Case No. SC 06-499

IN THE SUPREME COURT OF

GARRICK HATFIELD,

Petitioner,

vs.

AUTONATION, INC.

Respondent.

______

RESPONDENT’S JURISDICTIONAL BRIEF Lower Tribunal Case No. 4D05-2129 ______

PAUL R. REGENSDORF Florida Bar No. 152395 JON K. STAGE Florida Bar No. 779430 ERIC K. GABRIELLE Florida Bar No. 160725 STEARNS WEAVER MILLER WEISSLER, ALHADEFF & SITTERSON, P.A. 200 East , Suite 2100 Fort Lauderdale, Florida 33301 954-462-9500 – phone 954-462-9567 - fax TABLE OF CONTENTS

TABLE OF CONTENTS...... i

TABLE OF CITATIONS...... ii

STATEMENT OF THE CASE AND FACTS ...... 1

SUMMARY OF THE ARGUMENT ...... 2

ARGUMENT ...... 3

I. The Notice of Appeal was untimely ...... 3

II. The Fourth District’s decision does not conflict with any decision of this Court or any District Court...... 4

CONCLUSION...... 9

CERTIFICATE OF SERVICE...... 10

CERTIFICATE OF COMPLIANCE...... 10

i TABLE OF CITATIONS

Bouchard v. Florida Dep’t of Bus. Regulation, 448 So. 2d 1126 (Fla. 2d DCA 1984)...... 3 n.1

Dade County Port Auth. v. Keller, 117 So. 2d 731 (Fla. 1960) ...... 8

Dep’t of Heath & Rehab. Servs. v. Nat’l Adoption Counseling Serv., Inc. 498 So. 2d 888 (Fla. 1986) ...... 4

Gleneagle Ship Mgmt. Co. v. Leondakos, 602 So. 2d 1282 (Fla. 1992)...... 6

Hatfield v. AutoNation, Inc. 915 So. 2d 1236 (Fla. 4th DCA 2005) ...... passim

Hill v. Hill, 778 So. 2d 967 (Fla. 2001) ...... 4

In re Estate of Earl B. Rogers, 205 So. 2d 535 (Fla. 4th DCA 1967) ...... 3 n.1

Mancini v. State, 312 So. 2d 732 (Fla. 1975) ...... 8

McMillan v. Troutman, 740 So. 2d 1227 (Fla. 4th DCA 1999)...... 8-9

Mowrey Elevator Co. of Florida, Inc., v. Automated Integration, Inc., 745 So. 2d 1046 (Fla. 1st DCA 1999) ...... 9

Nordmark Presentations Inc. v. Harman, 557 So. 2d 649 (Fla. 2d DCA 1990) ...... 7 n.6

Parrish v. AmSouth Bank, N.A., 657 So. 2d 1189 (Fla. 4th DCA 1995)...... 6

Reaves v. State, 485 So. 2d 829 (Fla. 1986) ...... 4

ii

Terry v. State, 808 So. 2d 1249 (Fla. 2002)...... 8 n.7

Venetian Salami v. Parthenais, 554 So. 2d 499 (Fla. 1989) ...... 5, 6, 7

iii STATEMENT OF THE CASE AND FACTS

The factual and procedural background relevant to the question of jurisdiction are fully set forth in the opinion of the Fourth District Court of

Appeal in Hatfield v. AutoNation, Inc., 915 So. 2d 1236 (Fla. 4th DCA

2005).

Hatfield’s Statement of the Case and Facts contain assertions outside the relevant record as to the issue of discretionary conflict jurisdiction presently before this Court – a record which should consist solely of the

Fourth District’s Hatfield opinion. Hatfield’s Brief also contains numerous assertions unsupported by or inconsistent with the record below, but similarly not pertinent to the question of whether this Court should exercise discretionary conflict jurisdiction. Although it contests the accuracy of those assertions by Hatfield, AutoNation limits its response in this Answer Brief solely to the issue of this Court’s jurisdiction, as required by Florida Rule of

Appellate Procedure 9.120(d).

1 SUMMARY OF THE ARGUMENT

Hatfield fails to present any basis for this Court to exercise its discretionary conflict jurisdiction created by Article V, Section 3(b) of the

Florida Constitution.

