petitioners' brief on jurisdiction - kramer, green ...€¦ · linh tien nguyen case no....

IN THE SUPREME COURT OF THE STATE OF FLORIDA

LINH TIEN NGUYEN Case No. SC12-2496and HAI LINH NGUYEN

DCA Case No. 4D10-4366Petitioners,

V.

JOHNSON CHIN,

Respondent.

PETITIONERS' BRIEF ON JURISDICTION -

KRAMER, GREEN, ZUCKERMAN,GREENE and BUCHSBAUM, P.A.Appellate Counsel for Petitioners4000 Hollywood Boulevard, 485 SouthHollywood, Florida 33021Telephone: (954) 966-2112Facsimile: (954) 981-1605E-mail: [email protected]

BY:RO RT I. B SBA , ESQ.Florida Bar No. 586048

KRAMER GREEN ZLK'KERMAN GREENE & BUCHSBAUM, P A.

PRESIDENTIAL CIRCLE • 4000 HOLLYWOOD BOULEVARD • SUITE 485 SOUTH • HOLLYWOOD, FL 33021 • BROWARD 954 / 966-2112 • MIAMI-DADE 305 / 374-4382 • FAX 954 / 981-1605

TABLEOFCONTENTS

TABLE OF AUTHORITIES..........................................................................................ii

OTHER AUTHORITIES ..............................................................................................iii

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

SUMMARY OF ARGUMENT .......................................................................................3

ARGUMENT:

THE FOURTH DISTRICT'S DECISION EXPRESSLY ANDDIRECTLY CONFLICTS WITH THE FLORIDA SUPREMECOURT'S DECISIONS IN PALMER V. R.S. EVANS,JACKSONVILLE, INC., 81 So.2d 635, 637 (Fla. 1955) ANDAURBACH V. GALLINA, 753 So. 2d 60, 63 (Fla. 2000); AND THEISSUE PRESENTED IS CURRENTLY UNDERCONSIDERATION BEFORE THIS COURT AS A QUESTION OFGREAT PUBLIC IMPORTANCE IN CHRISTENSEN V. BOWEN,CASE NO. SC12-2078 .......................................................................................3

CONCLUSION............................................................................................................... 7

CERTIFICATE OF SERVICE.......................................................................................7

CERTIFICATE OF FONT SIZE.................................................................................... 8

KRAMER GREEN ZUCKERMAN GREENE & BUCHSBAUM. R A.

PRESIDENTIAL CIRCLE . 4000 HOLLYWOOD BOULEVARD • SUITE 485 SOUTH • HOLLYWOOD, FL 33021 . BROWARD 954 / 966-2112 • MIAMI-DADE 305 / 374-4382 . FAX 954 / 981-1605

TABLE OF AUTHORITIES

CASES PAGE

Aurbach v. Gallina753 So.2d 60, 62 (Fla. 2000) .................................................................................3 4, 6

Bowen v. Tavlor Christensen__ So.3d _, 37 Fla. L. Weekly D2094, at 5 (Fla. 5th DCA Aug. 31, 2012) .................. 2

Bowen v. Tavlor-Christensen98 So.3d 136 (Fla. 5th DCA 2012) .............................................................................2 6

Christensen v. BowenCase No. SC12-2078...............................................................................................2, 4, 7

Estate of Villanueva v. Youngblood927 So.2d 955, 957 (Fla. 2d DCA 2006) ........................................................................4

Fla. Ins. Guar. Ass'n, Inc. v. Devon Neighborhood Ass'n Inc.67 So.3d 187, 189 n. 1 (Fla. 2011) ................................................................................ 6

Marshall v. Gawel696 So.2d 937 (Fla. 2d DCA 1997) ...............................................................................4

Metzel v. Robinson102 So.2d 385, 386 (Fla. 1958) .................................................................................2, 6

Palmer v. R.S. Evans, Jacksonville, Inc.81 So2d 635, 637 (Fla. 1955) ................................................................................ 3, 4, 6

Plattenburg v. Dykes798 So.2d 915 (Fla. 1st DCA 2001) ...............................................................................4

Southern Cotton Oil Co. v. Anderson86 So. 629, 637 (1920) ...................................................................................................4

State v. McMahon94 So.3d 468, 471 n. 2 (Fla. 2012) ................................................................................ 6

||

KRAMER GREEN ZLK'KERMAN GREENE & BUCHSBAUM. P A.

