IN THE SUPREME COURT OF THE STATE OF FLORIDA. Case No. SC District Court No. 2D

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1 IN THE SUPREME COURT OF THE STATE OF FLORIDA Case No. SC District Court No. 2D RTM GENERAL CONTRACTORS, INC. v. Petitioner, G/W RIVERWALK, LLC, a Delaware Limited Liability Company, as General partner of RIVERWALK APARTMENTS, LP. a Delaware Limited Partnership, AFFIRMATIVE EQUITIES, INC., a New York Corporation, as General Partner of AFFIRMATIVE EQUITIES COMPANY, LP, AFFIRMATIVE EQUITIES COMPANY LP, a Delaware Limited Partnership, and GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA, a Pennsylvania Corporation, Respondents. / AMENDED ANSWER BRIEF ON JURISDICTION A. J. Stanton, Jr. Florida Bar No Tara C. Early Florida Bar No Stanton & Gasdick, P.A. 37 North Orange Avenue, Suite 210 Orlando, Florida, (407) ;(407) (Fax) Counsel for Respondents

2 TABLE OF CONTENTS Table of Contents Table of Citations i ii Statement of Case and Facts 1 Summary of the Argument.. 2 Statement of Jurisdiction. 3 Argument. 6 Conclusion 9 Certificate of Service 9 Certificate of Compliance 10 i

3 TABLE OF CITATIONS CASES: Ansin v. Thurston, 101 So. 2d 808 (Fla. 1958). 4-5 Dept. of Revenue v. Johnston, 442 So 2d. 950 (Fla. 1983). 4 Grisillo v. Franklyn s 173 So. 2d 682 (Fla. 1965). 1 Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975). 3 Martin Daytona Corporation v. Strickland Construction Services, Inc. 881 So 2d 686 (Fla. 5 th DCA 2004) 8 Michnal v. Palm Coast, 842 So. 2d 927 (Fla. 4 th DCA, 2003). 6-7 Nielson v. City of Sarasota, Fla., 117 So. 2d 731 (Fla. 1960) ,3 Promontory Ent. Inc. v Southern Engineering & Contracting, 864 So. 2d 479 (Fla. 5 th DCA, 2004). 7 R.A.M. of South Florida, Inc. v. WCI Communities, Inc. 869 So 2d 1210 (Fla. 2d DCA 2004). 8 Riverwalk Apts. v. RTM General Contractors, Inc. 770 So. 2d 537 (Fla. 2d DCA 2000). 1 RTM General Contractors, Inc. v. G/W Riverwalk, LLC, 840 So. 2d 241 (Fla 2d DCA 2003).. 1 RTM General Contractors, Inc. v. G/W Riverwalk, LLC, 2004 WL (Fla. 2d DCA, 2004) ii

4 V.I. Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962).. 4 Withlacochee River Electric Coop. v. Tampa Electric Co., 158 So. 2d 136, 137 (Fla, 1963) 5 STATUTES: Fla. Stat passim iii

5 STATEMENT OF THE CASE AND FACTS Respondent, G/W RIVERWALK, LLC, et. al ( RIVERWALK ) disagrees with RTM GENERAL CONTRACTOR, INC s ( RTM ) interpretation and recitation of the facts, and instead respectfully requests this Court to review and utilize the facts as cited by the District Court as the relevant facts of this case. 1 RTM offers many paragraphs on alleged discrepancies between the named RTM I, RTM II and RTM III 2 cases but these allegations are irrelevant. The only issue before this Court is whether the instant case creates a conflict of with other districts, not a conflict within the District Court, 3 and certainly not a conflict within the same case. The only rule of law set forth in the instant case relates to revisiting issues or reversing findings in a prior interlocutory appeal based on new facts, new law, or creating manifest injustice. Only in the recitation of the history, facts and 1 RIVERWALK requests the Court to utilize the factual summary cited by the Second DCA as it did in Nielson v. City of Sarasota, Fla., 117 So. 2d 731 at 732 (Fla. 1960) 2 In its brief, RTM cites to the prior cases in this action on appeal as RTM I is Riverwalk Apts. v. RTM General Contractors, Inc. 770 So. 2d 537 (Fla. 2d DCA 2000); RTM II is RTM General Contractors, Inc. v. G/W Riverwalk, LLC, 840 So. 2d 241 (Fla 2d DCA 2003); and RTM III, the instant opinion cited as RTM General Contractors, Inc. v. G/W Riverwalk, LLC, 2004 WL (Fla. 2d DCA 2004); Although all 3 cases involved the same parties, when the lien was transferred to a transfer bond and additional parties were added, RTM began using this new case style. 3 As this Court found in Grisillo v. Franklyn s 173 So. 2d 682 (Fla. 1965), a decision from the same appellate court as the decision sought to be reviewed forms no basis for certiorari jurisdiction. 1

