IN THE DISTRICT COURT OF APPEAL 6....IN THE DISTRICT COURT OF APPEAL 6. FOURTH DISTRICT OF FLORIDA...

IN THE DISTRICT COURT OF APPEAL 6.FOURTH DISTRICT OF FLORIDA

THE ESTATE OF FRANCES DERESH,By and through LOIS SCHNEIDER,Personal Representative,

SC12-2190Appellant, CASE NO.: 4D10-749

LT CASE NO.: 09-29626vs.

FS TENANT POOL III TRUST, FS TENANTHOLDING COMPANY TRUST, FIVE STARQUALITY CARE, INC., FGI FINANCING ICORPORATION a/k/a CCC FINANCING ICORPORATION, RICHARD MARKHOFF,FUMI LEWU a/k/a FUNMILAYO IFEMILEWU (as to FORUM AT DEER CREEK)

Appellees./

JURISDICTIONAL ANSWER BRIEF OF APPELLEES

QUINTAIROS, PRIETO, WOOD &BOYER, P.A.4905 West Laurel Street - Suite 200Tampa, Florida 33607Telephone: (813) 286-8818Facsimile: (813) 286-9998THOMAS A. VALDEZ, ESQ.Fla. Bar. No.: 0114952SCOTT M. TEICH, ESQ.Fla. Bar No.: 969140

TABLE OF CONTENTS

Table of Authorities...........................................................................................ii

INTRODUCTION.............................................................................................1

STATEMENT OF THE CASE AND FACTS ................................................1SUMMARY OF ARGUMENT ........................................................................3

THE FOURTH DISTRICT'S DECISION DOESNOT CONFLICT WITH A DECISION OF THISCOURT OR ANY DISTRICT COURT OF APPEAL ..................................3

A. THE DECISION OF THE DISTRICT COURTCREATES NO EXPRESS AND DIRECT CONFLICTUPON WHICH AN EXERCISE OF THIS COURT'SDISCRETIONARYJURISDICTION CANBE BASED.................,................ 3

CONCLUSION..................................................................................................9

I

TABLE OF AUTHORITIES

Alterra Healthcare Corp. v. Bryant, 937 So. 2d 263 (Fla. 4th DCA 7006)........ 7

Best v. Education Affiliates, Inc., 82 So.3d 143 (Fla. 4* DCA 2012) ................ 7

Estate ofDeresh ex rel. Schneider v. FS Tenant Pool III Trust,95 So.3d 296 (Fla. 4th DCA 2012).................................................... ........ 1, 5, 6

Fletcher v. Huntington Place Ltd. P'ship, 952 So.2d 1225(Fla. 5th DCA 2007)............................................................................................ 8

Gessa v. Manor Care, Inc., 86 So.3d 484 (Fla. 2011)........................,.......passim

Lacey v. Healthcare & Retirement Corp. ofAm.,918 So.2d 333 (Fla. 4th DCA 2005)................................................................... 8

Nielsen v. City ofSarasota, 117 So.2d 731 (Fla. 1960)............................ ................... 4

Place at Vero Beach, Inc. v. Hanson, 953 So.2d 773(Fla. 4th DCA 2007)........................................................................................7, 8

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

SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242 (Fla. 5th DCA 2006)............... 8

Shotts v. OP Winter Haven, Inc., 86 So.3d 456 (Fla. 2011) ............... ......passim

The Florida Star v. B.lF., 530 So. 2d 286 (Fla. 1988) ...................... ........... 4, 9

Tippens v. State, 897 So. 2d 1278 (Fla. 2005)..................................................................4

OTHER AUTHORITIES

Article V, Florida Constitution........................................................................3, 4

Il

INTRODUCTION

Petitioner seeks review of the decision in Estate ofDeresh rel. Schneider

v. FS Tenant Pool HI Trust, 95 So.3d 296 (Fla. 4th DCA 2012), t at was decided

on the facts of the case and does not raise any issues of conflict ith decisions of

this Court or any other District Court of Appeal. As evidenced b a review of the

four corners of that decision, the Fourth District, in accordance w th the decisions

ofthis Court, affirmed a lower court order compelling arbitration a id remanded the

case to the circuit court with instructions that a single provision ontained in the

arbitration agreement, a punitive damages limitation provision, be nevered and that,

after that severance, the matter should be referred to arbitration.