PRESIDENTIAL CIRCLE . 4000 HOLLYWOOD BOULEVARD • SUITE 485 SOUTH • HOLLYWOOD, FL 33021 • BROWARD 954 / 966-2112 • MIAMI-DADE 305 / 374-4382 • FAX 954 / 981-1605

OTHER AUTHORITIES

Fla.Stat. §324.021(9)...................................................................................................... 1

Fla.Stat. §324.021.......................................................................................................... 2

Fla.R.App.P. 9.030(a)(2)(iv)........................................................................................... 3

Fla. Const. Art. V. §3(b)(3)............................................................................................. 3

Fla. R. App. P. 9.210(a)(2) ............................................................................................. 8

|||

KRAMER GREEN ZUCKERMAN GREENE & BUCHSBAUM, P A.

PRESIDENTIAL CIRCLE • 4000 HOLLYWOOD BOULEVARD . SUlTE 485 SOUTH • HOLLYWOOD, FL 33021 • BROWARD 954 / 966-2112 • MlAMFDADE 305 / 374-4382 • FAX 954 / 981-1605

STATEMENT OF THE CASE AND FACTS

This lawsuit stems from an automobile accident that occurred on June 20,

2007. Plaintiff below, JOHNSON CHIN ("Plaintiff"), raised three separate

negligence claims: Count I - vicarious liability under the dangerous

instrumentality doctrine against LINH TIEN NGUYEN ("LINH"), the older

brother, as the title owner of the vehicle, Count II - against HAI NGUYEN ("HAI"),

LINH's younger brother, for his negligent entrustment of the vehicle to the actual

driver, Han, and Count III - against Han for his negligent operation of the vehicle.

(R. 891-898). Upon proceeding to a jury trial, Han, the driver, admitted negligence

(T. 70). On the issue of title holder LINH's vicarious liability, a directed verdict was

awarded to Plaintiff. Younger brother, HAI, was found liable for his negligent

entrustment of the vehicle. The jury awarded compensatory damages in the total

amount of $752,453.21. (R. 1109-1111; T. 1184-1185).

Both LINH and HAI filed post-trial motions. LINH argued he was entitled to

a directed verdict on the issue of vicarious liability under the dangerous

instrumentality doctrine under the mere naked title holder exception or, at the very

least, the issue was a jury question. Both LINH and HAI argued that they were

entitled to limit the amount of the judgments against them in accordance with

Fla.Stat. §324.021(9). (R. 1128-1130; 1131-1140). After LINH's motion to limit the

judgment was granted, but denied as to HAI, and all other post-trial relief was

denied, separate Final Judgments were entered: a Final Judgment against LINH

which awarded Plaintiff $284,601.72 (reduction in accordance with Fla.Stat.

1KRAMER GREEN ZUCKERMAN GREENE & BUCHSBAUM. P A.

PRESlDENTIAL GRCLE • 4000 HOLLYWOOD BOULEVARD • SUITE 485 SOUTH • HOLLYWOOD, FL 33021 • BROWARD 954 / 966-2112 • MIAMFDADE 305 / 374-4382 • FAX 954 / 9819 605

§324.021), a Final Judgment as to HAI which awarded Plaintiff $752,453.21 (total

compensatory damages), and a Final Judgment as to the driver, Han. (R. 1290-

1291;1292-1293;1294-1295).

LINH and HAI appealed this outcome to the Fourth District Court of Appeal,

arguing two separate and distinct issues: (1) LINH challenged the trial court's

failure to grant a directed verdict in his favor under the mere title holder exception

to vicarious liability under the dangerous instrumentality doctrine, and the trial

court's granting of a directed verdict for Plaintiff instead; and (2) HAI challenged

the trial court's denial of his post-trial motion to similarly limit the amount of the

Final Judgment against him in accordance with Fla.Stat. §324.021.

