SUPREME COURT OF FLORIDA

CASE NO.: SC07-2426 LT CASE NO.: 3D06-2672

CHEESE & GRILL RESTAURANT, INC. a Florida corporation,

Petitioner, vs.

WASHINGTON MUTUAL BANK, F.A., a Federal Association,

Respondent. ______/

On Discretionary Review to the District Court of Appeal of Florida, Third District

______

PETITIONER’S BRIEF ON JURISDICTION ______

By: Nicolas A. Manzini, Esq.

MANZINI & ASSOCIATES, P.A. Alfred I. duPont Building 169 E. Flagler Street - #1500 Miami, FL. 33131 Telephone No: (305) 577-9903 Fax No: (305) 577-6121 Attorney for Petitioner QUESTION PRESENTED

Does the Third District’s opinion in this case directly conflict with precedents from the First, Second, Fourth and Fifth Districts on two separate and distinct issues:

1. A trial court should not grant summary judgment when the opposing party has not completed discovery; it is error for the trial court to enter summary judgment before the plaintiff has deposed representatives of the corporate defendant.

2. If the record reflects even the possibility of a material issue of fact, or if different inferences can be drawn reasonably from the facts, that doubt must be resolved against the moving party and summary judgment must be denied.

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PARTIES TO THE PROCEEDING

The parties to the proceeding are petitioner Cheese & Grill Restaurant, Inc., the plaintiff/appellant below, and respondent Washington Mutual Bank, F.A., the defendant/appellee below.

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TABLE OF CONTENTS

Page

Question Presented ...... 2

Parties to the Proceeding ...... 3

Table of Contents ...... 4

Table of Citations ...... 5

Opinion Below ...... 7

Statement of Jurisdiction ...... 7

Statement of the Case...... 8

Reasons for Granting Discretionary Review...... 13

Conclusion ...... 14

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TABLE OF CITATIONS

Page

Cases Cited:

Act Corporation v. Devane, 672 So. 2d 611 (Fla. 5th DCA 1996)...... 11

Besco USA Intern. Corp. v. Home Sav. of America FSB, 675 So. 2d 687 (Fla. 5th DCA 1996)...... 12

Brandauer v. Publix Super Markets, Inc., 627 So. 2d 932 (Fla, 2d DCA 1995)...... 11

Burroughs Corporation v. American Druggist’s Insurance Company, 450 So. 2d 540 (Fla. 2d DCA (Fla. 2d DCA (1996) ...... 12

Connell v. Sledge, 306 So. 2d 194 (Fla. 1st DCA 1975...... 12

Cox v. CSX Intermodal, Inc., 732 So. 2d 1092 (Fla. 1st DCA 1999)...... 11-12

Green v. CSX Transp., Inc., 626 So. 2d 974 (Fla. 1st DCA 1993) ...... 12

Sica v. Sam Caliendo Design, Inc., 623 So. 2d 859, 860 (Fla. 4th DCA 1993)...... 11

Singer v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987)...... 11

Statutes Cited:

§ 674.406(2), Fla. Stat. (1999) ...... 10

Rules Cited:

Rule 1.510, Florida Rules of Civil Procedure ...... 10

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Petitioner Cheese & Grill Restaurant, Inc. (“C & G”) respectfully requests discretionary review of the Third District’s opinion affirming the trial court’s summary judgment in favor of Washington Mutual Bank, F.A. (“WAMU”).

OPINIONS BELOW

The Third District’s opinion was filed on October 24, 2007 and rendered on

November 21, 2007 by its denial of C & G’s motion for panel rehearing.

STATEMENT OF JURISDICTION

The jurisdiction of this Court is invoked under article V, section 3(b)(3) of the Florida

Constitution.

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STATEMENT OF THE CASE

Except as otherwise indicated below, C & G adopts the Third District’s recitation of the case and facts as set forth at pages 3-7 of its October 24, 2007 opinion. See

Appendix to Petitioner’s Brief on Jurisdiction, pages App. 3-7.

C & G conceded that the trial court was correct in denying its motion for leave to file its complaint for the purpose of joining Wachovia Bank, N.A. (“Wachovia”) as a defendant and, axiomatically, in dismissing C & G’s complaint against Wachovia.

The Third District’s conclusion that the summary judgment hearing in was held two years after the lawsuit was filed (the implication being that C & G had ample time to refine the pleading of its claim and complete discovery) was inexorably wrong. While C

& G’s lawsuit may have been pending from its commencement on March 29, 2004 until its summary disposition on March 27, 2006, in truth and in fact the lawsuit was stayed or otherwise abated through no fault of C & G for a significant portion of that time.

