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HE("EIVED, Ul/2013 15:53:32. Thomas D. Ilall, Clerk, Supreme court

in the Supreme Court of Florida

Case No. SC13-350

1:UNDAMENTAL LONG TERM CARE llOI.DlNGS, LLC, MURR AYFORMAN, AND1 FONARDGRUNSTFIN,

Petitioner,

Tl lE ESTATE OF JUANlTA AMELlA .IACKSON, by and through CATHYJACKSON-PLATTS fikja ( ATHliRlNE WHATLI Y. Personal Representative, el

al,

Respondents.

ON DISCRETlONARY REVIEW FROM THESI?COND DISTIl lCT COURT OF APPI'A L

R ESPONDENT'S ANSWE R 13RIEF ON JtJ RISDICTION

lsaac R, Ruiz-Carus, EsquireFlorida Bar No. 0017004

kuiz-carus'gvilkeg1chughg_ompalRCstaff@wi_lkesmchugh.com

ruth(a uilkèsmehugh.com

Joanna M. Greber, EsquireFlorida Bar No. 0027K10

jgreberiawilkesmchugh.comH@wilkespehugh.com

WlLKl:S & MciiUGil, P.A.One Dale Mabry I Iwy., Ste. 800

Tampa, Fl. 336(N(813 ) 873.0026 Phone(813)286-8820 Fax

Counsel lbr Respon

TABLEOFCONTENTS

Page(s)

TABLE OF AUTHORITIES ...................................................................................iii

PRELIMINARY STATEMENT................................................................................1

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

SUMMARY OF THE ARGUMENT ........................................................................3

ARGUMENT .............................................................................................................3

I. There is No Basis for Discretionary Review of the Opinion of theSecond District Court of Appeal .............................................................3

a. The Second District's Opinion Does Not Conflict with Exceletech,Inc. v. Williams, 597 So. 2d 275 (Fla. 1992).......................................5

b. The Second District's Opinion Does Not Conflict with Forman v.Great American Resorts ofFlorida, 929 So.2d 1089 (Fla. 4th DCA2006)......................................................................................................6

c. The Second District's Opinion Does Not Conflict with BoatsExpress, Inc. v. Thackeray, 978 So.2d 206 (Fla. 2d DCA 2008).......7

II. There Exists No Inconsistency in Impleader Practice in Post-Judgment Proceedings Supplementary Pursuant to Fla. Stat. Section56.29...........................................................................................................8

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

CERTIFICATE OF SERVICE ............................................................................... 11

CERTIFICATE OF FONT COMPLIANCE .......................................................... 11

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TABLE OF AUTHORITIES

Cases Page(s)

Boats Express, Inc. v. Thackeray,978 So. 2d 206 (Fla. 2d DCA 2008)......................................................passim

Dodi Pub. Co. v. Editorial America, S.A.,385 So.2d 1369 (Fla. 1980).............................................................................4

Exceletech, Inc. v. Williams,597 So. 2d 275 (Fla. 1992) ..............................................................................3

Florida Power & Light Co. v. Bell,113 So.2d 697 (Fla. 1959)...............................................................................3

Forman v. Great American Resorts ofFlorida,929 So.2d 1089 (Fla. 4th DCA 2006).....................................................passim

Fundamental Long Term Care Holdings, LLC v. Estate ofJackson ex rel. Jackson-Platts,--- So.3d ---, 2012 WL 5935678 (Fla. 2d DCA 2012)........................... passim

Jenkins v. State,385 So.2d 1356 (Fla. 1980).............................................................................4

Kyle v. Kyle,139 So.2d 885 (Fla. 1960) ...............................................................................4

The Florida Star v. B.J.F.,530 So.2d 286 (Fla. 1988)...............................................................................3

Other Authorities

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

Florida Statutes (2010) §56.29.........................................................................passim

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PRELIMINARYSTATEMENT

Petitioners Fundamental Long Term Care Holdings, LLC ("FLTCH"),

Murray Forman, and Leonard Grunstein have filed a Notice to Invoke the

Discretionary Jurisdiction of this Court. The request for review should be denied.

As shown below, the Second District Court of Appeal's decision holding that a

post-judgment proceeding supplementary does not require a new summons and

complaint is firmly grounded in section 56.29, Florida Statutes (2010), and the case

law interpreting that statute. It does not expressly or directly conflict with either

Florida Supreme Court or District Court precedent.

