IN THE SUPREME COURT OF FLORIDA

GLORIA GILLESPIE, individually and as natural mother and guardian of Case No.: SC05-1187 KATIA BETTIES, a minor, and KEVIN BETTIES, individually and DCA Nos.: 1D03-1894; 1D04-0696 as natural father of KATIA BETTIES, a minor,

Petitioners,

v.

ROBERT BODKIN, JAMES BODKIN, and DEBRA BODKIN,

Respondents. ______/

______

PETITIONERS’ JURISDICTIONAL BRIEF ______

On Review from the District Court of Appeal, First District State of Florida

Submitted by:

SHEA T. MOXON Florida Bar No.: 0012564 SWOPE, RODANTE P.A. 1234 East 5th Avenue Tampa, Florida 33605 (813) 273-0017 Attorneys for the Petitioners TABLE OF CONTENTS

Table of Citations……………….…………………………….…………………...iii

Statement of the Case and of the Facts……………………………………….….....1

Summary of the Argument…………………………………………………………2

Argument...... 3

I. The Decision of the First District Court of Appeal Expressly and Directly Conflicts with this Court’s Decisions in U.S. Concrete Pipe Co. v. Bould, 437 So. 2d 1061 (Fla. 1983) and Florida Department of Transportation v. Juliano, 801 So. 2d 101 (Fla. 2001)………………………3

II. The Decision of the First District Court of Appeal Expressly and Directly Conflicts with Multiple Decisions of this Court and of Other District Courts Regarding the Standard of Review………………………….5

Conclusion………………………………………………………….……………....9

Certificate of Service…………………………………………….………..……....10

Certificate of Compliance………………………...... …………….……………....10

ii TABLE OF CITATIONS

Cases

Airvac, Inc. v. Ranger Ins. Co., 330 So. 2d 467 (Fla. 1976)……………………….4

Cassout v. Cessna Aircraft Co., 742 So. 2d 493 (Fla. 1st DCA 1999)…...…………8

Fifth Ave. Real Estate Dev., Inc. v. Aeacus Real Estate Ltd. P’ship,

876 So. 2d 1220 (Fla. 4th DCA 2004)……………………….……………6, 8

Florida Bar v. Cosnow, 797 So. 2d 1255 (Fla. 2001)……………..……..2, 3, 5, 6, 8

Florida Dep’t of Transp. v. Juliano, 801 So. 2d 101 (Fla. 2001)………...…2, 3, 4, 5

Hardee v. State, 534 So. 2d 706 (Fla. 1988)………………………………..………9

Kaplan v. Morse, 870 So. 2d 934 (Fla. 5th DCA 2004)……………………….....6, 8

Rodriguez v. Tombrink Enter., Inc., 870 So. 2d 117 (Fla. 2d DCA 2003)……...6, 8

Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000)………………..…………6, 8

State v. Davis, 243 So. 2d 587 (Fla. 1971)…………………………………………9

Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)……………………..…………………7

U.S. Concrete Pipe Co. v. Bould, 437 So. 2d 1061 (Fla. 1983)……………2, 3, 4, 5

Volusia County v. Aberdeen at Ormond Beach, L.P.,

760 So. 2d 126 (Fla. 2000)…………………………….………….2, 3, 5, 6, 8

Constitutional Provisions

Art. V, § 3(b)(3) Fla. Const. …………………………………………..……...... 5, 9

iii Court Rules

Fla. R. Civ. P. 1.510(c)………………………………..……………………………6

Fla. R. App. P. 9.030(a)(2)(A)(iv)……………………………….………………5, 9

iv STATEMENT OF THE CASE AND OF THE FACTS

Petitioners, Gloria Gillespie and Kevin Betties, took two appeals to the First

District Court of Appeal from a negligence action that Petitioners had brought against the Respondents in the Circuit Court in and for Bay County, Florida. In

Appeal No. 1D03-1894, Petitioners appealed from an order that granted summary judgment in favor of Respondents Robert and James Bodkin based on a ruling that the parties had settled Petitioners’ claims, and from the denial of a motion for partial summary judgment in which Petitioners argued that their claims had not been settled. In Appeal No. 1D04-0696, Petitioners appealed from an order granting summary judgment to Respondent Debra Bodkin on the ground that

Petitioners’ claims had been settled. The appeals were consolidated.