On October 10, 2012, the Fourth District affirmed the outcome in the trial

court, expressly relying upon the case of Bowen v. Tavlor Christensen, _ So.3d _,

37 Fla. L. Weekly D2094, at 5 (Fla. Óth DCA Aug. 31, 2012),1 and Metzel v.

Robinson, 102 So.2d 385, 386 (Fla. 1958). Bowen is currently being considered for

discretionary review by the Florida Supreme Court in Christensen v. Bowen, Case

No. SC12-2078, pursuant to the Fifth District decision which passes on a question

certified to be of great public importance. The question certified by the Fifth

District in Bowen is directly relevant to the legal question decided by the Fourth

District in the present case. In an Order dated November 13, 2012, the Fourth

District denied Petitioners' post-decision motions for certification, for rehearing and

i The cite is now Bowen v. Taylor-Christensen, 98 So.3d 136 (Fla. 5th DCA2012).

2KRAMER GREEN ZUCKERMAN GREENE & BUCHSBAUM. f? A.

PRESIDENTfAL CIRCLE • 4000 HOLLYWOOD BOULEVARD • SUlTE 485 SOUTH • HOLLYWOOD, FL 33021 • BROWARD 954 / 966-2112 • MIAMI-DADE 305 / 374-4382 • FAX 954 / 981-1605

to stay issuance of mandate.2 Jurisdiction in this Court is predicated upon

Fla.R.App.P. 9.030(a)(2)(iv) and Fla. Const. Art. V, §3(b)(3).

SUMMARY OF ARGUMENT

The Fourth District's decision affirming, per curiam, the trial court's entry of

a directed verdict for the Plaintiff determined that the title ownership of an

automobile creates a "property interest" in the vehicle and, as a matter of law, the

mere naked title holder is vicariously liable under the dangerous instrumentality

doctrine. Based upon that decision, the Fourth District rejected the well-

established mere naked title holder exception to vicarious liability where evidence

demonstrates that the title holder lacks a beneficial interest in the vehicle. The

Fourth District's decision expressly and directly conflicts with prior decisions of this

Court which established that there was an exception to vicarious liability available

"for the legal title holder to escape vicarious liability ... where the holder of 'mere

naked title' is able to demonstrate the absence of beneficial ownership of the

vehicle". Aurbach v. Gallina, 753 So.2d 60, 62 (Fla. 2000); Palmer v. R.S. Evans,

Jacksonville, Inc., 81 So.2d 635, 637 (Fla. 1955).

ARGUMENT

THE FOURTH DISTRICT'S DECISION EXPRESSLY ANDDIRECTLY CONFLICTS WITH THE FLORIDA SUPREMECOURT'S DECISIONS IN PALMER V. R.S. EVANS,JACKSONVILLE, INC., 81 So.2d 635, 637 (Fla. 1955) ANDAURBACH V. GALLINA, 753 So. 2d 60, 63 (Fla. 2000); AND THEISSUE PRESENTED IS CURRENTLY UNDERCONSIDERATION BEFORE THIS COURT AS A QUESTION OF

2 The Fourth District decision dated October 10, 2012 and its post-decisionOrder dated November 13, 2012 are attached hereto as Composite Exhibit "A".

3KRAMER GREEN ZUCKERMAN GREENE & BUCHSBAUM. R A.

PRESIDENTIAL CIRCLE • 4000 HOLLYWOOD BOULEVARD . SUITE 485 SOUTH . HOLLYWOOD, FL 33021 . BROWARD 954 / 966-2112 . MIAMI-DADE 305 / 374-4382 . FAX 954 / 981-1605

GREAT PUBLIC IMPORTANCE IN CHRISTENSEN V. BOWEN,CASE NO. SC12-2078.

Florida's dangerous instrumentality doctrine "imposes strict vicarious

liability upon the owner of a motor vehicle who voluntarily entrusts that motor

vehicle to an individual whose negligent operation causes damage to another."

Aurbach v. Gallina, 753 So.2d 60, 62 (Fla. 2000), citing Southern Cotton Oil Co. v.

Anderson, 86 So. 629, 637 (1920). The Court explained that "[t]he most common

application of the dangerous instrumentality doctrine is where the legal title holder

is held vicariously liable for the negligent operation of a motor vehicle." Aurbach,

753 So. at 62-63. It was LINH's mere holding of legal title to the vehicle that

provided the basis for the trial court to impose vicarious liability under the

dangerous instrumentality doctrine in granting a directed verdict for the Plaintiff.