STATEMENT OF THE CASE AND FACTS

The pertinent facts of this case, all of which are included 12 the Opinion at

issue here are as follows: Petitioner sued various defendants involved with a

nursing home facility in this case. Petitioner made a number of claims rooted in

alleged negligence and/or the alleged violation of the statutory ights of Frances

Deresh, a former Resident of The Forum at Deer Creek ("Facilit "). Around the

time Mrs. Deresh was admitted to the Facility, she and the Facili entered into an

arbitration agreement. The agreement required the arbitration of ertain claims (as

explained in detail in the Opinion). The arbitration was to be co ducted by either

One or three arbitrators, the number to be selected by Deresh; th members "shall

1QUINTAIROS, PRIETO, WOOD & BOYER, P.A., ATTORNEYS AT LAW

4905 WEST LAUREL STREET, SUITE 200, TAMPA, FLORIDA 33607 •TEL: (813) 286-881

be chosen by the American Arbitration Association ('AAA') or by mutual

agreement between the parties"; and the panel "shall foll w the current

Commercial Arbitration Rules of the AAA."

With regard to remedies, the agreement provided: The Pane shall have the

authority to grant equitable relief that could be ordered by a court. e Panel shall

have authority to award economic damages and non-economic dam ges (including,

damages for pain and suffering and mental anguish); but shall have no authority to

award punitive or exemplary damages. With regard to severability the arbitration

agreement contained an express severability clause (titled "7. SE ERABILITY"),

which stated: If any provision of this Agreement is declared to be lawful, invalid

or unenforceable for any reason, then notwithstanding such unlawfulness,

invalidity or unenforceability, the remaining terms and pro isions of this

Agreement shall remain in full force and effect.

Respondents moved to compel arbitration. After a hearing, t e circuit court

compelled arbitration and stayed the proceedings. The matter wa appealed; and

the Fourth District decided the appeal in favor of Responde ts and, more

importantly, in accordance with the decisions of this Court, as e plained in the

four corners of the Opinion and discussed herein.

QUINTAIROS, PRIETO, WOOD & BOYER, P.A., ATTORNEYS AT LAW4905 WEST LAUREL STREET, SUITE 200, TAMPA, FLORIDA 33607 + TEL: (813) 286-8818

SUMMARY OF ARGUMENT

The decision of the Fourth District Court of Appeal in this case does not

expressly and/or directly conflict with the decisions of this Court in or with the

decisions of any other District Courts of Appeal. The Fourth Distiict decided this

case by properly applying the controlling law established by this C3urt to the facts

of this case. Without a constitutionally mandated conflict apparent •vithin the "four

corners" of the Fourth District's decision, there is no basis upon which this Court

can exercise discretionary jurisdiction.

ARGUMENT

THE FOURTH DISTRICT'S DECISION DOES NOT CONFLICT WITH ADECISION OF THIS COURT OR ANY DISTRICT COURT OF APPEAL

Pursuant to Article V, Section 3(b) (3), Florida Constituti:>n, before this

Court can exercise its discretionary jurisdiction to review the decision at issue here,

it must conclude that the decision expressly and directly conflicts with a decision

of this Court or of another district court of appeal.

A. THE DECISION OF THE DISTRICT COURT CREATES NO EXPRESSAND DIRECT CONFLICT UPON WHICH AN EXERC/SE OF THISCOURT'S DISCRETIONARY JURISDICTION CANBE B.4SED

The jurisdiction of this Court is constitutionally limited by Article V, §3(b)

(3), Florida Constitution. Although the Petitioners have attempted to invoke this

section as a basis for jurisdiction, no conflict exists to allow review by this Court


4905 WEST LAUREL STREET, SUITE 200, TAMPA, FLORIDA 33607 + TEL: (813) 286-8818

of the decision of the District Court. Article V, section 3(b)(3) provides, in

pertinent part, that the Florida Supreme Court "[m]ay review any decision of a

district court of appeal ... that expressly and directly conflicts wi h a decision of

another district court of appeal or of the supreme court on the same question

of law (emphasis added). Thus, the Supreme Court will not review district court

opinion unless it contains "a statement or citation effectively establ shing a point of

law upon which the decision rests" that is contrary to a decision af this Court or

another district court. See Tippens v. State, 897 So. 2d 1278 (Fla. 2005); The

Florida Star v. B.J.F., 530 So. 2d 286, 289 (Fla. 1988).

Thus, an exercise of this Court's discretionary jurisdicticn based on an

alleged conflict between authorities on the same question of law may only be based

on "express and direct conflict" that is evident from a review of the "four corners"

of the decision of the majority opinion of the decision for which review is sought.

Reaves v. State, 485 So.2d 829, 830 (Fla. 1986). In order to have conflict

jurisdiction, this Court must find "a real, live and vital conflict within the

[constitutional] limits." Nielsen v. City of Sarasota, 117 So.2d 731, 735 (Fla.

1960) (Court rejected certiorari jurisdiction under former conflict provision, Art.

