SC11-1914 District Court Case No.: 4D11-484 CYBERKNIFE CENTER

IN THE SUPREME COURT OF THE STATE OF FLORIDA

Case No.: SC11-1914 District Court Case No.: 4D11-484

CYBERKNIFE CENTER OF THE TREASURE COAST, LLC,

Petitioner,

vs.

HCA HEALTH SERVICES OF FLORIDA, INC. D/B/A ST. LUCIE MEDICAL CENTER,

Respondent.

On Review from the Fourth District Court of Appeal

RESPONDENT’S OPPOSITION BRIEF ON JURISDICTION

Thomas E. Warner Florida Bar No.: 176725

Dean A. Morande Florida Bar No.: 807001

CARLTON FIELDS, P.A. CityPlace Tower - Suite 1200 525 Okeechobee Boulevard West Palm Beach, FL 33401 Telephone: (561) 659-7070 Facsimile: (561) 659-7368 [email protected] [email protected]

Attorneys for Respondent

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TABLE OF CONTENTS Page

TABLE OF CITATIONS ...... ii

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

SUMMARY OF THE ARGUMENT ...... 2

ARGUMENT ...... 3

I. The Fourth District’s Decision Follows This Court’s Mazzoni Farms Decision, Which Is Directly On Point...... 3

II. The Decisions Cited By Cyberknife Do Not Conflict With The Fourth District’s Holding That Punitive Damages Are Unavailable When The Plaintiff In A Fraud In The Inducement Claim Elects The Equitable Remedy Of Rescission...... 5

CONCLUSION ...... 8

CERTIFICATE OF SERVICE ...... 8

CERTIFICATE OF COMPLIANCE ...... 9

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TABLE OF CITATIONS Page

Cases Billan v. Mobil Corp., 710 So. 2d 984 (Fla. 4th DCA 1998) ...... 5

Chemplex Florida v. Norelli, 790 So. 2d 547 (Fla. 4th DCA 2001) ...... 6

Emery v. International Glass & Mfg., Inc., 249 So. 2d 496 (Fla. 2d DCA 1971) ...... 5, 6 Florida East Coast Ry. Co. v. Thompson, 111 So. 525 (Fla. 1927) ...... 4, 5 Glusman v. Lieberman, 285 So. 2d 29 (Fla. 4th DCA 1973) ...... 5, 6 Guthartz v. Lewis, 408 So. 2d 600 (Fla. 3d DCA 1981) ...... 7 HCA Health Services of Florida, Inc. v. Cyberknife Center of Treasure Coast, LLC, 63 So. 3d 935 (Fla. 4th DCA 2011) ...... 1, 3

Hoppe v. Hoppe, 370 So. 2d 374 (Fla. 4th DCA 1978) ...... 2, 5, 6

Kaplan v. Kimball Hill Homes Fla., Inc., 915 So. 2d 755 (Fla. 2d DCA 2005) ...... 2 Lanman Lithotech, Inc. v. Gurwitz, 478 So. 2d 425 (Fla. 5th DCA 1985) ...... 7

Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So. 2d 306 (Fla. 2000) ...... 2, 3, 4, 5 Reaves v. State, 485 So. 2d 829 (Fla. 1986) ...... 1

21279884.2 ii TABLE OF CITATIONS (Continued)

Page

Santos v. Bogh, 298 So. 2d 460 (Fla. 4th DCA 1974) ...... 6

Statutes § 768.71, Fla. Stat...... 7

Rule 9.210, Fla. R. App. P...... 9

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STATEMENT OF THE CASE AND FACTS The following facts are taken from the face of the Fourth District’s decision that Plaintiff/Petitioner Cyberknife Center Of The Treasure Coast, LLC

(“Cyberknife”) seeks to have reviewed. See Reaves v. State, 485 So. 2d 829, 830 n.3 (Fla. 1986) (“The only facts relevant to our decision to accept or reject such petitions are those facts contained within the four corners of the decisions allegedly in conflict.”). Though Cyberknife improperly relies on facts well beyond those appearing on the face of the Fourth District’s decision below,

Defendant/Respondent HCA Health Services Of Florida, Inc. d/b/a St. Lucie

Medical Center (“HCA”) will not address those issues except to note the proper confines of this Court’s review.

HCA sought certiorari relief from a trial court order granting Cyberknife’s motion to amend its second amended complaint to add a claim of punitive damages in a count alleging fraudulent inducement to contract. HCA Health Services of

Florida, Inc. v. Cyberknife Center of Treasure Coast, LLC, 63 So. 3d 935, 936

(Fla. 4th DCA 2011).

