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Don Peebles Bankruptcy Documents A .pdf



Original filename: Don Peebles Bankruptcy Documents A.pdf
Title: 10-397

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Supreme Court of Florida

FRIDAY, AUGUST 20, 2010
CASE NO.: SC10-397

Lower Tribunal No(s).: 3D09-2094,
06-8787
PADC MARKETING, LLC, ET AL. vs. DORA PUIG, ET AL.
___________________________________________________________________
Petitioner(s)
Respondent(s)
This cause having heretofore been submitted to the Court on jurisdictional
briefs and portions of the record deemed necessary to reflect jurisdiction under
Article V, Section 3(b), Florida Constitution, and the Court having determined that
it should decline to accept jurisdiction, it is ordered that the petition for review is
denied.
No motion for rehearing will be entertained by the Court. See Fla. R. App.
P. 9.330(d)(2).
Respondent's motion for attorney's fees is granted in the amount of
$2,500.00, conditioned on the party prevailing pursuant to applicable statutes, rules
and case law.
CANADY, C.J., and PARIENTE, LEWIS, POLSTON, and LABARGA, JJ.,
concur.
A True Copy
Test:

wm
Served:
MICHAEL J. HIGER
GEOFFREY B. MARKS
ESTHER S. MEISELS
MICHAEL L. COTZEN
HON. HARVEY RUVIN, CLERK
MICHAEL J. SCHLESINGER
HON. MARY CAY BLANKS, CLERK
HON. VALERIE R. MANNO SCHURR, JUDGE


SUPREME COURT OF FLORIDA
Case No.: SC-10-397

PADC MARKETING, LLC, COLLINS AVENUE, ASSOCIATES, LLC,
AND R. DONAHUE PEEBLES,
Petitioners,
v.
DORA PUIG, THE PUIG GROUP, and DORA PUIG, P.A.,
Respondents.

RESPONDENTS’ BRIEF ON JURISDICTION

ON DISCRETIONARY REVIEW FROM A DECISION OF THE THIRD
DISTRICT COURT OF APPEAL
Case No.: 3D09-2094

Michael J. Schlesinger
Michael L. Cotzen
SCHLESINGER & COTZEN, P.L.
799 Brickell Plaza, Suite 700
Miami, Florida 33131
Telephone: (305) 373-8993
Facsimile: (305) 373-8098

Geoffrey B. Marks
BILLBROUGH & MARKS, P.A.
100 Almeria Avenue, Suite 320
Coral Gables, Florida 33134
Telephone: 305-442-2701
Facsimile: 305-442-2801

Counsel for Respondents

TABLE OF CONTENTS
Page
TABLE OF CONTENTS ………………………………………………………….ii
TABLE OF AUTHORITIES ……………………………………………………..iii
INTRODUCTION ………………………………………………....………………1
STATEMENT OF THE CASE AND FACTS …………………………………….2
SUMMARY OF THE ARGUMENT ……………………………………………...4
ARGUMENT ………………………………………………………………………5
I. Conflict Jurisdiction Does Not Exist Because The Opinion
Resolved a Different Question of Law Than Those Decided in
McCray and Because the Basis of Conflict was not Raised Below.
………………………………………..................................................................5
II. Conflict Jurisdiction Does Not Exist Because The Opinion Does
Not Conflict with McCray v. Adams.
…………………………….…………………………………………………….6
A.
B.
C.
D.
E.

Facts in McCray v. Adams…………………………………………….…7
There was a Discharged Order in McCray……………………...……….7
The Instant Case is Not a Reformation Case……………………….........7
This is Not a Case Seeking Contribution………………………………...8
PADC is not an Indispensable Party……………………………………..9

III. Conclusion…………………………………………………………….......9
CERTIFICATE OF SERVICE …………………………………………………...12
CERTIFICATE OF COMPLIANCE ……………………………………………..12

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SCHLESINGER & COTZEN, PL
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TABLE OF AUTHORITIES
CASES

