In the Supreme Court of Florida ______

IN THE SUPREME COURT OF FLORIDA ______

SUPREME COURT CASE NO.: SC06-1462 THIRD DCA CASE NO: 3D04-1967 ______

DAVID’S USED CARS, INC.. a Florida corporation, d/b/a DAVID’S AUTO TRANSPORT and d/b/a BRANNON’S TRANSPORT,

Petitioner, vs. MANHEIM AUCTIONS GOVERNMENT SERVICES, INC., d/b/a MANHEIM’S DAYTONA AUTO DEALER’S EXCHANGE, a foreign corporation, and FLORIDA AUTO AUCTION OF ORLANDO, INC., d/b/a DAYTONA AUTO DEALERS EXCHANGE, a Florida corporation, OSBALDO MEJIA, as legal guardian of EDWIN MEJIA, incapacitated and legal guardian of NELLY MEJIA, a minor, on behalf of EDWIN MEJIA, individually, and NELLY MEJIA, individually and as the natural daughter of EDWIN MEJIA, incapacitated, and DANIEL WAYNE WEBB, an individual,

Respondents. ______

PETITIONER, DAVID’S USED CARS, INC.’S JURISDICTIONAL BRIEF ______Caryn L. Bellus, Esq. FBN: 060445 KUBICKI DRAPER, P.A. Attorneys for David Used Cars, Inc. 25 West Flagler Street, Penthouse Miami, Florida 33130 Telephone: (305) 982-6634 Facsimile: (305) 374-7846 TABLE OF CONTENTS PAGE NO.

QUESTION PRESENTED 1

WHETHER THE DECISION OF THE DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT AND OTHER DISTRICT COURTS OF APPEAL HOLDING THAT A BAILMENT RELATIONSHIP REQUIRES DELIVERY TO ANOTHER, EXCLUSIVE USE AND POSSESSION BY THE OTHER, AND RETURN OF THE BAILED VEHICLE FROM ONE PARTY TO ANOTHER. 1

PREFACE 1

STATEMENT OF THE CASE AND FACTS 1

JURISDICTIONAL STATEMENT 3

SUMMARY OF THE ARGUMENT 3

ARGUMENT

THE DECISION OF THE DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT AND OTHER DISTRICT COURTS OF APPEAL HOLDING THAT A BAILMENT RELATIONSHIP REQUIRES DELIVERY TO ANOTHER, EXCLUSIVE USE AND POSSESSION BY THE OTHER, AND RETURN OF THE BAILED VEHICLE FROM ONE PARTY TO ANOTHER. 5

CONCLUSION 8

CERTIFICATE OF SERVICE 9

CERTIFICATE OF COMPLIANCE 10

TABLE OF AUTHORITY

PAGE NO.

Acadia Partners, L.P. v. Tompkins, 759 So. 2d 732, 736-37 (Fla. 5th DCA 2000) 7

C.W.B. Enterprises, Inc. v. K.A.T. Equipment Corp., 449 So. 2d 354, 355 (Fla. 3rd DCA 1984) 5

Clermont Marine Sales v. Harmon, 347 So. 2d 839, 84 (Fla. 2nd DCA 1977) 5

Dunham v. State, 192 So. 324, 326 (Fla. 1939) 5

Insurance Field Servs. v. White & White Inspection & Audit Serv., 384 So. 2d 303, 308 (Fla. 5th DCA 1980) 8

Kilgus v. Kilgus, 495 So. 2d 1230, 1231(Fla. 5th DCA 1986), rev. denied, 504 So. 2d 767 (Fla. 1987) 8

Meeks v. Florida Power & Light Co., 816 So. 2d 1125, 1129 (Fla. 5th DCA 2002), approved 836 So. 2d 287 (Fla. 2003) 5

Monroe Systems for Business, Inc. v. Intertrans Corp., 650 So. 2d 72, 75-76 (Fla. 3rd DCA), rev. denied, 659 So. 2d 1087 (Fla. 1995) 5