First, the “Notice of Appeal” Hatfield filed with the Fourth District to initiate this proceeding is untimely under Florida Rule of Appellate

Procedure 9.030(a)(2)(A) and is accordingly ineffective to invoke this

Court’s discretionary jurisdiction.

Second, even if the untimely nature of this proceeding is ignored,

Hatfield has failed to identify any question of law resolved by the Fourth

District in the case below which expressly or directly conflicts with the same question of law resolved by any decision of this Court or any Florida District

Court. Hatfield’s contention that the Fourth District’s decision somehow conflicts with this Court’s Venetian Salami decision is wrong.

2 ARGUMENT

I. THE “NOTICE OF APPEAL” WAS UNTIMELY.

This Court lacks jurisdiction to consider Hatfield’s Petition, because he missed the applicable deadline under Florida Rule of Appellate Procedure

9.030(a)(2)(A) to invoke this Court’s discretionary jurisdiction. The Order

Hatfield seeks to appeal – Hatfield v. AutoNation, Inc. 915 So. 2d 1236 (Fla.

4th DCA 2005) – was issued December 21, 2005.

As set forth in more detail in AutoNation’s pending Motion to

Dismiss, on March 13, 2006 Hatfield asked this Court to exercise its discretionary “conflict” jurisdiction in a case decided eighty-two (82) days earlier. As the Fourth District’s Hatfield opinion reflects, Hatfield filed no timely petition for rehearing in the interim. 1 Accordingly, Hatfield’s effort

1 Opposing the Motion to Dismiss, Hatfield claims his motions below were not untimely because Florida Rule of Appellate Procedure 9.420(e) gave him five (5) additional days to file his rehearing petition (Hatfield’s Opposition to Motion to Dismiss, pp. 2-3, ¶ 3), an argument he made unsuccessfully in an “Emergency Motion” asking the Fourth District to withdraw its mandate, claiming it was “issued prematurely.” But Rule 9.420(e) only extends time periods for “act[s] within some prescribed time after service.” Fla.R.App.P. 9.420(e)(emphasis added); see also Bouchard v. Florida Dep’t of Bus. Regulation, 448 So. 2d 1126, 1127 (Fla. 2d DCA 1984); In re Estate of Earl B. Rogers, 205 So. 2d 535 (Fla. 4th DCA 1967)(decided under predecessor rule).

3 to invoke this Court’s jurisdiction is time-barred, this Court lacks jurisdiction over Hatfield’s petition, and it should be dismissed. 2

II. THE FOURTH DISTRICT’S DECISION DOES NOT CONFLICT WITH ANY DECISION OF THIS COURT OR ANY DISTRICT COURT.

Article V, section 3(b) of the Florida Constitution allows this Court to review a decision of a District Court that “expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law.” For this Court to exercise this “conflict jurisdiction,” the conflict “must appear within the four corners” of the decision below. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). “In other words, inherent or so-called ‘implied’ conflict [ ] no longer serve[s] as a basis for this Court’s jurisdiction.” Dep’t of Health & Rehab. Servs. v.

National Adoption Counseling Serv., Inc., 498 So. 2d 888, 889 (Fla. 1986).

Absent any express and direct conflict, the petition for review must be denied. See Hill v. Hill, 778 So. 2d 967 (Fla. 2001).

2 Hatfield also tells the Court that the Fourth District “denied [his] Motion for Rehearing on its merits.” (Hatfield’s Opposition to Motion to Dismiss, p. 3, ¶ 5)(emphasis added). The record below reflects no such consideration of the merits, only a two-sentence Order denying Hatfield’s motion for reconsideration, rehearing en banc, to certify questions of great public importance, and Hatfield’s “emergency motion.” Had the Fourth District considered Hatfield’s arguments on their “merits” it would not have denied his request that its mandate be withdrawn.

4 Here, the question reviewed by the Fourth District in Hatfield was whether the trial court erred in concluding that it had personal jurisdiction over Hatfield, and the Fourth District’s ruling was that the trial court did not err. 915 So. 2d at 1241. Hatfield fails to identify any specific question of law resolved by the Fourth District which actually conflicts – expressly, directly or otherwise – with any question of law in any decision of this Court or of any Florida District Court.