Pages

A.H. Robins Co., Inc. v. Piccinin
788 F.2d 994 (4th Cir. 1986)………………………………………………...3,4,9
Credit Alliance Corp. v. Williams
851 F.2d 119 (4th Cir. 1988)………………………………………………….....9
Dober v. Worrell
401 So. 2d 1322, (Fla. 1981)……………………………………………………6
Ingersoll-Rand Fin. Corp. v. Miller Mining Co.
817 F.2d 1424, 1427 (9th Cir. 1987)…………………………………………….3
In re Sunbeam Securities Litigation
261 B.R. 534 (S.D. Fla. 2001)…………………………………………………..3
Malloy v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A.
850 So. 2d 578 (Fla. 2d DCA 2003)…………………………………………….8
McCray v. Adams
529 So. 2d 1131 (Fla. 1st DCA 1988)…………………………………1,4,5,6,7,8
Metropolitan Dade County v. Chase Federal Housing Corp.
737 So. 2d 494 (Fla. 1999)……………………………………………………...6
Puig v. PADC Marketing, LLC
26 So. 3d 45 (Fla. 3d DCA 2009)…………………………………………...1,2,3
Reaves v. State
485 So. 2d 829, 830 (Fla. 1986)………………………………………………...5
Rojas v. First Bank National Ass’n
613 F.Supp. 968, 971 (E.D.N.Y. 1985)…………………………………………9
W.W. Gay Mechanical Contractor, Inc. v. Wharfside Two, Ltd.
545 So. 2d 1348 (Fla. 1989)…………………………………………………….3
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SCHLESINGER & COTZEN, PL
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STATUTES
11 U.S.C. §362(a)(1)……………………………………………………………….3
Art. V, Sec. 3(b)(3) Fla. Constitution………………………………………………1
RULES
Fla. R. App. P. 9.030(a) (2) (A) (iv)………………………………………………..1

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INTRODUCTION
Petitioners seek discretionary review under Article V, Section 3(b)(3) of the
Florida Constitution. See also Fla. R. App. P. 9.030(a)(2)(A)(iv). Article V,
Section 3(b)(3) provides that the Florida Supreme Court may review a district
court of appeal decision only if it “expressly and directly conflicts with a decision
of another district court of appeal or of the supreme court on the same question of
law.”
Petitioners seek discretionary review of the Third District Court of Appeal’s
decision “denying plaintiff’s motion to compel the deposition of the deposition of
R. Donahue Peebles and granting an indefinite stay of this entire action against all
defendants pending the completion of the bankruptcy proceeding against only one
defendant, PADC Marketing, LLC.” Puig v. PADC Marketing, LLC, 26 So. 3d 45,
46 (Fla. 3d DCA 2009). The Third District held that no unsual circumstances
existed to warrant an indefinite stay of the entire action while one of several
defendants was pursuing relief in bankruptcy court.
According to Petitioners, this holding of the Third District expressly and
directly conflicts with Mc Cray v. Adams, 529 So. 2d 1131 (Fla. 1st DCA 1988), a
decision Petitioners never cited in any brief or post-opinion motion before the
Third District.

