# Appendix — Bryan v. Clayton

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1374%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 933

## Text

FR a eR Rega x

INDEX TO REPLY BRIEF APPENDIX

Homeowners’ Motion to Stay or Recall Mandate
and Notice of Supplemental Authority, served
July 9, 1997

Law Firm’s Response to Motion to Stay or Recall
Mandate, and Law Firm’s Motion for Immedi-
ate Issuance of Mandate, served July 18,

NG STE MGS esis area ht Ba ROP SU gt Ra App.

Homeowners’ Brief on Jurisdiction to the Florida
Supreme Court, served October 23, 1997

Law Firm’s Brief on Jurisdiction to the Florida
Supreme Court, served November 10, 1997.. .App.

NS

16

App. 1

IN THE STATE OF FLORIDA
FIFTH DISTRICT COURT OF APPEAL

5 DCA CASE NO. 96-2406
L.T. CASE NO. CI95-5032

KEVIN E. BRYAN and RENEE M.
BRYAN,

Plaintiffs/ Appellants,
VS.

)

)

)

)

)
KENNETH M. CLAYTON and NEAL _ ?
MCCULLOH individually and doing __?
business as CLAYTON & MCCULLOH, ?
a Florida general partnership,
Defendants / Appellees, )
and vs. ‘
)

)

)

)

)

AMBER RIDGE HOMEOWNERS’
ASSOCIATION, INC., a Florida
corporation,

Defendant.

BRYANS’ MOTION TO STAY OR
RECALL MANDATE, AND NOTICE OF
SUPPLEMENTAL AUTHORITY

The appellants, KEVIN E. BRYAN and RENEE M.
BRYAN, pursuant to Fla. R. App. P. 9.300 and 9.210(g) file
this motion to stay or recall mandate, and notice of sup-

plemental authority, and say:

App. 2

Background

1. This court issued its decision affirming the lower
court on May 9, 1997. On May 27, 1997, the Bryans timely
filed a motion for clarification, rehearing, rehearing en
banc, and certification, and for ancillary relief, which was
denied by order dated June 25, 1997.

2. Accordingly, under Fla. R. App. P. 9.340(b), this
court’s mandate is due to be issued fifteen days after June
25, 1997, or on July 10, 1997. However, for reasons set
forth below, the Bryans urge that this court should stay
the issuance of said mandate and withdraw its opinion,
or recall the mandate if it has already been issued by the
time this court reviews the instant motion.

Basis for Motion

3. This court’s opinion of May 9, 1997 was expressly
based upon five federal district court decisions, the latest
of which was Riter v. Moss & Bloomberg, Ltd., 932 F.Supp.
210 (N.D. Ill. 1996).

4. However, on July 2, 1997, Riter was reversed, and
all of the precedential authorities cited by this court were
expressly repudiated by the United States Court of
Appeals for the Seventh Circuit in a nine page opinion in
Newman v. Boehm, Pearlstein & Bright, Ltd., Nos. 96-2839
and 96-2841, __ F.3d ___ (7th Cir. July 2, 1997). A true
copy of the court’s slip opinion is attached.

5. Newman is the first federal appellate court (and
the only appellate court other than this court) to
expressly construe the federal legislation implicated
herein on the exact issues involved in this appeal. (As

App. 3

noted in Newman and the Bryans’ briefs, the appellate
affirmance in Azar v. Hayter, 66 F.3d 342 (11th Cir. 1995)
was a PCA without opinion, on an appeal by a pro se
litigant, and the reasons for affirmance are thus open to
speculation.) Further, although Newman is a panel deci-
sion, the conclusions drawn in Newman and the two ear-
lier seventh circuit cases upon which it relied (Bass v.
Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322
(7th Cir. 1997) and Ryan v. Wexler & Wexler, 113 F.3d 91
(7th Cir. 1997)), and the fact that all three cases had
different panels, render Newman as being almost the func-
tional equivalent of an en banc decision. See Newman at ay
n.1.

Memorandum of Law

6. This court has jurisdiction to recall its mandate at
any time during the current term of this court, Le., from
July 8, 1997 through January 12, 1998. See § 35.10, Fla.
Stat. (1995). See also State Farm Mutual Automobile Insur-
ance Co. v. Judges of the District Court of Appeal, Fifth
District, 405 So.2d 980 (Fla. 1981) and Judges of the Eleventh
Judicial Circuit vs. Janovitz, 635 So.2d 19 (Fla. 1994):

An appellate court may recall a mandate before

its term of court ends in order to revisit the
cause.

635 So.2d at 20, citing with approval, State Farm, supra.

7. In Theisen v. Old Republic Insurance Co., 468 So.2d
434 (Fla. 5th DCA 1985), this court held that a change in
ease law cannot result in the withdrawal of a prior opin-
ion if the mandate thereon was issued in a prior term of

court. The converse corollary, of course, is that the court

App. 4

can, and should, withdraw its prior opinion where the
case law does change during the same term as the man-
date issues — which is the situation presented herein. And
indeed, in Brunner Enterprises, Inc. v. Department of Reve-
nue, 452 So.2d 550 (Fla. 1984), the Florida Supreme Court
expressly acknowledged that an appellate court can and
should reconsider the law of the case “in those situations
where strict adherence to the rule would result in ‘mani-
fest injustice’ ”. 452 So.2d at 552-53. Quoting with approval,
Strazzulla v. Hendrick, 177 So.2d 1 (Fla. 1965), quoting from
Beverly Peach Properties v. Nelson, 68 So.2d 604 at 608 (Fla.
1953). Brunner continued by holding that:

An intervening decision by a higher court is one

of the exceptional situations in which a court

will entertain a request to modify the law of the
case.

452 So.2d at 553, citing Strazzulla, supra. Although the
Seventh Circuit Court of Appeals may not be a “higher
court”, the Bryans submit that it is at least a court of
equal dignity with this court and entitled to substantial
persuasive weight — not only because it is a federal appel-
late court with experience in interpreting the particular
federal law under scrutiny herein, but because it has a

proven track record of accurately interpreting said law in
a manner subsequently adopted by the United States
Supreme Court. Heintz v. Jenkins, __ U.S. __, 115 S.Ct.
1489 (1995), affirming 25 F.3d 536 (7th Cir. 1994).

App. 5

Conclusion

8. The Bryans’ earlier foreshadowing of the result in
Newman is no longer mere educated forecasting, but real-
ity. This court nas an opportunity to realign itself on its
construction of this federal law with the same enlight-
ened Seventh Circuit Court of Appeals that was affirmed
by the Supreme Court in Heintz - and in doing so, to
spare multitudes of homeowners and condominium
owners from the abuses the FDCPA was enacted to pre-
vent. It would be a manifest miscarriage of justice for this
court’s decision of May 9, 1997 to remain the law of the
case where, as here, its underpinnings have been emascu-
lated by three successive Seventh Circuit Court of
Appeals decisions, the latest of which is on all fours with

the case sub judice.

WHEREFORE, the Bryans move the court to stay or

recall its mandate, as applicable, and revisit this cause in

light of Newman.

App. 6

Certificate of Service

I HEREBY CERTIFY that a true copy hereof has been
furnished by U.S. Mail this 9th day of July, 1997 to
Kenneth M. Clayton, Esq., Clayton & McCulloh, 1065
Maitland Center Commons Blvd., Maitland, FL 32751 and
Randy Hillman, Esq., 203 Hillcrest Street, Orlando, FL
32803.

