IN THE SUPREME COURT OF FLORIDA S CT CASE NO SC 06 3DCA CASE NO 3 - PDF document

1 IN THE SUPREME COURT OF FLORIDA ________
IN THE SUPREME COURT OF FLORIDA __________________________________________________________________ S. CT. CASE NO.: SC 06- 3DCA CASE NO: 3D04- __________________________________________________________________ BARBARO FERNANDEZ, individually, as natural parent and guardian of CHRISTOPHER FERNANDEZ, a minor, individually, and as minor brother of CLAUDIA LORENA FERNANDEZ, deceased, and IRIS YADIRA FERNANDEZ, individually, and as Personal Representative of the Estate of CLAUDIA LORENA FERNANDEZ, deceased, Petitioners, vs. FLORIDA NATIONAL COLLEGE, INC., a Florida corporation, Respondent. __________________________________________________________________ RESPONDENT, FLORIDA NATIONAL COLLEGE, INC.’S AMENDED JURISDICTIONAL ANSWER BRIEF __________________________________________________________________ Caryn L. Bellus, Esq. FBN: 060445 KUBICKI DRAPER, P.A. Attorneys for Florida National College 25 West Flagler Street, Penthouse Miami, Florida 33130 Telephone: (305) 982- Facsimile: (305) 374- i TABLE OF CONTENTS PAGE NO. TABLE OF AUTHORITIES ii STATEMENT OF THE CASE AND FACTS 1 JURISDICTIONAL STANDARD 4 SUMMARY OF THE ARGUMENT 5 ARGUMENT 6 A. THE DISTRICT COURT’S DECISION DOES NOT CONFLICT WITH OTHER DECISIONS REGARDING THE STANDARD APPLIED BY AN APPELLATE COURT WHEN REVIEWING THE EVIDENCE IN A SUMMARY JUDGMENT CASE, RATHER, THE DECISION CORRECTLY APPLIES EXISTING FLORIDA PRECEDENT IN A CASE WHERE NO QUESTION OF GENUINE MATERIAL FACT EXISTS IN THE RECORD, AND THUS, SUMMARY JUDGMENT IS APPROPRIATE. 6 i B. THE DISTRICT COURT’S DECISION DOES NOT CON

2 FLICT WITH OTHER DECISIONS REGARDING W
FLICT WITH OTHER DECISIONS REGARDING WHETHER A PARTY MAY WAIVE A CAUSE OF ACTION FOR APPARENT AGENCY WHERE SUCH LEGAL THEORY IS RAISED FOR THE FIRST TIME IN OPPOSITION TO SUMMARY JUDGMENT AND WHERE THE RECORD DEMONSTRATES THAT, AS A MATTER OF LAW, THE FACTS DO NOT SUPPORT SUCH LEGAL THEORY. 8 CONCLUSION 10 CERTIFICATE OF SERVICE 10 CERTIFICATE OF COMPLIANCE 11 TABLE OF AUTHORITIES PAGE NO. Allen v. Port Everglades Authority , 553 So. 2d 1341 (Fla. 4th DCA 1989) 8 Department of Revenue v. Johnston , 442 So. 2d 950 (Fla. 1983) 5 Dodi Pub. Co. v. Editorial America, S.A. , 385 So. 2d 1369 (Fla. 1980) 1 Fernandez v. Florida National College, Inc. , 925 So.2d 1096 (Fla. 3d DCA 2006) 1, 2, 3, 4, 7, 9 Hardee v. State , 534 So. 2d 706 (Fla. 1988) 1 Hart Properties, Inc. v. Slack , 159 So. 2d 236 (Fla. 1963) 8 Jenkins v. State , 385 So. 2d 1356 (Fla. 1980) 4 Martinez v. Florida National College, Inc. , ii Third District Court of Appeal, Case No. 3D04- 1 Mystan Marine, Inc. v. Harrington , 339 So. 2d 200 (Fla. 1976) 5 Navison v. Winn & Lovette Tampa, Inc. , 92 So. 2d 531 (Fla. 1957) 7 Reaves v. State , 485 So. 2d 829 (Fla. 1986) 1 Roberts v. Braynon 90 So. 2d 623 (Fla. 1956) 8 Robinson v. Great Southern Trucking Co. , 95 So. 2d 418 (Fla. 1957) 6 Weiss v. Jacobson , 62 So. 2d 904 (Fla. 1953) 7, 8 Yost v. Miami Transit Co. , 66 So. 2d 214 (Fla. 1953) 6 OTHER AUTHORITIES Art. V, § 3(b)(3), Fla. Const. 4 i STATEMENT OF THE CASE AND FACTS Respondent, Florida National College, Inc., files this brief in opposition to Petitioners’ assertion of conflict jurisdiction. When considering