Roos v. Morrison, 913 So. 2d 59, 67-68 (Fla. 1st DCA 2005) 7

S & W Vac Systems, Inc. v. Florida Department of Revenue, 69 So. 2d 1313, 1315 (Fla. 5th DCA 1997) 5

Smith v. Department of Ins., 507 So. 2d 1080, 1091 (Fla. 1987) 7

Sunshine Dodge, Inc. v. Ketchem, 445 So. 2d 395, 396-97 (Fla. 5th DCA 1984) 6

OTHER AUTHORITY

Article V, Section 3(b)(3), of the Florida Constitution 3

Rule 9.030(a)(2)(A)(iv), Fla. R. App. P. 3

6 Fla. Prac., Personal Injury & Wrongful Death Actions § 7.4, Concert of Action, (2006 ed.) 8

Restatement (Second) of Torts § 876 8

ii QUESTION PRESENTED

PREFACE This brief is submitted on behalf of the petitioner, David’s Used Cars, Inc., a Florida corporation, d/b/a David’s Auto Transport and d/b/a Brannon’s Transport (“David’s”), in support of their discretionary petition for review of a decision of the Third District Court of Appeal filed February 22, 2006 and rendered June 16, 2006. Petitioner seeks discretionary review of the Third District’s decision based on express and direct conflict with decisions of this Court and of other district courts of appeal. Reference to the appendix to this brief, which consists of a copy of the opinion sought to be reviewed, will be referred to as “A.” followed by a page number. STATEMENT OF THE CASE AND FACTS The following facts appear from the opinion of the Third District Court of Appeal. Manheim Auctions Government Services, Inc. and Florida Auto Auctions of Orlando, Inc. (“Manheim”), contracted with the United States Government (“GSA”), to auction government vehicles. (A.1-2). On the occasion in question, GSA requested Manheim to relocate a government vehicle from a government location at Cape Canaveral to another government location in the Keys. (A.2). Manheim arranged for David’s, an independent contractor, to relocate the subject vehicle. (A.2). David’s arranged for Daniel Wayne Webb to do the driving. (A.2).

1 While Webb was driving the subject vehicle, an accident occurred causing damages to Edwin Mejia, his wife and daughter. (A.2). The Mejias sued Webb for negligence, and Manheim and David’s for their vicarious liability for Webb. (A.2). Manheim filed a cross-claim for indemnification against David’s. (A.2). Prior to trial, the court ruled that Manheim was the bailee of GSA vehicle and thus vicariously liable for Webb’s negligence. (A.2). The Meijas settled their case with David’s prior to trial. (A.2). At trial, the court granted the Meijas’ motion for directed verdict, finding that Webb was negligent as a matter of law. (A.2-3). The trial court denied Manheim’s motion for directed verdict on the cross-claim and permitted the question of David’s liability on the indemnification claim to go to the jury. (A.2). 1 On appeal, the Third District reversed the trial court’s order denying Manheim’s motion for directed verdict on the cross-claim for indemnification against David’s, finding David’s to be a bailee. (A.3-4). The Third District reasoned that David’s was a bailee because “[a]cting pursuant to Manheim’s express instructions and with Manheim’s identification, David’s Used Cars took actual possession of the truck from the GSA and transferred possession to the driver Webb to carry out the GSA/Manheim agreement. Manheim and David’s Used Cars, acting in concert, together became a conduit of the vehicle from GSA to Webb. As such, each is vicariously liable for Webb’s negligence.” (A.4). JURISDICTIONAL STATEMENT The Florida Supreme Court has jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the Supreme Court or another district court of appeal on the same point of law, pursuant to

1The jury entered a verdict on the cross-claim in favor of David’s, finding no liability.

