Preview
Filing # 57799400 E-Filed 06/15/2017 11:30:15 AM
85033-5/61094982
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND FOR
ORANGE COUNTY, FLORIDA
DIEZ-ARGUELLES & TEJEDOR, P.A., CIRCUIT CIVIL DIVISION
Plaintiffs, CASE NO. 2017-CA-004456-O
vs.
ORLANDO HEALTH, INC. d/b/a
ORLANDO REGIONAL MEDICAL
CENTER,
Defendant.
_________________________________/
DEFENDANT’S MOTION TO DISMISS
PETITION FOR DECLARATORY RELIEF WITH PREJUDICE
COMES NOW the Defendant, ORLANDO HEALTH, INC. d/b/a ORLANDO
REGIONAL MEDICAL CENTER (“Orlando Health”), by and through undersigned counsel,
pursuant to Florida Rules of Civil Procedure Rule 1.140(b)(6), and hereby files this Motion to
Dismiss the Petition for Declaratory Relief for lack of subject matter jurisdiction, or alternatively
for failure to state a cause of action for which relief can be granted under Florida law, and in
support thereof states as follows:
1. The above captioned lawsuit is a purported action for declaratory relief in which
the Plaintiff, DIEZ-ARGUELLES & TEJEDOR, P.A. (“Diez-Arguelles”), is seeking to have this
Court, “enter a declaratory judgment stating the grounds on which Diez-Arguelles & Tejedor can
work with the attorney.” Petition for Declaratory Relief at paragraph 8.
CASE NO. 2017-CA-004456-O
2. The Petition states five questions that Diez-Arguelles would like to have this
Court answer, relating to the parameters under which Diez-Arguelles can work with a particular,
unnamed attorney.1
3. Diez-Arguelles contends in the Petition that there is a bona fide dispute between
Diez-Arguelles and Orlando Health and that therefore, Diez-Arguelles, “is entitled to a
declaration of rights.” Petition at paragraph 4.
4. However, a review of the Petition for Declaratory Relief reveals that there is no
current case or controversy, and that the actual relief that Diez-Arguelles seeks in the Petition is
an advisory opinion.
5. As alleged in the Petition, Diez-Arguelles is seeking an advisory opinion as to the
terms under which Diez-Arguelles can work with an attorney who previously worked for
Orlando Health.
6. The obvious nature of Diez-Arguelles’ request for an advisory opinion from this
Court is reflected in paragraph 8 of the Petition, asking this Court to enter a judgment telling
Diez-Arguelles whether Diez-Arguelles can hire the attorney in question, whether that attorney
can work on Orlando Health files, whether the attorney can be prevented from working on
Orlando Health files for a specific time period, whether the attorney can work as an independent
contractor, and whether the attorney can work on files not involving Orlando Health. Petition at
paragraph 8.
1
While under certain circumstances, the failure to identify the attorney in question could constitute grounds for dismissal
for failure to state a cause of action, Orlando Health submits that it is aware of the identity of the attorney in question,
and therefore will not rely on the failureof Diez-Arguelles to identify theattorney in the Petitionas grounds for
dismissal.
-2-
CASE NO. 2017-CA-004456-O
7. Trial courts have no authority to issue advisory opinions to parties. McMullen v.
Bennis, 20 So. 3d 890, 892 (Fla. 3d DCA 2009).
8. Parties must not be requesting an advisory opinion, except in those rare instances
in which advisory opinions are authorized by the Constitution. Department of Revenue v.
Kuhnlein, 646 So. 2d 717, 721 (Fla. 1994).
9. A petition for declaratory relief should deal with a present, ascertained or
ascertainable set of facts or presented controversy as to a state of facts. Martinez v. Scanlan, 582
So. 2d 1167, 1170 (Fla. 1991).
10. Florida courts will not render, in the form of a declaratory judgment, what
amounts to an advisory opinion at the instance of parties who show merely the possibility of
legal injury on the basis of a hypothetical state of facts which have not arisen, and are only
contingent, uncertain, and rest in the future. Santa Rosa County v. Administration Commission,
Division of Administrative Hearings, 661 So. 2d 1190, 1193 (Fla. 1995).
11. The declaratory judgment act is not to be used as a tool to advise attorneys as to
the proper path to pursue. McIntosh v. Harbour Club Villas Condominium Ass’n., 468 So. 2d
1075, 1081 (Fla. 3rd DCA 1985); Kelner v. Woody, 399 So. 2d 35, 38 (Fla. 3rd DCA 1981).