3 whether it has jurisdiction to review a
whether it has jurisdiction to review a case based on conflict, the Court is limited to a consideration of only “those facts contained within the four corners of the decisions allegedly in conflict.” Reaves v. State , 485 So. 2d 829, 839 n.3 (Fla. 1986); see Hardee v. State , 534 So. 2d 706, 708 n. 1 (Fla. 1988); Dodi Pub. Co. v. Editorial America, S.A. , 385 So. 2d 1369, 1369 (Fla. 1980). Thus, the facts relevant to this Court’s determination on jurisdiction are contained in the Third District’s opinion at Fernandez v. Florida National College, Inc. , 925 So. 2d 1096 (Fla. 3d DCA 2006). Respondent will rely on the facts as set forth in the decision which demonstrate the complete absence of any genuine issue of material fact to preclude summary judgment.1 Specifically, [d]uring the deposition of Mr. Cisneros, he testified as to the procedure he was required to follow in order to take students on field trips sponsored by FNC. His testimony, which is not contradicted by any other portion of the record, demonstrates that prior to any field trip, he was required to submit a field trip authorization form to FNC, and that after approval is granted, each student was then required to submit a signed form releasing FNC from liability. Moreover, Mr. Cisneros testified that field trips can only take place during the scheduled class period; a student's participation in the field trip would affect his/her grade; and prior to any field trip, he would contact the selected destination so that he could ensure that someone who speaks English would be present to attend to his students. Moreover, each student was required to pay the costs ass

4 ociated with the
ociated with the 1It should be noted that the record in this case so conclusively demonstrated that no genuine issue of material fact existed, that the Third District initially issued a per curiam affirmance of the trial court’s order granting summary judgment. Only after Petitioners requested that at a written decision be issued to prevent a potential conflict between this case and the case of Martinez v. Florida National College , Third District Court of Appeal Case No. 3D04-3228, an appeal that involved another person injured in the same accident, did the Third District even find it necessary to issue a written decision. Fernandez , 925 So. 2d at 1098. The Martinez v. Florida National College case has been settled and the parties are in the process of finalizing the settlement documents, after which that appeal will be dismissed. ii field trip and provide their own transportation. Following the field trip, he would discuss in class what they had learned during the field trip. . at 1099. (emphasis added). The undisputed facts also show that Mrs. Fernandez enrolled in FNC's ESOL class for the term beginning in January 1999, and ending on Thursday, August 12, 1999. This particular class met four times a week, Monday through Thursday, from 8:30 a.m. to 1:00 p.m., and was taught by Mr. Cisneros. About a week before the term ended, Mr. Cisneros announced in class that there would be a trip to a beach in Key West on Friday, August 13, 1999; the fare for the trip was $15; the students could bring their friends and family members; and the trip would begin and end at the parking lo