2 Article V, Section 3(b)(3), of the Florida Constitution, and Rule 9.030(a)(2)(A)(iv), Fla. R. App. P. SUMMARY OF THE ARGUMENT In this case, the Third District erred in finding that David’s was a bailee of the government vehicle, and that finding is in conflict with the law of this Court and of other district courts of appeal. Well settled Florida law defines a bailment as a contractual relationship which requires delivery to another, exclusive use and possession by the other, and return of the bailed vehicle from one party to another. The facts contained in the Third District’s opinion demonstrate that it was Manheim, not David’s, who had the contractual relationship with the GSA. Further, it was Manheim, not David’s, who had the bailment obligation to pick up the vehicle from the GSA and return it to the GSA, and it was a Manheim-badged individual who did just this. The Third District’s decision finding David’s to be a bailee, therefore, is in conflict with Florida law regarding the definition of a bailment relationship. Moreover, that portion of the decision which finds that Manheim and David’s “acting in concert” became a conduit of the vehicle from the GSA to Webb intermingles the legal concept and requirements of bailment with the distinct and separate principle of “acting in concert,” whereby joint and several liability is imposed for one ultimate loss to a third party following the active negligence of multiple individual parties. In doing so, the district court’s decision expressly and directly conflicts with decisions of this Court and of other district courts of appeal, requiring further review by this Court.

3 ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT AND OTHER DISTRICT COURTS OF APPEAL HOLDING THAT A BAILMENT RELATIONSHIP REQUIRES DELIVERY TO ANOTHER, EXCLUSIVE USE AND POSSESSION BY THE OTHER, AND RETURN OF THE BAILED VEHICLE FROM ONE PARTY TO ANOTHER. It is well established that a bailment is a contractual relationship which requires both the actual or constructive transfer of property and the re-delivery of the property to the owner/bailor. Dunham v. State, 192 So. 324, 326 (Fla. 1939); Meeks v. Florida Power & Light Co., 816 So. 2d 1125, 1129 (Fla. 5th DCA 2002), approved 836 So. 2d 287 (Fla. 2003); S & W Vac Systems, Inc. v. Florida Department of Revenue, 69 So. 2d 1313, 1315 (Fla. 5th DCA 1997); Monroe Systems for Business, Inc. v. Intertrans Corp., 650 So. 2d 72, 75-76 (Fla. 3rd DCA), rev. denied, 659 So. 2d 1087 (Fla. 1995); C.W.B. Enterprises, Inc. v. K.A.T. Equipment Corp., 449 So. 2d 354, 355 (Fla. 3rd DCA 1984); Clermont Marine Sales v. Harmon, 347 So. 2d 839, 841 (Fla. 2nd DCA 1977). On the face of the decision, and in conflict with these legal requirements, the Third District found that David’s was a bailee. As set forth in the decision, Manheim was the only entity who contracted with the GSA to move the vehicle. (A.2). Likewise, it was Manheim, and not David’s, that was obligated to return the vehicle to the GSA. (A.2). David’s was an independent contractor who arranged for the vehicle to be moved on Manheim’s behalf, and it was only because of “Manheim’s identification” that the GSA released possession of the vehicle. (A.2). David’s was never to return the vehicle to Manheim. Rather, Manheim had to pick the vehicle up from the GSA and return it to the GSA. Thus, Manheim, and Manheim alone, was the bailee of the vehicle. In finding to the contrary, the Third District’s opinion conflicts with decisions of this Court and the Second and Fifth District Courts of Appeal which requires resolution by this Court. Moreover, the decision of the Third District is in express and direct conflict with Sunshine Dodge, Inc. v. Ketchem, 445 So. 2d 395, 396-97 (Fla. 5th DCA 1984), which is cited in the Third District’s opinion. In contrast with the facts of this case, in Sunshine Dodge, Inc., the lessor of the vehicle was vicariously liable under a bailment theory as a conduit between the owner and the driver of the vehicle because it leased the vehicle, and the lease implicitly required the lessee’s return of the vehicle to the lessor/conduit. Id. Here, the facts set forth in the Third District’s opinion demonstrate that David’s was never to return the truck to the GSA. Rather, Manheim was to return the truck to the GSA, and thus, Manheim was the sole bailee of the truck. Additionally, in the decision, the Third District has improperly intermingled

