IN THE SUPREME COURT OF FLORIDA CASE NO.: SC

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC PETER SPOREA, ET AL., Petitioners, vs. CITY OF POMPANO BEACH, FLORIDA, Respondent. RESPONDENT S AMENDED ANSWER BRIEF ON JURISDICTION On Appeal from the Fourth District Court of Appeals Case No. 4DO Mark E. Berman, Assistant City Attorney Florida Bar No Gordon B. Linn, City Attorney City of Pompano Beach P. O. Box 2083 Pompano Beach, Florida Telephone:

2 TABLE OF CONTENTS Page TABLE OF CITATIONS ii STATE OF THE CASE AND OF THE FACTS SUMMARY OF ARGUMENT ARGUMENT I. Petitioners Notice of Appeal (Treated as a Notice to Invoke Discretionary Jurisdiction) Was Not Timely Filed II. Petitioners Appeal of the Order of the District Court Dismissing Their Appeal for Failure to Pay Filing Fees is not Appropriate for Review by the Supreme Court Pursuant to its Discretionary Jurisdiction CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 TABLE OF CITATIONS Cases Page Martini v. Young 921 So.2d 647 (Fla. 5 th DCA 2005) Miami-Dade County v. Peart 843 So.2d 363 (Fla. 3 rd DCA 2003) Mekertin v. Winn Dixie Stores, Inc. 869 So.2d 1286 (Fla. 4 th DCA 2004) Delgado v. J. Byrons, Inc. 877 So.2d. 822 (Fla. 4 th DCA 2004) Florida Rules of Appellate Procedure (b) (a) (a) (2) , (a) (2) FLORIDA STATUTES ii

4 STATEMENT OF THE CASE AND OF THE FACTS Petitioners originally filed an administrative appeal in Broward County Circuit Court pursuant to F.S., challenging only the imposition of fines imposed through Code Enforcement proceeding by the City s Special Magistrate for Code Enforcement for failure to timely make repairs to rental properties owned by Petitioners for numerous violations of the City s Rental Housing Code. Subsequently, the appeal in Broward Circuit Court was denied by the Circuit Court judge. Pursuant to court records, on February 23, 2007, Petitioners filed their Notice of Appeal in the Fourth District Court of Appeal. Respondent was not provided with a copy of said Notice. On May 23, 2007, the Fourth District Court of Appeal ordered sua sponte that it would treat the Petitioners Notice of Appeal as a Writ of Certiorari in the District Court, and ordered certain corrections be made to said pleading by Petitioners. In addition, the District Court specifically ordered in its May 23, 2007 Order, that Petitioners, within 20 days of said date, pay the $ filing fee which was due at the time of filing or file an Affidavit of Indigency in conformance with , Florida Statutes,... within twenty (20) days from the date of entry of this order. The Petitioners were further advised in the Order that their failure to comply would result in dismissal of the cause and 1

5 might result in sanctions against Petitioners. The Order also noted that no extensions of time would be entertained. Therefore, Petitioners had until the end of the day on June 12, 2007, to comply with the District Court s Order. On June 22, 2007, ten days after the ordered payment of the filing fees was due, the District Court, sua sponte, dismissed the petition for nonpayment of the $ filing fee. This Order of Dismissal is the subject matter for Petitioners cause of action in this case. Following the entry of the Order of Dismissal by the Fourth District Court of Appeal, the District Court s Case Docket for this matter reflects that on June 25, 2007, Petitioners filed a Petition for Certiorari, and on July 20, 2007, filed their Initial Brief on the Merits. There is no record that any Motion for Clarification was timely filed by Petitioners as to the District Court s June 22, 2007 Order of Dismissal. On August 6, 2007, the District Court entered what is referred to as a Frivolous Filing Warning, in the Court s Docket, an Order admonishing Petitioners that the case was closed and that the Court would not accept any further motions, pleadings or documents in the case. The District Court s Order also concluded, If petitioner files any further motions, pleadings, documents, etc., the same will not be filed or returned, and the court may impose sanctions against petitioner. 2