Instead, Hatfield’s argument consists of two points: (1) that the trial court’s conduct deviated from the procedure established by this Court in

Venetian Salami v. Parthenais, 554 So. 2d 499 (Fla. 1989) because, according to Hatfield, the trial court failed to harmonize the parties’ jurisdiction affidavits; and (2) that the Fourth District wrongfully concluded that any failure by the trial court to harmonize the parties’ affidavits was harmless because the trial court held an evidentiary hearing on the issue of jurisdiction before making its finding of personal jurisdiction over Hatfield.3

3 Hatfield says “the trial court [ ] never attempted to reconcile the affidavits” submitted by the parties. (Initial Brief, p. 6; see also pp. 9-10). The Fourth District reached no such conclusion, instead noting from its review of the record that “it [was] unclear whether the trial court attempted to harmonize Hatfield’s declaration with AutoNation’s affidavits in response.” 915 So. 2d at 1242 (emphasis added). But even if we accept Hatfield’s characterization of the Fourth District’s opinion, there remains no express and direct conflict with Venetian Salami or any District Court case.

5 This Court in Venetian Salami resolved the question of “what should be done if the relevant facts set forth in the respective affidavits [submitted by the parties on the issue of jurisdiction] are in direct conflict.” 554 So. 2d

499, 503 (Fla. 1989).4 This Court held that “the trial court [was required] to hold a limited evidentiary hearing in order to determine the jurisdiction issue.” Id. Venetian Salami, then, stands for the proposition that where there are “opposing and irreconcilable affidavits,” a limited evidentiary hearing is necessary to determine the jurisdictional issue. See Gleneagle

Ship Mgmt. v. Leondakos, 602 So. 2d 1282, 1284 (Fla. 1992).

It is undisputed that just such a hearing was held below. See Hatfield,

915 So. 2d at 1242. Accordingly, nothing done by the trial court or affirmed by the Fourth District conflicts with the holding of Venetian Salami. Indeed, the Hatfield court specifically found that because the trial court held that hearing, any failure to harmonize Hatfield’s declaration with AutoNation’s responsive affidavits was harmless error. 915 So. 2d at 1242; cf. Parrish v.

AmSouth Bank, N.A., 657 So. 2d 1189, 1190 (Fla. 4th DCA 1995)(harmless error to deny defendant’s motion to dismiss complaint lacking personal jurisdiction allegations because trial proof established personal jurisdiction

4 As this Court noted in Venetian Salami, prior decisions of district courts had “outlined the procedure to be followed” where litigants contest the issue of personal jurisdiction. 554 So. 2d at 502.

6 over defendant). Moreover, nothing in Venetian Salami prohibited the trial court from holding the evidentiary hearing.

Hatfield’s apparent argument is that notwithstanding the fact that there actually is sufficient evidence to support personal jurisdiction over him, he has some sort of substantive right to avoid a limited evidentiary hearing, the denial of which is reversible error. Nothing in Venetian Salami nor any other case Hatfield cites stands for any such proposition.5 He fundamentally misunderstands the purpose of the Venetian Salami procedure, which seeks to ensure that a minimal due process threshold is met before a defendant is haled into court in Florida, not to avoid giving a defendant too much process.6

5 Hatfield’s brief seems to actually argue that a defendant has a substantive right to have the hearing adjourned after the hearing begins but before a plaintiff presents all its witnesses if at a particular “moment” during the hearing, the affidavits become “in harmony.” (Initial Brief, p. 4). Hatfield’s position, were it adopted, would result in procedural chaos.