4 the concept of joint and several liability for two actively negligent parties “acting in concert” with the distinct legal requirements for a bailment as set forth above, and in the process, has re-written Florida law and created conflict in the law. The legal theory of “acting in concert” is applicable where multiple parties are actively negligent, their combined negligence causes injury to a third party, and thus, each party is jointly and severally liable for the other’s negligence and the ultimate injury to the third party. Smith v. Department of Ins., 507 So. 2d 1080, 1091 (Fla. 1987) (joint and several liability originally applied only “when the defendants acted in concert, the act of one being considered the act of all, and each was therefore liable for the entire loss"); Roos v. Morrison, 913 So. 2d 59, 67-68 (Fla. 1st DCA 2005) (driver and passenger may be viewed as “acting in concert” to cause tortious injury where the passenger’s giving of advice, while in a superior position to observe hazards, to the driver caused tortuous injury); Acadia Partners, L.P. v. Tompkins, 759 So. 2d 732, 736-37 (Fla. 5th DCA 2000) (citations omitted) (joint and several liability applies to multiple tortfeasors acting in concert for “harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance to the other to so conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person”); Kilgus v. Kilgus, 495 So. 2d 1230, 1231(Fla. 5th DCA 1986), rev. denied, 504 So. 2d 767 (Fla. 1987) (mere suggestion to another as to how to take action does not amount to “concert of action,” even if that theory is still viable in Florida); Insurance Field Servs. v. White & White Inspection & Audit Serv., 384 So. 2d 303, 308 (Fla. 5th DCA 1980) (affirming award of compensatory damages from defendants "whose tortious conduct, while acting in concert," caused damages); see also Restatement (Second) of Torts § 876; 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 7.4, Concert of Action, (2006 ed.). In this case, on the face of the Third District’s opinion, the facts demonstrate that neither David’s nor Manheim was actively negligent as required under the theory of “acting in concert.” Thus, conflict exists between the decision of the Third District and the cases cited above. Morever, the Third District’s opinion creates confusion in the law regarding the difference between the legal elements of a bailment relationship verses when two actively negligent parties “act in concert.” Consequently, the conflict between the district court’s opinion and the cases cited herein creates an ambiguity in the law and an unclear standard in the uniform application of the law in this state, which requires Supreme Court resolution.

CONCLUSION This Court has discretionary jurisdiction to review the decision of the Third District Court of Appeal. Petitioner respectfully urges this Court to exercise that jurisdiction and to resolve the conflict and consider the merits of Petitioner’s position on appeal. Thereafter,

5 Petitioner would request this Court to reverse the decision of the Third District and find that Petitioner was not a bailee of the vehicle and to reinstate the jury’s verdict in favor of Petitioner. Respectfully submitted, KUBICKI DRAPER Attorneys for Petitioner, David’s Used Cars, Inc. 25 West Flagler Street, Penthouse Miami, Florida 33130 Telephone: (305) 982-6634 Facsimile: (305) 374-7846

By: Florida Bar No.: 060445

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 23rd day of August, 2006, to all counsel on the service list below.

6 CERTIFICATE OF COMPLIANCE

In compliance with Florida Rule of Appellate Procedure 9.210(2), counsel for Petitioner certifies that the size and style of type used in this Brief are 14 point type, Times New Roman.

CARYN L. BELLUS

7 SERVICE LIST

Cristina Alonso, Esq. Carlton Fields, P.A. Attorneys for Manheim 4000 Bank of America Tower 100 Southeast Second Street Miami, FL 33131

Robert E. Biasotti, Esq. Carlton Fields, P.A. Attorneys for Manheim P.O. Box 2861 St. Petersburg, FL 33731

Joel Adler, Esq. William Latimer, Esq. Marlow Connell Valerius Abrams Adler & Newman Attorneys for Manheim 4000 Ponce de Leon Boulevard Suite 570 Coral Gables, FL 33146

David Kleinberg, Esq. Neufield, Kleinberg & Pinkert Attorneys for Mejias 2641 N.E. 207th Street Aventura, FL 33180

Mark Rutledge, Esq. Attorney for Daniel Wayne Webb 2295 Northwest Corporate Boulevard Suite 211 Boca Raton, FL 33431