Title: Notice to Transfer Appeal to District Court of Appeal, First District of Florida. June 17, 1988. 10p.
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Title: Notice to Transfer Appeal to District Court of Appeal, First District of Florida. June 17, 1988. 10p.
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Spatial Coverage: North America -- United States of America -- Florida
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been
furnished by mail this 17th day of June, 1988, to the following:


Edward P. de la Parte, Jr., Esq.
de la Parte, Gilbert & Gramovot, P.A.
705 East Kennedy Boulevard
Tampa, FL 33602
Attorney for West Coast Regional Water
Supply Authority

Bram D. E. Canter, Esq.
Haben & Culpepper, P.A.
306 North Monroe Street
Tallahassee, FL 32301
Attorney for Southwest Florida Water
Management District

Daniel P. Fernandez, Esq.
Kent A. Zaiser, Esq.
Carlyn Harper, Esq.
Southwest Florida Water Management District
2379 Broad Street
Brooksville, FL 34609-6899

David D. Henderson, Esq.
P.O. Box 89
Lakeland, FL 33802
Attorney for Florida Citrus Mutual

James Benjamin Harrill, Esq.
7530 Little Road
New Port Richey, FL 34654
Attorney for Pasco County




JOH T. ALL JR.

Courtesy copies furnished t /

L. M. Blain, Esq. Lawrence E. Sell rs, Jr., Esq.
Blain & Cone, P.A. / Roger W. Sims, Esq.
202 East Madison Street P.O. Box 810
Tampa, FL 33602 Tallahassee, FL 32302
Attorneys for Florida Phosphate
Council, Inc.




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IN THE DISTRICT COURT OF APPEAL
FIFTH DISTRICT OF THE STATE OF FLORIDA


SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT and
FLORIDA CITRUS MUTUAL,

Appellants,

vs. CASE NO. 88-1008

WEST COAST REGIONAL WATER
SUPPLY AUTHORITY,

Appellee.



MOTION TO TRANSFER APPEAL TO DISTRICT COURT OF
APPEAL, FIRST DISTRICT OF FLORIDA


The appellee, PINELLAS COUNTY, by and through its

undersigned attorney, pursuant to Rule 9.040(b); (c),

Fla.R.App.P., moves the District Court of the Fifth District of

Florida to transfer this cause and appeal to the First District

Court of Appeal of the State of Florida upon the following

grounds:

1. On or about February 15, 1988, the appellee, WEST COAST

REGIONAL WATER SUPPLY AUTHORITY, filed an administrative action

in the State of Florida, Division of Administrative Hearings, to

declare certain specific rules of the appellant, SOUTHWEST

FLORIDA WATER MANAGEMENT DISTRICT, invalid. Appellee, PINELLAS

COUNTY, filed Petition to Intervene in the proceedings rather

than file a separate rule challenge on or about February 18,

1988.











2. During the tendency of the proceedings, the FLORIDA

PHOSPHATE COUNCIL, INC. filed a Motion to Intervene in the rule

challenge proceedings on or about March 16, 1988. (A 1-6)

3. By Order dated March 21, 1988, the Hearing Officer of

the Division of Administrative Hearings denied FLORIDA PHOSPHATE

COUNCIL, INC.'S Motion to Intervene. FLORIDA PHOSPHATE COUNCIL,

INC. then filed a Notice of Appeal in the District Court of

Appeal of the State of Florida, First District, on or about

March 21, 1988. (A 7-8) The FLORIDA PHOSPHATE COUNCIL, INC.,

as appellant, also simultaneous with the appeal, filed an

Emergency Motion to Stay the hearing proceedings which were to

commence on Wednesday, March 23, 1988. (A 15-54) Ultimately,

the First District Court of Appeal denied the Emergency Motion to

Stay on March 22, 1988. (A 55)

4. ON MARCH 25, 1988, THE APPELLANT IN THIS CAUSE,

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, FILED NOTICE OF

JOINDER IN APPEAL AS APPELLANT IN THE FIRST DISTRICT COURT OF

APPEAL. (A 56-57)

5. Thereafter, the First District, on May 16, 1988, denied

appellee, WEST COAST REGIONAL WATER SUPPLY AUTHORITY'S, and

appellee, PINELLAS COUNTY'S, Motion to Dismiss Appeal. (A 58)

Therefore, the First District Court of Appeal exercised its

appellate jurisdiction first on March 22, 1988, by denying the

Motion of FLORIDA PHOSPHATE COUNCIL, INC. to stay the hearing

proceedings of the Division of Administrative Hearings and again






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on May 16, 1988, by denying Motions to Dismiss by appellees,

WEST COAST REGIONAL WATER SUPPLY AUTHORITY and PINELLAS COUNTY.

