Opposition Brief — Tyler v. Chiles

—T

Supreme Court, U.S

Se ag Fae ee

SEP 14 1998

No. 98-274 CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

DON R. TYLER,

Petitioner,

a

STATE OF FLORIDA, et. al.,

Respondents.

On Petition for Writ of Certiorari

To the Circuit Court, Tenth Judicial Circuit,

Polk County, Florida

Brief in Opposition of Respondents

State of Florida, Department of Insurance,

Florida Division of Risk Management,

Florida Division of Insurance Fraud,

Florida Department of Agriculture and Consumer Services,

and Florida Division of Forestry

By: Mitchell D. Franks

LANE, TROHN, BERTRAND &VREELAND, P.A.

P.O. Box 3

Lakeland, FL 33802-0003 _

—(941) 284-2200 (941) 688-0310 (fax)

Counsel of Record for Respondents

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QUESTION PRESENTED

I.

Should this Court decline to grant certiorari to review a

fact-specific application of a Florida Rule of Appellate

Procedure?

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PARTIES TO THE CASE

DON R. TYLER: Petitioner

THE STATE OF FLORIDA, FLORIDA DEPARTMENT

OF INSURANCE, FLORIDA DIVISION OF RISK

MANAGEMENT, FLORIDA DIVISION OF INSURANCE

FRAUD, FLORIDA DEPARTMENT OF AGRICULTURE

AND CONSUMER SERVICES, FLORIDA DIVISION OF

FORESTRY, CRAWFORD AND COMPANY, WILLIAM

L. EARP, M.D., WILLIAM FRIEDMAN, M.D., and J.

MASON WINES, Esq.: _- Respondents

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TABLE OF CONTENTS

RUMEN OUEY WURUIIERIT ERD sag ov ce wn oo 8 eos & lene

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CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES

ORDINANCES, AND

REGULATIONS INVOLVED ................

I. THIS COURT SHOULD DECLINE

TO GRANT CERTIORARI TO REVIEW

A FACT-SPECIFIC APPLICATION

OF A FLORIDA RULE OF APPELLATE

INI 0 a Gs bo tk Che vee a 0

DI sy CC sy 6 0 bik sw oes

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TABLE OF AUTHORITIES

CASES

Braxton v. United States, 500 U.S. 344, 111 S.Ct. 1854

(TOPE kk cae WRC eS CoA ae tie reese 4

CITE) Shek een CON Oe COWEN Wek & ia’ 5

Texas v. Mead, 465 U.S. 1041, 104 S.Ct. 1318

C1OBO) cin ws vice oh ob Weleda te 6 ea Pee 5

United States v. Johnson, 268 U.S. 220, 45 S.Ct 496

SISO SG ks ie bee Oe Oe ee ea eae 5

Middlesex County Ethics Committee v. Garden State Bar

Association, 457 U.S. 423, 102 S.Ct. 2515

CEPR PC EO VO 8 ee ee ee aie es 7

OTHER AUTHORITIES

Rule 10, Supreme Court Rules .............. 4,6

Florida Rule of Appellate Procedure 9.110(b) ...... 2

v

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES ORDINANCES,

AND REGULATIONS INVOLVED

1. Rule 10, Supreme Court Rules

‘s Florida Rule of Appellate Procedure 9.110(b)

(b) Commencement. Jurisdiction of the court under

this rule shall be invoked by filing

2 copies of a notice, accompanied by filing fees

prescribed by law, with the clerk of the lower tribunal

within 30 days of rendition of the order to be reviewed.

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STATEMENT OF THE CASE

Respondents object to Petitioner’s Statement of the

Case because the statement discusses matters not appearing

on the face of the orders for which he seeks review and for

which there is no support in the record. In addition,

Petitioner included in his appendix a copy of the Order

dated July 18, 1996 and included in parenthesis a statement

that this Order was filed in the clerk’s office on September

22, 1996 when in fact it was filed on July 22, 1996, as

reflected in the Order of the Second District Court of

Appeal. For these reasons, Respondents present this

statement summarizing the facts as they appear in the orders

on review.

On February 23, 1996, the trial court entered an

order dismissing Petitioner’s second amended complaint

with prejudice. Petitioner filed a motion for clarification on

February 28, 1996. Subsequently, the judge who entered

that order was disqualified. Petitioner then filed a timely

motion for reconsideration of the order dismissing his

second amended complaint, requesting recov1sideration based

on the disqualification of Judge Durrance, who entered the

order.

The new judge assigned to the case, Judge Young,

granted the motion for reconsideration. After a review, the

Court~éntered an order on July 22, 1996 essentially

deoliieciaco

affirming Judge Durrance’s prior order and dismissed the

Petitioner’s complaint with prejudice. On September 30,

1996, petitioner filed a notice of appeal on September 30,

1996.