STATEMENT OF THE CASE AND FACTS

In this appeal, the Petitioners sought interlocutory review of an order that

denied their motion to dismiss a proceeding supplementary brought against them

under section 56.29. The Respondent, the Estate of Juanita Jackson, had received a

$110 million judgment against two defunct entities. The Estate commenced the

proceeding supplementary against the Petitioners by serving them with a motion

and order to show cause why they should not be liable for delaying, hindering, or

defrauding the Estate, or why assets in their possession or control from the

judgment debtors should not be levied upon to satisfy the Estate's judgment.

Although the Petitioners were properly served with the motion and order to

show cause, the Petitioners moved to dismiss the proceeding on the theory that the

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trial court lacked personal jurisdiction over them because the Estate never served

them with a summons and complaint. Applying the plain language of section

56.29, the trial court rejected that position and denied the motion to dismiss.

Petitioners appealed to the Second District Court of Appeal.

On November 28, 2012, the Second District affirmed ("Opinion").

Fundamental Long Term Care Holdings, LLC v. Estate ofJackson ex rel. Jackson-

Platts, --- So.3d ---, 2012 WL 5935678 (Fla. 2d DCA 2012). As the Second

District stated in its Opinion: "[T]here is no explicit rule requiring that a plaintiff

wishing to initiate proceedings supplementary against a new third party must file

an impleader complaint and serve process of that complaint on the new third

party." Id. at *3. Because the Petitioners "were personally served with a copy of

the order to show cause, as provided for in section 56.29(3), and the order clearly

informed the new defendants that the Estate was seeking to enforce a judgment

against them," the motion to dismiss was properly denied. Id. The Petitioners then

sought rehearing, rehearing en banc or certification of the Opinion, which was

denied on February 8, 2013. One March 21, 2013, the Second District also denied

Petitioners' Motion to Stay Mandate and entered its Mandate on March 26, 2013.

The instant Notice to Invoke Discretionary Review followed asserting that

the Second District's Opinion conflicts with a decision from the Fourth District

Court of Appeal - Forman v. Great ylmerican Resorts ofFlorida, 929 So.2d 1089

2

(Fla. 4th DCA 2006) - a decision from the Second District - Boats Express, Inc. v.

Thackeray, 978 So. 2d 206 (Fla. 2d DCA 2008) - and a decision from this Court -

Exceletech, Inc. v. Williams, 597 So. 2d 275 (Fla. 1992). Petitioners are wrong.

SUMMARY OF THE ARGUMENT

This Court should decline jurisdiction. The Opinion of the Second District

is not in express and direct conflict with the decision of another district court or

this Court. Petitioners' arguments amount to nothing more than mere

disagreement with the Second District. It is well established that review based on

disagreement is outside the purview of this Court's discretionary review

jurisdiction. See, e.g., Florida Power & Light Co. v. Bell, 113 So.2d 697, 698 (Fla.

1959) (argument that the district court was erroneous in its decision is not within

the intendment of Article V).

ARGUMENT

I. There is No Basis for Discretionary Review of the Opinion of theSecond District Court of Appeal

The Supreme Court has discretionary jurisdiction to review "any decision of

a district court of appeal or of the supreme court on the same question of law." Art.

V, § 3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(iv). The Court's

discretion to review a district court decision is narrowly circumscribed by the

. Florida Constitution in Article V, Section 3(b)(3). See The Florida Star v. B.J.F.,

530 So.2d 286, 288 (Fla. 1988)(explaining that the Court's discretion to exercise

3

jurisdiction is narrowly circumscribed); Jenkins v. State, 385 So.2d 1356, 1357

(Fla. 1980)(emphasizing that the Court's power to review district court decisions is

"limited and strictly prescribed" and that district courts are "courts primarily of

final appellate jurisdiction.") "The issue to be decided from a petition for conflict

review is whether there is express and direct conflict in the decision of the district

court before [the Court] to review." Dodi Pub. Co. v. Editorial America, S.A., 385

So.2d 1369, 1369 (Fla. 1980)(emphasis added).

In construing this constitutional restriction, this Court has limited the cases

that qualify for conflict jurisdiction review, explaining:

The conflict must be such that if the later decision and the earlier decisionwere rendered by the same Court the former would have the effect ofoverruling the latter . . . . If the two cases are distinguishable in controllingfactual elements or if the points of law settled by the two cases are not thesame, then no conflict can arise.