In doing so, however, the trial court rejected a well-established exception to

the imposition of vicarious liability - the "bare naked title" exception. Estate of

Villanueva v. Youngblood, 927 So.2d 955, 957 (Fla. 2d DCA 2006), citing Aurbach,

753 So.2d at 62. This exception is available "for the legal title holder to escape

vicarious liability...where the holder of'mere naked title' is able to demonstrate the

absence of beneficial ownership of the vehicle". Aurbach, 753 So.2d at 63, citing

Palmer v. R.S. Evans, Jacksonville, Inc., 81 So.2d 635, 637 (Fla. 1955). More recent

cases have also applied or rejected this exception based on an evaluation of evidence

as to the mere naked title holder's absence of beneficial ownership. See Plattenburg

v. Dykes, 798 So.2d 915 (Fla. 1st DCA 2001); Marshall v. Gawel, 696 So.2d 937 (Fla.

2d DCA 1997).



At trial in the present case, evidence was presented that although older

brother LINH signed the financing paperwork and admitted that he was the title

holder of the vehicle, the vehicle was in fact purchased for HAI only a couple of

weeks before this accident, it was paid for with HAI's money, HAI was responsible

for making all payments on the loan for the vehicle, HAI was responsible for the

vehicle's repairs, maintenance, insurance and gas. There were no restrictions on

HAI's use of the car. When the accident occurred, LINH was not even residing with

his brother HAI, in Palm Beach County, but was living in the Tampa area. LINH

never even drove the vehicle. (T. 935-937; 534-536). This uncontroverted evidence

demonstrated that LINH was entitled to invoke the "bare naked title" exception

under Florida law, that a directed verdict should have been entered in his favor or,

at the very least, the jury should have decided the question. Instead, a directed

verdict was entered in favor of the Plaintiff, finding LINH vicariously liable under

the dangerous instrumentality doctrine.

Ironically, by the time the present case reached oral argument, the Fifth

District's en bane rehearing opinion had already reversed the prior majority

decision in Bowen (which supported these Petitioners) and held, in a 5-3 decision,

that Christensen was the vicariously-liable owner as a matter of law. The Fifth

District held that title ownership created a property interest in the vehicle which

rendered all facts on the established exception, i.e., lack of beneficial ownership,

totally immaterial. Significantly, the Bowen en banc rehearing decision certified to

5KRAMER GREEN ZUCKERMAN GREENE & BLX'HSBAUM. P A.

PRESIDENTIAL ORCLE • 4000 HOLLYWOOD BOULEVARD • SUITE 485 SOUTH • HOLLYWOOD, FL 33021 • BROWARD 954 / 966-2112 • MIAMI-DADE 305 / 374-4382 • FAX 954 / 981-1605

this Court a question of great public importance that is directly relevant to the

decision made by the Fourth District in the present case.

On October 10, 2012, the Fourth District issued its decision affirming, per

curiam, the outcome in the trial court, citing Bowen at 5. The cited portion of

Bowen and the decision in Metzel were evidently construed by the Fourth District

to hold that since title ownership of an automobile creates a "property interest" in

that vehicle, then it must be determined, as a matter of law, that the mere naked

title holder is vicariously liable under the dangerous instrumentality doctrine and

any evidence as to the mere title holder's lack of beneficial ownership of the vehicle

is "simply immaterial." Bowen, 98 So.3d at 141. It is therefore apparent that the

Fifth District in Bowen and the Fourth District in the present case have, in effect,

determined that the mere naked title holder exception in the absence of beneficial

ownership, no longer exists as an exception to imposing vicarious liability under

Florida law.

It is therefore clear that the Fourth District's decision in this case is subject

to discretionary review for two reasons. By relying on Bowen, the Fourth District

determined that older brother LINH was vicariously liable as a matter of law and

that any evidence as to LINH's lack of beneficial ownership of the vehicle was

immaterial, thereby constituting an express and direct conflict with the bare naked

title exception articulated by this Court in Palmer and Aurbach.3 In other words,

3 "Misapplication of our precedent provides a basis for express and directconflict jurisdiction." State v. McMahon, 94 So.3d 468, 471 n. 2 (Fla. 2012), quotingFla. Ins. Guar. Ass'n, Inc. v. Devon Neighborhood Ass'n Inc., 67 So.3d 187, 189 n. 1(Fla. 2011).


