SUPREME COURT OF FLORIDA CASE NO.: SC11-263 Fourth DCA Case No. 4D09-728 MCLAUGHLIN ENGINEERING COMPANY, a Florida Corporation, JERALD MCLAUGHLIN, individually, and CARL E. ALBREKSTEN, individually, vs. Defendants/Petitioners, SUE E. ROCKS, SANDRA BRIGMAN LATTA, and SHERYL LOPEZ, as CO- PERSONAL REPRESENTATIVES OF THE ESTATE OF JOAN ROCKS, and ROLLY MARINE SERVICE COMPANY, a Florida Corporation d/b/a ROLLY MARINE SERVICE, INC. Plaintiffs/Respondents. AMENDED JURISDICTIONAL BRIEF FOR RESPONDENTS Justin C. Leto, Esq. The Leto Law Firm 201 South Biscayne Blvd., Suite 1720 Miami, Florida 33131 Phone: 305-577-8448 Fax: 305-577-8465 jleto@letolaw.com ATTORNEY FOR RESPONDENTS
TABLE OF CONTENTS TABLE OF AUTHORITIES... iii SUMMARY OF THE ARGUMENT... 1 ARGUMENT... 1-10 CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE... 11
TABLE OF AUTHORITIES CASES Cessna Aircraft Co. v. Avior Technologies, Inc., 990 so.2d 532 (Fla. 3d DCA 2008)... 7, 9 Garden v. Frier, 602 So.2d 1273 (Fla. 1992) 990 So.2d 532 (Fla. 3d DCA 2000)... 1, 2, 3, 5, 6, 7, 8 Monroe v. Sarasota County School Bd., 746 So.2d 530 (Fla. 2d DCA 1999)... 7, 8, 9 Moransais v. Heathman, 744 So.2d 973 (Fla. 1999)...1, 2, 4, 5, 6, 7, 8, 9 Tiara Condo. Ass n, Inc. v. March & McLennan Cos., Inc., 607 F.3d 742 (11th Cir. 2010)... 1, 9 Vesta Constr. & Design, LLC v. Lotspeich, 974 So.2d 1176 (Fla. 5th DCA 2008)... 7, 8 STATUTES Fla. R. App. P. 9.030(2)(A)(iv)... 2 Art. V, 3(b)(3), Fla. Const.... 2 Fla. Stat. 472.005 (1994)... 3, 4, 10 Fla. Stat. 472.007 (1994)... 10 Fla. Stat. 472.021(1997),... 3, 4 Fla. Stat. 95.11 (1997)... 6
SUMMARY OF ARGUMENT Petitioners seeks to invoke the discretionary jurisdiction of this Honorable Court. As will be explained in greater detail below, there is no express and direct conflict on a question of law in the instant matter, and, as such, there is no basis for this Court to invoke its discretionary jurisdiction. Reading each case cited by the Petitioners in context, none of the language in the opinions of these cases indicates that a conflict exists among the District Courts of Appeal or with the Florida Supreme Court. Furthermore, Petitioners maintain that the future decision rendered by this Court in Tiara Condo. Ass n, Inc. v. March & McLennan Cos., Inc., 607 F.3d 742 (11th Cir. 2010), will be dispositive of the instant case. As will be explained herein, the Tiara decision will have no effect whatsoever on the instant case. For the reasons set forth below, as well as the reasons previously outlined in Respondent s briefs to the Fourth District Court of Appeals, this Court should deny the Petitioner s Motion. ARGUMENT THE DECISION RENDERED BY THE FOURTH DISTRICT COURT OF APPEALS IS NOT EXPRESSLY OR DIRECTLY IN CONFLICT WITH GARDEN V. FRIER, 602 SO.2d 1273 (FLA. 1992), MORANSAIS V. HEATHMAN, 744 So.2d 973 (FLA. 1999) OR ANY OTHER DISTRICT COURT OF APPEALS DECISION
In accordance with the Florida Rules of Appellate Procedure, Rule 9.030(2)(A)(iv), the discretionary jurisdiction of this Court may be sought to review decisions of the district courts of appeal that expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law. Fla. R. App. P. 9.030(2)(A)(iv); see also Art. V, 3(b)(3), Fla. Const. Petitioner argues that the decision in Moransais v. Heathman interprets the 1992 Supreme Court case of Garden v. Frier and is the controlling case on the issues herein. Further, Petitioner argues that the Fourth District s decision in the instant case conflicts with those two cases. However, as will be shown herein, Petitioner is incorrect in arguing that the Fourth District s holding in the instant case is in conflict with Moransais and/or Garden. First, without even considering the holdings of Garden v. Frier or Moransais v. Heathman, surveyors are professionals by virtue of the unambiguous language used by the Legislature in defining surveyors as far back as 1994. Specifically, Fla. Stat. 472.005 (1994) defined surveyors as follows: Surveyor and mapper includes the term professional surveyor and mapper Practice of surveying and mapping means, among other things, any professional service or work, the adequate performance of which involves the application of special knowledge of the principles of mathematics, the related physical and applied sciences
