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In the Supreme Court of Florida

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In the Supreme Court of Florida 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 JURISDICTION On Review from the District Court of Appeal, 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). Crossclaims 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 law firm, Taylor, Brion, Buker & Greene, arising out of their representation of Bird Lakes Development Corporation in a trial which took place in 1990. On May 13, 1996, The Home Insurance Company filed a Declaratory Judgment Action against Velez and the Taylor Brion firm. Respondent, Bird Lakes was named as an additional party defendant in the declaratory judgment action. Bird Lakes asserted a crossclaim 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 motion 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 pleadings. 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 certiorari 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 damages 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 notice of voluntary dismissal 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 counterclaim 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 plaintiff voluntarily dismissed its complaint. In direct conflict with Layne Dredging the Third District’s opinion holds that a crossclaim does survive dismissal of the complaint provided the pleading 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.
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