Relying on this Court’s binding precedent, the Fourth District held that

“Cyberknife sought damages for the fraudulent inducement, thereby affirming the contract including its provision for waiver of punitive damages.” Id. (citing

Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So. 2d 306, 313 (Fla.

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2000); Kaplan v. Kimball Hill Homes Fla., Inc., 915 So. 2d 755 (Fla. 2d DCA

2005)).

The Fourth District further held that, “[e]ven if it should later elect the equitable remedy of rescission in the alternative on its count for fraudulent inducement to contract, Cyberknife still would not be entitled to claim punitive damages.” Id. (citing Hoppe v. Hoppe, 370 So. 2d 374 (Fla. 4th DCA 1978)).

The Fourth District therefore quashed the trial court’s order permitting

Cyberknife to assert a claim for punitive damages in relation to its fraudulent inducement count.

SUMMARY OF THE ARGUMENT According to Cyberknife, the Fourth District’s holdings expressly and directly conflict with decisions of this and other courts. Cyberknife is wrong. In following this Court’s controlling decision in Mazzoni Farms, the Fourth District held that, by seeking damages in its fraud in the inducement claim, Cyberknife affirmed the underlying contract, including the punitive damages waiver.

Cyberknife fails to cite or discuss Mazzoni Farms, instead relying on a decision that has no application where a party has affirmed the underlying contract by seeking damages in a fraud in the inducement claim. There is no conflict.

Cyberknife next asserts the existence of an express and direct conflict based on the Fourth District’s holding that, when the plaintiff elects the equitable remedy

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of rescission in a fraud in the inducement claim, punitive damages are unavailable.

None of the decisions cited by Cyberknife demonstrate a conflict. Indeed, those decisions do no more than confirm that Florida trial courts have authority to decide both equitable and legal claims in one forum. They do not hold that punitive damages are available where the equitable remedy of rescission is sought.

In sum, the decision below is in full accord with well-established Florida law. As there is no express and direct conflict, this Court should decline review.

ARGUMENT

I. The Fourth District’s Decision Follows This Court’s Mazzoni Farms Decision, Which Is Directly On Point. This Court in Mazzoni Farms squarely held that a “damages claim [in a fraud in the inducement action] . . . affirms the contract, and thus ratifies the terms of the agreement.” 761 So. 2d at 313. In accord with this controlling precedent, the

Fourth District held that, by bringing a claim for damages in its fraud in the inducement count, Cyberknife ratified the agreement below—including the mutual punitive damages waiver. HCA Health Services of Florida, Inc., 63 So. 3d at 936.

As dictated by this Court’s Mazzoni Farms decision, the ratification of the agreement—and the mutual punitive damages waiver—precludes Cyberknife from seeking punitive damages.

Cyberknife fails altogether to cite, let alone address, this Court’s controlling decision in Mazzoni Farms. Instead, Cyberknife asserts that the Fourth District’s

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decision directly conflicts with this Court’s 1927 decision in Florida East Coast

Ry. Co. v. Thompson, 111 So. 525 (Fla. 1927).

According to Cyberknife, Thompson supports its assertion that the entire contract is void, including the punitive damages waiver, regardless of whether it seeks damages in its fraud in the inducement claim. The Thompson decision has no application here. In that case, the plaintiff suffered personal injuries and, while in the hospital, signed a release in favor of the defendant. Thompson, 111 So. at

527. The issue was whether the plaintiff had presented sufficient evidence to support the jury’s finding that the release from liability he signed was procured through fraud and, therefore, ineffective. Id.

The issue in Thompson was whether the plaintiff had demonstrated evidence of fraud sufficient to rescind the contract. The Thompson Court had no occasion to address the issue here: whether a claim for damages in a fraudulent inducement action affirms the underlying contract. This Court in Mazzoni Farms squarely addressed that issue and held that a claim for damages in a fraudulent inducement action affirms the underlying contract. The Fourth District followed that holding in its decision below.

The Thompson decision does not conflict with either Mazzoni Farms or the

Fourth District’s decision below. This Court should decline review.

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Corp., 710 So. 2d 984, 990 (Fla. 4th DCA 1998)—and that punitive damages are not available for such an equitable remedy—Hoppe v. Hoppe, 370 So. 2d 374, 376

(Fla. 4th DCA 1978). The Fourth District’s decision reflects that established law.