V, §4(2), Fla. Const. (1957)). There is conflict jurisdiction where the rule of law

conflicts with a decision of the Florida Supreme Court or of the other District

Courts or where there are contrary results on substantially the same facts involved


4905 WEST LAUREL STREET, SUITE 200, TAMPA, FLORIDA 33607 + TE L: (813) 286-8818

in prior decisions. Id. No basis exists in the present case.

The Fourth District, in its opinion in this case, properly construed and

applied this Court's recent decisions in Shotts v. OP Winter Haven Inc., 86 So.3d

456 (Fla. 2011) and Gessa v. Manor Care, Inc., 86 So.3d 484 (Fla. 2011) to

analyze the facts and render a decision in accordance with those decisions in this

case. In its Opinion, the Fourth District correctly found, after detailed analysis,

that the sole remedial limitation at issue in this case (a waiver of the right to

recover punitive damages) was against public policy but was severable from the

Arbitration Agreement at issue in this case based on the application of the holdings

in Shotts and Gessa and the rationales upon which those holdings were based.

Specifically, in this case, the Fourth District recognized that Shotts and

Gessa "compel the holding that the provision in the arbitration agreement [in this

case] preventing the arbitration panel from awarding punitive damages violated

public policy." Deresh at 301. However, this Court also correctly recognized that

"[n]either Shotts nor Gessa prohibit the severance of the clause prohibiting an

arbitration award of punitive damages from the arbitration agreement [in this

case]." Deresh at 301.

Explaining this second point, the Fourth District correctly noted, as this

Court did in Gessa, that Shotts did not address the issue of severability of a waiver

of punitive damages; that the arbitration agreement in Gessa did not contain a



severability clause (which differentiates that arbitration agreement from the

agreement in this case which does contain a severability clause); that the Gessa

Court based its ruling of non-severability on the combination of thÅ two limitation

of liability provisions at issue in that case and their impact "when ¶iewed jointly";

and, perhaps most importantly, that the invalid punitive damages limitation in this

case did not go to the heart of the arbitration agreement. Deres/ at 301. With

regard to the last of these points, the Fourth District explained:

Unlike the contract in Gessa, the agreement here allows an ar bitrationpanel to award economic and non-economic damages without limit.The primary thrust of the agreement is "to avoid costly and time-consuming litigation." Striking the punitive damages limitation wouldpreserve the forum and the finder of fact so central to the agreement.The severance clause declares the intent of the agreement to preservethe agreement in the event "any provision" of the agreoment isdeclared unlawful. Because of the extreme conduct required o justifyan award of punitive damages, such damages are recoverable in therare case. Moreover, unlike the situation in Shotts where theinvalidation of an organization's procedural rules would have requireda drastic rewriting of the arbitration agreement, here the·e is nosimilar interdependence between the punitive damages prohibitionand the remaining clauses of the agreement. Refusing to sever thepunitive damages limitation would cut out the heart of the agreementfor a peripheral illegality. Allowing severance of the punitive lamageslimitation preserves the principle that "[p]arties may agree to arbitratestatutory claims, provided [that] the arbitration offers an effec:ive wayfor vindicating the claimant's statutory rights."

Deresh at 301 (citing Alterra Healthcare Corp. v. Bryant, 937 So. 2d 263, 266

(Fla. 4th DCA 2006).

Appellant's claim that the Fourth District's decision in this case applies



Shotts and Gessa in an overly restrictive manner that "guts" the ecisions of this

Court in those two cases is completely without merit. This ourt, in Gessa,

repeatedly referred to the two remedial provisions together (never separately) and

crafted its analysis based on the import and impact the two provi ions had when

viewed jointly. The Fourth District's reading of Shotts and Gessa, explained in its

opinion in this case, correctly noted this fact. It did not contrac or expand the

scope or breadth of this Court's decisions in Shotts and Gessa. It merely applied

the law enunciated in those decisions to the facts of this case; and concluded that

this case is factually different and therefore distinguishable from Sh tts and Gessa.

There was nothing inappropriate or improperly restrictive bout this; and

this certainly did not "gut" this Court's decisions in Shotts and/or Gessa. In this

Case, the Fourth District acknowledged the import of Shotts d Gessa but

reCOgniZed those cases were factually distinguishable from the ca e before them

and ruled accordingly; just as they did in the case of Best v. Educ tion Affiliates,

Inc., 82 So.3d 143 (Fla. 4* DCA 2012)(case similarly acknowledgi the import of

Shotts and Gessa but recognizing those cases were factually distin uishable from

their case and ruling accordingly).