TRICKEL, LEIGH & MANN, P.A.

By: /s/ Kenneth L. Mann
Kenneth L. Mann
Fla. Bar No. 163585
39 West Pine Street
Orlando, FL 32801
Telephone: 407/422-5154
Telefax: 407/648-2169
ATTORNEYS FOR APPELLANTS

App. 7

IN THE STATE OF FLORIDA
FIFTH DISTRICT COURT OF APPEAL

5TH DCA CASE NO.: 96-2406
L.T. CASE NO.: C195-5032

KEVIN E. BRYAN and RENEE
M. BRYAN, his wife,
Appellants,
VS.
KENNETH M. CLAYTON and NEAL
McCULLOH, individually and

d/b/a CLAYTON & McCULLOH, A
Florida General Partnership,

Appellees.
/

RESPONSE TO APPELLANTS’
MOTION TO STAY OR RECALL MANDATE
AND APPELLEES’ MOTION FOR
IMMEDIATE ISSUANCE OF MANDATE

COME NOW, the Appellees, KENNETH M. CLAY-
TON and NEAL McCULLOH, individually and d/b/a
CLAYTON & McCULLOH, A Florida General Partner-
ship, pursuant to Rule 9.300(a), Fla.R.App.Pr., and in

response to Appellants’ Motion to Stay or Recall Mandate

and would state as follows:

App. 8

ARGUMENT I

THE NEWMAN CASE IS ADVISORY, AT
BEST, AND IS NOT CONTROLLING OF THE
RESULT IN THIS CASE

1. It is well settled law in Florida that an appellate
court must apply the law as it exists at the time the
appeal is decided, even if there has been a change since
the time of trial. See e.g. Lowe vs. Price, 437 So. 2d 142 (Fla.
1983); Wheeler vs. State, 344 So. 2d 244 (Fla. 1977).

2. An appellate “decision” encompasses the opinion
and the judgment. Seaboard ALR Co. v. Branham, 104 So.
2d 356 (Fla. 1958); See also Zirin vs. Charles Pfizer & Co.,
128 So. 2d 594 (Fla. 1961).

3. A “decision” is entered as of the date shown on
the order or decision. Rule 9.340(a), Fla.R.App.Pr.

4. In the instant case, the opinion and judgment
affirming the trial court was entered by this court on May
9, 1997. This decision was ratified and approved upon the
denial of Appellants’ Motion for Rehearing, which denial
was dated June 25, 1997.

5. The case of Newman vs. Boehm, Pearlstein & Bright,
Ltd., Nos. 96-2839 and 96-2841, __ F.3d ___ (7th Cir. July
2, 1997) was not decided until after the denial of the
Appellants Motion for Rehearing. Therefore, this court
properly applied the law in effect at the time the case was
decided, to wit; June 25, 1997.

6. The Newman case is not controlling in the instant
lawsuit.

7. As the Appellees have continuously argued, the
federal case law on this subject is merely advisory to this

ee

App. 9

court. The federal case law is not, however, legally bind-
ing upon this court.

8. If one were to assume that the federal case law
were in fact binding upor this court, then the case of Azar
v. Hayter, 874 F. Supp. 1314, (N.D. Fla. 1995), aff'd without
op., 66 F.3d 342 (11th Cir. 1995), cert. denied, 116 S. Ct. 712
(1996), would be most binding in that it arose out of the
Northern District of Florida, was appealed to our federal
circuit (the 11th Circuit), and review was denied by the
United States Supreme Court. Newman arises from a dis-
tant circuit (the 7th Circuit), and establishes nothing more
than a conflict among the federal circuits. Furthermore,
the decision in Newman is not final until after the time for
rehearing elapses and/or an appeal is taken to the United
States Supreme Court.

9. This conflict among the federal circuits may ulti-

mately be resolved by the United States Supreme Court.
Any decision by the United States Supreme Court would
clearly be binding upon this court. However, unless and
until the United States Supreme Court resolves this issue,

a conflict among federal circuits is an insufficient basis

upon which to deny issuance of the mandate or further
delay the final resolution of the instant appeal.

10. To grant the relief requested by the Appellants
is an extraordinary remedy. The cases cited by the Appel-
lants all dealt with circumstances in which the change in
i the decisional law was in fact absolutely legally binding
. upon the lower tribunal. This is not the circumstance in

the instant lawsuit.

App. 10

ARGUMENT II

THE TERM OF COURT IN WHICH THE
JUDGMENT WAS “RENDERED” HAS EXPIRED

11. An appellate “decision” encompasses the opin-
ion and the judgment. Seaboard ALR Co. vs. Branham, 104
So. 2d 356 (Fla. 1958); see also Zirin vs. Charles Pfizer & Co.,
128 So. 2d 594 (Fla. 1961).

12. The issuance of the mandate is a routine minis-
terial function most often performed by the clerk of the
court in which the decision is rendered. See Rule 9.340(a),
Fla.R.App.Pr.; See also Eldred vs. Reber, 639 So. 2d 1086
(Fla. 5th DCA 1994).

13. Rule 9.340, Fla.R.App.Pr., “. . . . communicates
clearly that rendition applies to an order of the court, not
the issuance of the mandate.” Eldred, 639 So. 2d 1086.

14. Pursuant to § 35.10, Fla. Stat., “. .. . the district

courts of appeal shall hold two regular terms each year

. commencing respectively on the second Tuesday in
January and July.” Section 35.10, Fla. Stat. (1995).

15. In their Motion to Stay or Recall Mandate,
Appellants cite the case of State Farm Mutual Automobile
Insurance Co. vs. Judges of the District Court of Appeal, Fifth
District, 405 So. 2d 980 (Fla. 1981), for the proposition that
“.... an appellate court may recall a mandate before its
term of court ends in order to revisit the case.”

16. It should be noted that, with respect to recalling
the mandate of the appellate court, the State Farm case
cites to and is based upon the Florida Supreme Court’s
holding in the case of Chapman vs. St. Stephens Protestant
Episcopal Church, Inc., 138 So. 630 (Fla. 1932).

App. 11

17. In Chapman, the Florida Supreme Court stated:

_a majority of the court have reached the
conclusion that the correct rule, which should be
recognized and applied in such situation, is that
the jurisdiction of this court, like the jurisdiction
of courts generally, persists to the end of the
term and then terminates, but that, during the
term at which a judgment of this court ts rendered,
this court has jurisdiction and power which it
may exercise, as the circumstances and justice of
the case may require, to reconsider, revise,
reform, or modify its own judgments for the
purpose of making the same accord with law
and justice, and that it has power to recall its
own mandate for the purposes of enabling it to
exercise such jurisdiction and power in a proper
case. [emphasis supplied]

Chapman, 138 So. 2d at 632.

18. Inline with Chapman, several other Florida cases
have held that appellate courts have “.... the power [sic]
recall its [sic] mandate so long as recall is within the term
during which the opinion was issued.” [emphasis sup-
plied] See, e.g. Owens vs. State, 444 So. 2d 951 (Fla. 2nd
DCA 1984); See also United Faculty of Florida Local 1847 vs.
Board of Regents, State University System, 423 So. 2d 429
(Fla. lst DCA 1982). Both of these cases cite to State Farm
for the authority of a reviewing court to recall its man-

date during the term in which the opinion was issued.

19. As held by this court in Eldred, “... . time begins

to accrue when the appellate decision is “rendered” as

App. 12

that term is defined in Florida Rule of Appellate Pro-
cedure 9.020(g).” Eldred, 639 So. 2d 1086.! “Rendition”
occurs when the opinion is filed with the clerk of the
court, not when the mandate is issued. Eldred, 639 So. 2d
1086.

