THE SUPREME 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 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 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 COURT’S DECISION SHOULD BE AFFIRMED BECAUSE VENUE IS MOOT...... 6

CERTIFICATE OF SERVICE...... 10

APPENDIX...... 11

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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 regarding monies being held in escrow by the , Fidelity National Title Insurance Company. By 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- 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 .

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 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 a posted bond that was deposited with Fidelity National Title Insurance Company over 40 years ago returned to the original depositor, the Legion since no claims were timely filed. If the Board feels that they have a valid claim against the Legion. The Board of Trustees in their initial brief to the 3d

DCA admits that they were not a party to the agreement that they now trying to take the funds from:

“Appellant [Board] is not a party to the escrow agreement and never consented to its $38,000 being placed in escrow or to Appellee receiving the

5 accrued interest on the $38,000. Appellant had no knowledge of these escrow funds until Appellee’s attorney notified Appellant of their existence.”

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.

I. The Trial Court’s decision should be affirmed because venue is moot.

Venue is a moot point. What the State is avoiding in its Argument is that its claims are barred by both the applicable statute of limitations and under a theory of laches. See Kelley v. City of Cocoa, 188 So. 2d 862 at 864

(Fla. 4th DCA 1966), for the proposition that a breach of a contractual covenant was irrelevant as the rights of possession vested in the Grantors and, after seven years, the was barred by Florida Statute §

95.14. The court reiterated that the statute of limitations begins to run upon the event that triggers the right of re-entry vesting in the Grantor. After such time has expired, brand-new title is transferred via adverse possession.

Based upon the foregoing, even if the Board had the right it seeks to enforce here, it is clear such right is barred by the Statute of Limitations.

II. The Trial Court correctly found that venue was proper in Miami-Dade County

6 Both parties were originally brought into this action via interpleader petition filed on behalf of the title company who had been holding the disputed funds for over 40 years. In State of Florida, Department of

Insurance v. Accelerated Benefits Corp., 817 So. 2d 1086, 1087 (Fla. 4th

DCA 2002) the court used the joint-tortfeasor exception cited in Board of

County Commissioners of Madison County v. Grice, 438 So.2d 392 (Fla.

1983) to the rule that actions against the State must be brought in Leon county. The 4th DCA emphasized that modern methods of communications and travel have weakened the policy reasons for the privilege and, as such, when the governmental defendant is sued as a joint-tortfeasor, then venue is up to the trial court’s discretion, “guided by considerations of justice, fairness, and convenience under the circumstances of the case.” Quoting

Grice, 438 So.2d 392 at 395.

This interpleader action involves transfer, sale and condition of certain real property mostly consisting of bay bottom located in Miami-Dade

County, Florida.

Appellant, Legion, is one of the named in the action and at all times material hereto has been at its principal place of business at 6445

NE 7th Avenue, Miami, Florida 33138 immediately adjacent to the disputed property.

7 Appellant, Legion, is a not-for-profit organization incorporated under the statutory laws of the State of Florida, organized and existing by virtue of act of Congress of the United States of America. As such, the Legion funds are limited and transferring this action to Leon County would create an undue burden and financial hardship upon the Legion.

The disputed funds in question were placed in escrow by the Legion with American Title Insurance Company (preceding corporate entity to

Plaintiff, Fidelity National Title) whose then principal place of business was

901 NE 2nd Avenue, Miami, Florida 33101 in Miami-Dade County.

The purchaser and current owner of the real property is the City of

Miami, located in Miami-Dade County, Florida.

For the foregoing reasons, it is clear that venue was properly found to be in Miami-Dade County and the trial court’s decision should be affirmed.

CONCLUSION

Based on the express and direct conflicts shown to exist, this Court should enter an order accepting jurisdiction and consider this matter on its merits. Upon such consideration, the decision of the Third District should be quashed and the cause remanded with directions reinstating the trial court's order determining proper venue to be Miami-Dade County.

8 Respectfully submitted,

McDonald & McDonald Attorneys for Appellant 1393 SW First St., Suite 200 Miami, Florida 33135-2321

By______Patrick G. McDonald Fla. Bar #: 504858

9 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been mailed this 26th day of February, 2007 to:

Gary L. Heiser, Senior Attorney Attorney for Appellee, Board of Trustees of the Internal Improvement Trust Fund of the State of Florida 3900 Commonwealth Boulevard, MS 35 Tallahassee, Florida 32399-3000 (850) 245-2242 (850) 245-2298 – fax

McDonald & McDonald Attorneys for Appellee 1393 SW First St., Suite 200 Miami, FL 33135-2321 305-643-5313 - tel 305-643-4990 - fax

By: ______Patrick G. McDonald Fla. Bar #: 504858

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