6. The Hearing Officer of the State of Florida, Division of

Administrative Hearings, entered a Final Order invalidating the

rule challenged by appellees on May 17, 1988. (A 59-86)

7. On May 20, 1988, the appellant, SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT, filed its Notice of Appeal in the Fifth

District Court of Appeal of the State of Florida seeking to

review the Hearing Officer's Final Order rendered May 17, 1988.

(A 87-88)

8. Therefore, the first appellate court to exercise

jurisdiction over the matters before the Division of

Administrative Hearings in this cause was the First District

Court of Appeal of the State of Florida. Section 120.68,

Fla.Stat., provides that a party who is adversely affected by

agency action is entitled to judicial review by instituting a

petition in the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides. The review proceedings are stated to be governed

by the Florida Appellate Rules. See Section 120.68(2), Fla.Stat.

Therefore, initially, one of the parties has invoked the

alternative and concurrent jurisdiction of an appellate court

under Section 120.68, Fla.Stat., by filing a Notice of Appeal in

the appellate jurisdiction where the Division of Administrative

Hearings maintains its headquarters and therefore appellate venue

has been selected in the First District. Most importantly, the




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appellant, SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, also

selected the First District Court of Appeal of Florida as the

forum to determine the issues in this cause by filing a joinder

of appeal on May 20, 1988. Therefore, appellant, SOUTHWEST

FLORIDA WATER MANAGEMENT DISTRICT, has chosen its forum and

appellate venue to be in the First District Court of Appeal of

Florida.

9. Generally, where courts within one sovereignty have

concurrent jurisdiction, the court which first exercises

jurisdiction acquires exclusive jurisdiction to proceed with that

case and a court of concurrent jurisdiction will defer to that

court on the grounds that the case involves the same subject

matter and parties which are pending in the second court to

acquire jurisdiction. Bedingfield v. Bedingfield, 417 So.2d 1047

(Fla. 4th DCA 1982) See also vast collection of cases in

Sections 111-115, Courts and Judges, 13 Fla.Jur.2d 232-237.

10. A case quite similar to the proposition raised by

appellee, PINELLAS COUNTY, if not directly in point, is Logan v.

Florida Parole and Probate Commission, 413 So.2d 820 (Fla. 1st

DCA 1982) In this proceeding, the Florida Parole and Probate

Commission entered its final order establishing Logan' s

presumptive parole release date. Logan then filed a timely

appeal in the Third District Court of Appeal. The Third District

held that an appeal pursuant to Section 120.68, Fla.Stat., may

not be taken from the Commission' s final order establishing a

presumptive parole release date. The District Court then




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dismissed Logan's appeal on January 11, 1982. Immediately

thereafter, Logan filed another Notice of Appeal with the First

District Court of Appeal and also filed a third Notice of Appeal

seeking review in the First District.

Upon consideration of the problems and questions raised by

the attempt to invoke the concurrent jurisdiction of two Florida

Appellate District Courts, the First District ruled that proper

appellate venue was in the Third District since this was the

initial place where Logan chose to file appellate proceedings:

The Florida Rules of Appellate Procedure provide that
(1) 'if a proceeding is commenced in an appropriate
court, that court shall transfer the cause to an
appropriate court,' Fla.R.App.P. 9.040(b); (2) 'if a
party seeks an improper remedy, the cause shall be
treated as if the proper remedy had been sought* *',
Fla.R.App.P. 9.040(c); and (3) 'at any time in the
interest of justice, the court may permit any part of
the proceeding to be amended so that it may be
disposed of on the merits,' Fla.R.App.P. 9.040(d).
These provisions based on Article V, Section 2(a), of
the Constitution of the State of Florida, are meant
to insure that no person is deprived of the right to
have this cause heard due to technical traps in
pleadings or procedure. Of course, the provisions
are not meant to excuse the failure to comply with
the rules of procedure and they cannot be invoked to
vest jurisdiction in a court when the jurisdictional
prerequisites have not been met.

In this case, appellant fully complied with the
appellate rules of procedure. He fulfilled the
jurisdictional prerequisite by timely filing his
notice of appeal in the lower tribunal. He clearly
indicated that he sought review of the commission's
order setting his presumptive parole release date.
However, he also clearly indicated that he was
invoking the jurisdiction of the Third District Court
of Appeal. It was not until the Third District acted
on his appeal that Logan attempted to file a notice
directed to this court. (Emphasis Supplied)
(Opinion at 821)





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The District Court went on to hold that since the original

notice was directed to the Third District Court of Appeal,

appellant could not now attempt to invoke the jurisdiction of the

First District citing Jenkins v. Wainwright, 322 So.2d 477 (Fla.

1975). Thus, the Commission's motion in this particular case to

dismiss the appeal was granted.

