03-24_JurisAns by xiaopangnv

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									                   IN THE SUPREME COURT OF FLORIDA

                               CASE NO. SC03-24

                 BERNARDO KOPEL AND ENRIQUE KOPEL,

                                    Petitioners,

                                        v.

                                   LEON KOPEL,

                                    Respondent.

       *********************************************************

           ON REVIEW FROM THE DISTRICT COURT OF APPEAL
                    OF FLORIDA, THIRD DISTRICT

       *********************************************************

                 RESPONDENT’S BRIEF ON JURISDICTION


PAUL MORRIS                                        STEPHANIE E. DEMOS
Law Offices of Paul Morris, P.A.                         Josephs, Jack, Miranda
9130 S. Dadeland Boulevard                         & McKeown, P.A.
Suite 1528                                         Post Office Box 330519
Miami, FL 33156                                    Miami, FL 33233-0519
(305) 670-1441                                     (305) 445-3800


                             Counsel for Respondent
                                       TABLE OF CONTENTS

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT

        THIS COURT SHOULD DENY REVIEW BECAUSE THE DECISION
        OF THE THIRD DISTRICT DOES NOT INCLUDE ANY FACTS OF
        THE CASE AND DOES NOT EXPRESSLY AND DIRECTLY
        CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT
        OF APPEAL OR OF THIS COURT ON THE SAME QUESTION OF
        LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3


CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
                                            -i-

                                     TABLE OF CITATIONS

Brofman v. Florida Hearing Care Center, Inc.,
703 So. 2d 1191 (Fla.4th DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-

Johnson v. State,
769 So. 2d 990 (Fla.2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-

Kopel v. Kopel,
832 So. 2d 108 (Fla.3d DCA 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-

Livingston v. State,
441 So. 2d 1083, 1086 (Fla.1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

Persaud v. State,
___ So. 2d ___, 2003 WL 15182 (Fla. Jan. 23, 2003) . . . . . . . . . . . . . . . . . . . -4-

Peterson v. Asklipious,
833 So. 2d 262 (Fla.4th DCA 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-

Reaves v. State,
485 So. 2d 829 (Fla.1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-, -5-

Southeast Bank v. Capua,
584 So.2d 101 (Fla. 3d DCA 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-, -6-

State ex rel. Brown v. Dewell,
131 Fla. 566, 179 So. 695 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

Terry v. State,
808 So. 2d 1249 (Fla.2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
                                  -ii-
                    STATEMENT OF THE CASE AND FACTS

      The petitioners’ jurisdictional brief contains a "Statement of the Case and

Facts", Pet. Brief at 2-4, devoid of any record citations in violation of Fla. R. App. P.

9.210(b)(3). Additionally, the decision of the Third District sought to be reviewed does

not include any facts of the case.

      Thus, the petitioners’ facts are improper as based upon matters outside the

record and addressing “matters not relevant to the threshold jurisdictional issue.” Fla.

R. P. 9.120, Committee Notes, 1977 Amendment.

                         SUMMARY OF THE ARGUMENT

      A decision of a district court of appeal is not reviewable on the ground that an

examination of the record would demonstrate conflict with another appellate decision.

Rather, it is only reviewable if the conflict can be demonstrated from the four corners

of the opinion sought to be reviewed. The petitioners’ attempt to generate conflict by

factual assertions and argument based upon matters beyond the decision below must

be rejected and review denied.

      Additionally, even though the decision of the Third District does not include any

facts of the case, the petitioners allege that the decision conflicts with 61 appellate

decisions, including decisions of the Third District. Of course, this Court does not

                                           -1-
have jurisdiction to resolve intra-district conflict. In any event, the petitioners cannot

show how there is any conflict (much less the requisite “express and direct” conflict)

between the decision of the Third District and any decision of another district court

of appeal or this Court because the Third District’s decision, which granted a petition

for writ of prohibition seeking disqualification of the trial judge, is devoid of any

underlying facts.

       Finally, review is also inappropriate because on the face of its decision, the

Third District applied the correct rule of law.




                                            -2-
                                    ARGUMENT

      THIS COURT SHOULD DENY REVIEW BECAUSE THE DECISION
      OF THE THIRD DISTRICT DOES NOT INCLUDE ANY FACTS OF
      THE CASE AND DOES NOT EXPRESSLY AND DIRECTLY
      CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT
      OF APPEAL OR OF THIS COURT ON THE SAME QUESTION OF
      LAW.

