IN THE SUPREME COURT OF FLORIDA

Case No. SCll-1805; SCIl-1807

3DCA CASE NO.: 3DlO-2879 LT. NO.: 09-88468

LILLIAM VENTURA, ARBOR E&T, LLC, RES-CARE OF FLORIDA, INC. & RES-CARE, INC.,

PetitionerslDefendants

v.

KETLYNE ALEXIS

Respondent/Plaintiff.

RESPONDENT'S JURISDICTIONAL BRIEF

Matthew Seth Sat'elson, Esq. Florida Bar No. 888281 Max M. Nelson, Esq. Florida Bar No. 84532 SARELSON LAW FIRM, P.A. 1200 Brickell Ave., Suite 1440 Miami, FL 33131 (305) 379-0305 (800) 421-9954 (fax)

TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................... i

TABLE OF AUTHORITIES ................................................................................. ii

STATEMENT OF THE CASE AND THEFACTS ................................................ 1

SUMMARY OF THE ARGUMENT ...................................................................... 1

ARGUMENT .......................................................................................................... 2

I. ARBOR E&T, LLC AND RES-CARE, INC. LACK STANDING BECAUSE (i) THE COUNT AT ISSUE IS NOT PLEAD AGAINST THEM AND (ii) THEY DID NOT INTERVENE AT THE TRIAL LEVEL OR AT THE THIRD DISTRICT ..................................................................... 2

(i) THERE IS NO CLAIM FOR TORTIOUS INTERFERENCE AGAINST ARBOR OR RES-CARE ............................................................................... 2

(ii) ARBOR AND RES-CARE'S DECISION TO NOT INTERVENE PRECLUDES THEM FROM PETITIONING THIS COURT ................................................ .4

II. ARBOR AND RES-CARE ARE ESTOPPED FROM INTERVENING BECAUSE OF THEIR INCONSISTENT PLEADINGS .......................................................... 5

III. THE PETITIONERS' ATTEMPT TO FIND A CONFLICT WHERE NONE EXISTS IS INTELLECTUALLY DISHONEST AND FRIVOLOUS ................... 8

CONCLUSION .................................................................................................... 12

CERTIFICATE OF SERVICE .............................................................................. 12

CERTIFICATE OF COMPLIANCE ..................................................................... 12

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TABLE OF AUTHORITIES

Cases

Alexis v. Ventura, 66 So. 3d 986 (Fla. 3d DCA 2011) ................................. 9,10,11

Bay Park Towers Condo Ass 'n, Inc. v. HJ. Ross & Assoc., 503 So. 2d 1333 (Fla. 3d DCA 1987) ................................................................... 5

Buckner v. Lower Fla. Keys Hosp. Dist., 403 So. 2d 1025 (Fla. 3d DCA 1981) ................................................................... 9

Cassel v. Gulf Life Ins. Co., 143 So. 2d 510 (Fla. 2d DCA 1962) ................................................................. 3,4

Consolidated City of Jacksonville v. J.D Buffkin, 768 So. 2d 1253 (Fla. 1st DCA 2000) .................................................................. 3

Credit Industrial Co. v. Remark Chemical Co., 67 So. 2d 540 (Fla. 1953) ..................................................................................... 3

Day v. Norman, 42 So. 2d 273 (Fla. 1949) .............................................................. 3

Division of Alcoholic Beverages & Tobacco v. McKesson Corp., 643 So. 2d 16 (Fla. 1 st DCA 1994) ...................................................................... 5

Dubois v. Osborne, 745 So. 2d 479 (Fla. 1st DCA 1999) ........................................ 8

Estate of Rose v. First Nat 'I Bank of Miami, 165 So. 2d 226 (Fla. 3d DCA 1964) ..................................................................... 3

Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So. 2d 38 (Fla. 1st DCA 1970) ..................................................................... 7

Gove v. Nautilus Hotel Co., 67 So. 112 (Fla. 1914) ................................................ 3

Int'l Longshoremen's Ass 'n v. Fishel; 800 So. 2d 339 (Fla. 1st DCA 2001) ........... 3

Muller v. Stromberg Carlson COlporation, 427 So. 2d 266 (Fla. 2d DCA 1983) ............................................................. 10,11

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Mystan Marine, Inc. v. HW1'ington, 339 So. 2d 200 (Fla. 1976) .............................. 8

G.E. Smith's Sons, Inc. v. George, 545 So. 2d 298 (Fla. 1st DCA 1989) ................. 9

Penabad v. A.G. Gladstone Assoc., Inc., 823 So. 2d 146 (Fla. 3d DCA 2002) ........ 3