Fla. Stat. 472.005 (1994). Section 472.021, Florida Statutes (1997), goes on to very clearly allow for surveyors acting in their professional capacity to be sued in negligence while acting in their professional capacity. 1 The Fourth District recognized the fact that the Legislative intent was clear and that surveyors were to be considered professionals that could be sued in negligence. See Appendix to Petitioner s Brief, pg.6. Further, the Fourth District took into account that the Florida common law authority is in the same vein. Id. at 6. As such, regardless of how Garden v. Frier is historically interpreted, and regardless of how Tiara is decided by this Court, there is absolutely no way around the fact that the Legislature expressly intended to consider surveyors professionals after the Garden v. Frier opinion. As such, there is no conflict between the decision by the Fourth District and the cases cited by Petitioner. However, in the event this Court endeavors to make a comparison between the instant case and the cases cited as conflicting by Petitioner, the Court will find 1 It is important to note that the statutes cited above took effect in 1994 and 1997, respectively. Garden v. Frier was decided by this Court in 1992. Clearly, if the Legislature intended to either adopt or abrogate from Garden v. Frier, the opportunity was there when these statutes were promulgated. Instead, however, the Legislature defined land surveyors as professionals and stated, unequivocally, that they could be sued in negligence for their wrongful acts.
that the arguments raised by Petitioner evidence no conflict between the reasoning of the Fourth District and this Court s previous decisions. Petitioner places heavily reliance upon the decision of Moransais v. Heathman, 744 So.2d 973, 976 (Fla. 1999) in setting forth its argument. In Moransais, this Court held that the engineers were professionals, partly based upon statutory language almost identical to the statues cited by Respondent herein. As such, engineers in Moransais were not afforded any protections from the Economic Loss Rule. See Moransais v. Heathman, 744 So.2d 973, 978 (Fla. 1999) (emphasis added). Analogous to the factual scenario in Moransais, in the instant case, Respondent cited (during the appeal), as support for its argument, Fla. Stat. 472.021 (1994). This statute shows that the Legislature has specifically defined surveyors as professionals and subjected surveyors to lawsuits sounding in professional negligence. This is consistent and directly on point with the holding in Moransais. Petitioner states in its Jurisdictional Brief that the Fourth District s opinion is in direct conflict with the Florida Supreme Court s subsequent opinion in Moransais v. Heathman and must now exercise its discretionary jurisdiction to resolve this conflict. However, no such conflict exists as Petitioner is mischaracterizing the holding of Moransais. The decision in the instant case is in
no way conflicting with the Moransais decision. Moransais properly held that engineers were professionals based upon the Legislative intent to hold engineers to the standard of a professional. The instant case has been decided in complete conformity with the decision in Moransais, holding surveyors to be professionals by virtue of both statutory and common law principles. This brings us back to Petitioner s original argument on appeal: that the Fourth District failed to follow established precedent set forth in the decision of Garden v. Frier, 602 So.2d 1273 (Fla. 1992). Such a statement could not be more inaccurate. The Fourth District looked closely at Garden v. Frier and its progeny and held that Garden v Frier limited the non-professional designation for surveyors to only the statute of limitations. The Fourth District got it exactly correct. This Court specifically and unambiguously limited its holding in Garden v. Frier to application to the Statute of Limitations and the Fourth took this Court at its word. See Appendix to Petitioner s Brief, pg. 5. The holding of Garden v. Frier and the limiting language used by this Court could not be clearer on its face. However, Petitioner attempts to muddy the waters by stating that Moransais somehow clarified and/or extended this Court s holding in Garden v. Frier by extending the holding beyond that of the statute of limitations. But again, this is not the case.
