Electronically Filed 12/06/2013 0 ffb'AÛ ET

RECEIVED, 12/6/2013 10:28:42, John A. Tomasino, Clerk, Supreme Court

IN THE SUPREME COURT OF FLORIDA

JOHN R. PRATT, Petitioner,

v. Case No. SC­L.T. No. 5D12-4622

EQUITY BANK, N.A., Respondent.

ON APPEAL FROM THE DISTRICT COURT OF APPEAL FIFTH DISTRICT, STATE OF FLORIDA

PETITIONER'S JURISDICTIONAL BRIEF

HILLARD LAW GROUP, P.A.

Benjamin Hillard, Esq. Florida Bar No. 0764361 13143 66th Street N. Largo, Florida 33773 (727) 536-8882 / Fax (727) 536-7739 Email: BenHillardEsquire@gmail.com Attorneys for Petitioner

TABLEOFCONTENTS

Table of Citations ......................................................................................................ii

Statement of the Case and Facts................................................................................1

Summary of the Argument........................................................................................3

Jurisdictional Statement ............................................................................................4

Argument...................................................................................................................S

Conclusion.................................................................................................................9

Certificate of Service...............................................................................................10

Certificate of Compliance .......................................................................................10

Appendix 1 .......................................................................................................App. 1

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TABLE OF CITATIONS

Suprerne Court Cases

Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225 (Fla. 1986)........ 7

Court of Appeal Cases

Statutes

Ford Motor Company v. Kikis, 401 So.2d 1341 (Fla. 1981).................................... 5

Krivitsky v. Nye, 19 So.2d S63 (Fla. 1944). ..............................................................6

Girau v. Girau, 544 So.2d 1117 (Fla. 3d DCA 1989). .........................................4, 8

Gorny v. St. Leger, 114 So.2d 238 (Fla. 5 DCA 2013).........................................4, 8

Humphrey v. Deutsche Bank National Trust Co., 113 So.3d 1019

(Fla. 2d DCA 2013)...................................................................................................7

Manufacturers Nat. Bank ofDetroit v. Moons, 659 So.2d 474

(Fla. 4 DCA 1995).....................................................................................................6

Seymour v. Panchita Inv., Inc., 28 So.3d 194 (Fla. 3d DCA 2010).......................... 6

Shiffman v. Stumpff, 445 So.2d 1104 (Fla. 4 DCA 1984)......................................... 7

Springbrook Commons, Ltd., v. Brown, 761 So.2d 1192

(Fla. 4 DCA 2000).................................................................................................7, 9

Zieman v. Cosio, 578 So.2d 332 (Fla. 3d DCA 1991)..............................................7

§§ 55.501 - 55.509 Fla. Stat. (2008).................................................................1, 3, 7

§48.011 Fla. Stat. (2008)...........................................................................................3

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Rules

Fla. R. App. P. 9.030(a)(2)(A)(iv).............................................................................4

Constitutional Provisions

Art. V, § 3(b)(3) Fla. Const. (1980).......................................................................... 4

111

STATEMENT OF THE CASE AND FACTS

Equity Bank (the "Bank") obtained a judgment (the "Kansas Judgrnent")

against John R. Pratt ("Pratt") on July 14, 2010. The Bank followed the statutory

procedure under §§ 55.501 - 55.509 Fla. Stat. (2008) to establish a lien on real

property located in Osceola County, Florida, by recording a certified copy of the

Kansas Judgment there and having the clerk mail a copy of the notice of such

rerecording to Pratt's last known address. According to the docket, the clerk's

mailing was returned "unable to forward."

On or about November 15, 2010, the Bank took the further step of instituting

a post-judgment collection proceeding against Pratt and sought an Order directing

Pratt to provide discovery in aid of execution via ex parte motion. Contrary to the

Bank's contention, the Order was never served on Pratt. Service of discovery by

mail is not effective until personal service of process is perfected. Additionally,

the Bank knew that Pratt had another residence and they also knew the mailings to

Pratt's Florida address were returned unable to forward.