Reserve Ins. Co. v. Pollock, 270 So. 2d 469 (Fla. 3d DCA 1972) ............................ 7

Rudnick v. Sears, Roebuck & Co., 358 F. Supp. 2d 1201 (S.D. Fla. 2005) ............ 11

Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So. 2d 381 (Fla. 4th DCA 1999) .................................................................... 9

Scussel v. Balter, 386 So. 2d 1227 (Fla. 3d DCA 1980) .......................................... 9

Shan jim Publications, Inc. v. Haft, 179 So. 2d 219 (Fla. 2d DCA 1965) ................. 3

Sirpal v. Univ. a/Miami, 684 F. Supp. 2d l349 (S.D. Fla. 2010) .......................... 11

Sloan v. Sax, 505 So. 2d 526 (Fla. 3d DCA 1987) ....................................... 9,10, 11

Southchase Parcel 45 Comm. Ass 'n Inc. v. Garcia, 844 So. 2d 650 (Fla. 5th DCA 2003) .................................................................... 7

v.l. Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962) ................................................... 8

Weiss v. Pollack, 595 So. 2d 1035 (Fla. 3d DCA 1992) ...................................... 4,5

West v. Troelstrup, 367 So. 2d 253 (Fla. 1st DCA 1979) ............................. 9,10,11

Whitehead v. Dreyer, 698 So. 2d 1278 (Fla. 5th DCA 1997) .................................. 5

Wooten v. Rhodus, 470 So. 2d 844 (Fla. 5th DCA 1985) ..................................... 7,8

Constitutional Provisions

Fla. Const. Art. V, § 3(b)(3) .................................................................................... 8

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STATEMENT OF THE CASE AND THE FACTS

Respondent generally accepts the Petitioners' statement of the case and of

the facts with the following exceptions:

• Petitioner Res-Care Florida, Inc. was voluntarily dismissed Via a

stipulation of the parties.

• Petitioners Arbor E&T, Inc. and Res-Care, Inc. were not a party to the

motion to dismiss or the appeal to the Third District Court of Appeal,

and have not been involved in any way on the issue presented in this

appeal prior to the filing of their Petition in this Comi. (As indicated

below, they should first be required to establish that they have

standing as Petitioners).

• Petitioner Ventura (the only patty to the appeal in the Third DistIict)

filed a motion to celiify the case as one of great public importance and

to celiify conflict. Her motion was denied.

SUMMARY OF THE ARGUMENT

First, Petitioners Arbor E&T, LLC and Res-Care, Inc. lack standing as

Petitioners because they did not intervene in the circuit court or the district court

on this issue and because the only count at issue, tortious interference, is not pled

against them and does not affect their rights. They should not be permitted to

petition this Court for relief (assuming they can even seek relief on a count that is

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not asserted against them) when they did not first petition the circuit court or the

district court for relief.

Second, there is no conflict. Every District Court to consider the issue has

reached the same conclusion about the general principle of law and the limited

exception to the general principle of law. The Third District's opinion was not

novel - it cited two cases from decades earlier that have gone unchallenged. The

Petitioners, no doubt, are unhappy with the Third District's opinion. But

disappointment with the outcome of an appeal is not sufficient to invoke this

Court's strictly construed "direct and expressed conflict" jurisdiction.

ARGUMENT

I. Arbor E&T, LLC and Res-Care, Inc. Lack Standing Because (i) the Count at Issue is Not Plead Against Them and (ii) They Did Not Intervene at the Trial Level or at the Third District

(i) There is no claim for tortious interference against Arbor or Res­Care

The tortious interference count that was the subject of the motion to dismiss

in the Miami-Dade Circuit Court and the appeal in the Third District COUli of

Appeal was pled against Lilliam Ventura only, not Arbor E&T or Res-Care.

Accordingly, they lack standing to assert any argument Witll respect to tllis count.

Florida law is clear that neither Arbor nor Res-Care has an appealable

interest because neither the trial court nor the appellate court's order dismissing

and then reinstating the tortious interference count against Ventura was a judgment

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for or against these corporate defendants. See Credit Industrial Co. v. Remark

Chemical Co., 67 So. 2d 540, 541 (Fla. 1953) (dismissing appeal and holding that

"The general rule on appeal to review proceedings of an inferior court is that a

party to the cause may appeal only from a decision in some respect adverse to

him."); Day v. Norman, 42 So. 2d 273 (Fla. 1949) (refusing to consider the

position of a co-defendant who did not appeal in the first place); Gove v. Nautilus

Hotel Co., 67 So. 112, 113 (Fla. 1914) (noting that appellant cannot complain of

error that was not harmful to it); Penabad v. A.G. Gladstone Assoc., Inc., 823 So.