20. In the instant action, the decision of this court
was rendered, at the very latest, on June 25, 1997, the date
that the Appellants’ Motion for Rehearing was denied.
Therefore, the decision was rendered during the January,
1997 term of court which term commenced on January 13,
1997, and ended on July 7, 1997.

21. The mandate was to be issued in the instant
action on July 10, 1997, fifteen days after the denial of the
Appellants’ Motion for Rehearing. Therefore, the man-
date was to be issued during the July, 1997 term of court
which commenced on July 8, 1997.

22. All of the case law cited by the Appellant which
permits the court to withdraw its mandate during the
current term of court arise out of circumstances in which
the rendition of the order and issuance of the mandate
are in the same term of court.

23. Appellees have been unable to locate any case
law which addresses the particular and unusual circum-
stances of this case, to wit; when the order is rendered in

1 The issue presented in Eldred: when does a statute of
limitations for litigational malpractice begin to accrue — the date
the order is “rendered” or the date that the mandate is issued?
While the instant case is not a “statute of limitations” case, as
will be argued herein, the time delay between the rendition of
the order and issuance of the mandate is equally critical in the
instant action.

weet eal

Neaiacuites sae’

eee ee Re, Fe

App. 13

one term of court and the mandate is issued in the
following term of court.

24. An appellate mandate is a notice from the appel-
late court to the trial court of the decision rendered in the
cause. The mandate is a ministerial function of the clerk
of the appellate court. See Rule 9.340, Fla.R.App.Pr.

25. As stated in the commentary to Rule 9.340,
Fla.R.App-Pr., “The 15-day delay in issuance of mandate
is necessary to allow a stay to remain in effect for pur-
poses of rule 9.310(e).” The commentary to this rule also
states that “The power of the court 1o expedite as well as
delay issuance of the mandate, with or without motion,
has been made express.” Rule 9.340, Fla.R.App.Pr.

26. Rule 9.310(e) states “A stay entered by a lower
tribunal shall remain in effect during the pendency of all
review proceedings in Florida courts until a mandate
issues, or unless otherwise modified or vacated.” Rule
9.340(e) [sic], Fla.R.App-Pr.

27. Clearly, the procedural time delay between the
rendition of the order and the ministerial function of the
reviewing court issuing its mandate is to provide the
lower tribunal with time to issue such necessary orders
and/or make such necessary preparations for complying
with the mandate of the reviewing court.

28. In the instant action, no stay was ever issued by
the lower tribunal.

29. In the case of Orange Federal Savings & Loan
Association vs. Dykes, 444 So. 2d 1152 (Fla. 5th DCA 1984),
this court recognized that a brief time period between the
issuance of the mandate and the close of a term of court

App. 14

may result in a hardship, but nonetheless mandates
denial of the motion for lack of subject matter jurisdic-
tion.

30. In Orange Federal, the judgment was rendered on
June 23, 1983 and the mandate was issued on July 11,
1983, both during the January, 1983 term of court. Id. at
1152. The July, 1983 term of court began on July 12, 1983.
Id. at 1153.

31. In denying the belated motion for rehearing for
lack of subject matter jurisdiction, this court, quoting
with approval from State Farm, 405 So. 2d 980, stated “All
things must have an end. This case has ended.” Orange
Federal, 444 So. 2d at 1153.

32. The term of court in which the “judgment” of
this court was “rendered” ended on July 7, 1997. There-
fore, the jurisdiction of this court to recall and/or recon-
sider that judgment ended on July 7, 1997. This
conclusion should not be effected by the purely minis-
terial function of the issuance of this court’s mandate,
which mandate could have been issued immediately after
the entry of the Order Denying Appellants’ Motion for
Rehearing on June 25, 1997. In the instant case, had the
mandate been immediately issued after the denial of
Appellants’ Motion for Rehearing, Appellants’ instant
motion would be moot due to the fact that their motion
was filed on July 9, 1997, after the end of the January,
1997 term of court.

WHEREFORE, For the reasons stated above, this case
is at an end. Appellants’ Motion to Stay or Recall Man-
date should be denied, and the mandate of this court
should be immediately issued.

App. 15

I HEREBY CERTIFY that a true and correct copy of
the foregoing Motion to Strike has been mailed to KEN-
NETH L. MANN, ESQ., 39 West Pine Street, Orlando,
Florida 32801, this 18th day of July, 1997.

/s/ James E. Olsen
JAMES E. OLSEN, ESQ.
Fla. Bar #607703
CLAYTON & McCULLOH
1065 Maitland Center
Commons Blvd.
Maitland, Florida 32751
(407) 875-2655
Attorney for Appellees

App. 16

IN THE SUPREME COURT OF FLORIDA
CASE NO.

KEVIN E. BRYAN and RENEE
M. BRYAN,

Petitioners,

KENNETH M. CLAYTON, et al.,

Respondents,

)
)
)
)
VS. )
)
)
)
)

DISCRETIONARY PROCEEDING TO REVIEW
DECISION OF 5TH DCA CASE NO. 96-2406

PETITIONERS’ BRIEF ON JURISDICTION

Kenneth L. Mann, of
KENNETH L. MANN, P.A.

Fla. Bar No. 163585

105 E. Robinson Street, Ste. 540
P. O. Box 551

Orlando, FL 32802-0551
Telephone: 407/422-0006
Telefax: 407/841-9516
COUNSEL FOR PETITIONERS

|

App. 17

TABLE OF CONTENTS

[Original Pagination]

TABLE OF CONTENTS......---:s:eecteerertertee i
TABLE OF CITATIONS .......---eeeceeeessecseenes ii
‘Se ee yer rr Ee TE PSL ha ok iv
I. GROUNDS FOR INVOKING JURISDICTION... 1

Il. OPERATIVE JURISDICTIONAL FACTS....... 1
Ill. STATEMENT OF THE CASE.......--+-++++: 2
IV. SUMMARY OF ARGUMENT.........-+++++>: 3
V. JURISDICTIONAL ARGUMENT........+-++-: 4
VI. STATEMENT OF IMPORTANCE OF REVIEW .. 6
OUI TL LISI. Shiv cv bce cc ccac es eesceen ess ees renee. 8
CERTIFICATE OF SERVICE......---- secre erercees 8

TABLE OF CITATIONS

CASES
Beaty v. State, 22 Fla. L. Weekly $626 (Fla. Oct. 9,
IN cao och 08 ENE EP EN ER EAPO PREDATES S 6
Bessemer Properties, Inc. v. Gamble, 158 Fla. 38, 27
Ga 9d BSP 1DAG). oc cis icvccveccnetscsearecccevens 7
Bryan v. Clayton, 698 So.2d 1236 (Fla. 5th DCA
September Me, BUTE cic b aia os us bee he ete 2 3:2

Florida Star v. B.].F., 530 So.2d 286 (Fla. 1988).... ae NE

Gay v. Inter-County Tel. & Tel. Co., 60 So.2d 22 (Fla.
IE oak nde vavsds cheb eens sever a tveur ses neha 4,5

App. 18

Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984).......... 4
In re McCollam (LeCroy v. McCollam), 612 So.2d

Se he OFA TM AOORRA bake DEEN Oe HACER CANO ERNE RN 4
Newman v. Boehm, Pearlstein & Bright, Ltd., 119 F.3d

SIT SFOs Se, FR BL URED ins Kea eek ees Hews Re ae
O'Loughlin v. Pinchback, 579 So.2d 788, 791 (Fla. 1st

RMON RTA k Aho 4k eo ee be ae poe FARR SEES 4,5
Orange Brevard Plumbing & Heating Co. v. La Croix,

Lar UE EE. LE ABD co Cakkeu wad ee bee Kase a 7
Riter v. Moss & Bloomberg, Ltd., 932 F.Supp. 210

Res Fike, RE 68 Oda oils ER Ley Cel Ge hi gna 1
Savona v. Prudential Insurance Co., 648 So.2d 705,

ei Rp. IRN CR orcs, spree re ewer 4
State v. Egan, 287 So.2d 1, 4 (Pia. 1973) «2.0... 06.6055 +
State v. Cook, 108 Fla. 157, 146 So. 223 (1933)....... 4,5
State v. Jackson, 650 So.2d 24 at 27 (Fla. 1995)...... 4,5
Thies v. Wyman, 969 F.Supp. 604, 607 (S.D. Cal.

