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THE SUPREME COURT OF FLORIDA
CASE NO. S8/3- 397LT CASE NO. 3D11-2570 DCA
RT
TRAVELERS CASUALTY AND SURETYCOMPANY OF AMERICA AND MICHAEL TAYLOR,
Petitioners
v.
CERTIFIED LOWER KEYS PLUMBING
Respondent
TRAVELERS CASUALTY AND SURETY COMPANYOF AMERICA'S JURISDICTIONAL BRIEF
ON DISCRETIONARY REVIEW FROM A DECISION OF THE THIRDDISTRICT COURT OF APPEAL
VINCENT F. VACCARELLAFla. Bar No. [email protected] R. LEWISFla. Bar No. [email protected]
VINCENT F. VACCARELLA, P.A.401 SE 12 Street, Suite 300Ft. Lauderdale FL 33316305.932.4044 (p)| 305.932.4990 (f)
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TABLE OF CONTENTS
TABLE OF CONTENTS...........................................................................................i
TABLE OF AUTHORITIES.....................................................................................ii
STATEMENT OF THE CASE.................................................................................1STATEMENT OF THE FACTS............................................................................... 1
SUMMARY OF ARGUMENT.................................................................................3
ARGUMENT ............................................................................................................3
I. THE DISTRICT COURT'S DECISION CONFLICTS WITHHENDERSON AND RONBECK ON WHETHER AHEARING TRANSCRIPT IS NECESSARY TO PRESERVEAPPELLATE REVIEW OF LEGAL CONCLUSIONS MADE IN ASUMMARY JUDGMENT AND WITH PETRUSKA ANDPROGRESSIVE ON WHETHER A RULING ON A MOTION FORSUMMARY JUDGMENT CONSTITUTES FACTUAL FINDINGS.......... 4
II. THE DISTRICT COURT'S DECISION CONFLICTS WITHI DRUMMOND, CRAWFORD, AND WEINER ON WHAT
DEFERENCE SHOULD BE GIVEN TO A MAGISTRATE'SCONCLUSIONS OF LAW. ........................................................................... 6
III. THIS COURT SHOULD ACCEPT JURISDICTION BECAUSETHE DISTRICT COURT'S DECISION AFFECTS LITIGANTS'CONSTITUTIONALLY-PROTECTED RIGHTS TO ACCESSTO THE COURTS AND APPEAL................................................................ 8
I CONCLUSION .........................................................................................................9
CERTIFICATE OF SERVICE................................................................................ 10
CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT ................. 10
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TABLE OF AUTHORITIES
Cases
I Bain v. State730 So. 2d 296, 299 (Fla. 2d DCA 1999)...............................................................9
Crawford v. Barker64 So. 3d 1246 (Fla. 2011).........................................................................3, 6, 7, 8
I Drummond v. State (In re Drummond)69 So. 3d 1054 (Fla. 2d DCA 2011)........................................................... 3, 6, 7, 8
Henderson v. Henderson905 So. 2d 901 (Fla. 2d DCA 2005)........................................................... 3, 4, 5, 6
Petruska v. Smartparks-Silver Springs, Inc.914 So. 2d 502 (Fla. 5th DCA 2005).................................................................. 3, 6
Povia v. Melvin66 So. 2d 494 (Fla. 1953).......................................................................................6
I Progressive Express Ins. Co. v. Camillo80 So. 3d 394 (Fla. 4th DCA 2012).................................................................... 3, 6
Robinson v. Robinson928 So. 2d 360, 362 (Fla. 3d DCA 2006)............................................................... 2
Ronbeck Constr. Co. v. Savanna Club Corp.592 So. 2d 344, 348 (Fla. 4th DCA 1992).....................................................3, 5, 6
Thomas v. Arn474 U.S. 140 (1985)...............................................................................................9
Weiner v. Weiner37 So. 3d 395 (Fla. 4th DCA 2010)................................................................ 3, 6, 8
Other Authorities
Art. I, § 21, Fla. Const............................................................................................... 8
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II
Art. V, § 4(b)(1), Fla. Const...................................................................................... 8
Art. V, §3(b)(3), Fla. Const...............................................................................4, 6, 8
III
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STATEMENT OF THE CASE
I Travelers Casualty and Surety Company of America submits this brief in
support of the Court's discretionary jurisdiction to review the decision of the Third
I District issued on December 19, 2012, for which rehearing was denied February
13, 2013, based on express and direct conflict with decisions of this Court and
I other district courts.
