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Sc07-74 Lt Case No: 3D06-2 THE SUPREME COURT OF FLORIDA _____________________________________________________________ CASE NO: SC07-74 L.T. CASE NO: 3D06-2052 _____________________________________________________________ HARVEY W. SEEDS POST NO. 29, DEPARTMENT OF FLORIDA AMERICAN LEGION, organized and existing by virtue of Act of Congress of the United States of America on September 16, 1919 Appellant, v. BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA, Appellee. _____________________________________________________________ AMENDED JURISDICTIONAL BRIEF OF APPELLANT, _____________________________________________________________ ON APPEAL FROM THE ELEVENTH CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA _____________________________________________________________ COUNSEL FOR APPELLANT: Patrick G. McDonald FBN: 504858 1393 S.W. First Street, Suite 200 Miami, Florida 33135-2321 305-643-5313 – telephone 305-643-4990 – fax CONTENTS TABLE OF AUTHORITIES ......................................................................... III SUMMARY OF ARGUMENT........................................................................ 2 ARGUMENT ................................................................................................... 3 THIS COURT HAS, AND SHOULD EXERCISE JURISDICTION UNDER ARTICLE V § 3 (B) (3), FLA. CONST., TO REVIEW THE THIRD DISTRICT'S DECISION BASED ON EXPRESS AND DIRECT CONFLICT WITH THE PRIOR DECISION OF THE FORTH DISTRICT COURT OF APPEAL ON THE SAME POINT OF LAW. .......................................................................................................3 THE DISTRICT COURT’S HOLDING DIRECTLY CONFLICTS WITH KELLEY V. CITY OF COCOA, 188 SO. 2D 862 AT 864 (FLA. 4TH DCA 1966), AND SHOULD HAVE FOUND THE BOARDS CLAIMS TIME BARRED. ......................................................................................................6 I. THE TRIAL COURT’S DECISION SHOULD BE AFFIRMED BECAUSE VENUE IS MOOT. ..............................................................................................6 CERTIFICATE OF SERVICE...................................................................... 10 APPENDIX.............................................................................................................11 ii TABLE OF AUTHORITIES Cases Board of County Commissioners of Madison County v. Grice, 438 So. 2d 392 (Fla. 1983) .....................................................................................................................7 Gustafson v. Jensen, 515 So.2d 1298 (Fla. 3d DCA 1987)......................................4 Regal Kitchens, Inc. v. O’Connor & Taylor Condominium Construction, Inc. 894 So. 2d 288 (Fla. 3rd DCA 2005)..................................................................................4 State of Florida, Department of Insurance v. Accelerated Benefits Corp., 817 So. 2d 1086, 1087 (Fla. 4th DCA 2002) ...........................................................................7 Statutes Florida Statute § 95.14 ....................................................................................................6 iii STATEMENT OF THE CASE This is an appeal from a decision by the Third District Court of Appeals, over escrow funds that have been held by a third party since July of 1966. On or about November 3, 2005, soon after learning of the existence of the escrow funds from the undersigned counsel for the American Legion, Harvey Seeds Post #29, (“Legion”) the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (“Board”) made a demand on Fidelity National Title Insurance Company, escrow agent, for $38,000 together with the accrued interest thereon, and a dormant 40 year old dispute between the parties recommenced. On January 27, 2006, both the Board and the Legion were served with an interpleader complaint regarding monies being held in escrow by the plaintiff, Fidelity National Title Insurance Company. By motion dated and served on February 13, 2006, the Board moved to abate the action for improper venue or in the alternative to transfer venue based upon Appellant’s “home venue” privilege to be sued in Leon County where its principal headquarters are located. On March 22, 2006, the trial court entered an agreed order of interpleader that authorized the plaintiff, Fidelity National Title Insurance Company, to deposit the escrow funds into the registry of the court pending further order of the court. On July 13, 2006, 1 the trial court entered an order denying the Board’s motion to abate for improper venue or in the alternative to transfer venue to Leon County based upon considerations of fairness and justice in light of all of the procedural history of the dispute; the location of the property; the financial resources of each of the parties; the