ROOT Te Cieh54S LECER DATTA R ERM DU ETRE E wae

STATUTES AND RULES

Section 559.55, Fis. Stat., et ag GAIGS) oo. sc cece ves 1
Section SSS. Saad, Fi: SUE CIPO vio ev iasvaiveavdeass 3
Section 559.55(z), Fin. Stat. (2993) co.cc cee 1, 3, 4
SECON: Das. Soa, Fem. SME TIS I s o cee scccscwcccesecves 5
CEI Fe Mp. Ps Os CRA D sonic ev kv es acw ees deme un 6
BD Ashe, POC DOs OE EE Ais bok Cowes nsan cei eiages 1

SF Se Ce MEDD Gx bhbea ce be cA bieuweaedne ea 3

Sie ae 5 ay a al aan

8 Fh G 6" Gartinn TOGO) i vigctic ke sc weveawarhsedaney's 3
195 USL Gartion TAGRMANE) bs cideeec ere le sere ewns 7
Florida Rules of Appellate Procedure
DOE NAMA MSGD. icc cs caccbee se eh eunneheneacs eh es 1, 6
United States Supreme Court Rule 10.1(b)............ 6
Florida Constitution Article V, Section 3(b)(3) ........ 1
PREFACE

The plaintiffs /petitioners, Kevin E. Bryan and Renee
M. Bryan, will generally be referred to in this brief as “the
homeowners” or “the Bryans” or “the petitioners”, or
individually, as “Kevin” or “Renee”. The defendants /
respondents, Kenneth M. Clayton and Neal McCulloh,
and their law firm partnership will generally be referred
to individually as “Clayton” and “McCulloh”, or collec-
tively as “the law firm”. Defendant/respondent Amber
Ridge Homeowners’ Association, Inc., will be referred to
generally as “the homeowners’ association”. References
to the Appendix are designated “(APX. ___)”.

I. GROUNDS FOR INVOKING JURISDICTION.

Petitioners invoke the discretionary jurisdiction of
this court pursuant to Florida Constitution Article V,
Section 3(b)(3) and Florida Rules of Appellate Procedure
9.030(a)(2)(A)(iv), as construed by this court in Florida
Star v. B.J.F., 530 So.2d 286 (Fla. 1988) and as elaborated
upon below.

Il. OPERATIVE JURISDICTIONAL FACTS.

The lower court decision, Bryan v. Clayton, 698 So.2d
1236 (Fla. 5th DCA September 12, 1997) (APX. 1-2, 4-7),

RRA ease cream”

App. 20

expressly interpreted key definitional provisions of a fed-
eral law (the federal Fair Debt Collection Practices Act, 15
U.S.C. Section 1692, et seq., hereafter the “FDCPA” or “the
Act”) and virtually identical provisions in its Florida law
counterpart (the Florida Consumer Collection Practices
Act, Section 559.55, et seq., Fla. Stat. (1993), hereafter “the
Florida Act”) in a manner directly contrary to the federal
Seventh Circuit Court of Appeals decision in Newman v.
Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477 (7th Cir. July
2, 1997). Bryan declined to follow Newman even through
Newman expressly reversed the latest of the five federal
district court decisions relied upon in Bryan, namely, Riter
v. Moss & Bloomberg, Ltd., 932 F.Supp. 210 (N.D. Ill. 1996)!,
and even though, as discussed infra, Florida case law has
long urged our state judiciary to look to the federal
court’s interpretation if a federal statute and a copycat
state statute are involved and no public policy of Florida
appears inconsistent with the federal case law.

Specifically, Bryan held, contrary to Newman, that the
protections of the FDCPA and the Florida Act do not
extend to homeowners and condominium owners who
are subjected to abusive debt collection practices over
allegedly delinquent dues and assessments. (APX 1-2,
4-7).

' Newman has since been followed (and the Bryan line of
authorities further criticized) in a comprehensive opinion in
Thies v. Wyman, 969 F.Supp. 604, 607 (S.D. Cal. 1997). Both cases
are included in the Appendix herein for the court’s convenience.

:
; a

App. 21

Ill. STATEMENT OF THE CASE.

The homeowners sued the law firm in Orange
County Circuit Court. The law firm prevailed on sum-
mary final judgment and a timely appeal was taken. The
district court of appeal affirmed with an opinion, as
noted above (APX. 1), and thereafter denied clarification,
rehearing, certification and rehearing en banc on June 25,
1997. (APX. 8). Before the mandate issued, however, the
Newman decision was entered on July 2, 1997 (APX. 10),
whereupon the homeowners timely moved to stay or
recall the mandate by reason thereof. Ultimately, the
motion was denied by opinion entered September 12,
1997. (APX. 1-2, 6-7). The mandate was thereafter issued
on October 1, 1997 (APX. 3), and the homeowners timely
filed their notice with the district court of appeal to
invoke this court’s discretionary jurisdiction on Monday,
October 13, 1997.

IV. SUMMARY OF ARGUMENT.

Bryan presents decisional conflict under Florida Star,
supra, because:

(1) Bryan fails to follow a well-reasoned federal
appellate case on all fours (Newman) in interpreting a
federal statute, the applicable provisions of which are
replicated virtually verbatim in the Florida Act?;

2 Compare 15 U.S.C. Section 1692a(5) (“debt”) with Section
559.55(1), Fla. Stat. (1993) (“ ‘debt’ or ‘consumer debt’ ”):

[MJeans any obligation or alleged obligation of a
consumer to pay money arising out of a transaction in
which the money, property, insurance, or services

——

App. 22

(2) Bryan fails to articulate (and would be hard
pressed to do so) how or why the federal case (Newman)
is incompatible with Florida public policy; and

(3) Prior district courts of appeal and Florida
Supreme Court opinions have been explicit that federal
court opinions on federal law and Florida copycat law
should be followed unless the court can demonstrate
cogent public policy arguments not to do so. (Addi-
tionally, although the issue is unavoidably intertwined
with the ultimate merits of the case, Bryan may also be
said to present decisional conflict to the extent its express
finding that the FDCPA and the Florida Act have no plain
and clear meaning (contrary to the finding in Newman,
Thies and the cases relied upon therein), may be viewed
as a search for ambiguity, and, thus, the misapplication of
this court’s mandate to look to the ordinary meaning of
words and their reasonable implications. See, e.g., Savona
v. Prudential Insurance Co., 648 So.2d 705, 707 (Fla. 1995),
Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984), and In re
McCollam (LeCroy v. McCollam), 612 So.2d 572, 573 (Fla.
1993)). See also State v. Egan, 287 So.2d 1, 4 (Fla. 1973)
(courts should use rules of statutory construction to
remove doubt, not to create doubt).