2d 146, 147 (Fla. 3d DCA 2002) (dismissing appeal because the appellant "was not

a pmiy to the underlying motion .... "); Int'l Longshoremen's Ass 'n v. Fisher, 800

So. 2d 339, 340 (Fla. 1st DCA 2001) (dismissing appeal for lack of standing

because the appellant was attempting to challenge a court-approved settlement that

it was not a pmiy to); Consolidated City of Jacksonville v. J.D. Buffkin, 768 So. 2d

1253 (Fla. 1 st DCA 2000) (dismissing appeal for lack of standing because "the

appellants are not parties adversely affected by the trial cOUli's [] order."); Shanjim

Publications, Inc. v. Haft, 179 So. 2d 219, 219 (Fla. 2d DCA 1965) ("It does not

appear that [appellant] has an appealable interest inasmuch as no adverse order has

been entered against him, and his appeal is dismissed."); Estate of Rose v. First

Nat 'I Bank of Miami, 165 So. 2d 226 (Fla. 3d DCA 1964) (dismissing appeal for

lack of stmlding because the order did not affect the appellant's interests); Cassel v.

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Gulf Life Ins. Co., 143 So. 2d 510, 515 (Fla. 2d DCA 1962) ("no appeal was taken

by the attempted intervenor," and thus the party could not complain of an error

prejudicial to a different party).

Because neither the circuit court's order nor the district comi's Opll110n

conceming Alexis' tortious interference count against Ventura adversely affected

Arbor or Res-Care, these two petitioners lack standing to seek relief in this Court.

(ii) Arbor and Res-Care's Decision to Not Intervene Precludes them from Petitioning this Court

It is undisputed that Ventura - and only Ventura - filed a motion to dismiss

the tortious interference count. This is not surprising because the tortious

interference count was pled against Ventura only. At the circuit court level, Arbor

and Res-Care sat in the bleachers and watched from afar. They did not file a brief

(in support of Ventura or otherwise). They did not even send an attomey to the

hearing on the motion to dismiss. (After the hearing, the circuit court judge

requested additional briefing before issuing a ruling - Arbor and Res-Care did not

file anything). Alexis appealed to the Third DistJict, but again Arbor and Res-Care

wisely decided to stay out of the fight. They certainly could have moved to

intervene or sought leave to file a brief indicating their position, if any.

Arbor and Res-Care's decision to not intervene at the circuit court or district

court level is fatal to their belated request to get involved in a fight that does not

actually involve them. See Weiss v. Pollack, 595 So. 2d 1035, 1036 (Fla. 3d DCA

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1992) ("The appeal on the merits is dismissed because the appellants made no

motion to intelvene."); see also Division of Alcoholic Beverages & Tobacco v.

McKesson COIp., 643 So. 2d 16, 20 (Fla. 1st DCA 1994) (noting that a party who

did not seek review of a ruling "must be considered to have accepted that decision

and, therefore, to have no interest in any remaining litigation."). Certainly, Arbor

and Res-Care could have moved to intelvene at the circuit or district court level.

See Bay Park Towers Condo Ass'n, Inc. v. H.J. Ross & Assoc., 503 So. 2d 1333

(Fla. 3d DCA 1987) (stating generally the grounds for intervention). But a pmiy

who does not intervene and does not appeal cannot jump on the coattails of a pmiy

who does appeal. See generally Whitehead v. Dreyer, 698 So. 2d 1278, 1280 (Fla.

5th DCA 1997) (noting that a party who did not appeal had an independent

obligation to appeal or intervene in order to protect its own interest).

The Court should not condone a party's decision to stay out of an issue for

two years and at two different court levels only to get involved at the proverbial

eleventh hour.

II. Arbor and Res-Care are Estopped from Intervening Because of their Inconsistent Pleadings

Despite staying out of the case at the circuit court and district court level,

Arbor and Res-Care have now decided to get involved in a claim not directed

against them. But it is important to remember why they decided to not get

involved in the first place. This lawsuit was originally brought against only Arbor

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and Res-Care under the Florida Civil Rights Act. The original defendants filed an

answer that included two relevant affirmative defenses. Affirmative Defense 13

stated: "To the extent that Plaintiff may establish that an agent or employee of

Arbor engaged in alleged unlawful conduct, such actions are contralY to Arbor's

good faith effort to comply with the law." Affirmative Defense 14 stated: " ...

Arbor cannot be held liable for punitive damages stemming from any alleged

conduct of its employees who may have acted contralY to Arbor's policies and

procedures established to prevent employment discl1mination in the workplace."