For example, on October 8, 2004, that is, approximately six months after the lawsuit was filed and before WAMU answered C & G’s complaint, the trial court sua sponte entered an order of referral to non-binding arbitration that expressly stayed the lawsuit (except for discovery) pending resolution of the referral.

WAMU did not answer C & G’s complaint until December 2, 2004, that is, approximately eight months after the lawsuit was filed.

Additionally, on October 21, 2004, WAMU moved to defer or continue the non- binding arbitration arguing that the lawsuit could not be arbitrated nor should discovery

7 proceed as envisioned by the trial court’s order of referral because WAMU intended to join additional parties as third-party defendants. C & G agreed to WAMU’s motion.

On December 13, 2004, that is, eight and one-half months after the lawsuit was filed, WAMU asked the trial court for an enlargement of time to implead and join additional third-party defendants.

On December 21, 2004, WAMU filed a “crossclaim” [sic] against Wachovia.

WAMU also moved to vacate the trial court’s order setting the cause for trial arguing that the pleadings were not “closed” until all additional parties were joined.

On January 19, 2005, the trial court granted WAMU’s motions and enlarged the time for WAMU to implead and join additional parties until February 8, 2005, that is, more than ten months after the lawsuit was filed.

WAMU did not implead or join any additional parties. Wachovia never answered

WAMU’s “crossclaim” or otherwise appear in the lawsuit.

Instead, on June 20, 2005, that is, approximately fifteen months after the lawsuit was filed, the trial court approved a substitution of counsel whereby counsel for

Wachovia assumed responsibility for WAMU’s defense.

As their first official act, WAMU’s new counsel moved to vacate the trial court’s second order setting the cause for trial. On June 29, 2005, at WAMU’s instance, the trial court entered its second order of referral to non-binding arbitration which, again, expressly stayed the lawsuit (except for discovery).

On January 17, 2006, that is, nearly twenty-two months after the lawsuit was filed and again at WAMU’s instance, the trial court severed WAMU’s never-answered crossclaim against Wachovia so that the pleadings might finally be considered “closed”

8 and the parties could move on with discovery, arbitration or trial. Even then, the trial court gave WAMU until April 30, 2006 to arbitrate the case.

Just three days later, on January 20, 2006, WAMU filed its case-dispositive motion for summary judgment. The motion was originally scheduled for hearing on

March 1, 2006; however, C & G was not served with WAMU’s supporting affidavit and documents until March 1st and the summary judgment hearing was therefore rescheduled for March 27, 2006.

On March 13, 2006, C & G deposed WAMU’s representative whose affidavit supported WAMU’s summary judgment motion and she, in turn, identified three or four other corporate representatives whose knowledge of material facts, to-wit, why it took

WAMU two years and a lawsuit before it provided the missing checks to C & G, she described as superior to hers.

On March 27, 2006, before C & G could depose any other witness, and notwithstanding its request for a continuance of the hearing so as to be allowed an opportunity to complete discovery, the trial court granted WAMU’s summary judgment motion.

The trial court’s second referral of the lawsuit to non-binding arbitration which was spurred by WAMU and used as a shield against C & G was never vacated or much less resolved.

Even more detrimental to C & G’s position, WAMU’s so-called attempt to implead and join additional parties was but a dilatory tactic; not one third-party defendant ever appeared in the lawsuit.

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From this unusual procedural history, it was manifestly clear that C & G was blocked at every turn from developing its theory of liability against WAMU by WAMU’s machinations and the trial court’s contradictory orders and that, while the lawsuit may have been pending two years, it was only actively litigated for a few weeks before C &

G’s discovery efforts were abruptly cut off .

In its opinion, the Third District credited WAMU’s statutory duty to provide the checks themselves to C & G “in a reasonable time” pursuant to § 674.406(2), Fla. Stat

(1999) but discredited C & G’s contention “that its inability to make its case was impaired or delayed because WAMU failed to provide the missing checks to [C & G] until sometime in 2004.”

The Third District goes on to state: “No such affidavit or verified allegation is found in the record…The information on the back of the checks, ultimately obtained by

[C & G] was not part of the record and therefore did not create any genuine issue of fact that would preclude summary judgment. If the information had created such an issue, [C

& G] was required to raise the issue by affidavit, specific allegation, or otherwise as provided by Florida Rule of Civil Procedure 1.510.”

