E lectronica]]y Filed Owow2h]3 04: 4:0x ]Si i

REt l·.]V] D. ww:Ol3 16:33 4 i. ihomas D. Hall ("lak. Supremc t aun

lN lllí SUPREMEC(H.lRTOF lld)RIDA

CASE N(L SCl3-580I)CA CASE N( L 3D11-2863

[..1. CASE NU. 08-56315 CA 25

Ál.l( E. IlFNNEfl 1 & ('E TARLES HI NNETT.

Petitioners

AppellaritN'ross-Appellee,

1U'S WHOl.1 SAI.E CLUB, INC.,

a foreign corporation,

Respondent.

Appellee/( ross-Appellatu

Petition for Discretionarv Review ofa Decision

of the I hirtl District Court of Appèal of I lorida

PETITIONiiRS' JURINDICTIONAI 13RIEF

keith Chasin. 1:squireI.AW OTFlCE ()I KE IIHCllANiv9350 South Dixie I liehway. Suite 1560Miami,Ilorida 33156Tele: (305)670-lK33lax: (305)670-1834I mail: hehasin a chaCounsel for Petitioner

TABLE OF CONTENTS

Table of Authorities ................................................................... . . . . . ............... m

Introduction ............................................................................... ...... ...................1

Statement of the Case ................................................................. . . . . . . .......... .. .. I

Summary o f the Argurnent .................................................... ..... . . ................. .4

Argument...................................................................... . . . . 4

Conclusion........................................................................ . . . . . . 8

Certificate of Service........................................................ . . . . . ........... 9

Certificate of Compliance ........................................................................ ..................9

TABLE OF AUTHORITIES

Cases

Dunscombe v. Smith,

I 39 Fla. 497, 190 So. 796 (1939) ................................................... 1, 4, 5, 7, 8

Gordon v. Royal Caribbean Cruises, Ltd ,

631 So.2d 515 (Fla. 3d DCA 1994)................................................................ 4

Hinate v. Ford Motor Co.,

958 So.2d 1009 (Fla. 1st DCA 2007)............................................................. 6

Paulino v. BJ's Wholesale Club, Inc.,

106 So.3d 985 (Fla. 4th DCA 2013)........................................... 1, 4, 5, 6, 7, 8

Other Authorities

Fla.R.App.Pro. 9. 100................................................................................................. 9

Fla. R.App.Pro. 9.210(a)(2)........................................................................................ 9

F1a.R.Civ.P. 1.100(c)(3)............................................................................................ 7

Fla.R.Civ.P. l.730................................................................................................. 1,2

Fla. R.Civ.P. 1.730(b) ................................................................................................ 4

Fla. R.Civ. P. l .730(c)............................................................................................. 7, 8

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INTRODUCTION

Pursuant to this Court's order on reinstatement dated August 23, 2013,

petitioners Alice & Charles Bennett file this brief on why this court has jurisdiction

over this matter. Conflict jurisdiction is based on the Third District Court of

Appeals' affirmance of the trial court's ruling which dismissed Alice Bennett's

personal injury claim, with prejudice, and its reversal of the trial court's ruling

which left Charles Bennett's loss of consortium claim intact. The Third DCA

interpreted the trial court's 11/02/2010 order as a final order of dismissal, the result

of which is a ruling that conflicts with established case law from this Court,

Dunscombe v. Smith, 139 Fla. 497, 190 So. 796 (1939), and its progeny, most

recently reiterated in Paulino v. BJ's Wholesale Club, Inc. 106 So.3d 985 (Fla. 4th

DCA 2013).

STATEMENTOFTHECASE

Alice Bennett sought personal injury damages for an alleged slip and fall

which occurred on December 22, 2006 while she was shopping on the premises of

BJ's Wholesale Club, Inc. (hereafter "BJ's"). Her husband, Charles Bennett,

claimed damages for loss of consortium. On 12/10/2009 Mrs. Bennett attended a

court-ordered mediation as described in Fla.R.Civ.P. l.730 at which a document

was generated which stated that "a settlement was reached by the parties" for

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$25,000.00. I lowever, only Mrs. Bennett signed this document, her husband

Charles was neither present at the mediation nor did he ever sign it. (ROA 317)

The substantive issue in the case, then, is whether a Fla.R.Civ.P. 1.730 mediation

agreement requires the signatures of all parties to a lawsuit to become effective as

an enforceable settlement of the action, and thereby serve as the basis to dismiss an

action with prejudice.

Immediately after the mediation both of the Bennetts disputed that their

lawsuit was settled. Mrs. Bennett felt that the settlement amount was insufficient,

her husband disagreed with the settlement by refusing to sign the mediation

agreement. They notified their-then attorney of their disagreement.