Kyle v. Kyle, 139 So.2d 885, 887 (Fla. 1960).

Here, Petitioners have failed to show that the Second District's Opinion

below creates any conflict, let alone a "direct" and "express" conflict necessary to

invoke this Court's discretionary jurisdiction review. In fact, the Opinion conforms

to section 56.29 and the case law interpreting that statute. The three cases cited in

the Petitioners' Brief on Jurisdiction - Exceletech, Inc. v. Williams, 597 So. 2d 275

(Fla. 1992), Forman v. Great American Resorts ofFlorida, 929 So.2d 1089 (Fla.

4th DCA 2006), and Boats Express, Inc. v. Thackeray, 978 So. 2d 206 (Fla. 2d

4

DCA 2008) - do not pose any conflict. In fact, they were all considered and cited

by the District Court as authority within the Opinion. All three cases are readily

distinguishable from this post-judgment proceeding.

a. The Second District's Opinion Does Not Conflict with Exceletech, Inc. v.Williams, 597 So. 2d 275 (Fla. 1992)

Exceletech involved an issue not presented in this case. The issue presented

in Exceletech was whether an examination of the judgment creditor was required

before the judgment debtor could implead third parties in proceedings

supplementary. The Fifth District Court of Appeal and the Florida Supreme Court

held that it was not. Exceletech, Inc. v. Williams, 579 So.2d 850, 850 (Fla. 5th

DCA 1991), aff'd, 597 So.2d 275, 275 (Fla. 1992). Exceletech did not decide the

issue presented here-the procedure the judgment creditor uses to commence

proceedings supplementary against new third parties.

Notably, Exceletech stated that the form utilized to notify an implead third

party of the creditor's allegations in proceedings supplementary is immaterial, as

long as the third party was given notice and an opportunity to be heard.

Exceletech, 579 So. 2d at 852-53, aff'd, 597 So. 2d at 276. The Fifth District

stated:

[F]air notice of the allegations by [the plaintiff] in seeking to collecton his judgment was afforded to [the new defendant] and it was giventhe opportunity to present its case at a hearing before an impartialdecision maker. It was entitled to nor more. Insofar as due process is

concerned, the form which is utilized to notify the third party

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defendant of the creditor's allegations, whether an order to showcause or a thirdparty complaint, is immaterial.

Id. (emphasis added). The Second District's Opinion correctly followed

Exceletech 's guidance and found that the Petitioners were properly served with

notice and were given an opportunity to be heard before the trial court. Thus, there

is no conflict.

b. The Second District's Opinion Does Not Conflict with Forman v. GreatAmerican Resorts ofFlorida, 929 So.2d 1089 (Fla. 4th DCA 2006)

Similarly, the issue presented in Forman was whether a judgment creditor

can appeal a post-judgment order that limited the scope of questioning of a third

party in proceedings supplementary. Forman, 929So.2d at 1090. The Fourth

District held that the order was not appealable and dismissed the appeal for lack of

jurisdiction. Forman did not decide the procedure a judgment creditor must use to

commence proceedings supplementary against new parties. Instead, in dictum, the

court noted that the plaintiff-appellant failed to take any procedural steps to

implead the third party. Id. In this case, as the Second District correctly recognized

in its opinion, the Petitioners were properly served with the Estate's motion to

commence proceedings supplementary and implead the Petitioners and an order to

show cause. The Petitioners were given an opportunity to be heard before the trial

court and were represented by counsel in these proceedings. In fact, the Forman

court cited to the Exceletech opinion which found that a motion providing fair

6

notice of the allegations asserted was sufficient to satisfy due process. Exceletech,

579 So. 2d at 852-53, aff'd, 597 So. 2d at 276. Therefore, no conflict exists.

c. The Second District's Opinion Does Not Conflict with Boats Express,Inc. v. Thackeray, 978 So.2d 206, 210 (Fla. 2d DCA 2008)

The Petitioners also insist that the Second District's opinion conflicts with

an earlier decision by that court in Boats Express, Inc. v. Thackeray. Once again,

Petitioners are wrong. In that case, the Second District held that the appellant's due

process rights were violated because he was never served with anyform ofnotice

impleading the appellant in proceedings supplementary. Id. at 210. The appellant

in Boats Express did not file a notice of appearance and no lawyer had appeared on

his behalf. Id. In this case, the Petitioners were properly served with the Estate's

motion to commence proceedings supplementary and implead the Petitioners and

an order to show cause. The Petitioners were given an opportunity to be heard

before the trial court and were represented by counsel in these proceedings. The

due process concerns that led to the holding in Boats Express were not implicated

by the procedure that was followed here. There is no conflict between the two

opimons.

