Opinion
No. 59379.
July 30, 1981.
District Court of Appeal, 3d District — No. 79-1365.
Eric B. Meyers and Gregory P. Borgognoni, Shutts Bowen, Miami, for petitioner.
R. Bruce Wallace, Jr., and James C. Pilkey, Taylor, Brion, Buker Greene, Miami, for respondent.
On December 8, 1980, this Court entered its Order accepting jurisdiction and setting oral argument. We have now determined that the Court is without jurisdiction and, therefore, the Petition for Review is denied.
No Motion for Rehearing will be entertained by the Court.
BOYD, ALDERMAN and McDONALD, JJ., concur.
ENGLAND, J., concurs specially with an opinion.
SUNDBERG, C.J., dissents with an opinion with which ADKINS, J., concurs.
OVERTON, J., dissents.
I find no basis for the exercise of our discretionary jurisdiction here. Asserting decisional conflict with Shaw v. Shaw, 334 So.2d 13 (Fla. 1976), and Westerman v. Shell's City, Inc., 265 So.2d 43 (Fla. 1972), is, I believe, unsound after April 1, 1980.
Nowhere in the district court's decision is the legal principle expressed that district courts can reweigh evidence which has been presented to the trial court. Petitioner suggests, and apparently some of my colleagues agree, that the issue of reweighing "inheres" in the district court's decision. My understanding of the 1980 constitutional change in our jurisdiction, however, is that decisional conflicts must be "express" and not inherent. I regret that some on the Court would turn back the clock to the days when our members selectively disagreed with the district courts, the very problem which prompted constitutional change in 1980.
England, Hunter Williams, Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U.Fla.L.Rev. 147 (1980).
Because I believe the District Court of Appeal impermissibly reweighed the evidence before the trial court to reach a contrary result, this case is in conflict with Shaw v. Shaw, 334 So.2d 13 (Fla. 1976) and Westerman v. Shell's City, Inc., 265 So.2d 43 (Fla. 1972). Hence, there is jurisdiction in this Court and I must respectfully dissent.
ADKINS, J., concurs.