On or about November 1, 2011, the Bank proceeded with another ex parte

hearing and received an Order compelling production. This Order was likewise

never served on Pratt. The reason the Bank labeled their Motions as "Ex Parte" is

because they were aware that Pratt was never served with process and they could

not verify that he was aware of the proceedings. On or about February 13, 2012,

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the Bank scheduled an ex parte hearing on its Motion for Issuance of a Writ of

Bodily Attachment and to Hold Pratt in Contempt. Pratt received a copy of the

Motion for Writ of Bodily Attachment and first became aware of the existence of

the collections lawsuit. He then retained the undersigned attorney to research the

same. At that time, the undersigned informed Pratt of the existence of various

Orders that apparently were entered on an ex parte basis and without notice or

service of process on Pratt. On or about March 5, 2012, the undersigned filed a

Notice of Special Appearance for the Sole Purpose of Challenging Personal

Jurisdiction over Pratt.

Pratt was unaware of the existence of the collections lawsuit or the court

orders which were entered in this matter until immediately prior to the undersigned

researching the lawsuit and filing its Special Appearance. Pratt's only

communication with the Bank was an email exchange in response to an email from

the Bank's counsel. A lawyer's informal communication with an unrepresented

party is far different than being served with process or served with a court order.

At the hearing on the undersigned's appearance to challenge personal

jurisdiction, the trial court ruled that recording a foreign judgment and mailing a

notice to the last known address was sufficient to establish personal jurisdiction

over Pratt.

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Pratt appealed to the Fifth District Court of Appeal and on September 27,

2013, the District Court issued a written opinion affirming the trial court's exercise

of personal jurisdiction over Pratt. Pratt's timely Motion for Clarification,

Certification and Rehearing was denied and his notice to invoke the discretionary

jurisdiction of this Court was timely filed on November 26, 2013. A conformed

copy of the District Court of Appeal's decision is included in the Appendix.

SUMMARY OF THE ARGUMENT

In its decision below, the Fifth District Court of Appeal held that

domesticating a foreign judgment in accordance with the Act provides the court

with personal jurisdiction over a debtor, and personal service is not necessary for

the creditor to initiate collection proceedings against the debtor. Pratt argues that

the Act's notice provision, §55.505(2) Fla. Stat. (2008), only provides the court in

rem jurisdiction over the property within the county where the judgment was

recorded, but does not grant the court personal jurisdiction over the debtor's

person. The district court's opinion expands the scope of the statutory language of

the Act's notice provision to erroneously create the establishment of personal

jurisdiction which would serve as an alternative to personal service as defined and

required under §48.011 Fla. Stat. (2008) et seg.

The decision of the district court cannot be reconciled with the Fourth

District Court of Appeal's decision in Springbrook Commons, Ltd. V. Brown, 761

So.2d 1192 (Fla. 4th DCA 2000) or with the Third District Court of Appeal's

decision in Girau v. Girau, 544 So.2d 1117 (Fla. 3d DCA 1989). The Springbrook

decision states that in rem jurisdiction was insufficient to allow the court to award

personal judgments against a defendant, and the Girau decision holds that a

judgment domesticated under the Act does not grant personal jurisdiction to the

court over the judgment debtor.

Pratt also contends that the decision does not conform with the Fifth District

Court of Appeal's own decision in Gorny v. St. Leger, 114 So.2d 238 (Fla. 5 DCA

2013). There the court holds that any proceeding that requires the court to exercise

personal jurisdiction, even where the domestication of a foreign judgment is

involved, first requires personal service to establish jurisdiction. Thus, Pratt

contends that the district court's opinion below expressly and directly conflicts

with the previous decisions of other district courts of appeal on the same point of

law.