      The decision of the Third District does not recited any facts of the case. The

petitioners’ "Statement of the Case and Facts" improperly asserts facts which do not

appear in the decision of the Third District sought to be reviewed and are not

supported by any record citations. See Petitioners’ Brief on Jurisdiction at 2-4. The

petitioners’ have thus committed the “common error made in preparing jurisdictional

briefs based on alleged decisional conflict” by alleging facts which are not “contained

with the four corners of the decisions allegedly in conflict.” Reaves v. State, 485 So.

2d 829, 830 n.3 (Fla.1986). Review should therefore be denied.

      There are additional reasons for denial of review. The entire decision sought to

be reviewed, Kopel v. Kopel, 832 So. 2d 108 (Fla.3d DCA 2002), is comprised of the

following single paragraph:

      Leon Kopel petitions for a writ of prohibition to prevent the trial court judge
      from presiding over the case after denying his motion for disqualification. We
      find that the motion for disqualification should have been granted because the
      trial court judge's comments could indicate that she had predetermined certain
      factual issues, and thus the petitioner's fear of partiality is reasonable. See
      Southeast Bank v. Capua, 584 So.2d 101 (Fla. 3d DCA 1991). We therefore

                                          -3-
       grant the petition, but are confident it will be unnecessary to formally issue the
       writ.

       There is no conflicting decision identified by the Third District. Moreover, not

only does the decision lack any facts of the case, there is no discussion of the trial

judge’s comments that gave rise to the motion for disqualification. Consequently, the

decision of the Third District is not an appropriate one for review. See Persaud v.

State, ___ So. 2d ___, 2003 WL 15182 (Fla. Jan. 23, 2003) (“[I]n those cases where

the district court has not explicitly identified a conflicting decision, it is necessary for

the district court to have included some facts in its decision so that the question of law

addressed by the district court in its decision can be discerned by this Court.”).

       Furthermore, the “Argument” portion of the petitioners’ brief claims that the

Third District’s one-paragraph decision conflicts with no fewer than 61 other

decisions. Those decisions are broken down as follows:

       -- 16 decisions of this Court (Pet. Brief at 5-6);

       -- 10 decisions of the First District (Pet. Brief at 6);

       -- 3 decisions of the Second District (Pet. Brief at 6);

       -- 5 decisions of the Third District (Pet. Brief at 7);

       -- 20 decisions of the Fourth District (Pet. Brief at 6-7); and

       -- 7 decisions of the Fifth District (Pet. Brief at 8).



                                             -4-
      Even a cursory review demonstrates that the petitioners’ “Argument” is really

not an argument at all. Rather, their “Argument” is a series of “string-citations.” Pet.

Brief at 5-8. Given that this Court exercises its discretionary “conflict” jurisdiction

sparingly and does so only when the stringent requirements for showing conflict are

met, see Reaves, supra, the petitioners do not state a case for review merely by

submitting string-citations with a conclusory claim of “conflict.”

      Of the 61 decisions cited by the petitioners for conflict, only one is offered with

something more than a string-citation. Here is the petitioners’ entire “discussion” of

that one case:

      Kopel expressly and directly conflicts with this Court’s opinion in Johnson v.
      State, 769 So. 2d 990 (Fla.2000), where, at 996, this Court held: “In determining
      whether a motion is legally sufficient this court looks to see whether the facts
      alleged would place a reasonably prudent person in fear of not receiving a fair
      and impartial trial.”

Pet. Brief at 5 (emphasis by petitioners).

      The petitioners offer no explanation in their “Argument” as to how there is any

conflict between Johnson and the Third District’s decision. In their “Summary of the

Argument,” the petitioners claim that in the decision sought to be reviewed,

      ... the Third District has ruled that if a trial court’s remarks during a hearing
      “could” put a reasonable fear of prejudice in a litigant’s mind, that that is
      sufficient to disqualify the trial judge ....

Pet. Brief at 4. The petitioners go on to argue in their Summary, without any citation

                                             -5-
to authority, that the “legal test for disqualification” is “that the judge’s remarks

‘would’, or ‘will not’, not ‘could’, put a reasonable fear of prejudice in a litigant’s

mind.” Pet. Brief at 4-5.