On April 25, 2005, the District Court of Appeal issued an opinion affirming the orders under review. (Appendix). In affirming the denial of Petitioners’ motion for partial summary judgment, the District Court held that a certain ruling that had been made by the trial court became the law of the case because the

Petitioners had not challenged it in their appeals. (Appendix, p. 2). The District

Court also affirmed the summary judgments in favor of Respondents on the ground that that a certain letter sent from counsel for Petitioner Gloria Gillespie to her insurance carrier was evidence of the Petitioners’ acceptance of a settlement offer that had been made by Respondents’ insurance carrier. (Appendix, pp. 2 – 3).

1 On May 9, 2005, Petitioners filed a motion for rehearing, which was denied on June 6, 2005. Petitioners timely filed their notice to invoke the discretionary jurisdiction of this Court on July 5, 2005.

SUMMARY OF THE ARGUMENT

The District Court of Appeal’s decision in the present case expressly and directly conflicts with this Court’s decisions in U.S. Concrete Pipe Co. v. Bould,

437 So. 2d 1061, 1063 (Fla. 1983), and Florida Department of Transportation v.

Juliano, 801 So. 2d 101, 106 – 07 (Fla. 2001). U.S. Concrete Pipe Co. held that the law of the case doctrine is limited to questions of law that have been presented and addressed in a prior appeal. Subsequently, based on U.S. Concrete Pipe Co., this

Court held in Juliano that the law of the case doctrine does not apply to legal issues that have not been raised on appeal. In this case, however, the District Court held that a certain legal ruling by the trial court became the law of the case because the

Petitioners had not challenged it in their appeals. This holding expressly and directly conflicts with U.S. Concrete Pipe Co. and Juliano.

The District Court’s decision in the present case also conflicts expressly and directly with this Court’s decisions in Florida Bar v. Cosnow, 797 So. 2d 1255,

1258 (Fla. 2001), and Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.

2d 126, 130 (Fla. 2000), both of which held that the standard of review for an order granting summary judgment is de novo. It is apparent from the District Court’s

2 opinion that it did not conduct a de novo review of the trial court’s grant of summary judgment in favor of the Respondents.

Rather than making its own, independent determination of whether there were any genuine issues of material fact and whether the Respondents were entitled to judgment as a matter of law, the District Court deferred to the trial court’s finding that the Petitioners had accepted a settlement offer based solely on one piece of evidence that could be construed as supportive of that finding. This method of review is consistent with the “substantial, competent evidence” standard of review, not de novo review. Therefore, the District Court’s decision expressly and directly conflicts with Cosnow and Volusia County, as well as with other decisions of this Court and the other four district courts which explain how de novo review is applied to an order granting summary judgment.

ARGUMENT

I. THE DECISION OF THE DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT’S DECISIONS IN U.S. CONCRETE PIPE CO. V. BOULD, 437 SO. 2D 1061 (FLA. 1983) AND FLORIDA DEPARTMENT OF TRANSPORTATION V. JULIANO, 801 SO. 2D 101 (FLA. 2001)

In affirming the trial court’s denial of Petitioners’ motion for partial summary judgment, the District Court of Appeal held that a certain ruling which had been made by the trial court became the law of the case because Petitioners had failed to challenge it on appeal. The District Court’s opinion states:

3 First, Appellants argue the trial court erred for denying their motion for partial summary judgment, because Appellees failed to comply with the essential terms of Appellants’ July 30, offer to settle. However, the trial court held the July 30 letter was not an offer, and concluded settlement had been reached prior to that date. Appellants do not challenge the trial court’s ruling that the July 30 letter was not an offer. Accordingly, that ruling is the law of the case, and will not be disturbed.

(Appendix, p. 2).

This holding resurrects a proposition of law that this Court disapproved in

Florida Department of Transportation v. Juliano, 801 So. 2d 101, 106 – 07 (Fla.