6 decisions from the prior appeal, and footnotes relating to the same, does the District Court discuss the issues raised in RTM s brief - licensure, fictitious names, lending of license, etc. These issues were decided back in 2003 in RTM II and are untimely raised in this appeal. Therefore, the only types of cases that could feasibly create conflict with the instant case are cases relating to the criteria and standards for revisiting or reversing a non-final appellate decision made in an earlier appeal. RTM cites not a single case creating a conflict along these lines. SUMMARY OF THE ARGUMENT It is RIVERWALK s position that RTM s Petition for Discretionary Review is without merit. RTM sets forth pages of cases, incorrect facts and argument relating to Fla. Stat licensure and its revisions over the last 5 years in support of its conflict jurisdiction Petition. The critical issue presumably overlooked by RTM is that the District Court s opinion does not make any determinations as to licensure. The instant opinion before this Court relates solely to whether RTM was entitled to have the Court revisit the nonfinal order previously reviewed and affirmed by this Court back in RTM General Contractors, Inc. v. G/W Riverwalk, LLC, 2004 WL *1 (Fla. 2d DCA, 2004). The only references in the instant opinion on appeal to licensure relates to explanation of the facts and history in the prior appeal decided in See id. 2

7 RTM s entire jurisdictional brief argues about findings and law made in the 2003 appeal. Every case cited as conflicting relates solely to the 2003 appeal, not the instant appeal. The instant appeal merely states RTM had no basis to have those issues reconsidered and the law of the case stands. 4 Therefore, RTM has failed to establish a single basis for jurisdiction of this Court and the Petition should be denied. In any event, even if this Court were to consider that the instant case could be interpreted to cover the issues from the earlier appeal, the cases cited by RTM do not create a conflict with the previous decisions of the District Court. STATEMENT OF JURISDICTION RTM fails to provide the necessary analysis to this Court to establish jurisdiction. As this Court cited in Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975), jurisdiction to review decisions of district courts because of alleged conflicts is invoked by (1) the announcement of a rule of law which conflicts with a rule previously announced by this court or another district, or (2) the application of a rule of law to produce a different result in a case which involves substantially 4 The Second DCA found in the instant appeal that Each of RTM s assertions is simply factually incorrect or totally immaterial as to its request to revisit issues from the prior appeal. RTM General Contractors, Inc. v. G/W Riverwalk, LLC, 2004 WL *2 (Fla. 2d DCA, 2004) 3

8 the same facts as a prior case. (citing Nielson v. City of Sarasota, Fla., 117 So. 2d 731 (Fla. 1960). RTM fails to even establish under what theory it seeks review. In any event, under either basis, the instant opinion creates no conflict, and RTM s Petition should be denied. A. Announcement of a Rule of Law. To establish a conflict through the announcement of a rule of law, RTM has to establish that the instant case, if permitted to stand, would be out of harmony with a prior decision of this Court or another Court of Appeal on the same point, thereby generating confusion and instability among the precedents. V.I. Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962). RTM would have to establish that if the same court had made rendered both decisions, it would have overruled itself. See id. As stated above, the rule of law in the instant case relates to reversing a prior interlocutory appellate decision based upon new facts or new law or manifest injustice. Each of RTM s cases cited in conflict relate to unlicensed contracting and Fla. Stat , mentioned only in the instant case in setting forth the history of the case and the decisions of prior appeals. B. Application of Rule of Law with Same Facts. This Court can also discharge jurisdiction when the instant action is distinguishable on its facts from those cited in the conflict. Dept. of Revenue v. Johnston, 442 So 2d. 950 (Fla. 1983). In Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958) this Court 4

9 recognized that the Petitioner devoted much attention to factual issues and determinations in its brief, and noted that the necessity to do so indicates that the argument is based primarily on the merits, not a conflict of authority. For each of the cases cited by RTM as creating a conflict, RTM is forced to add the facts as RTM alleges, not as the trial court found or as stated in the instant opinion, to argue a conflict. But as this Court found in Ansin, the decisions must be based on the same state of facts and announce antagonistic conclusions. Id. at 811. This simply is not the case herein. This Court admonished the Petitioner in Withlacochee River Electric Coop. v. Tampa Electric Co., 158 So. 2d 136, 137 (Fla, 1963) that it will not re-weight or re-evaluate the testimony in order to determine its jurisdiction when it is sought to be invoked upon the theory of conflict in decisions. One cannot proceed more than a few sentences into RTM s Petition before encountering the factual disputes cited by RTM in an attempt to create a conflict of districts. The issue of jurisdiction herein is simple RTM failed to allege a single case creating a conflict with the District Court s finding that RTM presented no viable argument for reversing the 2003 decision in RTM II. Every case cited by RTM relates to the issues decided in the 2003 decision in RTM II. Therefore, RTM s Petition lacks any offering of jurisdiction of this Court. 5

