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Home , Complaint, Crossclaim

IN THE SUPREME COURT OF FLORIDA

ARNALDO VELEZ, an individual, TAYLOR, BRION, BUKER & GREENE, a general partnership, CASE NO.: ______

Petitioners, vs.

BIRD LAKES DEVELOPMENT CORP., a Panamanian corporation,

Respondents. ______/

PETITIONERS’ BRIEF ON

On Review from the District Court of , Third District State of Florida

COLEMAN & ASSOCIATES, P.A. 122 Minorca Avenue Coral Gables, Florida 33134 Tel.: (305) 448-1888 Fax : (305) 459-0000

Attorneys for Petitioners TABLE OF CONTENTS

Table of Citations ...... i

Introduction ...... 1

Statement of the Case and Facts ...... 2

Jurisdictional Statement ...... 4

Summary of the Argument ...... 5

Argument ...... 6

The decision of the Third District Court of Appeal issued April 16, 2003, expressly and directly conflicts with the decision of the First District Court of Appeal in Watson v. G&C Ford Company, 293 So.2d 101 (Fla. 1st DCA 1974) and the decision of the Second District Court of Appeal in Layne Dreging Company v. Regus, Inc., 622 So.2d 7 (Fla. 2 DCA 1993). and third party claims do not survival dismissal of the main action. The Third District’s opinion in this case conflicts with this established precedent.

Conclusion ...... 9

Certificate of Service ...... 10 TABLE OF CITATIONS

Cases:

Dade County v. Matheson, 605 So.2d 469 (Fla. 3rd DCA 1992 ...... 2

Layne Dreging Company v. Regus, Inc., 622 So.2d 7 (Fla. 2 DCA 1993) ...... 4,5,6

Watson v. G&C Ford Company, 293 So.2d 101 (Fla. 1st DCA 1974) ...... 4,5,6

Constitutional Provisions and Statutes:

Art. V, §3(b)(3) Fla. Const.

Court Rules:

Fla. R. App. P. 9.030(a) 2 (A) (iv)

Fla. R. Civ. P. 1.180

Fla. R. Civ. P. 1.420(a)(2) i INTRODUCTION

This brief is filed on behalf of Arnaldo Velez and Taylor, Brion, Buker & Greene. They will be referred to collectively as “Velez” or Petitioner. Bird Lakes Development Corporation, the Respondent, will be referred to as “Bird Lakes.” The Appendix attached hereto contains the opinion of the Third District

Court of Appeal to be reviewed, the cases with which it conflicts, and a letter from counsel for Respondent referred to in the Statement of the Case and Facts.

Citations to the record on appeal will be referred to as “RA _____”. STATEMENT OF THE CASE AND FACTS

The instant action was filed on August 29, 1994, by Bird Lakes Development Corporation asserting malpractice claims against Arnaldo Velez and his firm, Taylor, Brion, Buker & Greene, arising out of their representation of Bird Lakes Development Corporation in a which took place in 1990.

On May 13, 1996, The Home Insurance Company filed a Declaratory Action against

Velez and the Taylor Brion firm. Respondent, Bird Lakes was named as an additional party in the action. Bird Lakes asserted a for malpractice against Velez and

Taylor Brion and asserted a third party claim for malpractice against four partners of Taylor Brion. The four partners filed a to dismiss the claims of Bird Lakes on the basis that the statute of limitations had expired RA 795-798.1 Velez and Taylor Brion filed a motion to dismiss on the basis that a prior filed suit by Bird Lakes was already pending. RA 795-798. 2

The motions to dismiss were served on July 15, 1996. Prior to the scheduled hearing on the motions counsel for petitioner and counsel for respondent agreed that counsel for respondent would amend his . As a result, the hearing did not take place. Thereafter, no amended pleadings were ever filed against Velez, Taylor Brion, or the four partners in the Declaratory Judgment Action. The crossclaim and the third party claims were never at issue. Rather, respondents and petitioners continued to litigate the instant action to the exclusion of the claims brought within the Declaratory Judgment Action.

1The Appellate decision arising out of the underlying case was rendered on June 22, 1993, and Bird Lakes’ petition for writ of was denied on August 1, 1993. Accordingly, the statute of limitations against the four individual partners as to any malpractice claims expired two years after denial of the writ.

2All sustained by a party as a result of a single wrongful act must be claimed and recovered in one action. Dade County v. Matheson, 605 So.2d 469 (Fla. 3rd DCA 1992).