In other words, the original defendallts pled two affirmative defenses that placed

blame, directly or indirectly, on an employee whose conduct was contrary to the

company's policies. Put another way, they are attempting to limit or avoid liability

because of a rogue manager acting against the best interests of the company.

Either way, the company is blaming a third-party for some of the hann suffered by

Alexis.

In light of the affirmative defenses that seek to place blame on a third-party,

Alexis amended her complaint to add the additional paIiy. Here, the appropriate

third-paIiy is Lilliam Ventura, the Arbor director who, out of her profound racial

animus against black and Haitian Americalls, tenninated Alexis. She is only a co­

defendant in this case because Arbor and Res-Care, in essence, want her to be a co­

defendant.

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Arbor and Res-Care are attempting to assert in this COUlt a position that is

fundamentally inconsistent with its pleadings. Florida law is clear that a party is

estopped from taking inconsistent positions at different levels of review. See

FederatedMut. implement & Hardware Ins. Co. v. Griffin, 237 So. 2d 38, 41 (Fla.

1 st DCA 1970) ("one who assumes a particular theory is generally estopped to

assume in a pleading filed in a later phase of that same case [] any other or

inconsistent position toward the same parties and subject matter."); see also

Southchase Parcel 45 Comm. Ass 'n Inc. v. Garcia, 844 So. 2d 650, 652 (Fla. 5th

DCA 2003) ("A patty is not permitted to maintain pleadings inconsistent with its

prior positions."); Reserve Ins. Co. v. Pollock, 270 So. 2d 469,469 (Fla. 3d DCA

1972) (affirming because the appellant "is estopped from taking an inconsistent

position on this subsequent appeal.").

Estoppel is especially important here because Alexis relied on Arbor and

Res-Care's answer and affirmative defenses when it amended to include a separate

claim against Ventura. Because Arbor and Res-Care's pleading induced Alexis to

sue Ventura, it cannot now claim on appeal that Alexis has no legal claim against

Ventura. See Wooten v. Rhodus, 470 So. 2d 844 (Fla. 5th DCA 1985). "Equitable

estoppel based on taking inconsistent positions in court does not require strict

proofs of reliance on another's act or statement.. .. The essence of this kind of

estoppel is a party's assertion of contraty assertions in court, where such later

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assertion will result in damage or injury to the other party." Id. at 847; see also

Dubois v. Osborne, 745 So. 2d 479, 481 (Fla. 1st DCA 1999) ("The doctrine of

estoppel against inconsistent positions serves to prevent "a party who has gained

something from the assertion of its first position to, by the assertion of the second,

inconsistent position, gain something more, to which it would not have been

entitled under the first position."). Put simply, Arbor cannot say "don't sue us, sue

her" while simultaneously saying "you can't sue her."

III. The Petitioners' Attempt to Find a Conflict Where None Exists is Intellectually Dishonest and Frivolous

The Supreme Court, like all courts, is a court of limited jurisdiction. Here,

Petitioners' assert that the Court has jmisdiction because the Third District's

opinion "expressly and directly conflicts with a decision of another district court of

appeal or of the supreme court on the same question of law." See Fla. Const. Art.

v, § 3 (b)(3). But this Court's conflictjmisdiction is strictly construed to "manifest

a concern with decisions as precedents as opposed to adjudications of the rights of

pmiicular litigants." Mystan Marine, Inc. v. Harrington, 339 So. 2d 200 (Fla.

1976) (discharging writ). The "conflict must be such that if the later decision and

the em'lier decision were rendered by the same Court the former would have the

effect of overmling the latter." V.I. Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962)

(discharging writ). Here, the Third Distlict's opinion is consistent with every other

district court of appeal, and, despite Ventura's request, the Third District refused to

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certify the case as one of great public importance or to be in conflict with any

decision of this Court or a sister distIict court.

No one disputes the general rule of law that a co-employee CaImot tortiously

interfere with a co-employee's business relationship with a common employer.

See Alexis v. Ventura, 66 So. 3d 986 (Fla. 3d DCA 2011); Salit v. Ruden,

McClosky, Smith, Schuster & Russell, P.A., 742 So. 2d 381 (Fla. 4th DCA 1999);

o.E. Smith's Sons, Inc. v. George, 545 So. 2d 298 (Fla. 1 st DCA 1989); Sloan v.