JURISDICTIONAL STATEMENT

The Florida Supreme Court has discretionary jurisdiction to review a

decision of a district court of appeal that expressly and directly conflicts with a

decision of another district court of appeal on the same point of law. Art. V, §

3(b)(3) Fla. Const. (1980); Fla. R. App. P. 9.030(a)(2)(A)(iv). A conflict does not

need to be identified in the opinion for it to be considered "express and direct;"

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rather, it is sufficient that the opinion discusses the legal principles that it applied

to reach its decision. Ford Motor Company v. Kikis, 401 So.2d 1341, 1342 (Fla.

1981) (finding basis for exercise of discretionary jurisdiction where the district

court's opinion discussed the basis upon which it reversed the trial court's entry of

a directed verdict, even though the district court did not explicitly identify a

conflicting decision in the opinion).

ARGUMENT

In one respect, this matter is a case of first impression because there is no

case law that offers even a tangential relationship between recording a foreign

judgment in Florida and the establishment of the court's personal jurisdiction over

a party. Conversely, there are over 200 years ofjurisprudence that supports Pratt's

position that a court must have personal jurisdiction over an individual through

personal service before it can exercise power over him. The purpose of the Act,

according to a plain language reading, is to allow foreign creditors to establish a

lien on domestic property owned by a debtor in order to seek in rem relief and

enforcement of a foreign judgment. The Fifth District Court of Appeal's opinion

expands this language to mean that personal jurisdiction is established through

domestication.

The consequences of the court of appeal's decision, should it stand, are great

and far-reaching. Had Pratt not hired the undersigned counsel to research the

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collections lawsuit, and had the suit gone further without counsel's special

appearance to interject against the Bank's motion for sanctions, Pratt could very

easily have been arrested upon entering Florida under court orders he did not know

existed. Should the decision stand, it would incentivize creditors to domesticate

their judgments in Florida, and then proceed on an ex parte basis against

unknowing debtors to gain an unfair advantage.

One of the fundamental tenets of American jurisprudence is that before a

court can impose its authority on an individual, the court must obtain personal

jurisdiction. Personal service is the most common means for obtaining personal

jurisdiction, and there are countless cases in Florida that state unequivocally this

very premise.

This Court has said that "the jurisdiction of a court remains at rest until

called into action by a suitor by a pleading and process recognized by law."

Krivitsky v. Nye, 19 So.2d 563 (Fla. 1944). See Seymour v. Panchita Inv., Inc., 28

So.3d 194 (Fla. 3d DCA 2010) (a summons properly issued and served is the

method by which a court acquires jurisdiction over a defendant); Manufacturers

Nat. Bank ofDetroit v. Moons, 659 So.2d 474 (Fla. 4th DCA 1995) (jurisdiction

over persons or entities is ordinarily acquired by service of process on them or by

their voluntary submission to court). The Second District held that "without proper

service, the court never secured personal jurisdiction over [appellant] and, thus,

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had no power over him." Humphrey v. Deutsche Bank National Trust Co., 113

So.3d 1019 (Fla. 2d DCA 2013). Without personal jurisdiction, "the court had no

authority to direct [appellant] to do anything." Id.

Where only individual interests in property are concerned, and not personal

liability, personal service is not necessary and there are statutory alternatives to

personal service of process. Springbrook Commons, Ltd., v. Brown, 761 So.2d

1192, 1194 (Fla. 4th DCA 2000). However, these alternative methods generally

only convey in rem jurisdiction, and not personal jurisdiction. Id. See also

Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225 (Fla. 1986);

Zieman v. Cosio, 578 So.2d 332 (Fla. 3d DCA 1991). Additionally, these statutory

alternatives must be strictly construed. Shiffman v. Stumpff, 445 So.2d 1104 (Fla. 4

DCA 1984). The Act requires the creditor to file the foreign judgment with the

clerk in the county where the property is located. §55.505(1), Fla. Stat (2008).

Once recorded, the clerk mails notice of the recording via registered mail return

receipt requested, to the judgment debtor. Id. §55.505(2). This statutory

alternative to personal service could only establish in rem jurisdiction.