which are the subject of the transaction are primarily
for personal, family or household purposes, whether
or not such obligation has been reduced to judgment.
[emphasis added]

Similarly, compare 15 U.S.C. Section 1692a(3) (‘consumer’) with
Section 559.55(2), Fla. Stat. (1993) (“ ‘debtor’ or ‘consumer’ ”):

[M]eans any natural person obligated or allegedly
obligated to pay any debt. [emphasis added]

dat LO ay aad aati + iene Wl Dae,

App. 23

V. JURISDICTIONAL ARGUMENT.

Although the homeowners recognize that federal
court decisions are not necessarily binding on state
courts, Florida has a tradition for over 60 years that
where (as here) the case involves the interpretation or
construction of a federal statute, or (as also exists herein)
the interpretation of a state statute which, in pertinent
part, is virtually identical to a federal statute, then the
state court should adhere to a reasoned federal case
unless the federal case fails to comport with some funda-
mental contrary policy of Florida. See, e.g., State v. Cook,
108 Fla. 157, 146 So. 223 (1933) (look to federal court
interpretation of similar federal statute where not “inhar-
monious with spirit and policy of state legislation”). See
also, State v. Jackson, 650 So.2d 24 at 27 (Fla. 1995):

A long-standing rule of statutory construction in
Florida recognizes that if a state law is patterned
after a federal law on the same subject, the
Florida law will be accorded the same construc-
tion as given to the federal act in the federal
courts. Gay v. Inter-County Tel. & Tel. Co., 60
So.2d 22 (Fla. 1952); O'Loughlin v. Pinchback, 579
So.2d 788, 791 (Fla. 1st DCA 1991) (statutory
construction should be the same to the extent
the construction is harmonious with the spirit of
the Florida legislation).

Bryan neither stated, demonstrated, nor implied that
the Newman analysis is in any manner inconsistent with
the spirit and policy of Florida law. Moreover, the home-
owners submit that the Bryan court would have been
unable to do so, because if anything, the Florida legisla-
tive intent is even broader and more pro-consumer than
the FDCPA. For example, the Florida Act provides:

App. 24

[I]n the event of any inconsistency between any
provision of [the Florida Act] and any provision
of [the FDCPA], the provision which is more
protective of the consumer or debtor shall pre-
vail.

Section 559.552, Fla. Stat. (1993).

Thus, while Bryan expressly conflicts with Newman
(and sub silentio conflicts with Thies) on the merits, the
conflict for jurisdictional purposes is not so much with
Newman and Thies, but with Cook, Jackson, Gay and
O'Loughlin, supra, all of which urged Florida courts to
adopt well-reasoned federal case law where a federal
statute is involved and where Florida public policy
would not be offended and, sub judice, would be fur-
thered by such an outcome. Indeed, just the type of
conflict as presented herein may be what that this court
envisioned in Florida Star v. b.j.F., 530 So.2d 286 (Fla.
1988):

This court in the broadest sense has subject-
matter jurisdiction under Article V Section
3(b)(3) of the Florida Constitution, over any
decision of a district court that expressly
addresses a question of law within the four
corners of the opinion itself. [emphasis added]

530 So.2d at 288. Similarly, this court continued:

Thus, it is not necessary that conflict actually
exist for this court to possess subject-matter
jurisdiction, only that there be some statement
or citation in the opinion that hypothetically
could create conflict [with the decision of
another district court of appeal or of the
supreme court] if there were another opinion
reaching a contrary result. [emphasis added]

App. 25

As the final authority on the meaning of the
Florida Constitution[,] this Court has the final
and inherent power to determine what consti-
tutes express and direct conflict . . .

This, by definition, is discretion, not jurisdic-
tion.

530 So.2d at 288. Admittedly, the foregoing may be
viewed as an arduous path to jurisdiction, as it requires
that one take a panoramic rather than myopic view of the
phrase “the same question of law” for purposes of Flor-
ida Rules of Appellate Procedure 9.030(a)(2)(A)(iv). How-
ever, the homeowners respectfully urge that Florida Star
requires this result. And, Florida Star has been reaffirmed
as recently as two weeks ago. Beaty v. State, 22 Fla. L.
Weekly S626 (Fla. Oct. 9, 1997).

Accordingly, if this court disagrees with the home-
owners’ analysis and declines to accept discretionary
review, the homeowners urge that the court concurrently
consider the merits of prospectively receding from Florida
Star in cases of state court/federal court conflict on fed-
eral questions, so that future, similarly-situated litigants
can save funds, time and trees, and apply directly from
the district court of appeal to the United States Supreme
Court for certiorari, where the conflict jurisdiction is
explicit. See United States Supreme Court Rule 10.1(b):

When a state court of last resort has decided a
federal question in a way that conflicts with the
decision of . . . a United States Court of Appeals.

App. 26

VI. STATEMENT OF IMPORTANCE OF REVIEW.

It should be self-evident that this decision has far-
reaching implications beyond the immediate parties -
ultimately, it has a direct or indirect bearing on every
condominium owner in the State of Florida, as well as
every homeowner who lives in a subdivision having a
homeowners’ association with assessment powers. In
fact, even though the lower court declined to certify the
issue to this court (APX. 8), it did specifically find in its
May 12, 1997 order under Section 768.79, Fla. Stat. (1995),
that:

The question of law at issue was well presented
on appeal and would be considered ‘close’.

The suite [sic] was in the nature of a test case
presenting questions of far-reaching importance
in Florida affecting non-parties who are charged
with collecting condominium assessments or are
obligated to pay them.

(APX. 9).

It is fundamental that the FDCPA and the Florida Act
protect Florida citizens against debt collectors who
improperly hound them for their failure to pay for retail
purchases at, say, a shopping center. It is also clear that
consumers protected under the FDCPA were intended by
Congress to include not only those who buy personal
property, but those whose debt is secured by real estate.
See, e.g., 15 U.S.C. Section 1692i(a)(1). Similarly, it is well-
established that Florida endeavors to protect the sanctity
of the home and the homestead. See, e.g., Bessemer Proper-
ties, Inc. v. Gamble, 158 Fla. 38, 27 So.2d 832 (1946); Orange

App. 27

Brevard Plumbing & Heating Co. v. La Croix, 137 So.2d 201
(Fla. 1962); and Graham v. Azar, 204 So.2d 193 (Fla. 1967).

Yet, Bryan appears to be at odds with the foregoing
public policies. A pundit might quip, with but only slight
exaggeration, that unless jurisdiction is accepted in Tal-
lahassee or Washington and the lower court is reversed,
the decision in Bryan makes Florida residents safer in the
malls than in their homes.

CONCLUSION

WHEREFORE, the homeowners urge this court enter
an order accepting discretionary review of this cause.

Certificate of Service

I HEREBY CERTIFY that a true copies hereof and of
the Appendix hereto have been furnished by U.S. Mail
this 23rd day of October, 1997 to Kenneth M. Clayton,
Esq., Clayton & McCulloh, 1065 Maitland Center Com-
mons Blvd., Maitland, FL 32751 and Randy Hillman, Esgq.,
203 Hillcrest Street, Orlando, FL 32803.

Respectfully submitted,
KENNETH L. MANN, P.A.