On an important note, consistent with the ultimate ruling in he Gessa case

and the Fourth District's reading of that ruling in it Opinion in this case, Place at

Vero Beach and each and every case cited with it in footnote 5 of t e Gessa Case,



rejected severability in cases where there were joint limitati n of remedies

provisions. See Place at Vero Beach, Inc. v. Hanson, 953 So.2 773 (Fla. 4th

DCA 2007); Lacey v. Healthcare & Retirement Corp. ofAm., 918 So.2d 333 (Fla.

4th DCA 2005); Fletcher v. Huntington Place Ltd. P'ship, 952 S .2d 1225 (Fla.

5th DCA 2007); SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242 (Fla. 5th DCA

2006). The Fourth District's decision in this case is not in c nflict with the

decisions of this Court or any other District Court of Appeal.

The remainder of Appellant's arguments do not establish hat the Fourth

District Court misapplied the controlling law or created new 1 w which is in

conflict with Shotts and Gessa or any other case. First, the p itive damages

waiver provision alone does not have the effect of limiting the av ilable damages

to a "reasonably foreseeable amount." Moreover, the punitive d unages waiver

provision does not go to the "fmancial heart of the agreement." Therefore, the

Fourth District's severance of the punitive damages waiver provision does not

conflict with this Court's decision in Shotts and Gessa. Second, the American

Arbitration Association ("AAA") Rules referenced in the Fourth Di trict's Opinion

in this case (in the Court's recitation of the facts) were not the basi of the Fourth

District's decision, therefore, any argument based on the AAA Rule (which would

be an argument based on considerations outside the four corners o the Opinion)

Cannot establish a conflict with Shotts and Gessa. Regardless, the i corporation of

QUINTAIROS, PRIETO, WOOD & BOYER, P.A., ATTORNEYS AT LAW4905 WEST LAUREL STREET, SUITE 200, TAMPA, FLORIDA 33607 + TEL: (813) 286-8818

the AAA Rules into the arbitration agreement would not establis a conflict with

Shotts and Gessa because, unlike the AHLA Rules at issue in otts, the AAA

Rules do not contain any remedial limitations. In sum, no argum nt set forth by

Petitioner in its jurisdictional brief establishes a legitimate basis r this Court to

exercise its discretionary Conflict Jurisdiction.

They simply establish that Appellant disagrees with the F urth District's

ruling, which addresses each of these issues and explains the reaso for the Fourth

District's rulings in detail. Neither these arguments, nor any of the thers raised by

Appellant, establish any legitimate basis upon which this Cou could, within

constitutional limits, exercise its discretion "where the opinion be ow establishes

no point of law contrary to a decision of this Court or another distr et court." The

Florida Star v. B.J.F., 530 So. 2d 286, 289 (Fla. 1988).

CONCLUSION

For the foregoing reasons and the reasons set forth in Co-Re pondent, Fumi

Lewu's, Jurisdictional Answer Brief, which are hereby adopted a d incorporated

by reference herein, these Respondents respectfully request that thi Court refrain

from exercising its discretionary jurisdiction as the Fourth Distri 's decision in

this case fails to raise any express and/or direct conflict for this Cou to resolve.


4905 WEST LAUREL STREET, SUITE 200, TAMPA, FLORIDA 33607 •TE L: (813) 286-8818

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the for going has been

furnished via e-mail transmission to Isaac Ruiz-Carus, Esquir , WILKES &

MCHUGH, Tampa Commons, One North Dale Mabry, Suite 8 0, Tampa, FL

33609 ([email protected]; tpalIRCstaff@wilk smchugh.com;

[email protected]) and Christopher W. Wadswo h, Esquire,

WADSWORTH HUOTT, LLP, 200 SE First Street, Suite 1100, M ami, FL 33131

([email protected])on this 6* day ofNovember, 2012.

QUINTAIROS, PRIETO, WOOD & R, P.A.

s A. ValdezF1 . ar No.: 0114952-4905 West Laurel Street - Suite 200Tampa, Florida 33607Telephone: (813) 286-8818Facsimile: (813) [email protected]

CERTIFICATE OF COMPLIANCE

I CERTIFY that this Petition for Writ of Certiorari complie with the font

requirements of Rule 9.210 of the Florida Rules of Appellate Proc dure and is in

the required font ofTimes New Roman 14.

s A. Valdez, Esq.Fla. Bar. No.: 011149Ji2_



IN THE DISTRICT COURT OF APPEAL 6....IN THE DISTRICT COURT OF APPEAL 6. FOURTH DISTRICT OF FLORIDA...

Documents

Transcript of IN THE DISTRICT COURT OF APPEAL 6....IN THE DISTRICT COURT OF APPEAL 6. FOURTH DISTRICT OF FLORIDA...