undue financial burden that would be placed upon the Legion; the need to still determine the amount of consideration and the acreage of land that was being disputed; the likelihood that the 1966 purchaser and current owner, the City of Miami, would be forced into the litigation; and the convenience to the Board that the State of Florida Attorney General has a local branch office within Miami-Dade County thereby limiting the inconvenience borne by the State in litigating this matter in Miami-Dade County. The court also cited to the ease of electronic and telephonic access that is currently available to the Board and promised that the court would be very accommodating towards any electronic means of appearance. SUMMARY OF ARGUMENT The question to be asked is, did the trial court err in applying the Grice standard of review of justice, fairness, and convenience under the circumstances of the case and is that standard solely limited to cases where the state entity is sued as a joint tortfeasor, or shouldn’t it be applicable to 2 other litigation where it is shown that the underlying litigation does not involve any of the procedural reasons that the Home Venue Rule was created to protect? There is no showing that there will be additional expenditure of public funds and/or manpower; the suit does not involve interpretation of the agency’s policy or procedures and there is an underlying concern that the co-defendant is much more likely to suffer disproportionately due to the strict application of the home venue rule in a case in which it did not even file the original lawsuit. Furthermore, the claims of the Board to these escrow funds should be barred as the Board has sat on their claim for over 40 years and now claims to entitlement to the $38,000.00 plus interest earned via breach of contract that occurred in 1966. The Board claims to have title to these funds under a purported deed reversion on lands that were sold to the City of Miami in 1966, even if this reversion was found to be legal, any such right to those funds would have long ago expired under Florida Statute § 95.14 Limitations of actions. See Kelley v. City of Cocoa 188 So.2d 862 (Fla. 4th DCA 1966) ARGUMENT THIS COURT HAS, AND SHOULD EXERCISE JURISDICTION UNDER ARTICLE V § 3 (B) (3), FLA. CONST., TO REVIEW THE THIRD DISTRICT'S DECISION BASED ON EXPRESS AND DIRECT CONFLICT WITH THE PRIOR DECISION OF THE 3 FORTH DISTRICT COURT OF APPEAL ON THE SAME POINT OF LAW. The trial court determined that the Legion has a legal right to venue in Miami-Dade County. Whether venue is proper in a particular forum is a question of law. See Rule 9.130(a) (3) (A) of the Florida Rules of Appellate Procedure. See Regal Kitchens, Inc. v. O’Connor & Taylor Condominium Construction, Inc. 894 So.2d 288 (Fla. 3rd DCA 2005). Because the order resolves an issue of law, it is reviewable on appeal by the de novo standard. However, the trial court’s decision is cloaked with a presumption of correctness and the Board bears the burden of showing the decision was clearly erroneous. Gustafson v. Jensen, 515 So.2d 1298 (Fla. 3d DCA 1987). The Third District Court of Appeal’s decision directly conflicts with the decision rendered in the Fourth District Court of Appeal’s State of Florida, Department of Insurance v. Accelerated Benefits Corp., 817 So.2d 1086 (Fla.4th DCA 2002). In both cases each party was sued as an interpleading defendant and while Accelerated Benefits differs in that it was a proceeding supplementary, that court reiterated that the trial court has the discretion to dispense with the home venue privilege when it is apparent that the policy reasons behind the home venue privilege would not be well served by strict application of the rule, and must be guided by the considerations of justice, fairness, and convenience under the circumstances 4 of the case.” Id. at 1087 The case at bar, likewise does not lend itself to strict enforcement of the “home venue rule.” When you compare the facts that are involved in this case it is clear that the initial policy considerations for the home venue privilege, the maintenance of uniformity in the interpretation of rules and regulations, prevention of conflicting judicial rulings, and minimizing expenditure of public funds and manpower, are just not applicable to this case. To enforce such a heavy burden on the Legion is against the stated policy of Board of County commissioners v. Grice, 438 So.2d 392 (Fla. 1983) in promoting considerations of justice, fairness and inconvenience under the circumstances of each case. This American Legion is not seeking a money judgment against the Board of Trustees nor is this an attempt to interprite or bind the Board to one of their polic ies or practices. It is, simply stated, an attempt to get
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