By: /s/ Kenneth L. Mann
Kenneth L. Mann
Fla. Bar No. 163585
105 E. Robinson Street, Ste. 540
P. O. Box 551
Orlando, FL 32802-0551
Telephone: 407/422-0006
Telefax: 407/841-9516
COUNSEL FOR PETITIONERS

*
s
=

App. 28

IN THE SUPREME COURT OF FLORIDA
CASE NO.: 91,612

KEVIN E. BRYAN and RENEE
M. BRYAN,

Petitioners,

KENNETH M. CLAYTON, et al,

Respondents.

)
)
)
)
VS. )
)
)
)
)

DISCRETIONARY PROCEEDING TO REVIEW
DECISION OF 5TH DCA CASE NO.: 96-2406

RESPONDENTS’ BRIEF ON JURISDICTION

KENNETH M. CLAYTON, ESQ., and
JAMES E. OLSEN, ESQ., of

Clayton & McCulloh

1065 Maitland Center Commons Blvd.
Maitland, Florida 32751

(407) 875-2655

ATTORNEYS FOR RESPONDENTS

TABLE OF CONTENTS

[Original Pagination]
TA OOP CURT ere is iss bck ene be pes bee be ii
PREELIBATIGAMS SLANT EOD bcs ccc ckvcsassarecees iv

RESPONDENTS STATEMENT OF THE CASE ...... Vv

RI PATRPENGN GE ARCTURIUS soc pos eo Re Rebs es GD 1

a ale

Pa ee Se are rarer te ee PO ere ene ee eer eerie 2

WHETHER THE BRYANS’ NOTICE TO
INVOKE THE DISCRETIONARY JURISDIC-
TION OF THE FLORIDA SUPREME COURT
WAS TIMELY FILED WITHIN 30 DAYS OF
RENDITION OF THE DECISION IN THE
INSTANT CAUSE.

Pa Be ek ce eh eines ea eee beenad tenses 6

WHETHER THERE IS AN “EXPRESS AND
DIRECT” CONFLICT OF THE DECISION
RENDERED BY THE FIFTH DISTRICT
COURT OF APPEAL IN THE INSTANT
CAUSE AND THE DECISIONS OF ANY
OTHER DISTRICT COURT OF APPEAL OR
THE SUPREME COURT ON THE SAME
QUESTION OF LAW.

PAPE FER GRRE eee Lae WEEEDED Se eh ems 9

WHETHER THE “IMPORTANCE OF REVIEW”
AS ARGUED BY THE BRYANS IS A PERMIS-
SIBLE AND/OR SUFFICIENT BASIS TO VEST
DISCRETIONARY JURISDICTION IN THE
SUPREME COURT OF FLORIDA.

he we, er eer errr reer ere re ore 10
CRMC ERER RE CF DRIVER ec ci cc ceeccescericeseus 11

TABLE OF CITATIONS
CASES CITED

Allstate Insurance Co. vs. Langston 655 So. 2d 91
fo TRE IRR Stare eer maaan ara ain Reva UP ae amp ia ae nee 10

Dept. of H.R.S. vs. National Adoption Counsel-
ing Service, Inc. 398 So. 2d 888 (Fla. 1986)........ 7

App. 30

Gay vs. Inter-County Tel. & Tel. Co. 60 So. 2d 22

Ns ENG a es cdo ah aia SERS OURS CCE AOAAT CERCA 8
Jenkins vs. State 385 So. 2d 1356 (Fla. 1980)......... 7
Kyle vs. Kyle 139 So. 2d 885 (Fla. 1962)............. 7

Lawyers Title Insurance Group vs. Little River
Bank & Trust Company 243 So. 2d 417 (Fla.

PE chic awiheehkas cabasethecase ies pe sesececncsnes 6
Lipsius vs. Bristol-Myers Company 269 So. 2d

GES DOE chic er chs vaudkiesy he wedeg ak bes cwen 4, 10
Lowe vs. Price 437 So. 2d 142 (Fla. 1983)............ )
Mystan Marine, Inc., vs. Harrington 339 So. 2d

a Ee rrr ee rn, ern Tere ee rie 7
Newman vs. Boehm, Pearlstein & Bright, Ltd.

Say Poe Gre (7m. Ce. Fay Zp TOOT) eke civviceicass 7
O’Laughlin vs. Pinchback 579 So. 2d 788 (Fla. 1st

SR EEE 5 vo CNT aT SARC Leak PES RS REE A Eh MONE Chae Os 8
Reaves vs. State 485 So. 2d 829 (Fla. 1986) .......... 7
Roy vs. State 211 So. 2d 554 (Fla. 1968) ............. 3
State vs. Cook 108 Fla. 157, 146 So. 223 (Fla. 1933) ..... 8
State vs. Jackson 650 So. 2d 24 (Fla. 1995)........... 8
State vs. Roberts 661 So. 2d 821 (Fla. 1995).......... 4

Trustees of the Internal Improvement Fund vs.
O.H. Lobean 127 So. 2d 98 (Fla. 1961)............. 7

Wagner vs. Bieley, Wagner & Associates, Inc. 263
hs RE aS ates ceaeh mak pve be eee 4

App. 31

CONSTITUTIONAL ARTICLES
Pee Vy Bh Pe es CE asin oe SE is ee

POC VO Il UR IIE oon gk arden ne cereale Ny)
STATUTES
Se eh CO CRUE Ao ssa ets his gun AM RSMAS ALE OM OD 6

RULES OF PROCEDURE:

ashe SMe, Fee. (IGE) i oes ec coe eeuwenes a
Rule 9.030, Fie RAGOPr. (1997) ose seen ssvcen’s 6, 9
Rule 9.120, Fla.R.App.Pr. (1997) .......ccccceesceceeds, &
Rule 9.300, Fia.R.App.Pr. (1997) ......ccscccscessvaees 2
Rule 9.310, Fla.R.App.Pr.. (1997)... csesccsccctonss rae

PRELIMINARY STATEMENT

The Plaintiffs/Petitioners, Kevin E. Bryan and/or
Renee M. Bryan, will collectively be referred to in this
jurisdictional brief as the “Bryans” or the “Petitioners”.
The Defendants/Respondents, Kenneth M. Clayton and/
or Neal McCulloh individually or doing business as Clay-
ton & McCulloh, will be collectively referred to in this
jurisdictional brief as “Clayton & McCulloh” or “the
Respondents.” The term “trial court” shall refer to the
Circuit Court of the Ninth Judicial Circuit in and for
Orange County, Florida, the Honorable James C. Hauser
presiding. The term “Appellate Court” shall refer to the
Fifth District Court of Appeal located in Daytona Beach,
Florida.

References to the Bryans’ Brief on Jurisdiction, if any,

shall be designated “Pet.Br. at ”. References to the
x

App. 32

Bryans’ Appendix to Petitioners’ Brief on Jurisdiction

a”

shall be designated “Pet.Appx. at __”.

RESPONDENTS’ STATEMENT OF THE CASE

Respondents concur with the Bryans’ Statement of
the Case (Pet.Br. at 2), with the following significant
exception.

The Bryans’ notice to invoke the discretionary juris-
diction of the Florida Supreme Court, which was filed
with the Fifth District Court of Appeal on October 10,
1997, was not timely filed pursuant to law and the rules of
appellate procedure.