Sax, 505 So. 2d 526 (Fla. 3d DCA 1987); Buckner v. Lower Fla. Keys Hasp. Dist.,

403 So. 2d 1025 (Fla. 3d DCA 1981); Scussel v. Balter, 386 So. 2d 1227 (Fla. 3d

DCA 1980); West v. Troelstrup, 367 So. 2d 253 (Fla. 1 st DCA 1979). I.e., there is

no conflict among the three district comis - the First, Third and Fomih - that have

considered the general principle.

The issue presented in this case, and the issue that the Petitioners have failed

to recognize from the outset, is that there is a limited exception to the general rule.

The exception to the general rule applies when the plaintiff's supervisor "acts

solely with ulterior purposes and the advice [to terminate] is not in the principal's

best interest." See AleXis, 66 So. 2d at 988 (citing cases). This exception has been

recognized for decades and in the two district comts that have been presented with

it. See o.E. Smith's Sons, Inc. v. George, 545 So. 2d 298 (Fla. 1st DCA 1989);

Sloan v. Sax, 505 So.2d 526, 528 (Fla. 3d DCA 1987).

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Petitioners cite to two cases that they believe "directly and expressly"

conflict with Alexis, but this belief is contrived to create conflict jurisdiction where

none exists. First, Petitioners rely on West v. Troelstrup, 367 So. 2d 253 (Fla. 1st

DCA 1979). But this reliance is misplaced because West merely restates the

undisputed general rule and does not discuss the accepted exception to the general

rule presented in Alexis. In West, the plaintiff was fired by William TroelstlUp, the

then-executive director of the Florida Department of Criminal Law Enforcement.

ld. at 254. For reasons unknown, the plaintiff sued Mr. TroelstlUp for tortious

intelference in his personal capacity, but not in his official capacity as agency

head. ld. West stands for the unremarkable proposition that a public employee

cannot sue the agency head in his personal capacity for tortious intelference

because the head of a public agency is the equivalent of the agency. Perhaps most

importantly, ten years later the same district court handed down its decision in

George where it acknowledged the exception to the general rule. 545 So. 2d at 299

(distinguishing its own decision in West and citing favorably to the Third District's

decision in Sloan). Contrmy to the Petitioners' assertion, the First District

recognizes the same exception as the Third District, and thus there is no conflict -

direct, indirect, explicit, implicit or othelwise - between Alexis and West.

Second, the Petitioners rely on Muller v. Stromberg Carlson Corporation,

427 So. 2d 266 (Fla. 2d DCA 1983). But the Muller decision is from 1983 and

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relied solely upon the First District's decision in West. Id. at 271. Muller merely

restates the general rule. After 1983 the First District recognized an exception to

its own decision in West and the Third District issued its decision in Sloan v. Sax,

505 So. 2d 526 (Fla. 3d DCA 1987), which is generally considered the leading case

on the exception to the general rule in Florida. Alexis does not ove11'lJle Muller.

Additionally, two federal disttict courts applying Florida law have conectly cited

the exception to the general rule. See Sir pal v. Univ. of Miami, 684 F. Supp. 2d

l349 (S.D. Fla. 2010); Rudnick v. Sears, Roebuck & Co., 358 F. Supp. 2d 1201

(S.D. Fla. 2005). The limited exception is not controversial and has been widely

accepted since the late 1980s.

There is no "direct and expressed" conflict among the District Courts. The

case at issue here does not have the effect of overtuming any prior decision from

any District Court. Certainly the widespread acceptance of the limited exception to

the general rule of tortious interference has evolved in the decades since the First

District's decision in West and the Second Disttict's decision in Muller, but no

decision has been overtumed and no conflict has arisen. Accordingly, this Court

lacks jurisdiction.

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CONCLUSION

For the reasons stated above, this Court should dismiss the Petition for want

of jurisdiction and award Respondent her appellate fees and costs.

Respectfully .,UlllllJ'1:"''-<,

Ml'ltthew Seth Sarelson, Esq. Florida Bar No. 888281 Max M. Nelson, Esq. Florida Bar No. 84532 SARELSON LAW FIRM, P.A. Counsel for RespondentlPlaintiff 1200 Brickell Avenue, Suite 1440 Miami, Florida 33131

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October /f, 2011, a true and correct copy of the above and foregoing has been furnished via U.S. mail to: Evan 1. Langbein, Esq., 8181 NW 154(h St., Suite 105, Miami Lakes, FL 33016; Thomas H. Loffredo, Esq., Gray Robinson, P.A., 401 East Las 01as 1850, Ft. Lauderdale, FL 33303.

CERTIFICATE OF COMPLIANCE WITH FONT STANDARD

Undersigned counsel certifies that the size and font style used' . brief is 14 pt, Times New Roman, in compliance with Fla.R.App.P. 9.210.

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