In Springbrook, the Fourth District Court of Appeal upheld the trial court's

refusal to levy monetary fines against a defendant where the court only has in rem

jurisdiction. In the present case, the Fifth District Court of Appeal takes no issue

with the trial court allowing the Bank to carry out its post-judgment collection

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proceedings against Pratt personally, entirely without Pratt's knowledge. In the

absence of personal jurisdiction, the trial court simply cannot impose these

personal judgments against Pratt without due process.

The notice provision of the Act falls well below the standards of personal

service, and courts have rejected actions in connection with domesticated

judgments that require personal jurisdiction, even where the Act's notice provision

was complied with. In Girau v. Girau, the Third District Court of Appeals found

that despite proper domestication of a foreign child support judgment pursuant to

the Act, the trial court lacked personal jurisdiction to enter a default against the

father. 544 So.2d 1117 (Fla. 3d DCA 1989). In Girau, as in the present case, the

debtor was personally served and fully aware of the original lawsuit that gave rise

to the foreign judgment, the judgment was then properly domesticated under the

Act, but the debtor was not personally served prior to proceedings in Florida.

Finally, the Fifth District Court of Appeal's opinion in the present case is

incompatible with its own decision in Gorny v. St. Leger. The Appellant in Gorny

attempted to file a petition for domestication of a foreign judgment without

properly serving the Appellant. The court held that proper service of process was

necessary before the trial court had jurisdiction to hear the matter. Gorney, 114

So.3d at 243. In its opinion below, the Court of Appeals drew a distinction where

the Appellee in Gorny filed a new lawsuit and the Bank below relied solely on the

Act for domestication. Pratt contends that this distinction is irrelevant because

both the Gorney Appellee's lawsuit and the Bank's post-judgment collection

proceedings are actions seeking relief against individuals and require personal

jurisdiction, which simply cannot be satisfied by compliance with the Act alone.

Domestication under the Act only grants the court in rem jurisdiction to

attach and sell the subject property to satisfy the foreign judgment. Pratt has never

contested the court's authority to assert jurisdiction over the property. However,

the trial court attempted to compel Pratt to participate in discovery, and prior to

Pratt's appeal, allowed the Bank to move forward with its post-judgment collection

proceedings without due process. These actions require more than just in rem

jurisdiction, and "if the court is to exercise its power over a person, it must have

[personal] jurisdiction over that individual." Springbrook, 761 So.2d at 1194 .

CONCLUSION

This Court has discretionary jurisdiction to review the decision below

because it expressly and directly conflicts with the decisions of the Third and

Fourth District Courts of Appeal. This Court should exercise that jurisdiction to

consider the merits of Pratt's argument and provide clarity as to the breadth of

jurisdiction a court is awarded to enforce a judgment that has been domesticated

under Florida's Uniform Enforcement of Foreign Judgments Act.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished via facsimile (305)372-9928 and email: eb@jordenusa.com to Elizabeth M. Bohn, Esq., Jorden Burt, LLP, 100 S.E. Second Street Ste. 4200, Miami, Florida 33131, this day ofDecember, 2013.

HILLARD LAW GROUP, P.A.

By: Bgíífamin Hillard,Jfluire FL Bar No. 0764361 13143 66'h Street N. Larao, FL 33773 Telephone: (727) 536-8882 - Fax: (727) 536-7739 Email for Service: BenHillardEsquire@Gmail.com Attorneys for Defendant Pratt

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that I have complied with the font and margin requirements of the Appellate Rules.

HILLARD LAW GROUP, P.A.

By: Benj'áÉ1in Hillard EsgtíÍre FL Bar No. 0764361 13143 66th Street N. Largo, FL 33773 Telephone: (727) 536-8882 - Fax: (727) 536-7739 Email for Service: BenHillardEsquire@Gmail.com Attorneys for Defendant Pratt

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