This case presents the following questions:
(1)Did Travelers waive its right to appeal a summary judgment based in partupon the trial court's acceptance of erroneous legal conclusions includedin a Special Magistrate's report because there was no transcript of thehearing before the Magistrate in the record on appeal?
I (2)Was the Special Magistrate's report and recommendation entitled todeference from the trial court and from the Third District, or were thelegal issues presented in the exceptions to the Magistrate's report and onappeal subject to de novo review?
STATEMENT OF THE FACTS
This matter arises from a claim against a conditional payment bond
furnished by Travelers pursuant to Section 713.245, Florida Statutes. A Special
Magistrate heard the parties' motions for summary judgment and issued a report
and recommendation concluding as a matter of law that it was unnecessary to meet
all of the statutory preconditions necessary to perfect a claim against the
I conditional payment bond, because Travelers was aware of the plaintiff's claim.
After rejecting the exceptions to the Special Magistrate's report filed by Travelers,
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the trial court conducted a bench trial, at which it heard evidence regarding the
I bond claim. Based in part on the recommendations made by the Special Magistrate
on Plaintiff's motion for summary judgment, and in part on the evidence
I considered by the trial court at the bench trial, the trial court entered final judgment
against the bond.
I Travelers appealed, arguing that the Special Magistrate and then the Trial
Court erroneously concluded that the statutory prerequisites to perfecting a claim
against the bond did not need to be met.
The Third District refused to consider the merits of the appeal, holding that
"[h]aving failed to preserve a record of the proceedings before the Special Master
[sic], Travelers is now precluded from attacking the Master's Report..." (Opinion
at fn 3).
I The Third District applied a deferential standard of review to the
Magistrate's recommendations on the summary judgment motions based on
I Robinson v. Robinson, 928 So. 2d 360, 362 (Fla. 3d DCA 2006) holding that the
findings of a magistrate are binding on the trial court, "unless they are not
supported by competent substantial evidence or are clearly erroneous." 928 So. 2d
at 362.
The Third District's holding creates express and direct conflict with cases
from other Florida courts holding that a hearing transcript is not necessary when
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Iappealing legal determinations and that summary judgment proceedings do not
I include fact fmding.
SUMMARY OF ARGUMENT
This Court has jurisdiction to review the decision of the Third District
because it expressly and directly conflicts with Henderson v. Henderson, 905 So.
2d 901 (Fla. 2d DCA 2005); Ronbeck Constr. Co. v. Savanna Club Corp., 592 So.
2d 344, 348 (Fla. 4th DCA 1992); Petruska v. Smartparks-Silver Springs, Inc., 914
So. 2d 502 (Fla. 5th DCA 2005); Progressive Express Ins. Co. v. Camillo, 80 So.
3d 394 (Fla. 4th DCA 2012); Drummond v. State (In re Drummond), 69 So. 3d
1054 (Fla. 2d DCA 2011); Crawford v. Barker, 64 So. 3d 1246 (Fla. 2011); and
Weiner v. Weiner, 37 So. 3d 395 (Fla. 4th DCA 2010); on the same points of law;
The Court should exercise conflict jurisdiction because the Third District's holding
I implicates important constitutional rights to appellate review.
ARGUMENT
I This Court has discretionary jurisdiction to review a decision of a district court
of appeal that expressly and directly conflicts with a decision of another district court
of appeal or with a prior decision of this Court on the same question of law. Art. V,
§3(b)(3), Fla. Const.
The Third District's decision expressly and directly conflicts with decisions of
this Court and of the Second, Fourth and Fifth district courts of appeal, providing
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Idiscretionaryjurisdiction for review. Further, it is appropriate that this Court exercise
I its discretion to review this case because the Third District's holding deprives
Travelers of its right to appeal without Due Process of law.
