IN THE SUPREME COURT OF FLORIDA. Case No.: SC DCA Case No.: 4D L.T. Case No.: CDDR FA

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1 IN THE SUPREME COURT OF FLORIDA Case No.: SC DCA Case No.: 4D L.T. Case No.: CDDR FA CARLIE CARGILE-SCHRAGE, Petitioner/Appellant, v. DONALD BRUCE SCHRAGE, Respondent/Appellee. On Discretionary Review from the Fourth District Court of Appeal RESPONDENT/APPELLEE DONALD SCHRAGE BRIEF ON JURISDICTION Donald B. Schrage, pro-se Quail Run Dr Ft Myers, Fl

2 TABLE OF CONTENTS.....i TABLE OF CITATIONS...ii, iii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS SUMMARY OF ARGUMENT I. The Fourth District s Decision is Not in Express and Direct Conflict with Decisions from Other District Courts or Applicable Florida Statute, the 4th DCA s use of the phrase right mind does not effect the application of Canakaris. The court does not establish a new standard of review by using the phrase right mind in its analysis. CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE....11

3 i TABLE OF CITATIONS Cases: Allstate Ins. Co. v. Langston, 655 So. 2d 91, 93 n.1 5 (Fla. 1995). Canakaris v. Canakaris, 382 So.2d 1197, ,6 (Fla. 1980) Cargile-Schrage v. Schrage, 908 S.2d 528 3,9,10 (Fla. 4 th DCA 2005) Cole v. Heritage Comtys., Inc., 838 So.2d 1237, (Fla.5th DCA 2003). Department of Health v. National Adoption Counseling Service, Inc., 498 So. 2d 888, 889 (Fla. 1986) 7 Fleming v. Fleming, 710 So.2d 601, 603 9,10 (Fla. 4th DCA1998).

4 Florida Star v. B.J.F., 530 So. 2d 286, 289 5,7 (Fla. 1988) Hardee v. State, 534 So. 2d 706, 708 2,5,6,7 (Fla. 1988) Hill v. Hill, 778 So.2d 967 2,5,6 (Fla. 2001) Kyle v. Kyle, 139 So.2d 885, (Fla. 1962) Reaves v. State, 485 So. 2d 829, (Fla. 1986) ii Roberts v. State, 685 So. 2d 1277, (Fla. 1996)) Rowe v. State, 394 So. 2d (Fla. 1stDCA 1981) School Board of Pinellas County v. District Court of Appeal,467 So. 2d 985, 986 (Fla. 1985). 7 Thompson v. State, 695 So. 2d 691, 692

5 4,8 (Fla. 1997) Tippens v. State, 897 So.2d 1278, (Fla. 2005) White Constr. Co. v. Dupont, 455 So. 2d (Fla.1984) Constitutional Provisions and Statutes: Fla.Const.Art.V,3 4 3(b)(3) Fla.R.App.Proc (a)(2)(A)(iv Other Citations The American Heritage Dictionary of the English Language, 4 th ed. Boston: Houghton Mifflin, iii PRELIMINARY STATEMENT This petition arises out of the District Court of

6 Appeal for the Fourth District s Review and affirming of a denial of continuance. The Petitioner, Carlie Cargile- Schrage, was the appellant/petitioner below. She will be referred to as "former wife" in this Brief. Respondent, DONALD BRUCE SCHRAGE, was the appellee/respondent and will be referred to as "former husband". References to the Appendix attached to former wife s Initial Brief on Jurisdiction will be designated by the symbol App. followed by the appropriate page numbers. References to former wife s Initial brief will be designated Ib. followed by page number. Legal citations contained in this Brief are intended to conform to Florida Rule of Appellate Procedure STATEMENT OF THE CASE AND FACTS Former wife s brief, when considering jurisdiction, this Court is limited to the facts which appear on the face of the lower court s opinion. See, Hardee v. State, 534 So. 2d 706, 708 (Fla. 1988)( for purposes of determining conflict jurisdiction, this Court is limited to the facts 1 which appear on the face of the opinion ). This Court is limited to the four corners of the Fourth District s

7 opinion. See, Hill v. Hill, 778 So.2d 967 (Fla. 2001). Former wife s brief contains a statement of the facts that makes reference to the underlying record on appeal. Ib at 1 2,4-6. Some of these facts are absent from the face of the lower court s opinion. Additionally, former wife has left out facts appearing on the face of lower courts opinion. Accordingly, Former husband submits the following statement to provide the Court with the facts which frame its jurisdictional decision: Within the first nine months of the former wife initiating dissolution of marriage proceedings, two attorneys had withdrawn from representing the wife, she had been unable to work with two previous attorneys, the second attorney lasting only two weeks.. App-2. A third attorney was hired by former wife, the attorney, on condition, that the judge grants a continuance, would represent the former wife. Following a hearing, the judge denied the motion for continuance resulting in the third attorney withdrawing six days before the trial. App. At 1. As a result, the former wife represented herself at trial. Former wife appealed the final judgment of dissolution of marriage complaining that because of the trial courts denial for continuance she was