6 On February 25, 1999, The Home Insurance Company filed a of of the

Declaratory Judgment Action. RA. 956-957. By Order dated June 10, 1999, the trial court acknowledged the voluntary dismissal but retained jurisdiction over the brought by Bird Lakes against The

Home Insurance Company. RA 973.3 By Order dated November 11, 1999, the court granted judgment on the pleadings in favor of Bird Lakes Development Corporation and retained jurisdiction over the action to consider Bird Lakes’ entitlement to attorney’s fees. RA 1006.

In submitting its motion for attorney’s fees and costs counsel for Bird Lakes wrote a cover letter to the court dated November 3, 1999, which cover letter located at RA 1000 to 1005 is attached to this

Brief as Appendix “3”. In that letter counsel for Respondent represents to the court that, “the only issue remaining for determination in this action is whether Bird Lakes is entitled to recover the attorney’s fees and costs incurred in defending The Home Insurance Company’s declaratory relief claims and in prosecuting, and prevailing upon, Bird Lakes’ declaratory relief counterclaim”. Clearly, by counsel’s own statement the crossclaims and third party claims were no longer pending.

By order dated May 16, 2001, the declaratory judgment action was consolidated with the instant action. RA 615. This consolidation occurred after the Declaratory Judgment Court ruled on Bird Lakes entitlement to attorney’s fees.

As argued in Petitioner’s brief filed with Third District Court of Appeal, the Trial Court’s Order that the crossclaim and third party claims did not survive the voluntary dismissal filed by The Home

Insurance Company correctly applied the law as interpreted by the First District Court of Appeal in Layne

3Fla.R.Civ.P. 1.420(a)(2) provides that a voluntary dismissal of the main action does not dismiss a pending counterclaim.

7 Dreging Company v. Regus, 622 So.2d 7 (Fla. 2 DCA 1993) and the Second District Court of Appeal in Watson v. G&C Ford Company, 293 So.2d 101 (Fla. 1st DCA 1974). The Watson and the Layne

Dreging cases stand for the proposition that crossclaims and third party claims do not survive dismissal of the main action. These arguments were presented to the Third District Court of Appeal and the two aforementioned cases were discussed by both Petitioner Velez and Respondent, Bird Lakes. The Third

District Court of Appeal did not follow the holdings of either Watson or Layne Dredging. In so acting, the Third District Court of Appeal has created a conflict amongst the district courts of appeal on the survivability of crossclaims and third party claims after dismissal of the main action.

Without referring to either case in its opinion (no cases were cited in its opinion) the Third District

Court of Appeal held that the crossclaims and third party claims from the declaratory judgment action did survive the voluntary dismissal filed by The Home Insurance Company because “none of the various pleadings filed nor the orders entered in connection with the dismissal referred to the claim between Bird

Lakes and Velez, but address only the claim between Home Insurance Company and Bird Lakes”. A comparison of the Third District Court of Appeal’s opinion with the opinion of Watson and the opinion of

Layne Dredging reveals that this is not a distinguishing feature.

JURISDICTION

This Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal. Art. V, §3 (b)(3) Fla.

Const., Fla. R. App.P. 9.030(a)2(A)(iv).

8 SUMMARY OF ARGUMENT

Litigants are entitled to have a consistent body of case law to guide the decisions they make in litigation. The decision of the Third District Court of Appeal issued April 16, 2003, expressly and directly conflicts with the decision of the First District Court of Appeal in Watson v. G&C Ford Company, 293

So.2d 101 (Fla. 1st DCA 1974) and the decision of the Second District Court of Appeal in Layne Dreging

Company v. Regus, Inc., 622 So.2d 7 (Fla. 2 DCA 1993). The Third District’s refusal to clarify its opinion or certify conflict to this Court by order dated May 28, 2003, necessitates this Court’s discretionary review to clarify this area of the law.

9 ARGUMENT

Before the Third District’s opinion in this case issued April 16, 2003, the law in Florida as established by Layne Dreging Company v. Regus, Inc., 622 So.2d 7 (Fla. 2 DCA 1993) was that a defendant could not pursue a crossclaim against a co-defendant after a voluntarily dismissed its . In direct conflict with Layne Dredging the Third District’s opinion holds that a crossclaim does survive dismissal of the complaint provided the or order dismissing the case does not refer to the crossclaim. The two decisions cannot be reconciled. The court in the Layne Dredging case did not state that the voluntary dismissal filed by the plaintiff referred to the crossclaim. Indeed, how could or why would a voluntary dismissal of a complaint refer to a crossclaim.