6 See, e.g., Nordmark Presentations, Inc. v. Harman, 557 So. 2d 649, 651 (Fla. 2d DCA 1990)(“[w]hile [defendant’s] affidavit does not directly contradict all of the essential allegations of [plaintiff’s] amended complaint, we believe the spirit, if not the clear intent, of Venetian Salami requires a further limited evidentiary hearing to determine the veracity of [plaintiff’s] allegations to support both a compliance with the requirements of section 48.193, and the federal constitutional due process requirement of ‘minimum contacts’”). Thus, even when the Circuit Court incorrectly finds that a defendant’s affidavit fails to rebut the initial showing of the plaintiff’s pleading, holding a limited evidentiary hearing renders that error harmless – because the defendant has the opportunity to present live testimony to the

7 Even if Hatfield’s argument were true – and it is not – this Court’s discretionary conflict jurisdiction does “convert [this Court] into a court of selected errors.” Dade County Port Auth. v. Keller, 117 So. 2d 731, 734

(Fla. 1960); see also Mancini v. State, 312 So. 2d 732, 733 (Fla.

1975)(jurisdiction cannot be invoked merely based on disagreement with decision of the district court).

Hatfield next argues that the Fourth District’s decision is inconsistent with its prior decision in McMillan v. Troutman, 740 So. 2d 1227 (Fla. 4th

DCA 1999), or with “decisions by other district courts of appeal recognizing the need for an evidentiary hearing only where the parties’ personal jurisdiction affidavits directly conflict.” (Initial Brief, p. 10).7 Even if this

Court’s conflict jurisdiction encompassed intra-district conflicts, there is none between McMillan and Hatfield. In McMillan, the plaintiff’s affidavit claimed the defendant was a Florida resident, while the defendant’s affidavit claimed he was a New York resident. 740 So. 2d at 1229. Since Florida

Court on the question of personal jurisdiction. To argue, as Hatfield does now, that it is reversible error to actually hold such a limited evidentiary hearing (i.e., as opposed to failing to hold one), would mean that circuit courts risk reversal under virtually any course of action at every step of the Venetian Salami procedure.

7 It is well established that this Court’s discretionary review does not encompass intra-district conflicts. Terry v. State, 808 So. 2d 1249, 1250 n. 1 (Fla. 2002), which are properly raised by motion directed to the District Court.

8 residence was the only basis for personal jurisdiction in that case, the

McMillan court found “irreconcilable conflict” and required an evidentiary hearing. Id. Thus, the parties’ positions in McMillan were in no meaningful way different than those of Hatfield and AutoNation in the trial court as viewed by the Fourth District. AutoNation’s affidavits supported personal jurisdiction over Hatfield based on his tortious conduct in Florida and his contacts with Florida, and Hatfield contended otherwise, necessitating an evidentiary hearing on the question of personal jurisdiction – just as the

Fourth District concluded in Hatfield.

Nor is there conflict with the only other case Hatfield relies upon –

Mowrey Elevator Co. of Florida, Inc., v. Automated Integration, Inc., 745

So. 2d 1046 (Fla. 1st DCA 1999). The Mowrey court found that because “the affidavits of the parties filed on the jurisdictional issue [were] in direct conflict” the trial court “was obligated to hold an evidentiary hearing to resolve the jurisdictional issue.” Id. at 1047-1048. Nothing about Mowrey conflicts with the Fourth District’s Hatfield decision or supports Hatfield’s argument made here.

CONCLUSION

For the reasons above, this Court should decline to exercise its discretion to hear an appeal in this case.

9 CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of Respondent’s Jurisdictional Brief was furnished by first-class United States mail to: Alex J. Sabo, Esq./Seth V. Alhadeff, Esq., Bressler, Amery & Ross, P.C., Attorneys for Petitioner, 2801 S.W. 149th Avenue, Suite 300, Miramar, Florida, 33027, this 22d day of June, 2006.

STEARNS, WEAVER, MILLER WEISSLER, ALHADEFF & SITTERSON, P.A. Attorneys for Respondent AutoNation, Inc. 200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301 Telephone: 954-462-9500 Facsimile: 954-462-9567

By: ______Paul R. Regensdorf Florida Bar No. 152395 Jon K. Stage Florida Bar No. 779430 Eric K. Gabrielle Florida Bar No. 160725

CERTIFICATE OF COMPLIANCE

WE HEREBY CERTIFY that Respondent’s Jurisdictional Brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). STEARNS, WEAVER, MILLER WEISSLER, ALHADEFF & SITTERSON, P.A. Attorneys for Respondent AutoNation, Inc.

By: ______Eric K. Gabrielle Florida Bar No. 160725

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