that the decision presents “a case of first impression.” See

Petitioner’s Brief on Jurisdiction at ii, 1, 3, 4 If Petitioner’s characterization were true, then the decision under review by definition could not conflict with any other decision.

See Ellsworth v. Nash Miami Motors, Inc., 142 So. 2d 733, 734 (Fla. 1962)(holding that question decided in the case was one of first impression and therefore was not reviewable by certiorari in the absence of certification or other constitutional ground of jurisdiction); Bunkley v. State, 2004 WL 1171315, fn. 14, concurring Wells, J.,

6 quoting Gerald B. Cope, Jr., Discretionary Review of the Decisions of the

Intermediate Appellate Courts: A Comparison of Florida’s System with Those of the

Other States and the Federal System, 45 Fla. L. Rev. 21 (1993) (Fla. 2004)(“[A] question of first impression by definition does not conflict with other decisions . . . .”)

Atkins’ own argument belies his claim of “conflict.”

II. Discretionary Jurisdiction May Not Be Exercised to Pass on a Question Which Has Not Been Certified of Great Public Importance.

The Florida Constitution also permits the exercise of discretionary jurisdiction to “pass upon a question certified to be of great public importance.” Fla. R. Civ. P.

9.030 (a)(2)(A)(v)(emphasis supplied). See generally Article V, § 3(b)(5), Fla. Const.

In the decision under review, the Fourth District Court of Appeal did not certify any question to be of great public importance. Indeed, Atkins never even asked the

Appellate Court for certification in his briefs or by motion. See Fla. R. App. P. 9.330.

Petitioner’s time to so argue has now passed. Whitaker v. Jacksonville Expressway

Authority, 131 So.2d 22, 23 (Fla. 1961)(“Inherent in every decision rendered by a

District Court of Appeal is the implication, unless otherwise stated or contrary action taken, that it does not pass upon a question of great public interest; and when the labor of the court has terminated with its final decision and the issuance of its mandate thereon, it no longer has jurisdiction to enter a certificate of the character under

7 discussion.”)

The fact that Petitioner now maintains a belief in the public importance of his case is of no effect. Bunkley, 2004 WL 1171315, at fn 14 (“[T]he supreme court is not empowered to grant review under this subdivision on account of the importance of the question presented”). Likewise, Atkins’ unsupported claims of the significance of the ruling and its creation of “instability and unpredictability in the law,” “confusion to litigants” and the need to “ensure consistency in this area of the law” just do not give rise to jurisdiction. Id. (“Regardless of the significance of the legal issue, the supreme court may not grant discretionary review unless the case falls into one of the four categorical pigeonholes or unless the district court of appeal has granted permission.

. . .”) Indeed, it is established that “[t]he right of review does not lie from a failure or refusal of a District Court of Appeal to certify any decision rendered by it as one that passes upon a question of great public interest.” Whitaker, 131 So.2d at 24.

Petitioner’s claim otherwise must be rejected.

III. Petitioner’s Arguments Regarding “General Public Policy” Do Not Present a Basis for the Court’s Exercise of Discretionary Jurisdiction.

This final point is quickly made. The grounds for this Court’s exercise of discretionary jurisdiction are established by the Florida Constitution and do not include appeals to general public policy, like Atkins asserts here. Article V, § 3(b), Fla.

8 Const.; Fla. R. App. P. 9.030 (a)(2)(A); Bunkley, 2004 WL 1171315, fn. 14. Further consideration on this issue, therefore, is just not warranted.

CONCLUSION

For all of the foregoing reasons, Topp Comm respectfully requests that this

Court decline to exercise discretionary jurisdiction and dismiss Atkins’ petition for review.

Respectfully submitted,

ACKERMAN, LINK & SARTORY, P.A. 222 Lakeview Avenue, Suite 1250 West Palm Beach, Florida 33401 (561) 838-4100 (561) 838-5301 [fax]

By:______DAVID P. ACKERMAN Florida Bar No. 374350 CARLA L. BROWN HARWARD OF COUNSEL Florida Bar No. 813814

9 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been served by mail this ____ day of August 2004 to George M. Fleming, J. Ken Johnson, Adam D. Peavy, and

Andres C. Pereira, Fleming & Associates, L.L.P., 1330 Post Oak Blvd., Suite 3030,

Houston, Texas 77056; Mike O’Brien, Mike O’Brien, P.C., 1330 Post Oak Blvd.,

Suite 2960, Houston, Texas 77056; Donald J. Hayden and Jose Ferrer, Baker &

McKenzie, 1200 Brickell Avenue, 19th Floor, Miami, Florida 33131; J. Michael

Burman and Gregory W. Coleman, Burman, Critton, Luttier & Coleman, 515 North

Flagler Drive, Suite 400, West Palm Beach, Florida 33401; L. Louis Mrachek, Page,

Mrachek, Fitzgerald & Rose, P.A., 505 S. Flagler Drive, Suite 600, West Palm Beach,

Florida 33401; and Alan D. Lash and Lorelei J. Van Wey, Lash & Goldberg LLP,

100 Southeast 2nd Street, Miami, FL 33131.

ACKERMAN, LINK & SARTORY, P.A. 222 Lakeview Avenue, Suite 1250 West Palm Beach, Florida 33401 (561) 838-4100 (561) 838-5301 [fax]

By:______DAVID P. ACKERMAN Florida Bar No. 374350 CARLA L. BROWN HARWARD OF COUNSEL Florida Bar No. 813814

10 CERTIFICATE OF COMPLIANCE

I hereby certify that this Brief complies with the font requirements of Fla. R.

App. P. 9.210(a)(2).

______DAVID P. ACKERMAN

04-1449_JurisAnsTopp.wpd