10 ARGUMENT First and foremost, the main issues of law discussed in the instant case are whether the Second DCA should revisit the decisions and holdings in RTM II. This is completely ignored in RTM s brief. Any licensure or fictitious name discussion in the instant case, as set forth by RTM to create conflict herein, was merely from reciting the facts and history of the 2003 RTM II appeal, which was affirmed without opinion. RTM s arguments herein are untimely and is reason to deny jurisdiction on RTM s Petition. RTM simply failed to set forth any case that conflicts with the District Court s decision not to revisit issues raised on a prior appeal. Nevertheless, RIVERWALK will briefly address each of the cases RTM cites as creating a conflict in districts as it relates to licensure and fictitious names because these cases still do not create a conflict with RTM II back in A. Michnal v. Palm Coast, 842 So. 2d 927 (Fla. 4 th DCA, 2003): RTM states that the Court in Michnal declines to reject a contract because work was performed by a business entity that lacked a certificate to practice contracting and therefore conflicts with the instant case. These cases are clearly and distinctly distinguishable. Michnal involved a single entity that lost its qualifier before a contract was signed back in 2000, but according to the Fla. Stat cure provision of 2000, the contractor cured any licensure deficiency and therefore the 6

11 contract and lien were enforceable. See id. In the instant case, the trial court and the District Court found that RTM was a separate and distinct entity from Russell Devore d/b/a Devore & Associates ( Devore & Associates ) and that Devore & Associates performed all of the work on the Riverwalk project. RTM conveniently ignores this very important fact in all aspects of its Petition. Any facts similar in Michnal to the instant case, aside from the fact that they both involved contractors and construction, are unrecognizable. There is no reasonable correlation between the facts and findings in Michnal and the history of instant case argued in RTM II. B. Promontory Ent. Inc. v Southern Engineering & Contracting, 864 So. 2d 479 (Fla. 5 th DCA, 2004). Again, the facts easily distinguish this case from the history of the instant case in RTM II. Promontory involved a single entity, a licensed contractor, who failed to register its own fictitious name and his ability to cure his unlicensed statutes under Fla. Stat See id. These are not the facts of the instant case. The trial court, as affirmed twice by the District Court, made the finding of fact that Devore & Associates was not RTM s fictitious name, but a separate entity. RTM simply refuses to acknowledge the findings of the trial court, and ignores these findings when presenting its argument in its Petition. Based on the established facts of the instant case, no reasonable person would determine that Promontory conflicts with the history of this case in RTM II. 7

12 C. R.A.M. of South Florida, Inc. v. WCI Communities, Inc. 869 So 2d 1210 (Fla. 2d DCA 2004), is a Second District case and as stated above, a decision from the same appellate court, as the decision sought to be reviewed, forms no basis for certiorari jurisdiction. Grisillo v. Franklyn s 173 So. 2d 682 (Fla. 1965). D. Martin Daytona Corporation v. Strickland Construction Services, Inc. 881 So 2d 686 (Fla. 5 th DCA 2004) 5. Again, Martin involves the retroactive application of the 2003 change in Fla. Stat when a single entity failed to register fictitious name. See id. For the exact same reasons as set forth in Promontory above, there is no factual similarity nor any announcement of law in Martin that creates a conflict in districts. RTM then converts its brief on conflicts jurisdiction to what can only be described as a request of discretionary review based on a matter of great public importance. RTM fills two pages with cases and argument stating that [a]t the root of the inconsistency are rules of statutory interpretation. The undersigned was unable to find any authority allowing conflict jurisdiction based on inconsistencies. The instant case contains no discussion of statutory interpretation and therefore cannot create a conflict as alleged by RTM. 5 Martin is incorrectly referred to in RTM s brief as Strickland and it appears there is no proper full citation of Martin in RTM s brief. RIVERWALK points this out to avoid confusion as to which case it is referring to in RTM s brief. 8

13 Again, RIVERWALK s discussion of RTM s conflict cases is made only to further the lack of merit in RTM s Petition. The only announcement of law present in the instant case relate to reversing or revisiting issues decided in a prior appeal. RTM failed to establish any conflict on this rule of law, and the discussion above should not give credence to RTM avoidance of the stated rule of law. CONCLUSION The rule of law announced in the instant case merely sets forth the basis for refusing to reconsider issues raised by RTM in a prior appeal. RTM cites not a single case that conflicts with this announcement of law. Any references made to licensing, fictitious names or lending of a license is made either in reciting the facts and history of the prior appeals or in footnotes describing issues in the prior appeals. Therefore, RTM s Petition should fail on its face. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been delivered by U. S. Mail this 29th day of March, 2005, to: Rosemary H. Hayes, Esq. 830 Lucerne Terrace, Orlando, FL,

14 CERTIFICATE OF COMPLIANCE In accordance with Florida Rule of Appellate Procedure 9.210(a)(2), the undersigned certifies that the foregoing Answer Brief on Jurisdiction is printed in Times New Roman, 14 font, according to the word processing program. Respectfully submitted, Tara C. Early Florida Bar No A. J. Stanton, Jr. Florida Bar No Stanton & Gasdick, P.A. 37 North Orange Avenue, Suite 210 Orlando, Florida, (407) ;(407) (Fax) Counsel for Respondents 10

STATE OF FLORIDA FLORIDA LAND AND WATER ADJUDICATORY COMMISSION

STATE OF FLORIDA FLORIDA LAND AND WATER ADJUDICATORY COMMISSION PUTNAM COUNTY ENVIRONMENTAL COUNCIL, INC., Petitioner, v. Case No. WMD-09-005 ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondent. -----------