5 t at the FNC campus. It is also undisput
t at the FNC campus. It is also undisputed that the students paid Mr. Cisneros during a scheduled class period; only approximately ten of the seventeen to nineteen students participated in the excursion to Key West; Mr. Cisneros did not inform FNC of the trip; he did not ask the students to sign a release form; and the excursion did not affect the students' grades as Mr. Cisneros had turned in his grades on August 12, 1999. It is also undisputed that on the morning of Friday, August 13, 1999, Mr. Cisneros, Mr. Maximo Suarez, who is another FNC teacher, and Javier Aragon, who is a student at FNC, went to Thrifty Rent-Car, where Mr. Cisneros rented two vans using his personal credit card. One van was driven by Mr. Cisneros, and the second van was driven by Mr. Aragon because Mr. Suarez had forgotten his driver's license. The vans left the FNC parking lot between 7:00 and 7:30 a.m., with Mrs. Fernandez and Claudia riding in the van driven by Mr. Cisneros. . at 1099-1100 (emphasis added). In the instant case, the undisputed evidence showed that Mrs. Fernandez was enrolled in an ESOL class that met from 8:30 a.m. to 1:00 p.m., Monday through Thursday, and that the term ended on Thursday, August 12, 1999. Moreover, FNC's policy was that field trips could only take place during scheduled class periods. As the accident occurred on Friday, August 13, 1999, which was after the term had ended and on a Friday, the plaintiffs cannot satisfy the second element, which requires that the “conduct occur[ ] substantially within the time . . . limits authorized or required by the work to be performed.” In addition, the plaintiffs cannot establish the

6 third element because, at the time of t
third element because, at the time of the accident, the term had ended and Mr. Cisneros had turned in his grades. Therefore, the purpose behind the excursion to Key West in no way ““serve[d] the master.”” Based upon these undisputed facts, the plaintiffs cannot demonstrate that, at the time of the accident, Mr. Cisneros was acting within the course and scope of his employment with FNC. . at 1100 (emphasis added). iii In the instant case, there is no doubt that Mr. Cisneros was, at one point, employed by FNC. However, the undisputed testimony showed that, at the time of the accident, the term had ended; FNC had not authorized this excursion; and that this excursion in no way benefitted FNC. In fact, Mrs. Fernandez's testimony reflects that they were taking this excursion because the course had ended. . at 1101(emphasis added). Applying the legal test for actual agency to the undisputed facts, the Third District correctly concluded that “the plaintiffs cannot establish that Mr. Cisneros was FNC's actual agent on the day of the accident.” Id . at 1101. Similarly, as to the issue of apparent agency, in addition to finding that Petitioners waived that theory by failing to assert this ground in the complaint despite raising it in opposition to the motion for summary judgment, the Third District also addressed the merits of this legal theory and found that the undisputed record facts could not support a claim of apparent agency. Id . at 1101- Following issuance of the Third District’s opinion, which painstakingly details that Petitioners failed to create any question of material fact in the record, Petitioners

7 did not file motions for rehearing or fo
did not file motions for rehearing or for certification of any conflict. Petitioners filed this notice to invoke discretionary jurisdiction.JURISDICTIONAL STANDARD Petitioners suggest that this Court may exercise its discretionary jurisdiction based on an alleged conflict with other decisions. This Court may exercise discretionary jurisdiction over any decision of a district court of appeal “that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law.” Art. V, § 3(b)(3), Fla. Const. This provision has been interpreted restrictively to limit the Court’s jurisdiction to those cases where the conflict is express and not implied. Jenkins v. State , 385 So. 2d 1356, 1359 (Fla. 1980). Conflict certiorari is limited to direct conflicts in the law out of concern for uniformity in decisions as precedent rather than the adjudication of the rights of particular litigants. Mystan Marine, Inc. v. Harrington , 339 So. 2d 200, 201 (Fla. 1976). Moreover, where there is a factual difference between allegedly conflicting cases, jurisdiction will not lie. Department of Revenue v. Johnston , 442 So. 2d 950, 950 (Fla. 1983). SUMMARY OF THE ARGUMENT The record in this case so clearly presented no issue of genuine material fact precluding summary judgment that the Third District initially found it unnecessary to even write an opinion. iv Only after Petitioners requested a written decision to prevent a potential conflict with this case and the now settled case of another passenger, did the Third District issue the lengthy opinion detailing the fact that the record c