Petitioner is patently mischaracterizing the Supreme Court s interpretation of Garden v. Frier in Moransais and has done so throughout this appellate process. In fact, a clear reading of Moransais shows that this court did not interpret Garden v. Frier at all. Instead, Garden v. Frier is cited only one time, and the exact citation is as follows: That Florida recognizes an action for professional malpractice is also evidenced by the statutory scheme for limitations of actions. part: Section 95.11, Florida Statutes (1997), reads in pertinent Actions other than for recovery of real property shall be commenced as follows:... (4) WITHIN TWO YEARS.- (a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort... However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional. 95.11(4)(a), Fla. Stat. (1997). A profession, within the meaning of section 95.11, is any vocation requiring at a minimum a four-year college degree before licensing is possible in Florida. See Garden v. Frier, 602 So.2d 1273, 1275 (Fla.1992). Moransais v. Heathman, 744 So.2d 973, 976 (Fla. 1999) (Emphasis added). Again, the Florida Supreme Court discusses its decision in Garden v. Frier in terms of the statute of limitations only. There is no clarification or extension of the holding. And the Moransais case in no way conflicts with the decision made
by the Fourth District in the instant case. Nowhere in the Moransais decision does the Court clarify the definition or criteria to apply for purposes of the professional services exception to the economic loss rule. Instead, Moransais remains entirely consistent with Garden and with the opinion in the instant case. Nothing in Moransais acts to clarify or expand the holding in Garden. Petitioner has attempted to re-write the Moransais decision for purposes of this appeal but the decision says what it says. There is no conflict between Garden, Moransais, or this case. Instead, there is consistency throughout. That is why the Fourth District refused to certify this case to this Court and it is why this Court should deny Petitioner s request that this Court entertain discretionary jurisdiction. Reading each case cited in the Jurisdictional Brief of Petitioners in context, none of the language in the opinions of those cases indicate, even hypothetically, that a conflict exists among the districts. See Moransais v. Heathman, 744 So.2d 973 (Fla. 1999); Vesta Constr. & Design, LLC v. Lotspeich, 974 So.2d 1176 (Fla. 5th DCA 2008); Monroe v. Sarasota County School Bd., 746 So.2d 530 (Fla. 2d DCA 1999); Cessna Aircraft Co. v. Avior Technologies, Inc., 990 So.2d 532 (Fla. 3d DCA 2008). Without a conflict on a question of law, this Court is without discretionary jurisdiction to review the Fourth District s opinion. In Vesta, in regards to a claim for negligent misrepresentation against an ecologist employed by a corporation, the Fifth District Court of Appeal discusses
the Moransais exception to the economic loss rule and the narrow definition of a professional as provided in Garden. 974 So.2d 1176, 1181. Vesta did not extend the definition of professional in the context of the economic loss rule, but used the definition proffered in Garden, and repeated in Moransais, to prevent litigants from circumventing the economic loss rule by suing the employees of corporations, regardless of whether or not the employee was a professional, based simply on a lack of privity with employees. Id. at 1181. In Monroe v. Sarasota County School Bd., the Court does use the definition of a professional as provided in Moransais and states, as follows: we assume for purposes of this opinion that the administrators... were professionals because they were licensed teachers whose vocation requires a minimum of a four-year college degree. 746 So.2d 530, 533 (Fla. 2d DCA 1999) (emphasis supplied). This reiteration of the narrow definition provided in Garden, and merely repeated in Moransais and Vesta, does not amount to an extension of the definition of professional. In fact, the Second District limited the term professional to the definition provided in Moransais, which, as aforementioned, is used in the context of the statute of limitations. Monroe, 746 So.2d at 539. Most significantly, Monroe deals with the issue of whether or not the administrators, charged with the task of hiring (or in the alternative, not hiring) Mr. Monroe owed a duty to him as a matter of traditional common law negligence. Id. at 533-34. Monroe simply states
