MAD, MAD

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC o JERMAINE DAVIS, o Petitioner vs. RIC L. BRADSHAW, SHERIFF Respondent. PETITIONER'S AMENDED BRIEF ON JURISDICTION On Discretionary Review From The First District Court of Appeal of Florida Case No. 1D , MAD, MAD JERMAINE DAVIS 1061 Serenade Circle Royal Palm Beach, FL Phone: (561) Pro Se, Petitioner

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND OF THE FACTS SUMMARY OF THE ARGUMENT JURISDICTIONAL STATEMENT... 7 ARGUMENT THIS COURT HAS JURISDICTION TO REVIEW THE FIRST DISTRICT'S OPINION BECAUSE IT CONFLICTS WITH THIS COURTS OPINION MULTIPLE CASES LIKE IN FARO v. ROMANI, THE FLORIDA BAR V. HOLLANDER AS WELL AS THE OPINION OF THE FOURTH DISTRICT COURT OF APPEAL IN FELDMAN V. DAVIS IN THAT THE FOURTH DISTRICT CONCLUDED THAT MERE THREATS BY THE CLIENT TO REPORT THE LAW FIRM'S LAWYER TO THE FLORIDA BAR FOR FAILING TO COMMUNICATE WITH THE CLIENT WOULD NOT NORMALLY QUALIFY AS CONDUCT THAT WOULD MAKE THE LAW FIRM'S CONTINUED PERFORMANCE LEGALLY IMPOSSIBLE OR WOULD CAUSE THE ATTORNEY TO VIOLATE AN ETHICAL RULE CITING TO FARO V. ROMANI AND PENA V. CRUZ(HOLDING THAT THERE IS NO EXCEPTION TO THE FARO RULE FOR "BREAKDOWN IN THE ATTORNEY - CLIENT RELATIONSHIP... 7 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE

3 TABLE OF CITATIONS Cases FARO v. ROMANI, 641 SO. 2D 69 (FLA. 1994)... 5,7-8 KEY CITIZEN FOR GOV., INC. v. FLORIDA KEYS AQUEDUCT AUTH., 795 SO. 2D 940 (FLA. 2001) FELDMAN V. DAVIS, SO. 3D 1132 (Fla. 4T" DCA 2011)... 7 Rules Florida Rule ofappellate Procedure 9.030(a)(2)(A)(iv)... 7 Constitutional Provisions Article V, Section 3(b)(3) Florida Constitution (1980)... 7 Florida Constitution Article passim United States Constitutional Amendment passim 11

4 STATEMENT OF THE CASE AND OF THE FACTS The above captioned appeal is an effort by the Pro Se Petitioner, Jermaine Davis to have this Court exert its discretionaryjurisdiction to review the opinion/decision ofthe First District Court ofappeal's dated October 1, A conformed copy of the First District Court of Appeal's October 1, 2013 Order is in the attached Appendix at Tab A1. The underlying issues in this case in part, are as follows: The Petitioner is a former Palm Beach County Sheriff's having been employed as a Corrections Deputy with the Palm Beach County Sheriff's Office from January 12, 2007 until August 23, 2012 when he was wrongfully terminated. Prior to the Petitioner's termination from the Palm Beach County Sheriff's Office the Petitioner filed several workers compensation petitions prior to August 23, 2012 for benefits which were all filed and or acted upon in some capacity by Attorney Michael J. Celeste. The Attorney Client relationship between the Petitioner and Attorney Michael Celeste was very good from the beginning and as can be expected the Petitioner over time developed a great deal oftrust in Attorney Michael Celeste. About two (2) months prior to the unlawful termination of the Petitioner from his employment at the Palm Beach County Sheriff's Office Attorney Michael Celeste and the Petitioner spoke about the filing of a workers 1

5 compensation retaliation claim against the Palm Beach County Sheriff's Office but Attorney Celeste made it clear that he would have to wait and see if the Petitioner was terminated as his fees would be based upon how much money he recovered for the Petitioner according to Attorney Michael Celeste. On July 20, 2012 the Petitioner suffered a work related injury to his right calf which required the use of crutches, medications, therapy and or other rehabilitative treatment. On July 24, 2012 Attorney Celeste and the Petitioner who was still on crutches as a result of the right calf injury meet at the office of apposing counsel near Australian Avenue in West Palm Beach, Florida for the purpose of mediation. This mediation was conducted much different than any mediation the Petitioner had ever attended with Attorney Michael Celeste in that the Petitioner and Attorney Celeste were in a conference room all to themselves while opposing counsel and a Mrs. Hilda Gonzalez, a Palm Beach County Sheriff's Office Risk Management Supervisor were in another part of the law office obscured from the Petitioner's view and sound while a white male mediator went back and forth between rooms in hopes of reaching a written agreement in regards to certain aspects of certain workers compensation or in line of duty injuries the Petitioner had suffered. After the mediator went back and forth a few times at some point Attorney Celeste left the Petitioner in the conference room alone while Attorney Celeste stated that he was 2