I I. THE DISTRICT COURT'S DECISION CONFLICTS WITHHENDERSON AND RONBECK ON WHETHER AHEARING TRANSCRIPT IS NECESSARY TO PRESERVEAPPELLATE REVIEW OF LEGAL CONCLUSIONS MADE IN ASUMMARY JUDGMENT AND WITH PETRUSKA ANDPROGRESSIVE ON WHETHER A RULING ON A MOTION FORSUMMARY JUDGMENT CONSTITUTES FACTUAL FINDINGS.
The Third District held that Travelers was not entitled to appellate review of a
Special Magistrate's report and recommendation to grant summary judgment against
ITravelers and a Summary Judgment subsequently entered thereon, because Travelers
did not provide a transcript of the summary judgment hearing before the Magistrate
(Opinion, fn 3).
This holding expressly and directly conflicts with the Second District's
precedent in Henderson v. Henderson, 905 So. 2d 901 (Fla. 2d DCA 2005); and the
I Fourth District's precedent in Ronbeck Constr. Co. v. Savanna Club Corp., 592 So.
2d 344, 348 (Fla. 4th DCA 1992).
In Henderson, the Second District considered whether to allow appeal of a
general master's report and recommendations adopted by the trial court where the
I appellant did not provide a transcript of the hearing before the general master. 905
So. 2d at 902-03. In rejecting the appellee's contention that the lack of a transcript
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precluded review, the court noted that where the appeal concerns legal
determinations, the trial court's judgment should be overturned if legal error is
apparent despite the lack of a transcript. M. at 903. As such, the lower court's
decision to preclude review absent a hearing transcript expressly and directly
conflicts with Henderson.
Similarly, in Ronbeck, the appellee argued that the lack of a transcript of the
hearing at which the appealed issue was decided precluded the appeal. The Fourth
District disagreed, holding that where the appeal concerns legal determinations based
upon documents contained in the record provided to the appellate court, no hearing
Itranscript was necessary. 592 So. 2d at 348. As such, the lower court's decision
expressly and directly conflicts with Ronbeck.
Additionally, the Third District's holding that the summary judgment
recommended by the Magistrate contained factual findings that could not be
reviewed without a transcript expressly and directly conflicts with the Fifth
I District's precedent in Petruska v. Smartparks-Silver Springs, Inc., 914 So. 2d 502
(Fla. 5th DCA 2005); and the Fourth District's precedent in Progressive Express
I Ins. Co. v. Camillo, 80 So. 3d 394 (Fla. 4th DCA 2012), each ofwhich state that
fact-finding, which consists of weighing conflicting evidence and making
credibility determinations,' is inappropriate at the summary judgment stage.
Povia v. Melvin, 66 So. 2d 494 (Fla. 1953).
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This Court should exercise jurisdiction to resolve the express and direct
conflict between the Third District's opinion and those of Second, Fourth and Fifth
Districts in Henderson, Ronbeck, Petruska, and Progressive. Art. V, § 3(b)(3), of the
Fla. Const.
II. THE DISTRICT COURT'S DECISION CONFLICTS WITHDRUMMOND, CRAWFORD, AND WEINER ON WHATDEFERENCE SHOULD BE GIVEN TO A MAGISTRATE'SCONCLUSIONS OF LAW.
In declining review, the Third District decided that the deferential
I 'substantial competent evidence' standard of review set forth in the Robinson case,
pertaining to evidentiary hearings at which factual findings are made by the
I magistrate, should be applied to the circumstances of the case at bar, under which
only legal determinations were made by the Special Magistrate.
I This decision expressly and directly conflicts with this Court's precedent in
Crawford v. Barker, 64 So. 3d 1246 (Fla. 2011); the Second District's precedent in
Drummond v. State (In re Drummond), 69 So. 3d 1054 (Fla. 2d DCA 2011); and
the Fourth District's precedent in Weiner v. Weiner, 37 So. 3d 395 (Fla. 4th DCA
2010), each ofwhich states that a magistrate's legal determinations are subject to
de novo review by the trial court and by the appellate court.