that Moransais is interpreted as applying only to allow professionals to be sued personally on established theories of professional negligence, even though a contractual relationship exists between the plaintiff and the professional s corporation. Id. There is no indication that this opinion intended to extend the definition of a professional beyond that provided in Garden, as the opinion does not center on the definition of a professional. In Cessna Aircraft Co. v. Avior Technologies, Inc., the Third District cited Moransais, not for the definition of a professional, but for the premise that an individual professional has a duty to render services according to the standard of care maintained by similarly situated professionals. 990 So.2d 532, 538 (Fla. 3d DCA 2008). Finally, the Petitioners maintain that the decision rendered by this Court in Tiara Condo. Ass n, Inc. v. March & McLennan Cos., Inc., 607 F.3d 742 (11th Cir. 2010), will be dispositive of the instant case. In Tiara, the Eleventh Circuit certified the following question: [D]oes an insurance broker provide a professional service such that the insurance broker is unable to successfully assert the economic loss rule as a bar to tort claims seeking economic damages that arise from the contractual relationship between the insurance broker and the insured? Id. Perhaps this Court s decision would be dispositive of the instant case had the Florida Legislature and the Board of Professional Surveyors and Mappers not used
the term professional to apply to the regulation and licensure of surveyors long before 2005. See e.g., Fla. Stat. 472.005(3) (1994) ( Land Surveyor includes term Professional Land Surveyor ); Fla. Stat. 472.007 (1995) (statute entitled Board of Professional Surveyors and Mappers ). Moreover, Chapter 472 of the Florida Statutes defined, in 2004, a land surveyor and mapper as including the term professional surveyor and mapper. Fla. Stat. 472.005(3) (2004). The statute also defined the practice of surveying and mapping as any professional service or work, the adequate performance of which involves the application of special knowledge... Fla. Stat. 472.005(4)(a) (2004) (emphasis added). Therefore, whether land surveyors and mappers provide a professional service has already been decided by this State s Legislature. A Florida Supreme Court decision interpreting whether insurance agents provide a professional service will have no impact on the outcome of this case, and will not provide Petitioners with a basis for this Court s discretionary jurisdiction. CONCLUSION Respondents respectfully request that the Court deny Petitioner s request that this Court exercise its discretionary jurisdiction, as no direct and express conflict exists between the decision of the Fourth District, the decision of this Court in Moransais, and the decisions rendered by the Fifth, Second, and Third District Courts of Appeal.
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. mail on this day of March, 2011 to: Jordana L. Goldstein, Esq. Ferencik, Libanoff, Brandt, Bustamente & Williams, P.A. 150 S. Pine Island Rd., #400 Ft. Lauderdale, FL 33324 Respectfully submitted, The Leto Law Firm Attorney for Respondents 201 South Biscayne Boulevard Suite 1720 Miami, FL 33131 Telephone: (305) 577-8448 Facsimile: (305) 577-8465 CERTIFICATE OF COMPLIANCE By: JUSTIN C. LETO Fla. Bar No.: 0652776 I HEREBY CERTIFY that the foregoing brief complies with the font requirements of Rule 9.210 of the Florida Rules of Appellate Procedure. JUSTIN C. LETO