6 going to go speak with opposing counsel and Mrs. Hilda Gonzalez in another room away from the Petitioner's view and sound. After hours of going back and forth in this manner with the Petitioner being isolated from the opposing counsel and Mrs. Hilda Gonzalez all parties at the mediation came together in a smaller room to see it some sort of agreement could be reached regarding certain aspects of certain work related injuries and ultimately a settlement agreement was reached. On August 3, 2012 a Writ ofmandamus Complaint was filed by FOP Attorney David Pleasanton on behalfofthe Petitioner in the 15* Judicial Circuit Court of Palm Beach County alleging a plethora ofviolations ofrules and law by the Palm Beach County Sheriff's Office and its agents. On August 23, 2012 the Petitioner was unlawfully terminated from his employment at the Palm Beach County Sheriff's Office and his termination became the subject of a separate three (3) count complaint filed by a different attorney alleging Whistle Blower Retaliation, Workers Compensation Retaliation and Due Process Violations in the 15* Judicial Circuit Court of Palm Beach County, Florida. Shortly before the Petitioner was unlawfully terminated from his employment at the Palm Beach County Sheriff's Office the Petitioner believes he noticed a change in the demeanor, communications and actions of Attorney Michael Celeste. The Petitioner made mental note ofmany ofthese changes but up until that time Attorney Michael 3

7 Celeste had earned and showed that he was worthy ofthe Petitioners trust. Additionally, the Petitioner is not the kind that would change up attorneys as he preferred to stick with Attorney Michael Celeste because they worked well together and got along well also. While the Petitioner was still recovering from his injury to his right calf and continuing treatment on other injuries he sustained in the line of duty Attorney Celeste and the Plaintiff had a meeting in Attorney Celeste's West Palm Beach Office. During this meeting Attorney Celeste advised the Petitioner that the Palm Beach County Sheriff's Office and their Insurance Carrier, USIS wanted to settle all the Petitioner's workers compensation claims. The Petitioner responded by advising Attorney Celeste that he would be returning to work as a matter of law. Attorney Celeste advised the Petitioner that the Palm Beach County Sheriff's Office did not want the Petitioner back and that although the Palm Beach County Sheriff's Office Budget was very low as they were nearing the end and beginning ofthe fiscal year that the Palm Beach County Sheriff's Office had advised him that they would find money to be rid of the Petitioner. Attorney Celeste went on to tell the Petitioner that during the July 24, 2012 mediation while he was speaking with opposing counsel and Mrs. Hilda Gonzalez that Hilda Gonzalez informed him that she was certain that the Petitioner's employment at PBSO would be terminated. 4

8 SUMMARY OF ARGUMENT The First District Court of Appeal's October 1, 2013 opinion conflicts with this Court's opinion in FARO v. ROMANI, 641 SO. 2D 69 (FLA. 1994). This Court in Faro v. Romani citing to The Florida Bar v. Hollander, 607 SO. 2D 412 (FLA. 1992) stated: In The Florida Bar v. Hollander, 607 SO. 2D 412 (FLA. 1992) we held that "any contingency fee contract which permits the attorney to withdraw from representation without fault on the part ofthe client or other just reason, and purports to allow the attorney to collect a fee for services already rendered would be unenforceable and unethical." Id. at 415. Although the contingency fee agreement in the instant case does not include the types of clauses that were included in the Hollander agreement, the attorney in the instant case is seeking to recover fees for services already rendered. In the instant case, Romani agreed to represent Faro on a contingency basis. The contingency, of course, was recovery in the lawsuit from Amica Mutual Insurance Company. Once Romani voluntarily withdrew from representation, the contingency agreement, like the attorney-client relationship, was terminated. The First District Court of Appeal's October 1, 2013 opinion conflicts with this Court's opinion in KEY CITIZEN FOR GOV., INC. v. FLORIDA KEYS AQUEDUCT AUTH., 795 SO. 2D 940 (FLA. 2001) which stated in part: Department oflaw Enforcement v. Real Property 5 88 So.2d 957, 960 (Fla.1991), "[p]rocedural due process serves as a vehicle to ensure fair treatment through the proper administration ofjustice where substantive rights 5

9 are at issue." Procedural due process requires both fair notice and a real opportunity to be heard. See id. As the United States Supreme Court explained, the notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency ofthe action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (citations omitted). Further the opportunity to be heard must be "at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); accord Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (stating that procedural due process under the Fourteenth Amendment of the United States Constitution guarantees notice and an opportunity to be heard at a meaningful time and in a meaningful manner). The specific parameters of the notice and the opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding. See Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997); see also Mullane, 339 U.S. at 313, 70 S.Ct. 652 (stating that notice and opportunity for hearing need only be appropriate to the nature ofthe case). As the Supreme Court has explained, due process, "unlike some legal rules, is not a technical concept with a fixed content unrelated to time, place and circumstances." Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Instead, "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) 6