In Crawford, this Court considered what deference an appellate court (and
ultimately this Court) should give a magistrate's interpretation of written
documents (in that case a marital settlement agreement). 64 So. 3d at 1251. The
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court noted that in such an instance, where there are no credibility considerations,
the trial court and the appellate court are in the same position to rule as the
magistrate. Id. Based on that fact, the Court held that no deference to the
I magistrate's report and recommendation was due and that the review would be
conducted de novo. I_d. As such, the lower court's decision expressly and directly
conflicts with Crawford.
In Drummond, the Second District considered what standard of review to
apply to the magistrate's findings of fact and conclusions of law in a Baker Act
proceeding. 69 So. 3d at 1056-58. The court noted that the proceeding involved
mixed questions of law and fact, but refused to apply one standard of review to the
proceeding, instead reasoning that findings of fact and conclusions of law are
entitled to different levels of deference. Id. As to the deference the trial court is to
give the magistrate's legal conclusions, the court stated that:
In virtually all review proceedings, the reviewing courtI has an identical ability to determine what law will be
applied to the facts in reaching a decision. Thus, in thiscontext, the trial court should conduct a de novo reviewto assure that the magistrate has selected the correct lawto apply in reaching his or her decision.
I Id. at 1057. For that very reason, the Drummond court also stated that the appellate
court should conduct de novo review of the trial court's legal determinations:
[T]he three-judge panel can equally perform the reviewthat the trial court performed of the magistrate's recordand findings. Thus, there is no need for a district court to
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defer to the trial court by using the abuse of discretionstandard that we often apply when a trial court isapplying law to its own factual determinations.
As such, the lower court's decision expressly and directly conflicts with Drummond.
In Weiner, the Fourth District considered whether the trial court "erred in
accepting the magistrate's legal conclusion." 37 So. 3d at 396. Instead of deferring
to the magistrate or to the trial court, the court analyzed the relevant cases itself. I_d.
The court then stated, "[a] magistrate's ... legal conclusions are subject to being
reconsidered de novo by the trial judge." Id. at 397. As such, the lower court's
decision expressly and directly conflicts with Weiner.
The Third District's express and direct conflict with Drummond, Crawford,
and Weiner gives this Court jurisdiction. Art. V, § 3(b)(3) of the Fla. Const.
I III. THIS COURT SHOULD ACCEPT JURISDICTION BECAUSE THEDISTRICT COURT'S DECISION AFFECTS LITIGANTS'CONSTITUTIONALLY-PROTECTED RIGHTS TO ACCESS TOTHE COURTS AND APPEAL.
The Florida Constitution specifically provides that access to the courts shall
be open to every person for redress of any injury (Art. I, § 21); and guarantees the
I right to appeal (Art. V, § 4(b)(1)), Bain v. State, 730 So. 2d 296, 299 (Fla. 2d DCA
1999) (stating that limitations on the right to access to the courts and the right to
appeal be liberally construed in favor of those rights)). The Third District's ruling
against Travelers is contrary to each of these constitutional provisions.
At the time of the hearing on the exceptions to the Special Magistrate's
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Ireport and recommendation no authority indicated that a hearing transcript was
required to review of the legal determinations made by the Special Magistrate.
Therefore, the ex postfacto creation of a rule requiring a hearing transcript in order
I to preserve appellate review of legal conclusions, without notice to Travelers
constitutes deprivation of the right to appeal without Due Process of law. Thomas
v. Arn, 474 U.S. 140 (1985).
CONCLUSION
Based upon the express and direct and conflict with the decisions cited in
Sections I-II, and for the reasons set forth in Section III, Travelers prays that this
Honorable Court accept jurisdiction and hear the merits of this case.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
served by e-mail and US Mail this March 11, 2013 to Peter Rysman, Esq., Garcia
& Smith, P.A., 515 Whitehead Street, Key West, FL 33040; email:
IIII CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT
The undersigned hereby certifies that they have complied with the font
I requirements set forth in the Florida Rules ofAppell rocedure.
II VINC N F. VACCARELLA
CRAI . LEWIS
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