Notwithstanding, their attorney continued to remain plaintiffs' attorney of record

and sought to enforce the mediation document against his own clients. Eleven

months after the mediation, on November 2, 2010, plaintiffs' counsel attended a

court hearing on a rnotion to enforce the mediation agreement. Neither Mrs. nor

Mr. Bennett attended this hearing.

The trial court entered an "order of dismissal," attached hereto at Exhibit A

(ROA 326). This order was docketed by the Miami-Dade County Clerk of Court

on November 10, 2010. The procedural issue in this case is whether this order

amounts to a final dismissal of this action, so that the Bennetts had to appeal same

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within 30 days, or in the minimum, timely move for rehearing.

The trial court held that the order was not a final order of dismissal and in

fact that Mrs. Bennett, acting pro se (even though she still had the same attorney of

record), timely moved for rehearing on November 17, 2010.1 The appellate court

reversed, holding that the November 2, 2010 order was final and ifnot, it became

linal when the trial court disposed of Mrs. Bennett's "motion in disagreement"

which the appellate court treated as a motion for rehearing. The trial court issued

its subsequent order on March 30, 2011, Exhibit C. (ROA 352) Because neither

plaintiff timely appealed that order, the Third DCA held that the trial court was

thereafter divested of all jurisdiction over this matter

As stated, in the trial court the Bennetts successfully argued that it continued

to have jurisdiction until the final order of October 18, 20 l l Exhihit D (ROA 326),

when the lower court held that the mediation aureement terminated Mrs. Bennett's

personal injury claim, but did not terminate Mr. Bennett's loss of consortium

claim. Mrs. Bennett timely appealed this ruling to the Third DCA and BJ's cross

appealed the ruling as to Mr. Bennett.

I Appellant filed a Motion to Supplement the Record on Appeal on March 8,

2012. The Third DCA entered its Order Granting the Motion to Supplement the

Record on Appeal on March 22, 2012.

2 The Bennetts obtained new counsel on July 5, 2011; their prior counsel filed

a Motion for Final Withdrawal as Counsel on August 18, 2011.-3-

The Bennetts now seek conflict jurisdiction on the grounds that neither the

November 2, 2010 order nor the March 30, 201 I order constitute final orders of

dismissal. Assuming this court finds that it has jurisdiction over this matter, the

Bennetts would then seek reversal of the trial court's ruling as to Mrs. Bennett's

claim on the grounds that the rnediation agreement of Dec. 2009 is null and void

because it was never signed by all parties to the lawsuit, namely Charles Bennett,

as is required under Rule 1.730(b), Florida Rules of Civil Procedure. See also

Gordon v. Roya/ Caribbean Cruises, Ltd, 631 So.2d 515 (Fla. 3d DCA 1994).

SUMMARY OF TH E ARGUMENT

The Bennetts contend that the Third DCA's opinion conflicts with

Dunscombe and Paulino because the plain language of the November 2, 2010 and

March 30, 3011 orders demonstrate that judicial labor could not have terminated.

Without a clear and unambiguous termination of judicial labor, Dunscombe and

Paulino hold that an order cannot be considered a final order of dismissal of a case;

the order must be considered interlocutory.

ARGUMENT

The trial court's order of 11/02/2010 states it is a final order of dismissal as

to "plaintiff' yet there were 2 plaintiffs in this action and directs "plaintiff" to pay

all liens from the settlement proceeds. This order is ambiguous, it could be

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enforced against Charles and not Alice, or against Alice and not Charles, and

potentially against both of them simultaneously. The same is true for the March 30,

2011 order which says in paragraph 2 "plaintiff" is to pay all liens. Under this

ambiguous language, either plaintiff could have been sanctioned for failing to

adhere to its directive that the "plaintiff" must pay all "liens" from the settlement

proceeds. The obvious conclusion here is that these orders could hardly be deemed

"final" when one does not even know which plaintiff it is effective against.

The Third DCA opinion (Exhibit B) in this case holds that the "November 2,

2010" order is a "final judgment enforcing a mediated settlement of their [Alice &

Charles Bennett's] personal injury action against the appellee." Florida

jurisprudence has long recognized that an order or judgment becomes final only

when judicial labor ceases. As far back as 1939, this Court enunciated the principal

of finality:

A decree is final which decides the right to thepropeity in contest and directs it to be delivered by thedefendant to the complainant, or directs it to be sold, ordirects the defendant to pay a certain sum of money tothe complainant and the complainant is entitled to havesuch decree carried immediately into execution, butwhere anything remains to be done which may be thesubject of later exception or appeal, so that the wholematter in controversy is not disposed of, the decree is notregarded as final. 139 Fla. 497, 504, 190 So. 796, 799.