8 ompletely lacked any evidence to support
ompletely lacked any evidence to support the imposition of liability against Respondent. Unhappy with the decision following their request for a written opinion, and despite the detailed opinion which demonstrates Petitioners’ failure to create any genuine issue of material fact, Petitioners now seek conflict review by this Court. The Third District’s decision does not conflict with any decision of another district court of appeal or of this Court. To the contrary, the decision merely applies long standing precedent holding that where no genuine issue of material fact exists, summary judgment is appropriate. Likewise, the Third District’s decision does not conflict with any decision regarding whether a party may waive a legal theory not raised in the pleadings. Rather, the decision correctly applies existing legal precedent which holds that a party may waive a claim not pled, and further, a party may not raise an issue not pled at a summary judgment hearing. Further, the Third District examined the undisputed record facts and correctly found that Respondents could not establish the elements necessary to demonstrate apparent agency. Thus, all of the cases cited by Petitioners either support the Third District’s opinion or are factually distinguishable. Therefore, contrary to Petitioners’ position, this Court does not have jurisdiction to review this case on the basis of conflict.ARGUMENT THE DISTRICT COURT’S DECISION DOES NOT CONFLICT WITH OTHER DECISIONS REGARDING THE STANDARD APPLIED BY AN APPELLATE COURT WHEN REVIEWING THE EVIDENCE IN A SUMMARY JUDGMENT CASE, RATHER, THE DECISION CORRECTLY APPLIES EXISTING FLORI

9 DA PRECEDENT IN A CASE WHERE NO QUESTION
DA PRECEDENT IN A CASE WHERE NO QUESTION OF GENUINE MATERIAL FACT EXISTS IN THE RECORD, AND THUS, SUMMARY JUDGMENT IS APPROPRIATE. There is no conflict, express or implied, direct or indirect, between this case and Yost v. Miami Transit Co. , 66 So. 2d 214 (Fla. 1953), Robinson v. Great Southern Trucking Co. , 95 So. 2d 418 (Fla. 1957), Navison v. Winn & Lovette Tampa, Inc. , 92 So. 2d 531 (Fla. 1957), Weiss v. Jacobson , 62 So. 2d 904 (Fla. 1953), nor any Florida law. All of these cases simply spell out the existing test in the state, which the Third District properly applied here, that if genuine issues of material facts exist, summary judgment is not appropriate. In fact, the Third District recognized the test as follows: Although the existence of an agency relationship is usually a question of fact that must be resolved by the trier of fact, when a party bearing the burden of proof on an issue, fails to produce any supportive evidence, or when . . . all of the evidence presented by both parties is so unequivocal that reasonable persons could reach but one conclusion, a question that is ordinarily one of fact becomes a question of v law, to be determined by the court. , 925 So. 2d at 1100. In addition, Weiss is factually distinguishable because the incident in Weiss undisputably occurred during work hours and while the tortfeasor was performing her job as a clothing sales person, thereby creating a question of fact as to whether she was acting in furtherance of her employer’s business. 62 So. 2d at 905-6. In contrast, and as made clear in the Third District’s opinion, the undisputed facts in this case demonstrate that the t