6 Despite the District Court s August 6 Order, on August 13, 2007, Petitioners filed a Motion for Clarification and on September 19, 2007, the District Court entered an additional Order sua sponte, which held that,... appellant s motion for clarification received August 13, 2007, is hereby stricken as unauthorized. Finally, on August 24, 2007, Appellants filed their Notice of Appeal of the June 22, 2007 Order of the District Court dismissing the Appeal, for failure to pay the filing fees as ordered, and apparently, of the Order entered on August 6, No copies of any of the aforementioned pleadings filed by Petitioners were provided to Respondent. Petitioners have since filed numerous pleadings in this Court, many of which have been subject to dismissal by order of the Court, if certain procedural errors were not corrected as of certain dates, causing uncertainty as to proper response times by Respondent. Furthermore, copies of such pleadings were not timely provided to Respondent until a Motion to Compel same was filed. Petitioners still have not provided copies of any Appendix filed with its Brief or Amended Brief on Jurisdiction, further impeding Respondent s ability to defend its position in this cause. In an abundance of caution, Respondent filed its Answer Brief on Jurisdiction on November 5, The Court, on December 11, 2007, struck 3

7 Petitioners Initial Brief on Jurisdiction and accepted petitioners Amended Brief, providing Respondent an opportunity to serve an Amended Brief on Jurisdiction. SUMMARY OF ARGUMENT The Supreme Court should not invoke its discretionary jurisdiction in this matter and should deny review as Petitioners notice to invoke discretionary jurisdiction of the Court was not timely filed. Furthermore, the nature of the order sought to be reviewed is not appropriate for review by the Supreme Court under the criteria for discretionary jurisdiction. ARGUMENT I. Petitioners Notice of Appeal (Treated as a Notice to Invoke Discretionary Jurisdiction) Was Not Timely Filed. On June 22, 2007, the Fourth District Court of Appeal entered an Order dismissing Petitioners Petition for Writ of Certiorari for failure to pay the $ filing fee. Pursuant to Rule (b) Fla. R. App. P., Petitioners had thirty (30) days in which to seek jurisdiction of the Court by filing their notice, accompanied by the filing fees prescribed by law. Petitioners, however, did not file their Notice of Appeal from said Order (treated as a Notice to Invoke Discretionary Jurisdiction), until August 24, 2007, some sixty-three (63) days after rendition of the District Court s Order of Dismissal, from which Petitioners seek review. As such, the Notice was untimely 4

8 filed. Further, Petitioners did not file any authorized motion that would toll running of the thirty (30) day appeal period. Martini v. Young, 921 So.2d 647 (Fla. 5 th DCA 2005). In its Amended Brief on Jurisdiction, Petitioners appear to claim that they filed a Motion for Clarification, which was denied in the District Court s Order, dated August 6, 2007, and, therefore, that they had additional time to file the Notice of Appeal from the rendition of that Order. However, the District Court of Appeal did not reference nor deny any Motion for Clarification in its August 6 Order. The Case Docket of the District Court, which is part of the case file for this matter, denotes the August 6, 2007 Order as Appellant Frivolous Filing Warning. The Case Docket also indicates that the only filings by Petitioner after the June 22 Order of Dismissal were a Petition for Certiorari filed on June 25, 2007 and an Initial Brief on the Merits filed on July 20, Thus, those filings were the only matters addressed in the District Court s August 6, 2007 Order, which admonished the Petitioners that the case is closed and that the Court would not accept any further pleadings. Despite said Order, the Case Docket shows that on August 13, 2007, Petitioners then filed a Motion for Clarification. Said motion was not timely filed within 15 days of the June 22, 2007 Order dismissing the case, as required by Rule (a) Fla. R. App. P., and did not toll the time to file an appeal from the 5