SUMMARY OF ARGUMENT

The Bryans’ Notice to Invoke the Discretionary Juris-
diction of the Florida Supreme Court was not timely filed
within 30 days of rendition of the order to be reviewed.
The decision of the Fifth District Court of Appeal, entered
on May 9, 1997, and from which the Bryans’ adirectly
seek discretionary review, was “rendered” on June 25,
1997. The Bryans’ Motion to Stay or Recall Mandate and
Notice of Filing Supplemental Authority, filed with the
Fifth District Court of Appeal on or about July 9, 1997, is
not an authorized motion which tolled rendition of the
decision.

The Appellate Court’s order On Motion to Stay or
Recall Mandate is a non-appealable interlocutory order
by which the Appellate Court refuses to recall its previ-
ously rendered decision. Therefore, the Bryans’ notice to
‘invoke the discretionary jurisdiction of this court was not

App. 33

timely filed within 30 days of rendition as required by the
Florida Rules of Appellate Procedure.

Secondly, the decision rendered in the instant case by
the Appellate Court does not expressly and directly con-
flict with a decision of another district court of appeal or
of the supreme court on the same question of law. The
issue presented in this case is one of first impression before
the appellate courts of the State of Florida. As such, it is
impossible that the decision rendered by the Appellate
Court expressly and directly conflicts with any prior Flor-
ida decisional law on the same question of law presented
herein, to wit: homeowners’ association and condomin-
ium association assessments are not a “debt” within the
meaning of the Federal Fair Debt Collection Practices Act
or the Florida Consumer Collection Practices Act.

Lastly, the Bryans’ contention that there may be”....
far-reaching implications. ...” or, in other words, that
this is a matter of great public importance, is an insuffi-
cient and improper basis to confer jurisdiction in the
supreme court. Only a district court of appeal may certify
to the Florida Supreme Court a question of great public
importance. In the instant matter, the Appellate Court
refused to certify the question. As such, the supreme
court lacks “great public importance” jurisdiction in the
instant cause.

THE BRYANS’ NOTICE TO INVOKE THE
DISCRETIONARY JURISDICTION OF THE
FLORIDA SUPREME COURT WAS NOT
TIMELY FILED WITHIN 30 DAYS OF RENDI-
TION OF THE DECISION IN THE INSTANT
CAUSE. ’

App. 34

Rule 9.020(h), Fla.R.App.Pr. (1997), defines when an
order is rendered. This rule provides that an order is
“rendered” when a signed copy of the order is filed with
the clerk of court. Id. The rule also expressly provides for
the limited types of motions which will toll rendition. Id.
The commentary to Rule 9.020 states that “[t]o postpone
rendition the motion must be timely, authorized, and one
of those listed.” Id. Pursuant to Rule 9.300(d)(2),
Fla.R.App.Pr. (1997), motions which do not toll time are
“.... motions for stay pending appeal, rule 9.310.” Rule
9.310, Fla.R.App.Pr. (1997), governs stays of final orders
pending review. The commentary to Rule 9.310 states that
“It]his rule interacts with rule 9.340, however, so that a
party has 15 days between rendition of the court’s deci-
sion and issuance of mandate. . . . to move for a stay of
mandate pending review.”

Rule 9.120, Fla.R.App.Pr. (1997), provides that in
order to invoke the discretionary jurisdiction of the Flor-
ida Supreme Court, the notice must be filed with the
district court of appeal within “. . . . 30 days of rendition
of the order to be reviewed.” The timely filing of a notice
to invoke discretionary review in the supreme court is
jurisdictional and the failure to timely file the notice
precludes discretionary jurisdiction. See, e.g. Roy vs. State,
211 So. 2d 554 (Fla. 1968); See also Commentary to Rule
9.120, Fla.R.App.Pr. (1997).

In the instant case, the decision was filed in the
Appellate Court on May 9, 1997. On May 27, 1997, the
Bryans timely filed their Motion for Clarification, Rehear-
ing, Rehearing En Banc, and Certification, and for Ancill-
ary Relief. Pursuant to the rules of appellate procedure,
the Bryans Motion for Rehearing, etc., clearly tolled the

App. 35

time for filing a notice seeking to invoke the discretionary
jurisdiction of the supreme court. On June 25, 1997, the
Bryans Motion for Rehearing, etc., was denied by the
Appellate Court. (Pet.Appx at 8). Therefore, pursuant to
Rule 9.020(h), Fla.R.App.Pr. (1997), the May 9, 1997 deci-
sion was “rendered” on June 25, 1997. Therefore, the
notice to invoke discretionary jurisdiction of the supreme
court MUST have been filed within 30 days from and
after June 25, 1997, to wit; on or before July 25, 1997.

On July 9, 1997, the Bryans filed with the Appellate
Court their Motion to Stay or Recall Mandate, and Notice
of Supplemental Authority. This motion is not an autho-
rized motion which would either postpone rendition of
the decision or toll the time for filing a notice seeking
discretionary review. The filing of an authorized motion
is required in order to toll the time for seeking discretion-
ary review before the supreme court. See Wagner vs.
Bieley, Wagner & Associates, Inc., 263 So. 2d 1 (Fla. 1972)
(motions directed to interlocutory orders cannot operate
to toll the time for filing interlocutory appeal); See also
Lipsius vs. Bristol-Myers Company, 269 So. 2d 680 (Fla.
1972) (petition to certify question as one of great public
importance is not an authorized motion which delays
rendition).

The commentary to Rule 9.120, Fla.R.App-Pr. (1997),
clearly contemplates the filing of both a notice seeking
discretionary review and a motion to stay pending
review. The right to file both a notice and a motion to stay
was expressly recognized by this court in State vs. Roberts,
661 So. 2d 821 (Fla. 1995).

App. 36

The Bryans filed their Notice to Invoke Discretionary
Jurisdiction with the Appellate Court on October 10,
1997, which date is 107 days after rendition of the Appel-
late Court’s decision. The order On Motion to Stay or
Recall Mandate is a non-appealable interlocutory type
order which does not alter the rendition date of the
Appellate Court’s decision. As clearly stated in the order
On Motion to Stay or Recall Mandate ”. . . . we decline to
recall our mandate and reconsider our prior affirmance.”
{emphasis supplied] (Pet.Appx. at 5) It is clear from the
face of this order that the Appellate Court was neither
issuing a new opinion nor amending or modifying its
prior decision. As such, the decision entered by the
Appellate Court on May 9, 1997, was rendered on June
25, 1997, i.e., the date the Bryans’ Motion for Rehearing,
etc. was denied. In the instant action, a notice to invoke
the discretionary jurisdiction of this court must, there-
fore, have been filed on or before July 25, 1997.

Furthermore, it would appear well settled law in
Florida that an appellate court may, in the interest of
justice, recall its mandate at any time during the term of
court in which the mandate is issued. A holding by this
court that a motion to recall or stay mandate (such as the
motion filed herein by the Bryans) operates to toll the
filing of a notice to invoke discretionary jurisdiction
would have the absurd result of extending almost indefi-
nitely the time for filing a notice to invoke the discretion-
ary jurisdiction of the supreme court.!

1 As required by § 35.10, Fla. Stat., the district courts of
appeal have two six month terms each year. If a motion to stay
or recall mandate is held by this court to be an “authorized

App. 37

The Bryans’ Notice to Invoke Discretionary Jurisdic-
tion was untimely filed on October 10, 1997. The failure
of the Bryans to timely seek discretionary review in the
supreme court is jurisdictionally fatal.