PRESIDENTlAL CIRCLE • 4000 HOLLYWOOD BOULEVARD • SUITE 485 SOUTH • HOLLYWOOD, FL 33021 • BROWARD 954 / 966-2112 • MIAMI-DADE 305 / 374-4382 • FAX 954 / 981-1605

this well-established exception was summarily rejected by the trial court and the

Fourth District, not based on any evaluation of the evidence, but on a directed

verdict for the Plaintiff as a matter of law. In addition, given that this legal issue is

presently under consideration for discretionary review in Bowen, the present case

should be allowed to follow Bowen in this Court to a review on the merits.

CONCLUSION

Based upon the record and argument contained herein, Petitioners

respectfully request that this Court grant discretionary jurisdiction to consider the

merits of legal issue raised in the present Brief on Jurisdiction and in Bowen, Case

No. SC12-2078.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing has

been furnished via Electronic Mail this day of December, 2012, to: David T.

Aronberg, Esq. [email protected], 2160 West Atlantic Avenue, Second

Floor, Delray Beach, FL 33445; and John Wilke, Esq., [email protected],

7284 W. Palmetto Park Road, Suite 306, Boca Raton, FL 33433.

KRAMER, GREEN, ZUCKERMAN,GREENE & BUCHSBAUM, P.A.Appellate Counsel for Petitioners4000 Hollywood Boulevard, Suite 485-SouthHollywood, FL 33021Tel: (954) 966-2112; Fax: (954) [email protected]

By:RO ERT I. BU SB M, ESQ.Florida Bar No.: 586048


PRESIDENTfAL CIRCLE • 4000 HOLLYWOOD BOULEVARD • SUITE 485 SOUTH • HOLLYWOOD, FL 33021 • BROWARD 954 / 966-2112 • MIAMI-DADE 305 / 374-4382 • FAX 954 / 981-1605

CERTIFICATE OF FONT SIZE

Pursuant to Fla. R. App. P. 9.210(a)(2), I hereby certify that the style and size

of type used in this Petitioner's Brief on Jurisdiction is Century Schoolbook 12-point

font.

ROB RT I. B SBAUM, ESQ.

8KRAMER GREEN ZUCKERMAN GREENE & BUCHSBAUM, R A.


DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFOURTH DISTRICT

July Term 2012

LINH TIEN NGUYENand HAI LINH NGUYEN,

Appellants,

V.

JOHNSON CHIN,Appellee.

No. 4D10-4366

[October 10, 2012]

PER CURIAM.

Affirmed. See Bowen v. Taylor-Christensen, _ So. 3d _, 37 Fla. L.Weekly D2094, at *5 (Fla. 5th DCA Aug. 31, 2012); Metzel v. Robinson,102 So. 2d 385, 386 (Fla. 1958).

WARNER, TAYLOR and CONNER, JJ., concur.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, PalmBeach County; Donald W. Hafele, Judge; L.T. Case No.502008CA003667XXXXMB.

Robert I. Buchsbaum of Kramer, Green, Zuckerman, Greene andBuchsbaum, P.A., Hollywood, for appellants.

David T. Aronberg and Cynthia G. Simpson of Law Offices of Aronberg& Aronberg, Delray Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

examer

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL 33401

November 13, 2012

CASE NO.: 4D10-4366L.T. No. : 502008CA003667XXXX

MB

LINH TIEN NGUYEN AND v. JOHNSON CHINHAl LINH NGUYEN

Appellant / Petitioner(s), Appellee / Respondent(s).

BYORDEROFTHECOURT:

ORDERED that appellants' motion filed October 17, 2012, for certification, for

rehearing and to stay issuance of mandate is hereby denied.

I HEREBY CERTIFY that the foregoing is a true copy of the original court order.

Served:

Sharon R. Bock, Clerk Robert I. Buchsbaum David T. AronbergJohn Wilke John Richards Cynthia G. Simpson

kb

vava v

Rll BEUTTENMULLER, clerkFourth District Court of Appeal

petitioners' brief on jurisdiction - kramer, green ...€¦ · linh tien nguyen case no....

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