The Second District Court of Appeal denied

jurisdiction to hear the appeal because Petitioner failed to

file his notice of appeal within 30 days of the July 22, 1996

order as required by Rule 9.110(b), Fla. R. App. P. The

Second District Court of Appeal’s Order centered around

the date Judge Durrance’s original order dismissing the

complaint with prejudice was rendered. The Second

District held that Petitioner’s motion for clarification filed

on February 28, 1996 was not an authorized motion that

delayed rendition of the order; however, the February 23,

1996 order was delayed by Judge Durrance’s

disqualification and Petitioner’s motion for reconsideration,

reviving the trial court’s jurisdiction for the limited purpose

of reviewing the previous judicial orders entered by Judge

_

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22, 1996, the trial court’s subsequent jurisdiction

evaporated, and the February 23, 1996 order was rendered.

Thus, with a July 22, 1996 rendition date, Petitioner’s

notice of appeal was untimely.

Petitioner then petitioned the Florida Supreme Court

who declined jurisdiction to hear the appeal.

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ARGUMENT

I. THIS COURT SHOULD DECLINE TO GRANT

CERTIORARI TO REVIEW A FACT-SPECIFIC

APPLICATION OF A FLORIDA RULE OF

APPELLATE PROCEDURE.

Rule 10, Sup. Ct. R., states that review on a writ of

certiorari is not a matter of right, but of judicial discretion

and will be granted only for compelling reasons. Such

compelling reasons principally include cases in which a

United States court of appeals has entered a decision in

conflict with another United States court of appeals or with

a state court of last resort on an important federal question;

a state court of last resort has decided an important federal

question in a way which conflicts with the decision of

another state court or United States court of appeals; or a

state court or United States court of appeals has decided an

important federal question in a way that conflicts with

relevant decisions of the United States Supreme Court.

5

Rule 10, Sup. Ct. R.; see also, Braxton v. United States,

500 U.S. 344, 111 S.Ct. 1854 (1991). This Court has

repeatedly held that it will not exercise its certiorari

jurisdiction merely to review a decision of a state court

turning upon an analysis of the particular facts involved.

See, e.g. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437

(1974); Texas v. Mead, 465 U.S. 1041, 104 S.Ct. 1318

(1984); United States v. Johnston, 268 U.S. 220, 45 S.Ct.

496 (1924).

Respondents submit that it is precisely this type of

decision which Petitioner now asks this Court to grant

certiorari to review. None of the Rule 10 reasons

referenced above exist in the present case to justify

certiorari review. Contrary to Petitioner’s statement of the

issues, this case involves no conflict among state courts or

United States courts of appeal. Neither does it involve the

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resolution of an important federal question in conflict with

this Court’s prior decisions. Instead this case involves a

fact-specific application of Florida’s appellate rules of

procedure to determine whether Petitioner’s notice of appeal

was timely.

By Writ of Certiorari, Petitioner now seeks to have

this Court review the propriety of the lower court’s

dismissal of his action, the ruling made by Florida’s Second

District Court of Appeal that the notice of appeal was

untimely, and the Florida Supreme Court’s denial of

jurisdiction to hear the matter. Petitioner characterizes the

issues On appeal as whether he was denied by these rulings

his right to a jury trial under Title 42 U.S.C. §1983,

U.S.C.A. VII, and the Fair Labor Standards Act of 1938.

Petitioner seeks to have this Court review as a substantive

matter the original order of dismissal entered by Judge

-

Durrance and affirmed upon reconsideration by Judge

Young In his petition, however, Petitioner fails to

demonstrate how the original dismissal involves an

appropriate conflict concerning an important federal

question in order to justify this Court’s review. That failure

notwithstanding, the real question at issue is simply whether

Petitio:..c properly preserved his right to appeal under

Florida appellate rules of procedure.

As such, review of this case would first require this

Court to determine whether as a procedural matter the

Petitioner’s appeal to the Second District Court was timely.

This Court does not use its certiorari jurisdiction to re-

evaluate fact-specific applications of state court rules of

procedure. Rule 10, Sup. Ct. R. Under the doctrine of

comity, state courts should be allowed to develop rules

governing their own state courts and decide issues

8

concerning those rules without oversight from the federal

system, especially when the interpretation of those rules

concern no important federal rights. See, i.e., Middlesex

County Ethics Committee v. Garden State Bar Association,

457 U.S. 423, 102S.Ct. 2515 (1982)(in state court civil

proceedings where state interests are involved, the Federal

Courts should abstain unless state law clearly bars the

imposition of constitutional claims). In this case, the

Second District Court decided that Petitioner’s appeal was

untimely under Florida’s appellate rules of procedure.

Despite Petitioner’s attempt to characterize it as something

else, this decision does not involve a conflict concerning an

important federal question. Rather, it involves only a

factual determination based upon the interpretation of these

appellate rules under Florida’s decisional precedent. As

such, there is no basis to grant certiorari review, and the

Petition should be denied.

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CONCLUSION

For the foregoing reasons, this Court should deny

Petitioner’s Petition for Writ of Certiorari.

Respectfully submitted,

Mitchell D. Franks

Fla. Bar No.: 0102824

LANE, TROHN, BERTRAND

& VREELAND, P.A.

P.O. Box 3

Lakeland, FL 33802-0003

(941) 284-2200

(941) 688-0310 (fax)

Counsel for Respondents

7 .

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Sere pai