In Paulino, the Fourth DCA followed Dunscombe and held that

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an order of

dismissal was not final. The court stated:

Here, as in Hayward, the September 9, 2011 order at issue doesnothing more than grant a motion to dismiss. There is no language inthe order actually dismissing the complaint or action. There is also nolanguage in the September 9, 2011 order clearly indicating thatjudicial labor was at an end and there could be no possibility ofamendment. See Hinote v. Ford Motor Co., 958 So.2d 1009, 1010(Fla. 1st DCA 2007) (recognizing that order of dismissal can berendered fmal as result of language making it clear judicial labor in

the case is at an end).The language of the order is somewhat equivocal, t.e., it

"appears plaintiff failed to exhaust administrative remediesallegations in the complaint go beyond those arguably presented in theadministrative charge, and plaintiffs allegations are time barred." ... Itis simply not clear from the September 9, 2011 order that the defectsin the original complaint are beyond cure. Therefore, the order ismerely a non-final order granting a motion to dismiss and, as such, didnot serve to preclude further pursuit of the action by the filing of an

amended complaint.

Paulino v. BJ's Wholesale Club, Inc., 106 So.3d 985, 987 (Fla. 4th DCA 2013).

Paulino simply cannot be reconciled with our case. Here, the November 2,

2010 order is much more than "somewhat equivocal," it is patently ambiguous.

This order requires judicial labor at a minimum to determine: (a) which plaintiff,

Charles or Alice, is effected by the order; and (b) which plaintiff, Charles or Alice,

is responsible for payment of all liens. What is most troubling is that the order

could theoretically be enforced against either Charles or Alice, or both of them,

and that they could be subject to contempt for failing to follow the directives of

this otherwise ambiguous order. Further judicial labor was required to clarify the

effect of this order.

As further evidence that judicial labor had not ended, there was no

compliance with Fla.R.Civ.P. 1.100(c)(3) following the 11/02/2010 order. No

"prevailing party" filed a final disposition form (form 1.997). The language

employed by the attorneys who handwrote the 11/02/2010 order does not connote

finality of the action. The order merely reflects that it is a "Final Order Ratifying

[the] Mediation Agreement." In it the defendant is deemed "released, w/prejudice,

for all claims ..." This is not a final order of dismissal of this action, or a

"judgment" in BJs favor, see Fla.R.Civ.P. 1.730(c).

The same problem occurs with the lower court's March 30, 2011 order. It

merely states that "Plaintiff's [sic] Disagreement with Mediation Agreement and

Order Enforcing Settlement is hereby Denied." It does not say that this order is a

final dismissal of the Bennetts' (Plaintiffs') pending action with prejudice. It does

not say that the Bennetts' motion for "rehearing" has been denied. It recites that

the defendant is "released" with prejudice - however, being "released" with

prejudice is not the same as being dismissed with prejudice. It certainly can be

read as having no effect on Charles Bennett's pending loss of consortium claim. In

short, no fmal order of dismissal in favor of BJs was entered until 10/18/2011. It is

only then that judicial labor terminated in accordance with Dunscombe and

Paulino.

CONCLUSION

The aggrieved party who seeks to enforce a mediation agreement is

instructed to follow Rule 1.730(c) and seek an "entry of judgment." That is the

procedure BJs should have followed in the lower court, if it felt it was aggrieved

by Mr. Bennett's refusal to sign the mediation agreement, and Alice Bennett's

disagreement with the settlement amount. In turn, the Bennetts' attorney should

have withdrawn from the case because his interests were then in conflict with his

clients. Clearly, there was no final judgment rendered here against the Bennetts.

BJs never sought relief under this rule to obtain a final order or judgment of

dismissal. Without such a final order, the Third DCA's opinion essentially

manufactured a "final order of dismissal" against both plaintiffs despite its patent

ambiguities. This opinion is a departure and conflict from well-settled case law.

As such, this Court should accept conflict jurisdiction to correct the lower court's

departure from the rules of finality as embodied in Dunscombe and Paulino.

Respectfully submitted,

By:Keith C sin - 350087

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

emailed this 9th day of September, 2013, to:

Richard A. Sherman, Sr., Esq. Sanford R. Topkin, Esq.Law Offices of Richard A. Sherman, P.A. Topkin. Egner, Partlow & Rader. P.A.1777 South Andrews Avenue, Suite 302 1166 West Newport Center Drive, Suite 309Fort Lauderdale. FL 33316 Deerfield Beach. F1 33442

LAW OFFICE OF KEITH CHASIN9350 South Dixie Highway, Suite 1560Miami, Florida 33156Tele: (305) 670- I 833Fax: (305)670-1834e-mail: kchasin@chasinlaw.com

Keith Chäsin 350087

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing Initial Brief satisfies the

requirements of Florida Rules of Appellate Procedure 9.100(1) and 9.210(a)(2).

By:Keith Chasin - 350087

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