12. Here, Diez-Arguelles’ Petition for Declaratory Relief does not set forth an actual
case or controversy.
13. Instead, Diez-Arguelles seeks an advisory opinion as to the parameters under
which an employment or independent contractor relationship can exist between Diez-Arguelles’
firm and the unnamed attorney in question.
14. As noted above, Florida’s courts have repeatedly held that trial courts are not
authorized to issue advisory opinions, and there are no provisions within Florida’s Constitution
-3-
CASE NO. 2017-CA-004456-O
that would authorize this Court to issue an advisory opinion in this case. See also, Roberts v.
Brown, 43 So. 3d 673 (Fla. 2010); Northwoods Sports Medicine and Physical Rehabilitation,
Inc. v. State Farm Mutual Automobile Insurance Company, 137 So. 3d 1049 (Fla. 4th DCA
2014).
15. Because any amendment to the Petition would be futile, this Court’s dismissal of
the Petition should be with prejudice. Glen Garron, LLC v. Buchwald, 210 So. 3d 229 (Fla. 5th
DCA 2017).
WHEREFORE, for the reasons stated above, Defendant, ORLANDO HEALTH, INC.
d/b/a ORLANDO REGIONAL MEDICAL CENTER, respectfully requests that this Court enter
an Order denying Plaintiff, DIEZ-ARGUELLES & TEJEDOR, P.A., Petition for Declaratory
Relief with Prejudice.
WE HEREBY CERTIFY the foregoing has been electronically served via Florida ePortal
to Carlos R. Diez-Arguelles, Esquire, Diez-Arguelles & Tejedor, P.A.,
mail@theorlandolawyers.com; on June 15, 2017.
/s/ Michael R. D'Lugo
Richards H. Ford, Esquire
Florida Bar No. 0288391
Michael R. D'Lugo, Esquire
Florida Bar No. 0040710
WICKER SMITH O'HARA MCCOY & FORD, P.A.
Attorneys for Defendant
390 N. Orange Avenue, Suite 1000
Orlando, FL 32801
PH: 407-843-3939
Fax: 407-649-8118
ORLcrtpleadings@wickersmith.com
-4-
Preview
Filing # 57799400 E-Filed 06/15/2017 11:30:15 AM 85033-5/61094982 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA DIEZ-ARGUELLES & TEJEDOR, P.A., CIRCUIT CIVIL DIVISION Plaintiffs, CASE NO. 2017-CA-004456-O vs. ORLANDO HEALTH, INC. d/b/a ORLANDO REGIONAL MEDICAL CENTER, Defendant. _________________________________/ DEFENDANT’S MOTION TO DISMISS PETITION FOR DECLARATORY RELIEF WITH PREJUDICE COMES NOW the Defendant, ORLANDO HEALTH, INC. d/b/a ORLANDO REGIONAL MEDICAL CENTER (“Orlando Health”), by and through undersigned counsel, pursuant to Florida Rules of Civil Procedure Rule 1.140(b)(6), and hereby files this Motion to Dismiss the Petition for Declaratory Relief for lack of subject matter jurisdiction, or alternatively for failure to state a cause of action for which relief can be granted under Florida law, and in support thereof states as follows: 1. The above captioned lawsuit is a purported action for declaratory relief in which the Plaintiff, DIEZ-ARGUELLES & TEJEDOR, P.A. (“Diez-Arguelles”), is seeking to have this Court, “enter a declaratory judgment stating the grounds on which Diez-Arguelles & Tejedor can work with the attorney.” Petition for Declaratory Relief at paragraph 8. CASE NO. 2017-CA-004456-O 2. The Petition states five questions that Diez-Arguelles would like to have this Court answer, relating to the parameters under which Diez-Arguelles can work with a particular, unnamed attorney.1 3. Diez-Arguelles contends in the Petition that there is a bona fide dispute between Diez-Arguelles and Orlando Health and that therefore, Diez-Arguelles, “is entitled to a declaration of rights.” Petition at paragraph 4. 4. However, a review of the Petition for Declaratory Relief reveals that there is no current case or controversy, and that the actual relief that Diez-Arguelles seeks in the Petition is an advisory opinion. 5. As alleged in the Petition, Diez-Arguelles is seeking an advisory opinion as to the terms under which Diez-Arguelles can work with an attorney who previously worked for Orlando Health. 