Similarly, before the Third District Court of Appeal’s opinion in this case the law in Florida as established by Watson v. G&C Ford Company, 293 So.2d 101 (Fla. 1st DCA 1974) was that a third party complainant could not assert a claim against a third party defendant after the main action has been concluded. To do so, the court went on to state, would deprive the third party defendant of the procedural advantages afforded by Rule 1.180 Florida Rules of Civil Procedure. The Watson court did not limit its holding to a conclusion of the main action by an order which also referred to a conclusion or dismissal of the third party complaint. Accordingly, the Third District Court of attempt to distinguish the instant action from the holding of Watson v. G&C Ford fails.

The order giving rise to Bird Lakes’ appeal and ultimate opinion of the Third District court of

Appeal was entered by the trial court on February 12, 2002. The trial court’s order specifically referred to the first District Court of Appeal’s decision in Watson v. G&C Ford Company and the Second District

Court of Appeals decision in Layne Dredging Company v. Regus, Inc. Since that time the litigants in this

10 matter have spent hundreds of hours and thousands of dollars arguing the impact of the two aforementioned cases. Subsequent decisions entered by any district court of appeal should clarify rather than confuse the area of the law which its opinion addresses. Future litigants will similarly waste hundred of hours and thousands of dollars and consequently congest the court system if this Court does not clarify the state of the law as to the impact a dismissal of a complaint has on a crossclaim and third party claim.

The holdings in Watson and Layne Dredging provide that a voluntary dismissal filed by a plaintiff or order of dismissal entered by the court concludes the litigation even if a crossclaim or third party claim is pending. The Third District Court of Appeal on the other hand, suggests that if the plaintiff or court fails to indicate an intent to dismiss the crossclaim and third party claim the crossclaim and third party claim remain pending.4 In undersigned’s motion for rehearing, clarification, or certification undersigned alerted the court to the fact that its decision could not be reconciled with the decisions of the First and Second

District. Had the Third District created an exception to the Watson or Layne Dredging holdings by specifically referring to those cases and explaining its decision or explaining how this case is distinguishable the court would have met its obligation. To simply ignore the Watson and Layne Dredging cases is arrogance.

The only cases cited by both respondents and petitioners on the issue of the survivability of the crossclaim and third party claim were the Watson and Layne Dredging cases. Clearly then the Third

District Court of Appeal should have addressed those cases head on and not avoided the issue and created confusion for future litigants. Under our system of jurisprudence litigants should be entitled to rely upon

4Query how a plaintiff could word its voluntary dismissal to effect the crossclaim or third party claim.

11 case law as precedent. Certainly cases are capable of being distinguished based upon their particular facts or nuances and courts are certainly entitled to base their holdings on these distinguishing features.

However, when a conflict is created and no distinguishing fact or feature exists, this Court must exercise its discretionary jurisdiction to clear up the confusion created to avoid further litigation and congestion of the courts by other litigants who have no clear precedent on which to base their litigation strategies.

12 CONCLUSION

This Court has jurisdiction to review the decision from the Third District in this case which expressly and directly conflicts with Watson from the First District and Layne Dredging from the Second District.

This Court should exercise that jurisdiction in order to clarify the law in this area.

By rule, it is expressly provided that a dismissal of the main action does not dismiss a counterclaim.

Fla.R.Civ.P. 1.420(a)(2). There is no similar rule of procedure with regard to the effect of a dismissal on a crossclaim or a third party claim. Prior to the Third District’s opinion in this case the law was clear.

There were no contrary cases. This Court should exercise its discretionary jurisdiction and not allow this area of the law to become clouded.

13 CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing has been mailed this 3rd day of July, 2003 to Christopher David, Esquire, HALL & O’BRIEN, P.A., 1428 Brickell Avenue, Penthouse,

Miami, Florida 33131; D. David Keller, Esquire, BUNNELL, WOULFE, ET AL., 888 E. Las Olas Blvd., Suite

400, Ft. Lauderdale, Florida 30340 and Guy B. Bailey, Esquire, BAILEY & DAWAS, P.L., 3250 Mary

Street, Suite 301, Miami, Florida 33133.

Respectfully submitted,

COLEMAN & ASSOCIATES, P.A. 122 Minorca Avenue Coral Gables, Florida 33134 Tel.: (305) 448-1888 Fax : (305) 459-0000 Attorney for Petitioners

BY: ______Roderick F. Coleman FBN.: 371270

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