9 aforementioned Order of Dismissal pursuant to Rule Fla. R. App. P. More importantly, said Motion for Clarification was stricken by the District Court as unauthorized, in an Order dated September 19, 2007, which is included in the record of the lower tribunal. Therefore, Petitioners were required to initiate their appeal within thirty (30) days of the Order of Dismissal dated June 26, 2007, and failed to timely do so. Petitioners failure to file their Notice within thirty (30) days, constitutes an irremediable jurisdictional defect. Miami-Dade County v. Peart, 843 So.2d 363 (Fla. 3 rd DCA 2003). Because the time for taking an appeal is a jurisdictional requirement established by appellate rule, this Court should not exercise jurisdiction over the appeal, Mekertin v. Winn Dixie Stores, Inc., 869 So.2d 1286 (Fla. 4 th DCA 2004); Delgado v. J. Byrons, Inc., 877 So.2d. 822 (Fla. 4 th DCA 2004), and for that reason this Court should deny review. II. Petitioners Appeal of the Order of the District Court Dismissing Their Appeal for Failure to Pay Filing Fees is not Appropriate for Review by the Supreme Court Pursuant to its Discretionary Jurisdiction. Petitioners seek to invoke the jurisdiction of this Court to review an Order of the Fourth District Court of Appeal dismissing Petitioners case for failing to timely pay the filing fees in that case, which had been previously ordered by the District Court. In their Brief and Amended Brief, Petitioners appear to argue only that the District Court s Order of Dismissal was not correct and seeks this 6

10 Court to invoke its discretionary jurisdiction. However, Rule (a) (2) Fla. R. App. P. sets forth the specific conditions upon which the discretionary jurisdiction of the Supreme Court may be utilized for review: (2) Discretionary Jurisdiction. The discretionary jurisdiction of the supreme court may be sought to review (A) decisions of district courts of appeal that (i) (ii) expressly declare valid a state statute; expressly construe a provision of the state or federal constitution; (iii) expressly affect a class of constitutional or state officers; (iv) expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law; (v) pass upon a question certified to be of great importance; (vi) are certified to be in direct conflict with decisions of other district courts of appeal; 7

11 (B) orders and judgments of trial courts certified by the district court of appeal in which the appeal is pending to require immediate resolution by the supreme court, and (i) (ii) to be of great public importance, or to have a great effect on the proper administration of justice; (C) questions of law certified by the Supreme Court of the United States or a United States court of appeals that are determinative of the cause of action and for which there is no controlling precedent of the Supreme Court of Florida. Clearly, the review sought by Petitioners deals solely with a factual determination made by the District Court, which does not constitute any of the above criteria for discretionary review set forth in Rule (a) (2) Fla. R. App. P. Therefore, this Court should deny review of Petitioners Claim. CONCLUSION The Supreme Court of Florida should deny review of Petitioners Appeal of the Order of the Fourth District Court of Appeal dismissing their case. Petitioners Notice of Appeal (treated by the Court as a Notice to Invoke Discretionary Jurisdiction) was not timely filed, preventing this Court from invoking jurisdiction due to the jurisdictional defect. 8

12 Furthermore, Petitioners grounds for seeking review by and through the discretionary jurisdiction of the Supreme Court do not meet the criteria necessary for such review to be granted by the Court. Mark E. Berman, Assistant City Attorney Florida Bar No Gordon B. Linn, City Attorney City of Pompano Beach P. O. Box 2083 Pompano Beach, Florida Telephone: CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail this day of December, 2007, to Peter and Cornelia Sporea, 5041 NW 112 Drive, Coral Springs, Florida Mark E. Berman CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Brief was typed in Times New Roman 14-point font in compliance with Rule (a) (2), Florida Rules of Appellate Procedure. MEB/jrm 12/20/07 l:lit/sporea/ amended Mark E. Berman 9