6. The obvious nature of Diez-Arguelles’ request for an advisory opinion from this Court is reflected in paragraph 8 of the Petition, asking this Court to enter a judgment telling Diez-Arguelles whether Diez-Arguelles can hire the attorney in question, whether that attorney can work on Orlando Health files, whether the attorney can be prevented from working on Orlando Health files for a specific time period, whether the attorney can work as an independent contractor, and whether the attorney can work on files not involving Orlando Health. Petition at paragraph 8. 1 While under certain circumstances, the failure to identify the attorney in question could constitute grounds for dismissal for failure to state a cause of action, Orlando Health submits that it is aware of the identity of the attorney in question, and therefore will not rely on the failureof Diez-Arguelles to identify theattorney in the Petitionas grounds for dismissal. -2- CASE NO. 2017-CA-004456-O 7. Trial courts have no authority to issue advisory opinions to parties. McMullen v. Bennis, 20 So. 3d 890, 892 (Fla. 3d DCA 2009). 8. Parties must not be requesting an advisory opinion, except in those rare instances in which advisory opinions are authorized by the Constitution. Department of Revenue v. Kuhnlein, 646 So. 2d 717, 721 (Fla. 1994). 9. A petition for declaratory relief should deal with a present, ascertained or ascertainable set of facts or presented controversy as to a state of facts. Martinez v. Scanlan, 582 So. 2d 1167, 1170 (Fla. 1991). 10. Florida courts will not render, in the form of a declaratory judgment, what amounts to an advisory opinion at the instance of parties who show merely the possibility of legal injury on the basis of a hypothetical state of facts which have not arisen, and are only contingent, uncertain, and rest in the future. Santa Rosa County v. Administration Commission, Division of Administrative Hearings, 661 So. 2d 1190, 1193 (Fla. 1995). 11. The declaratory judgment act is not to be used as a tool to advise attorneys as to the proper path to pursue. McIntosh v. Harbour Club Villas Condominium Ass’n., 468 So. 2d 1075, 1081 (Fla. 3rd DCA 1985); Kelner v. Woody, 399 So. 2d 35, 38 (Fla. 3rd DCA 1981). 12. Here, Diez-Arguelles’ Petition for Declaratory Relief does not set forth an actual case or controversy. 13. Instead, Diez-Arguelles seeks an advisory opinion as to the parameters under which an employment or independent contractor relationship can exist between Diez-Arguelles’ firm and the unnamed attorney in question. 14. As noted above, Florida’s courts have repeatedly held that trial courts are not authorized to issue advisory opinions, and there are no provisions within Florida’s Constitution -3- CASE NO. 2017-CA-004456-O that would authorize this Court to issue an advisory opinion in this case. See also, Roberts v. Brown, 43 So. 3d 673 (Fla. 2010); Northwoods Sports Medicine and Physical Rehabilitation, Inc. v. State Farm Mutual Automobile Insurance Company, 137 So. 3d 1049 (Fla. 4th DCA 2014). 15. Because any amendment to the Petition would be futile, this Court’s dismissal of the Petition should be with prejudice. Glen Garron, LLC v. Buchwald, 210 So. 3d 229 (Fla. 5th DCA 2017). WHEREFORE, for the reasons stated above, Defendant, ORLANDO HEALTH, INC. d/b/a ORLANDO REGIONAL MEDICAL CENTER, respectfully requests that this Court enter an Order denying Plaintiff, DIEZ-ARGUELLES & TEJEDOR, P.A., Petition for Declaratory Relief with Prejudice. WE HEREBY CERTIFY the foregoing has been electronically served via Florida ePortal to Carlos R. Diez-Arguelles, Esquire, Diez-Arguelles & Tejedor, P.A., mail@theorlandolawyers.com; on June 15, 2017. /s/ Michael R. D'Lugo Richards H. Ford, Esquire Florida Bar No. 0288391 Michael R. D'Lugo, Esquire Florida Bar No. 0040710 WICKER SMITH O'HARA MCCOY & FORD, P.A. Attorneys for Defendant 390 N. Orange Avenue, Suite 1000 Orlando, FL 32801 PH: 407-843-3939 Fax: 407-649-8118 ORLcrtpleadings@wickersmith.com -4-