2001). Prior to Juliano, several district court decisions had cited to dicta in Airvac,

Inc. v. Ranger Ins. Co., 330 So. 2d 467, 469 (Fla. 1976), as authority for the proposition that the law of the case doctrine applies to legal rulings that could have been addressed in an appeal but were not raised. See Juliano, 801 So. 2d at 106.

However, this Court held in U.S. Concrete Pipe Co. v. Bould, 437 So. 2d 1061,

1063 (Fla. 1983), that the law of the case doctrine is limited to rulings on questions of law that were actually presented and considered in a prior appeal. Under that standard, the law of the case doctrine would not apply to a legal issue that had not been raised on appeal.

This conflict between decisions created confusion over the proper scope of the law of the case doctrine in Florida. Juliano, 801 So. 2d at 106 – 07. To resolve the conflict and dispel this confusion, Juliano held,

4 To the extent that Airvac has been construed broadly to stand for the proposition that the law of the case doctrine bars consideration of issues that were neither raised by the parties nor decided by the appellate court in the prior appeal, it is in conflict with our subsequently decided case of U.S. Concrete, which restricts application of the law of the case to issues that were decided in a prior appeal. Therefore, we recede from Airvac to the extent it is inconsistent with U.S. Concrete.

801 So. 2d at 107.

However, the District Court’s decision in the present case relies on precisely the same proposition of law that this Court disapproved in Juliano, i.e., that the law of the case doctrine applies to legal issues that were not raised on appeal. It therefore expressly and directly conflicts with this Court’s decisions in U.S.

Concrete Pipe Co. and Juliano, and so the Court has discretionary jurisdiction under Article V, section 3(b)(3) of the Florida Constitution and Florida Rule of

Appellate Procedure 9.030(a)(2)(A)(iv). This Court should exercise its discretionary jurisdiction so that it may once again eliminate any confusion regarding the proper scope of the law of the case doctrine.

II. THE DECISION OF THE DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH MULTIPLE DECISIONS OF THIS COURT AND OF OTHER DISTRICT COURTS REGARDING THE STANDARD OF REVIEW

This Court has held that the appropriate standard of review for an order on a motion for summary judgment is de novo. Florida Bar v. Cosnow, 797 So. 2d

1255, 1258 (Fla. 2001); Volusia County v. Aberdeen at Ormond Beach, L.P., 760

5 So. 2d 126, 130 (Fla. 2000). In this case, however, the District Court did not conduct a de novo review of the summary judgments entered for the Respondents.

Exactly how de novo review is applied to a summary judgment order has been explained in several decisions by this Court and by the Second, Third, Fourth, and Fifth Districts. The appellate court must itself determine whether there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Kaplan v. Morse, 870 So. 2d 934, 936 (Fla. 5th DCA 2004), citing Fla. R. Civ. P. 1.510(c). It must resolve all facts and inferences in favor of the party opposing summary judgment, Cosnow, 797 So. 2d at 1258, and consider the evidence in the record in a light most favorable to the non-moving party. Fifth

Ave. Real Estate Dev., Inc. v. Aeacus Real Estate Ltd. P’ship, 876 So. 2d 1220,

1221 (Fla. 4th DCA 2004); Kaplan, 870 So. 2d at 936; Rodriguez v. Tombrink

Enter., Inc., 870 So. 2d 117, 119 (Fla. 2d DCA 2003); Sierra v. Shevin, 767 So. 2d

524, 525 (Fla. 3d DCA 2000). If the slightest doubt exists, then the summary judgment must be reversed. Fifth Ave. Real Estate Dev., 876 So. 2d at 1221;

Kaplan, 870 So. 2d at 936; Sierra, 767 So. 2d at 525.

In this case, the reasoning used in the First District’s opinion is inconsistent with de novo review and consistent with the “substantial, competent evidence” standard of review. In their appeal, the Petitioners disputed the trial court’s finding that the Petitioners had accepted a settlement offer from Respondent’s insurance

6 carrier, Atlanta Casualty Company (ACC). (Appendix, p. 2). The District Court rejected Petitioners’ argument based on the following reasoning:

On July 2, 2001, Gillespie’s counsel wrote GEICO, Gillespie’s insurance carrier stating ACC had tendered its policy limits of $100,000.00, his client had agreed to accept policy limits, and they had received court approval to accept that amount. . . . The letter constituted evidence of Appellants’ understanding that an offer had been made, and evidenced Appellants’ unconditional acceptance, identical with the terms of the offer. From this letter, the trial court could properly conclude Appellants had previously unconditionally accepted ACC’s offer, and that a binding settlement agreement was formed.