According to Petitioners, McCray holds that a trial court has

discretion to stay an action where one of several defendants are in bankruptcy. We
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could not agree more that a trial court has such discretion. We could not disagree
more that the holding of the Third District and the holding of the First District are
in express and direct conflict.
STATEMENT OF THE CASE AND FACTS
We take our facts directly from the four corners of the Third District’s
opinion.
[Respondent] Dora Puig is a licensed real estate sales broker and is the
Director of the [Plaintiffs] Puig Group, Inc. and Dora Puig, P.A.
[Defendant] Collins Avenue Associates, LLC is the original developer
and owner of a high end condominium complex called the Residences
at the Bath Club, located in Miami Beach, Florida. [Petitioner]
Peebles is the president, owner, managing member, and sole member
of Collins Avenue. Peebles exercised complete control over all the
aspects relating to the development and management of the Bath
Club. [Petitioner] PADC is the sales and marketing arm of the Collins
Avenue. Peebles is the owner and sole managing member of PADC.
It is undisputed that Peebles, PADC, and Collins Avenue are
separate and distinct entities.
[On December 18, 2000,] Collins Avenue contractually retained Puig,
first as a marketing consultant and after the Bath Club’s public
opening, as the Director of Marketing and Sales. In early 2002,
Peebles requested that Puig consent to an assignment of the contract
to a new company, PADC. [Respondents] have alleged that, after
prolonged negotiations, Puig agreed to the assignment of her contract
to PADC, but with the caveat that she did not consent to any
limitation on her right to collect compensation from Collins Avenue.
They further have alleged that [Petitioners] eventually breached their
contracts, leading to the filing of their complaint on May 5, 2006.
They argue in their petition for certiorari that the claims against
Collins Avenue and Peebles are independent claims and can be tried
without inclusion of PADC. On April 6, 2009, [Respondents] noticed
this case for trial and the court issued, on April 14, 2009, a Uniform
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Order Setting Cause for Jury Trial for the two week trial period
commencing August 3, 2009.
During the litigation, [Respondents] had been attempting to depose
Peebles. They noticed his deposition for May 7-8, 2009 and noticed
the deposition of the corporate representative of Collins Avenue for
May 19, 2009. On April 27, 2009, ten days before Peebles' scheduled
deposition and over a month after it was noticed, PADC filed for
bankruptcy in the Southern District of Florida. That same day,
[Petitioners’] counsel informed [Respondents’] counsel that Peebles
would not be appearing for his May 7 deposition.
Puig v. PADC Marketing, LLC, 26 So. 3d at 46 (emphasis added).
On December 23, 2009, the Third District Court of Appeal granted Puig’s
Petition for Writ of Certiorari and quashed the Order staying the action. In its
Opinion (“the Opinion”), the Third District noted that an automatic stay applies
only to the debtor 1 and held that a stay is appropriate only in “unusual
circumstances.” The Third District read the A.H. Robins Co., Inc. v. Piccinin, 788
F.2d 994 (4th Cir. 1986), “decision as authorizing courts to extend the automatic
stay to non-bankrupt co-defendants only in ‘unusual circumstances.’ Id. at 999.”
1

Both federal and state courts in Florida have followed the general rule that the
United States Bankruptcy Code generally stays proceedings against the debtor
alone, in this case, PADC, which is the only party to this matter that has sought
protection from the bankruptcy court. See W.W. Gay Mechanical Contractor, Inc.
v. Wharfside Two, Ltd., 545 So. 2d 1348 (Fla. 1989); see also In re Sunbeam
Securities Litigation, 261 B.R. 534, 536 (S.D. Fla. 2001); 11 U.S.C. §362(a)(1). In
W.W. Gay, the Florida Supreme Court stated that, “Generally, the protections of
the automatic stay do not apply to a codefendant not in bankruptcy.” W.W. Gay,
545 So. 2d at 1350; see also Ingersoll-Rand Fin. Corp. v. Miller Mining Co., 817
F.2d 1424, 1427 (9th Cir. 1987).
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Puig, 26 So. 3d at 47. “Such an unusual situation, as explained in A.H. Robins
would be ‘when there is such identity between the debtor and the third-party
defendant that the debtor may be said to be the real party defendant and that a
judgment against the third-party defendant will in effect be a judgment or finding
against the debtor.’ Id. Because the trial court did not find such an unusual
situation existed, nor do we conclude that such a finding would be warranted,
we grant the petition for writ of certiorari and quash the order staying the
entire action.” Id. (emphasis added). On this holding, the Third District
determined that the stay “will cause material injury to [Respondents] in that their
action against Collins Avenue and Peebles was stayed pending the resolution of
PADC’s bankruptcy proceedings by the United States Bankruptcy Court, a court
without jurisdiction over [Puig’s] claims against Peebles and Collins Avenue.” Id.
at 46.
SUMMARY OF THE ARGUMENT
This Court should not accept conflict jurisdiction over this case. Stays of the
kind analyzed here are discretionary, and this case presents nothing that deviates
from the routine stay analysis framework. The instant case does not conflict with
McCray, particularly where this case resolved a different question of law than
McCray and the basis of conflict was not raised below prior to the filing of the
petition with this Court.

In addition, the facts and legal issues presented in
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