In addition, Petitioners cite to a Florida bar article - Benjamin Brodsky,

"Caught in the Webb of Florida's Statutory Proceedings Supplementary:

Procedural and Constitutional Problems Facing Impleaded Third Parties," 86 -

DEC Fla. B.J. 28 (Dec. 2012) - as support for seeking discretionary review. But

7

that article undermines the Petitioners' argument for Florida Supreme Court

jurisdiction rather than supports it. The article recognizes that current Florida law

permits impleader of third parties by motion and order to show cause -the

procedure approved by this Court. Id. at 30-32 ("Cases and authorities have read

into the statute that an order to show cause is the appropriate method for formally

impleading a third party into proceedings supplementary.") Moreover, a Florida

bar article does not provide a basis for asserting conflicting jurisdiction.

Because the Second District's Opinion is in accord with the case law on

proceedings supplementary and not in conflict with any other decision, the

Petitioners' Notice to Invoke Discretionary Jurisdiction should be denied.

II. There Exists No Inconsistency in Impleader Practice in Post-Judgment Proceedings Supplementary Pursuant to Fla. Stat. Section56.29

The Petitioners also allege that this Court should exercise jurisdiction to hear

this case because the case law is unclear regarding the procedure to implead third

parties in supplementary proceedings. Not so. The Second District appropriately

found that the statute and case law dictate that an impleader complaint and

summons is not required to implead third parties in proceedings supplementary.

And, as the Second District noted, while there are some instances where plaintiffs

have impleaded third parties in proceedings supplementary by filing complaints,

none of those cases nor the statute explicitly require a complaint to begin a

8

proceeding supplementary. Fundamental, 2012 WL 5935678 at *4. The Second

District also examined a line of cases in which third parties were impleaded by

motion in proceedings supplementary-as was done here. Id. The law is not

"unclear" simply because there are alternative ways to initiate proceedings

supplementary against impleaded third parties.

In any event, even if such inconsistency existed under Florida law, it would

not provide this Court with jurisdiction to review the Second District's Opinion in

this matter. Art. V, § 3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A).

CONCLUSION

As no express or direct conflict with a decision of another district court of

appeal or of this Court on the same question exists, this Court lacks jurisdiction to

exercise discretionary review over the Second District's Opinion. The Court,

must, therefore, dismiss the Petitioners' request for review.

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Respectfully submitted,

aac R. Ruiz-Carus, Esquirelorida Bar No. 0017004

iruiz-carus@wilkesmchugh.comtpaIRCstaff@wilkesmchugh.comruth@wilkesmchugh.comJoanna M. Greber, EsquireFlorida Bar No. 0027830jareber@wilkesmchugh.comfl@wilkesmchugh.comWILKES & McHUGH, P.A.One Dale Mabry Hwy., Ste. 800Tampa, FL 33609(813) 873-0026 Phone(813) 286-8820 FaxCounselfor Respondent

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

furnished by e-mail on this 1®' day ofApril, 2013 to:

Matthew Triggs, Esq.Florida Bar No. 0865745mtriggs@proskauer.comflorida.litigation@proskauer.comLisa Markofsky, Esq.Florida Bar No. 0016673Imarkofsky@proskauer.comPROSKAUER ROSE LLP2255 Glades Road, Suite 421 AtriumBoca Raton, FL, 33431-7360

Counselfor Petitioners FundamentalLong Term Care Holdings, LLC,Murray Forman and Leonard Grunstein.

saac R. Ruiz-Carus, EsquireFlorida Bar No. 0017004

CERTIFICATE OF COMPLIANCE WITH FONT STANDARD

I hereby certify that the foregoing Respondent's Answer Brief on

Jurisdiction was typed in Times New Roman 14 point font and complies with Fla.

R. App. P. 9.210.

saac R. Ruiz-Carus, Esquirelorida Bar No. 0017004

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