       The argument of the petitioners is flawed for two reasons. First, the Third

District decision does not state that a motion for disqualification of a judge is sufficient

if based upon comments by the judge that “could” put a reasonable fear of prejudice

in a litigant’s mind. The Third District used the word “could” as follows: “[T]he trial

judge’s comments could indicate she had predetermined certain factual issues.” (Pet.

App. 2). In other words, the Third District did not find that the trial judge had

predetermined factual issues, only that her comments could indicate to the litigants that

she had made predeterminations. Based thereon, the Third District correctly ruled,

citing Capua, which in turn cites this Court’s decisions in Livingston v. State, 441 So.

2d 1083, 1086 (Fla.1983) and State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So.

695 (1938), that disqualification was necessary, noting that “it is not a question of how

the judge feels but instead what feeling resides in the affiant’s mind and the basis for

such feeling.” Capua, 584 So. 2d at 103. Accord, Livingston, 441 So. at 1086 (“The

question of disqualification focuses on those matters from which a litigant may

reasonably question a judge's impartiality rather than the judge's perception of his

ability to act fairly and impartially."). Thus, the petitioners base their entire “argument”

                                            -6-
upon a misreading of the decision below.

       Second, the words “could” and “would”, at least in the context of the

reasonable belief of a litigant that the trial judge is partial, are not in conflict. In fact, the

two words are employed interchangeably. Compare Peterson v. Asklipious, 833 So.

2d 262 (Fla.4th DCA 2002) (issue is whether the facts alleged “ would prompt a

reasonably prudent person to fear that he could not get a fair and impartial trial”) with

Brofman v. Florida Hearing Care Center, Inc., 703 So. 2d 1191 (Fla.4th DCA 1997)

(the judge’s remarks “could have led petitioner to reasonably believe” that he could

not get a fair trial).

       The petitioners also argue that the decision of the Third District conflicts with

five decisions of the Third District. Pet. Brief at 7. As stated in Terry v. State, 808 So.

2d 1249, 1250 (Fla.2002): “This Court’s jurisdiction does not extend to intra-district

conflict.” That is because this Court’s “conflict” discretionary jurisdiction may only

be invoked upon a showing that the decision of the district court of appeal sought to

be reviewed “expressly and directly conflict[s] with a decision of another district

court of appeal or of the supreme court on the same question of law...”. Fla. R. App.

P. 9.030(a)(2)(iv), codifying Article V, section 3(b)(3), Fla. Const. (1980) (emphasis

supplied).

       Intra-district conflicts are resolved through rehearing en banc proceedings. See

                                               -7-
Fla. R. App. 9.331(d). In this case, there is not even an intra-district conflict as alleged

by the petitioners, as evidenced by the specially concurring opinion of Chief Judge

Schwartz issued upon denial of the petitioners’ petition for rehearing en banc who

stated: “I agree that this case is inappropriate for en banc consideration.” (Pet.App.

4). The special concurrence was joined by six other judges. (Pet.App. 6).

                                    CONCLUSION

       Based upon the foregoing, the respondent respectfully requests that this Court

deny review.

                                 Respectfully submitted,

PAUL MORRIS                               STEPHANIE E. DEMOS
Law Offices of Paul Morris, P.A.                Josephs, Jack, Miranda,
9130 S. Dadeland Blvd.                    McCulough & McKeown, P.A.
Suite 1528                                P.O. Box 330519
Miami, FL 33156                           Miami, FL 33233
(305) 670-1441                            (305) 445-3800


____________________________                  ____________________________
                                              ___
PAUL MORRIS                               STEPHANIE E. DEMOS

                                 Counsel for Respondent




                                            -8-
                       CERTIFICATE OF COMPLIANCE

      I HEREBY CERTIFY that this petition complies with the font requirements of

Rule 9.100(l), Florida Rules of Appellate Procedure.


                                 ______________________________________
                                 PAUL MORRIS


                           CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a copy of this brief was mailed to Daniel Neal Heller,

Counsel for Petitioners, 14 N.E. First Avenue, Suite 1205, Miami, FL 33132, this

______ day of February, 2003.


                                 ______________________________________
                                 PAUL MORRIS




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