Nonetheless, Cyberknife argues that the decision below conflicts with an earlier decision by the Fourth District—Glusman v. Lieberman, 285 So. 2d 29, 30

(Fla. 4th DCA 1973)—and with a decision by the Second District—Emery v.

International Glass & Mfg., Inc., 249 So. 2d 496 (Fla. 2d DCA 1971). There is no conflict, as Cyberknife misapprehends the holdings of those decisions.

In Glusman, the Fourth District had before it a claim for “slander of title, traditionally a law action, and prayers for injunction and to quiet title, traditionally equitable claims.” 285 So. 2d at 30. As noted by the court, the traditional rule had been that “punitive damages are not allowable in an action that seeks both legal and equitable relief.” Id.

The Glusman court abandoned that rule, holding that “a judge who sits as the trier of fact in a case involving both legal and equitable claims may award both compensatory and punitive damages, where appropriate, as well as any appropriate equitable relief.” Id. at 31 (emphasis added).

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The court did not hold that punitive damages were now available for any claim—it merely held that punitive damages were not barred in a claim at law

(such as the slander of title claim before it) simply because the action also included equitable claims. Id. The rule that punitive damages are not available when seeking only equitable relief remains controlling in Florida.

Cyberknife’s reliance on the Second District’s decision in Emery is similarly misplaced. That decision merely stands for the proposition that a single judge can decide all issues properly before it, whether legal or equitable. 249 So. 2d at 498.

Indeed, the availability of punitive damages was not even at issue in Emery, making that decision inapposite here.

Several cases decided by the Fourth District after Glusman, including Hoppe v. Hoppe, 370 So. 2d 374, 376 (Fla. 4th DCA 1978), confirm that punitive damages are not available when seeking only equitable relief. See, e.g., Chemplex

Florida v. Norelli, 790 So. 2d 547, 549 (Fla. 4th DCA 2001) (recognizing that a shareholder derivative suit is an equitable action and, therefore, punitive damages are unavailable); Santos v. Bogh, 298 So. 2d 460, 461 (Fla. 4th DCA 1974) (“this court has been and is committed to the rule that a judge sitting as the trier of the facts in an action formerly cognizable in equity as in the case sub judice may not award punitive damages, absent statutory authority” (emphasis added)).

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Decisions from other Districts are in accord with this established principle.

See, e.g., Lanman Lithotech, Inc. v. Gurwitz, 478 So. 2d 425, 427 (Fla. 5th DCA

1985) (“As a shareholder’s derivative action is an equitable action, plaintiffs’ demand for relief as to punitive damages runs counter to the traditional view that equity will not award punitive damages unless authorized by statute.”); Guthartz v.

Lewis, 408 So. 2d 600, 602 n.3 (Fla. 3d DCA 1981) (“It is true that a court trying a matter formerly cognizable in equity may not award punitive damages.”); see also

§ 768.71, et seq., Fla. Stat. (authorizing punitive damages only in an “action for damages”).

In short, none of the decisions on which Cyberknife relies demonstrate a split of authority in Florida as asserted by Cyberknife. It remains only to note that, not only are the out-of-state decisions cited by Cyberknife inapplicable to a determination of this Court’s jurisdiction, they do not support Cyberknife’s position as none of them hold that punitive damages are available when a plaintiff elects the equitable remedy of rescission in a fraud in the inducement claim.

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CONCLUSION Having demonstrated that no express and direct conflict exists in this case,

HCA respectfully requests that this Court decline review.

Respectfully submitted,

Thomas E. Warner Florida Bar No.: 176725 Dean A. Morande Florida Bar No.: 807001 CARLTON FIELDS, P.A. CityPlace Tower - Suite 1200 525 Okeechobee Boulevard West Palm Beach, FL 33401 Telephone: (561) 659-7070 Facsimile: (561) 659-7368 [email protected] [email protected]

Attorneys for Respondent

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by

U.S. Mail this 31st day of October, 2011, to the following: Richard H. Levenstein,

Kramer, Sopko & Levenstein, P.A., 2300 S.E. Monterrey Road, Suite 100, Stuart,

FL 34996 and The Honorable Robert R. Makemson, Circuit Judge, Martin County

Courthouse, 100 East Ocean Boulevard, Suite A359, Stuart, FL 34994.

Dean A. Morande

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CERTIFICATE OF COMPLIANCE I hereby certify that this brief was prepared in Times New Roman, 14-point font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate

Procedure.

Dean A. Morande

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