10 rip was not authorized by Respondent, th
rip was not authorized by Respondent, the accident occurred on Friday, a day on which there was no school, after the semester ended and grades were turned in for the semester. Fernand , 925 So. 2d at 1099-Thus, the record conclusively demonstrates that at the time of the accident, Mr. Cisneros was not acting in the course and scope of his employment with Respondent. Id Petitioners’ claim that the Third District improperly “weighed” the facts in affirming the grant of summary judgment. This is simply not true. Instead, the Third District applied well-settled summary judgment law to the undisputed record evidence and concluded that Mr. Cisneros was neither Respondent’s actual agent, nor apparent agent, at the time of the accident. In contrast with the cases cited by Petitioners, because the record demonstrates that no genuine issue of material fact exists, the Third District correctly affirmed the summary judgment and no conflict with any other case exists. THE DISTRICT COURT’S DECISION DOES NOT CONFLICT WITH OTHER DECISIONS REGARDING WHETHER A PARTY MAY WAIVE A CAUSE OF ACTION FOR APPARENT AGENCY WHERE SUCH LEGAL THEORY IS RAISED FOR THE FIRST TIME IN OPPOSITION TO SUMMARY JUDGMENT AND WHERE THE RECORD DEMONSTRATES THAT, AS A MATTER OF LAW, THE FACTS DO NOT SUPPORT SUCH LEGAL THEORY. vi There is also no conflict, express or implied, direct or indirect, between this case and Hart Properties, Inc. v. Slack , 159 So. 2d 236 (Fla. 1963), Roberts v. Braynon , 90 So. 2d 623 (Fla. 1956), or Allen v. Port Everglades Authority , 553 So. 2d 1341 (Fla. 4th DCA 1989). These cases state the legal proposition that summary judgment

11 must be granted when there exists no ge
must be granted when there exists no genuine issue of material fact on the legal theory pled, but that where the record indicates that the plaintiff may have a cause of action not pleaded, an affirmance of the summary judgment with leave to amend may be appropriate. In contrast, the Third District’s decision and the record herein demonstrate that Petitioners waived the theory of apparent agency by only raising this claim in opposition to Respondent’s motion for summary judgment and not requesting leave to amend the complaint. Also, the Third District’s decision and the undisputed record show that Petitioners cannot establish the elements necessary to support any claim of apparent agency. Fernande , 925 So. 2d at 1101-2. Specifically, To establish that an apparent agency exists, the following elements must be present: “(a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation.” * * * In the instant case, the only representation that FNC made to its students was that their ESOL teachers, such as Mr. Cisneros, were authorized to take them on field trips during the term in which they were enrolled. Therefore, as the field trip occurred after the term had ended, Mr. the plaintiffs cannot establish an agency relationship between Mr. Cisneros and FNC, we affirm the summary judgment entered in favor of FNC. . (citations omitted). Since the record precludes the existence of a viable cause of action for apparent agency, no conflict exists to support review by this Court. Based upo

12 n the foregoing facts and legal authorit
n the foregoing facts and legal authorities, no direct or express conflict exists between the instant decision and the cases cited by Petitioners. Therefore, Respondent, Florida vii National College, respectfully requests this Court to deny Petitioners’ request for discretionary review. Respectfully submitted, KUBICKI DRAPER Attorneys for Respondent City National Bank Building 25 West Flagler Street, Penthouse Miami, Florida 33130 Telephone: (305) 982- (305) 374- By: Florida Bar No. 060445 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this day of June, 2006, to all counsel on the service list below. CARYN L. BELLUS CERTIFICATE OF COMPLIANCE In compliance with Florida Rule of Appellate Procedure 9.210(2), counsel for Respondent certifies that the size and style of type used in this Brief are 14 point type, Times New Roman. CARYN L. BELLUS SERVICE LIST Counsel for Barbaro Fernandez:Lauri Waldman Ross, Esq. Lauri Waldman Ross, P.A. 8 Two Datran Center, Suite 1612 9130 South Dadeland Boulevard Miami, Florida 33156 (305) 670- John S. Seligman, Esq. Friedman & Friedman, P.A. 2600 Douglas Road, Suite 1011 Coral Gables, Florida 33134 (305) 446- Counsel for One Beacon Ins.: Maria E. Dalmanieras, Esq. Restani, McAllister & Cassetty, P.A. 2801 Ponce de Leon Boulevard, Suite 900 Coral Gables, Florida 33134 (305)