THERE IS NO “EXPRESS AND DIRECT”
CONFLICT OF THE DECISION RENDERED
BY THE FIFTH DISTRICT COURT OF
APPEAL IN THE INSTANT CAUSE AND THE
DECISIONS OF ANY OTHER DISTRICT
COURT OF APPEAL OR THE SUPREME
COURT ON THE SAME QUESTION OF LAW.

Article V, § 3(b)(3), Fla. Const., and Rule
9.030(a)(2)(A)(iv), Fla.R.App-Pr. (1997), provide that the
supreme court may review decisions of 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.”

The supreme court's jurisdiction is a matter strictly
proscribed by the state constitution. E.g., Lawyers Title
Insurance Corp., vs. Little River Bank & Trust Company, 243
So. 2d 417 (Fla. 1970). The jurisdiction of the supreme
court extends only to the narrow class of cases enumer-
ated in Article V, Section 3(b) of the Florida Constitution.
E.g., Mystan Marine, Inc. vs. Harrington, 339 So. 2d 200

motion” tolling, or even more absurdly, reviving the time for
filing a notice to invoke discretionary jurisdiction, then the time
for filing such a notice is no longer 30 days after rendition of the
decision, but instead could be months (or even years) between
rendition of the decision, the filing of the motion to recall
mandate, the resolution of that motion, and the filing of the
notice to invoke discretionary jurisdiction.

App. 38

(Fla. 1976). The conflict of the decisions must be express?
and direct, i.e., it must appear within the four corners of
the majority decision. Reaves v. State, 485 So. 2d 829 (Fla.
1986). Inherent or so called implied conflict may not serve
as-a basis for supreme court jurisdiction. E.g., Dept. of
Health and Rehabilitative Services vs. National Adoption
Counseling Service, Inc., 498 So. 2d 888 (Fla. 1986). The
conflict must be obvious and patently reflected in the
decisions relied upon by the district court of appeal.
Trustees of the Internal Improvement Fund vs. O.H. Lobean,
127 So. 2d 98 (Fla. 1961). A conflict must stem from
divergent decisions on the same point of law by separate
courts within the appellate jurisdictional system of the
State of Florida. Kyle vs. Kyle, 139 So. 2d 885 (Fla. 1962).
No conflict can arise if the points of law settled by the
two cases are not the same. Id. at 887.

In the instant appeal, the decision in the case of
Newman vs. Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477
(7th Cir. July 2, 1997) cannot constitute a conflict as that
term has been defined by this court. The Newman case is
not a case arising out of a court within the appellate
jurisdictional system of the State of Florida.

The Bryans urge this court to accept jurisdiction
based upon perceived and implied conflict between the
decision in the instant case and the cases of State v. Cook,
108 Fla. 157, 146 So. 223 (Fla. 1933), State v. Jackson, 650
So. 2d 24 (Fla. 1995), Gay v. Inter-County Tel. & Tel. Co., 60

2 In the case of Jenkins vs. State, 385 So. 2d 1356 (Fla. 1980),
the court noted that “[t]he dictionary definitions of the term
“express” include: “to represent in words”; “to give expression
to.” “Expressly” is defined: “in an express manner.” Id. At 1359.

App. 39

So. 2d 22 (Fla. 1952), and O’Laughlin vs. Pinchback, 579 So.
2d 788 (Fla. 1st DCA 1991). [hereinafter collectively
referred to as the “Bryan Conflict Cases” ].

As stated by the Bryans in their jurisdictional brief,
all of the Bryan Conflict Cases stand for the proposition
that it isa“... . long standing rule of statutory construc-
tion in Florida that if a state law is patterned after a
federal law on the same subject, the Florida law will be
accorded the same construction as given to the federal act
in the federal courts.” (Pet.Br. at 4). The single issue
presented in the instant case is whether homeowners’
association or condominium association assessments are
a “debt” within the meaning of either the Federal Fair
Debt Collection Practices Act or the Florida Consumer
Collection Practices Act. Therefore, there is no “express
and direct” conflict between the Bryan Conflict Cases and
the instant lawsuit.

Furthermore, it is well settled law in Florida that
appellate courts must apply the law as it exists at the time
the appeal is decided. See, e.g. Lowe vs. Price, 437 So. 2d
142 (Fla. 1983). In the instant case, the decision of the
Fifth District Court of Appeal was filed on May 9, 1997,
and was rendered on June 25, 1997. The Newman case was
decided on July 2, 1997. Therefore, Newman was decided
AFTER rendition of the decision in the instant cause. The
Appellate Court, therefore, properly applied the law as it
existed on the date the instant decision was rendered.
Therefore, there cannot even be an implied conflict
between the instant decision and the Bryan Conflict Cases
due to the fact that the Appellate Court properly applied
the federal case law as it existed at the time the instant
decision was rendered.

App. 40

THE “IMPORTANCE OF REVIEW” AS
ARGUED BY THE BRYANS IS NOT A PER-
MISSIBLE AND/OR SUFFICIENT BASIS TO
VEST JURISDICTION IN THE SUPREME
COURT OF FLORIDA.

The Bryans have argued that “[i]t should be self-
evident that this decision has far-reaching implications
beyond the immediate parties. ...” (Pet.Br. at 6). The
Bryans have also argued that ”. . . . Bryan appears to be at
odds with. . . . public policies.” (Pet.Br. at 7).

Pursuant to Art. V, § 3(b)(4), Fla. Const., the Florida
Supreme Court may ”. . . . review any decision of a
district court of appeal that passes upon a question certi-
fied by it to be of great public importance... .” Rule
9.030(a)(2)(A)(v), Fla.R.App-.Pr. (1997), states that “[t]he
discretionary jurisdiction of the supreme court may be
sought to review decisions of district courts of appeal
that pass upon a question certified to be of great public
importance.”

In Lipsius vs. Bristol-Myers Company, 269 So.2d 680
(Fla. 1972), this court specifically held that “... .
certification must be upon motion of the Court and not by
motion of a party to the cause.” Id. at 681. See also Allstate
Insurance Co. vs. Langston, 655 So. 2d 91 (Fla. 1995) (the
Supreme Court does not have jurisdiction to review a
decision of a district court of appeal based upon party’s
contention that the decision presents an issue of great
public importance).

The Appellate Court refused to certify as a question
of great public importance the issue presented in the

App. 41

instant case. (Pet.Appx. at 6). Therefore, the Bryans’ con-
tention that there is an “importance of review” or that
this matter presents, in effect, an issue of “great public
importance” is wholly irrelevant and totally ineffective to
confer jurisdiction upon this court.

CONCLUSION

For the reasons stated herein, the Bryans’ notice to
invoke discretionary jurisdiction of the supreme court is
untimely or is otherwise ineffective to confer jurisdiction
in the supreme court. Therefore, this court should sum-
marily reject jurisdiction and dismiss the instant notice to
invoke discretionary jurisdiction.

CERTIFICATE OF SERVICE

1 HEREBY CERTIFY that a true and correct copy of
the foregoing Respondents’ Brief on Jurisdiction has been
mailed to KENNETH L. MANN, ESQ., Attorney for Peti-
tioners, 105 E. Robinson Street, Suite 540, P.O. Box 551,
Orlando, Florida 32802-0551, this 10th day of November,
1997.

/s/ James E. Olsen
JAMES E. OLSEN, ESQ.
Fla. Bar #607703
CLAYTON & McCULLOH
1065 Maitland Center

Commons Blvd.

Maitland, Florida 32751
(407) 875-2655
Attorney for Respondents

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1374%3A5. Public record. Not legal advice.