(Appendix, p. 3).

It is apparent from this language that the District Court deferred to the trial court’s conclusion that the Petitioners had accepted ACC’s offer only because the trial court could have drawn that conclusion from a single piece of evidence in the record, the letter of July 2, 2001. This reasoning shows that the District Court resolved all inferences from the evidence in favor of upholding the trial court’s ruling, and affirmed merely because there was one piece of competent evidence that could be construed as supportive of the trial court’s ruling. This method of review is how the “substantial, competent evidence” standard is applied. See

Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981). The District Court did not make its own determination of whether there was a genuine issue of material fact, did not consider whether there was other evidence in the record contradicting the inference that the Petitioners had accepted ACC’s offer, did not resolve the facts and all

7 inferences therefore in favor of the Petitioners, and did not view the evidence in a light most favorable to the Petitioners, as the de novo standard requires.

One possible explanation for the First District’s failure to apply the de novo standard of review is that it perceives a distinction between summary judgments that are based on factual issues and those that are based on legal issues. In

Cassoutt v. Cessna Aircraft Co., 742 So. 2d 493, 495 (Fla. 1st DCA 1999), the First

District determined that the de novo standard of review applied to an order granting summary judgment because it was based on an issue of law rather than an issue of fact. This holding implies that the First District applies a more deferential standard of review to summary judgments that are based on factual issues rather than legal issues. Such an approach would conflict with the above-cited decisions of this

Court and of the other four district courts of appeal, which have held that the de novo standard applies to all summary judgment orders without any exception for summary judgments that are based on factual issues.

Because the District Court’s opinion fails to apply the de novo standard of review to the summary judgments entered in favor of Respondents, its decision directly and expressly conflicts with this Court’s decisions in Cosnow and Volusia

County; the Second District’s decision in Rodriguez; the Third District’s decision in Sierra; the Fourth District’s decision in Fifth Ave. Real Estate; and the Fifth

District’s decision in Kaplan. At the very least, there is jurisdiction based on

8 apparent conflict because the District Court’s decision may fairly be construed as applying a different standard of review than de novo. See Hardee v. State, 534 So.

2d 706, 708 (Fla. 1988) (holding that conflict jurisdiction existed where decisions of other districts fairly implied a proposition of law that conflicted with the decision to be reviewed); State v. Davis, 243 So. 2d 587, 588 (Fla. 1971) (holding that conflict review jurisdiction attaches when there appears to be at least some conflict between the decision sought to be reviewed and general principles of law stated in decisions of the Supreme Court). This Court should accept jurisdiction in order to ensure that appellate review of summary judgment orders is conducted uniformly throughout the state and to eliminate any confusion regarding the proper standard of appellate review for orders granting summary judgment in Florida.

CONCLUSION

This Court has discretionary jurisdiction under Article V, section 3(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure

9.030(a)(2)(A)(iv) to review the decision of the First District Court of Appeal based on express and direct conflict with decisions of this Court and of other

District Courts of Appeal identified herein. For the reasons argued herein, the

Court should exercise its discretion to accept jurisdiction.

9 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by U.S. Mail on this _____ day of July, 2005, to Tracy Raffles Gunn,

Esquire, Post Office Box 1438, Tampa, Florida 33601-1438 and Linda H. Wade,

Esquire, SCHOFIELD & WADE, 25 W. Cedar Street, Suite 450, P.O. Box 13510,

Pensacola, FL 32591-3510.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the font used herein is fourteen-point Times New

Roman.

Respectfully Submitted,

______Shea T. Moxon Florida Bar No.: 0012564 Swope, Rodante P.A. 1234 East Fifth Avenue Tampa, Florida 33605 Telephone: (813) 273-0017 Attorneys for the Petitioners

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