However, C & G did allege WAMU’s failure to provide the missing checks for over two years at paragraph 7 of its third amended complaint, to-wit: “[C & G] requested copies of all cancelled checks …[WAMU] failed and/or refused to provide [C

& G] with such copies until October 7, 2004, that is, more than six months after this lawsuit was filed.”

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Indeed, exhibit “2” to C & G’s third amended complaint was a letter dated October

7, 2004 from WAMU’s original counsel evidencing that that was the date when WAMU finally provided the missing checks to C & G.

Moreover, C & G raised the issue again on the record at the aborted March 1, 2006 hearing on WAMU’s summary judgment motion.

REASON FOR GRANTING THE WRIT

The Third District’s opinion directly conflicted with precedents from the First,

Second, Fourth and Fifth District. In its motion for panel rehearing, denied by the Third

District on November 21, 2007, C & G sought to certify conflict with the following precedents:

A trial court should not grant summary judgment when the opposing party has not completed discovery. Brandauer v. Publix Supper Markets, Inc., 627 So. 2d 932, 933

(Fla, 2d DCA 1995). It is error for the trial court to enter summary judgment before the plaintiff has deposed representatives of the corporate defendant. Id.

Summary judgment should not be granted until the facts have been sufficiently developed for the court to be reasonably certain that no genuine issue of material fact exists. Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987).

A trial court errs if it entertains the defendant’s motion for summary judgment before discovery is completed. Act Corporation v. Devane, 672 So. 2d 611, 613 (Fla. 5th

DCA 1996).

A trial court errs in entering summary judgment adverse to the plaintiff while discovery is still in progress, with defendant’s representative’s deposition pending. Sica v. Sam Caliendo Design, Inc., 623 So. 2d 859, 860 (Fla. 4th DCA 1993).

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The Third District’s opinion conflicts with these precedents. C & G’s motion to continue the summary judgment hearing should have been granted and the hearing should have been continued to a later date to afford C & G an opportunity to complete the depositions of WAMU’s other corporate representatives who were first identified by

WAMU’s designated representative just two weeks before the summary judgment hearing.

“If the record reflects even the possibility of a material issue of fact, or if different inferences can be drawn reasonably from the facts, that doubt must be resolved against the moving party and summary judgment must be denied.” Cox v. CSX Intermodal, Inc.,

732 So. 2d 1092, 1095 (Fla. 1st DCA 1999).

“If there is even the slightest doubt as to the existence or nonexistence of a genuine issue of material fact , that doubt must be resolved against the movant.”

Burroughs Corporation v. American Druggists’ Insurance Company, 450 So. 2d 540,

544 (Fla. 2d DCA 1984).

“If the slightest doubt exists as to the presence of an issue of fact, summary judgment cannot be granted.” Besco USA Intern. Corp. v. Home Sav. of America FSB,

675 So. 2d 687 (Fla. 5th DCA 1996).

While Rule 1.510 allows a non-moving party to oppose a summary judgment motion with an affidavit, it does not require it. Indeed, on WAMU’s motion for summary judgment, the trial court was required to take the allegations of C & G’s third amended complaint (including the above-quoted paragraph 7) as true. Green v. CSX Transp., Inc.

626 So. 2d 974 (Fla. 1st DCA 1993); Connell v. Sledge, 306 So. 2d 194 (Fla. 1st DCA

1975).

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For the foregoing reasons, appellant C & G prays that the Court will review the

Third District’s opinion in this case.

CONCLUSION

For the foregoing reasons, petitioner C & G respectfully requests that the Court review the Third District’s opinion based upon direct conflict with above-cited precedents.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief is submitted in Times New Roman 12 point font in conformance with the requirements of the Florida Rules of Appellate Procedure.

______NICOLAS A. MANZINI, ESQ.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to this ____ day of February, 2008 to: John H. Pelzer, Esq., Ruden, McClosky, Smith, Schuster & Russell, P.A., Attorneys for Appellees, 200 East Broward Blvd., Fort Lauderdale, FL 33301.

MANZINI & ASSOCIATES, P.A. Attorneys for Petitioner Alfred I. duPont Building 169 E. Flagler Street - #1500 Miami, FL. 33131 Telephone No: (305) 577-9903

By: ______NICOLAS A. MANZINI, ESQ. Fla. Bar No: 248827

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