10 JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionaryjurisdiction to review a decision of a District Court ofappeal that expressly and directly conflicts with a decision of the Supreme Court or another District Court ofappeal on the same point of law. Article V, Section 3(b)(3) Florida Constitution (1980); Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv). ARGUMENT THIS COURT HAS JURISDICTION TO REVIEW THE FIRST DISTRICT'S OPINION BECAUSE IT CONFLICTS WITH THIS COURTS OPINION MULTIPLE CASES LIKE IN FARO v. ROMANI, THE FLORIDA BAR V. HOLLANDER AS WELL AS THE OPINION OF THE FOURTH DISTRICT COURT OF APPEAL IN FELDMAN V. DAVIS IN THAT THE FOURTH DISTRICT CONCLUDED THAT MERE THREATS BY THE CLIENT TO REPORT THE LAW FIRM'S LAWYER TO THE FLORIDA BAR FOR FAILING TO COMMUNICATE WITH THE CLIENT WOULD NOT NORMALLY QUALIFY AS CONDUCT THAT WOULD MAKE THE LAW FIRM'S CONTINUED PERFORMANCE LEGALLY IMPOSSIBLE OR WOULD CAUSE THE ATTORNEY TO VIOLATE AN ETHICAL RULE CITING TO FARO V. ROMANI AND PENA V. CRUZ (HOLDING THAT THERE IS NO EXCEPTION TO THE FARO RULE FOR "BREAKDOWN IN THE ATTORNEY - CLIENT RELATIONSHIP. This Court has jurisdiction to consider this appeal because the decision of the First District Court ofappeal's October 1, 2013 opinion expressly and directly conflicts with a prior decision ofthis Court in regards to how the issue of an attorney's lien must be handled and decided upon based on specific sets of facts. 7

11 Furthermore, this court prior decision in FARO v. ROMANI and THE FLORIDA BAR v. HOLLANDER make it crystal clear that when an attorney has any contingency fee contract with a client that purports to allow that attorney to withdraw due to no fault of the client and purports to allow the attorney to collect a fee for services already rendered would be unenforceable and unethical. This case is identical in light of the fact that Attorney Michael Celeste and the Petitioner's attorney/client contract purports to allow Attorney Michael Celeste to withdraw due to no fault of the Petitioner based upon Attorney Michael Celeste's trial calendar being busy. The conduct of Attorney Michael Celeste as stated in the statement of the case and ofthe facts section should have also been considered in the negative against Attorney Michael Celeste in this case. In KEY CITIZEN FOR GOV., INC. v. FLORIDA KEYS AQUEDUCT AUTH., 795 SO. 2D 940 (FLA. 2001) this Court gave a well reasoned explanation of what Due Process provisions ofthe Florida and United States Constitution affords the Petitioner in this case just like any other. As explained thoroughly in the statement of the case section there exists an over abundance of violations of the Petitioners "Due Process Rights" in this case and to the extent that the First District Court of Appeals October 1, 2013 opinion seeks to override those controlling and indeed necessary principles in a just society such as ours the opinion ofthe First District 8

12 Court of Appeals expressly and directly conflicts with this Court's prior decision in KEY CITIZEN FOR GOV., INC. v. FLORIDA KEYS AQUEDUCT AUTH., 795 SO. 2D 940 (FLA. 2001). The workers compensation arena is an extremely difficult area to obtain competent and medically appropriate medical care as it is. Florida's injured worker should not have to further bare more weight on their shoulders. Many ofthe avenues within workers compensation are already slanted in favor ofthe employer/carrier. An injured worker should be assured that ifhis or her own legal counsel engages in conduct similar to that ofattorney Celeste as described herein in part and as could be more fully stated in briefs to this Court. In instances like this case presents, Florida's injured workers should be assured that they can keep their focus on recovery and finding new counsel without the prejudice that a lien would place upon them. The Petitioner was deprived of "Due Process" in the lower Courts and the actions ofattorney Celeste appearto have been intended to insure that the Petitioner was not afforded Due Process through Attorney Celeste's improper conduct in violation offloridabar Rules and Regulations and in violation ofthe rules of the OJCC Court. A review of the OJCC Court dockets under the name of the Petitioner would show that three (3) petitions for benefits have been filed on February 3, 2014 on the Petitioner/Claimants behalf by his new counsel. 9

13 CONCLUSION This Court should accept jurisdiction in this case and review the decision of the First District Court of Appeals rendered on October 1, CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been or will be furnished via U.S. Mail and/or by way of to Dianne Tutt, Esquire (Dtutt@conroysimber.com) 3340 Hollywood Boulevard, Second Floor, Hollywood, Fl and Michael Celeste, Esquire (lisa@celestelawfirm.com) 580 Village Blvd., Suite 225 West Palm Beach, Fl on or about this 26* day of February CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this document complies with the requirements of Fla R. App. P This document is being submitted in Times New Roman 14 point font. JERMAINE DAVIS Pro Se, Petitioner j~;-. Bam JERMAINE DAVIS 1061 Serenade Circle Royal Palm Beach, FL Phone: (561)