A parallel if not identical situation has occurred in the

appeal at bar. The appellant, SOUTHWEST FLORIDA WATER MANAGEMENT

DISTRICT, has chosen its forum by filing a Joinder in Appeal on

March 25, 1988, in the First District Court of Appeal.

Therefore, in the interest of justice, and under the general law

governing actions pending in appellate courts who have concurrent

jurisdiction, the entire matter should be determined by the First

District Court of Appeal. It would be improper to bifurcate

these proceedings simply because Section 120.68, Fla.Stat.,

provides for concurrent jurisdiction in Florida's appellate

courts. It is obvious that one of the original respondents,

FLORIDA PHOSPHATE COUNCIL, INC., also chose the appellate forum

in which this case should be determined. Therefore, based upon

general principles of law and Logan, supra, this appeal should be

transferred to the First District Court of Appeal so that both

matters may be considered and decided by the first appellate

court obtaining and exercising jurisdiction in the proceedings

before the Division of Administrative Hearings. Logan clearly

applies and the case should be transferred.

11. In Logan, supra, the District Court cited Jenkins v.

Wainwright, supra, in which Jenkins filed a Petition for Writ of


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Habeas Corpus in the Supreme Court. Prior to the filing in the

Supreme Court, the petitioner had filed a Petition for Writ of

Habeas Corpus with the Fourth District Court of Appeal. The

Petition was denied by the Fourth District. Thereafter, a

Petition for Writ of Habeas Corpus was filed with the Supreme

Court four months after the District Court's final ruling. The

Supreme Court, in discharging the Writ, stated:

We strongly emphasize to the bar of this state that
once a petitioner seeks reliefs in a particular court
by means of a petition for extraordinary writ, here
habeas corpus, he has picked his forum. He is not
entitled to a second or third opportunity for the
same relief by the same writ in a different court.
Once he has picked this forum, his remedy from an
adverse decision is by the appropriate appellate
process and not by another petition for an
extraordinary writ. The extraordinary writ procedure
is not a substitute for an appeal. (Opinion at 478)

Apparently, the District Court, in Logan, borrowed the

above-quoted principle of law stated by the Supreme Court in

Jenkins, supra, to establish the general rule among appellate

courts that where two courts have concurrent jurisdiction in any

proceeding, the power to entertain the action attaches

exclusively to that court which first exercises jurisdiction in

the matter. That court will ordinarily retain such jurisdiction

for the purpose of deciding every issue or question properly

arising in the case. In fact, when a court of concurrent

jurisdiction acquires jurisdiction before any other court, its

jurisdiction then becomes exclusive, and even a Writ of

Prohibition will lie to restrain interference with such

proceedings. See Section 112, (Priority in Courts of Concurrent

Jurisdiction), 13 Fla.Jur.2d, pp. 233-235.

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12. Therefore, since the First District Court of Appeal of

Florida has first acquired original concurrent jurisdiction, it

has obtained "exclusive" jurisdiction to determine all matters of

controversy between appellate courts of this state under the

alternative concurrent jurisdiction provisions of Section 120.68,

Fla.Stat. If this rule were otherwise, you could conceivably

have interlocutory or non-final orders pending in two appellate

jurisdictions and an appeal from a final order or final agency

action pending in yet another District Court of Appeal. The

reason for this analogy is that the SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT resides in both the Second and Fifth District

Court of Appeal and the agency resides in the First District

Court of Appeal. Therefore, potential concurrent jurisdiction is

permitted under the statute in three separate District Courts of

Appeal. Under such circumstances, the proper rule of law to be

applied must be that the District Court first being selected by

an aggrieved party is the appropriate District Court to entertain

all subsequent proceedings. This is especially true in the

appeal at bar since not only did the FLORIDA PHOSPHATE COUNCIL,

INC. first determine and select the District Court which would

first acquire jurisdiction of a matter pending in the

administrative cause but so did appellant, SOUTHWEST FLORIDA

WATER MANAGEMENT DISTRICT, when it joined in the appeal of the

FLORIDA PHOSPHATE COUNCIL, INC. on March 25, 1988, or almost some

two months prior to invoking the Fifth District's jurisdiction on

May 20, 1988. Since appellant has also selected the forum in




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which all appellate matters must be heard, this case should be

transferred for final determination to the First District Court

of Appeal where the appeal of FLORIDA PHOSPHATE COUNCIL, INC. is

now pending.

WHEREFORE, the appellee, PINELLAS COUNTY, moves the court

for an order, pursuant to Rule 9.040(b), Fla.R.App.P.,

transferring this appeal to the First District Court of Appeal of

Florida.

Respectfully Submitted,





JOHN LLEN, J of
OHN ALLEN, R., P.A
50 Central A e ue
t Petersburg, 711
( 3) 321-3273
ORIDA BAR #1284
Attorney for Appe lee,
Pinellas County
























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