8 2 effectively prevented from presenting her case at trial. On July 20, 2005 the district court upheld the trial courts decision. The panel concluded, appellant does not point us to some compelling reason appearing in the record as to why it would be an abuse of discretion to decline to do so. Based on this record, we cannot say that no judge in his right mind would have denied the continuance. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) ( If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. ). We therefore find no abuse of discretion in denying the motion. App.- 2.,also Cargile-Schrage v. Schrage, 908 S.2d 528 (Fla. 4 th DCA 2005)Former wife now seeks review of the July 20, 2005, Fourth District s decision, which affirmed the trial court s decision. on the grounds that it is in express and direct conflict with other district courts and applicable Florida law. Petitioner specifically implies that the Fourth District s phrase we cannot say

9 that no judge in his [right mind] App. At 2. is in conflict with other district courts and applicable Florida statute. 3 SUMMARY OF THE ARGUMENTS I. The Fourth District s Decision is Not in Express and Direct Conflict with Decisions from Other District Courts or Applicable Florida Statute, the 4th DCA s use of the phrase right mind does not effect the application of Canakaris. The court does not establish a new standard of review by using the phrase right mind in its analysis. Former wife is requesting this Court to believe that the use of the phrase [right mind] creates an express and direct conflict. First, the phrase [right mind] in the context found (emphasis added), does not alter in any way or conflict with how the 4th DCA applies the Canakaris reasonable standard in deciding this case. See Thompson v. State, 695 So. 2d 691, 692 (Fla. 1997). [Right mind], does not expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law. Art. V,3 3(b)(3), Fla. Const.; Fla. R. App. P (a)(2)(A)(iv).). This Court is limited

10 to the facts which appear on the face of the lower court s opinion. See, Hardee v. State, 534 So. 2d 706, 708 (Fla. 1988)( for purposes of determining conflict jurisdiction, this Court is limited to the facts which appear on the face of the opinion ). This Court is limited to the four corners 4 of the Fourth District s opinion. See, Hill v. Hill, 778 So.2d 967 (Fla. 2001). This court has no jurisdiction over an implied conflict. Florida Star v. B.J.F., 530 So. 2d 286, 289 (Fla. 1988). Second, to the extent Petitioner argues the phrase [right mind] will conflict with a rule of procedure. Ib at 5. This Court will not exercise its jurisdiction to review alleged conflicts between a court s opinion and a rule of procedure. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 93 n.1 (Fla. 1995). Therefore, the petition to invoke discretionary review should be denied. ARGUMENT I. Petitioner is creating a diversion argument to suit her own needs - attempt to get a second bite at the apple Petitioner s argument is a red herring which

11 serves no other purpose than to confuse, mislead and waste the Court s time. The language of the Fourth District s opinion is clear. Petitioner is requesting this Court to believe that the use of the word [right mind] creates an express and direct conflict with Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) and the 4th DCA s decision in this case. The use of the word [right mind] is colloquial discourse lacking 5 dictionary definition 1 in its grammatical form, and certainly cannot be found as a legal Definition, (Black Laws Dictionary contains no listing for [right mind]) therefore does not alter in any way or conflict with how the 4th DCA applies Canakaris in deciding this case or future cases. Petitioner, erroneously, gives a fit their agenda definition implying (emphasis added) [right mind] as the circuit Judge was insane Ib at 4., new insanity standard Ib. At 4., the trial Judge was crazy Ib. at 5 that appear no where in the opinion. This Court 1 no definition exists for [right mind] in American Heritage Dictionary. However, in the context they are found [right] as a adj. means: 1. Conforming with or conformatable to justice, law, or morality. 2. In accordance with fact, reason, or truth. [mind] as a noun means: 1. The human consciousness that originates in the brain and is manifested especially in thought, perception, emotion, will, memory, and imagination. 2. The faculty of thinking, reasoning, and applying knowledge. The American Heritage Dictionary o the English Language (4th ed. 2000).

12 is limited to the facts which appear on the face of the opinion. Hardee v. State, 534 So.2d 706,708 n. (Fla. 1988)(emphasis added). Additionally, this Court is limited to the four corners of the Fourth District s opinion. Hill v. Hill, 778 So.2d 967 (Fla. 2001). The context surrounding no judge in his [right mind] makes no allusion of any party or the judge being crazy, insane. The panel certainly does not place a burden of proof to the fact of the trial judge s sanity at the time of the ruling. When determining whether conflict jurisdiction exists, this Court is limited to the facts which appear on the face of the opinion. Hardee v. State, 534 So. 2d at 708, n.1; White Constr. Co. v. Dupont, 455 So. 2d 1026 (Fla. 1984). In the past, this Court has held that it would not exercise its discretion where the opinion below established no point of law contrary to the decision of this Court or of another district court of appeal. The Florida Star v. B.J.F., 530 So. 2d 286, 289 (Fla. 1988). "Conflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority decision. In other words, inherent or so called implied conflict (emphasis added) may no longer serve as a basis for this Court's jurisdiction." State 6

13 Department of Health v. National Adoption Counseling Service, Inc., 498 So. 2d 888, 889 (Fla. 1986) (quoting Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986)). See also School Board of Pinellas County v. District Court of Appeal, 467 So. 2d 985, 986 (Fla. 1985). This court, in the past, has addressed issues concerning "phrases" and the surrounding "context" Id "It is a settled principle of statutory construction that phrases within a statute are not to be read in isolation, but rather should be construed within the context of the entire section." Id Thompson v. State, 695 So. 2d 691, 692 (Fla. 1997) (citing Roberts v. State, 685 So. 2d 1277, 1279 (Fla. 1996)). Additionaly, the same principles of construction 7 apply to court rules. Rowe v. State, 394 So. 2d 1059 (Fla. 1stDCA 1981). ("Court rules are construed under the same principles of construction that apply to statutes."). Similarly, Petitioners isolation of [right mind] from the whole of the Cargile-Schrage opinion to create a heightened insanity standard. Ib. at 4, and, the trial judge was crazy rule. Ib. at 5. should have no recourse on how Canakaris is applied and interpreted in this case law or future case law where abuse of

14 discretion is applied. [Right mind] should be construed within it's entire context. Regardless, it is quite evident that the Cargile-Schrage court, right-minded, continued throughout its decision thereafter to refer to the phrase test of reasonableness and specifically ( If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of Discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. ). App at 2. The court did not establish a new standard of review by using the phrase right mind in its analysis. The court s use of the word [right mind] is of no consequence. Finally, the 4th DCA specifically noted that the trial 8 judge did not abuse Discretion, appellant does not point us to some compelling reason appearing in the record as to why it would be an abuse of discretion. App. At 2., ruling that there was insufficient evidence to support a finding of abuse of discretion. App at 2. The Cargile-

15 Schrage decision, applied the law pertaining to reviewing abuse of Discretion involving continuance disputes in the State of Florida in determining whether the trial judge has abused his discretion, a reviewing court should consider whether the denial of the continuance creates an injustice for the movant; whether the cause of the request for continuance was unforeseeable by the movant and not the result of dilatory practices; and whether the opposing party would suffer any prejudice or inconvenience as a result of a continuance. citing Fleming v. Fleming, 710 So.2d 601, 603 (Fla. 4th DCA 1998) also cited in Cargile-Schrage, supra The decision does not conflict with the Pieman or Bryan Decisions, the withdrawal of an attorney does not give the client an absolute right to a continuance. Cole v. Heritage Comtys., Inc., 838 So.2d 1237, 1238 (Fla.5th DCA 2003)also cited in Cargile-Schrage, supra. Tippens v. State, 897 So.2d 1278,1280 (Fla. 2005)(holding that in order for there to be direct conflict between courts, the district court decision under review must contain a statement or citation 9 effectively establishing a point of law upon which the decision rests. ) Where the cases claimed to be in

16 conflict are distinguishable in controlling factual elements, then no express, direct conflict can arise. Kyle v. Kyle, 139 So.2d 885,887 (Fla. 1962) (A conflict must be such that if the later decision and the earlier decision were rendered by the same court, the former would have the effect of overruling the latter). Fleming v. Fleming, 710 So.2d 601, 603 (Fla. 4th DCA 1998) also cited in Cargile-Schrage, supra gives distinction to this case at bar. CONCLUSION The Fourth District s decision does not conflict with either of the cases or Florida statute cited by Petitioner as the perceived basis for jurisdiction the court does not establish a new standard of review by using the phrase right mind in its analysis. The court s use of the word right mind is of no consequence. Respondent respectfully requests that this Court decline to exercise its discretionary jurisdiction in this case. 10

17 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via mail this day of November 2005 to: Richard Bartmon, Esq.,1515 North Federal Highway, Suite 300 Boca Raton, Florida CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the undersigned has complied with the font requirements of Rule Donald Bruce Schrage, prose. Respondent/Appellee Donald B. Schrage Quail Run Dr. Ft Myers, Fl Tel: Donaschr@yahoo.com By Donald B. Schrage Pro-se 11