PETITIONER, CHARLOTTE TAYLOR S JURISDICTIONAL BRIEF

Transcription

1 IN THE SUPREME COURT OF FLORIDA 500 S. DUVAL ST. TALLAHASSEE, FL CHARLOTTE TAYLOR, Plaintiff/Petitioner SC DCA# 4D L.T. CASE NO CA004084XXXXMB v. CITY OF LAKE WORTH; CODE ENFORCEMENT BOARD OF THE CITY OF LAKE WORTH; GLEN TORCIVIA, As Special Master/CODE ENFORCEMENT BOARD; JOHN NACLERIO, as Special Master/CODE ENFORCEMENT BOARD And as the previous CODE ENFORCEMENT BOARD ATTORNEY; CITY OF LAKE WORTH UTILITIES DEPARTMENT; TOM RUTHERFORD, Business Services Manager for THE CITY OF LAKE WORTH UTILITIES DEPARTMENT, as Business Services Manager for THE CITY OF LAKE WORTH UTILITIES DEPARTMENT; LARRY KARNS, CITY ATTORNEY FOR LAKE WORTH, individually and As City Attorney; Paul Boyer, City Manager, as the City Manager; Bill Bucklew, Building & Zoning Director, individually and as Building & Zoning Director; Armand Harnois, Assistant Building & Zoning Director, Individually and as Assistant Building & Zoning Director; Geoff Handley, Code Compliance Inspector, individually and as Code Compliance Inspector; Karl Swierzko, individually and Chief Electrical Inspector and Plans Examiner; FORMER CODE ENFORCEMENT BOARD CHAIRMAN, ROBERT D'ARINZO, individually and as Former CODE ENFORCEMENT BOARD CHAIRMAN; Michael M. Phillips; Mayor Rodney G. Romano, As Mayor of Lake Worth; Commissioner Colburn H. "Mac" McKinnon, as Commissioner of Lake Worth; Commissioner Joe Egly, as Commissioner of Lake Worth; Commissioner Retha Lowe, as Commissioner of Lake Worth; Commissioner Nadine Burns, as Commissioner Of Lake Worth; GARY NIKOLITS, as Property Appraiser Of Palm Beach County, Florida; JOHN K. CLARK, as Tax Collector Of palm Beach County, Florida; National Tax Assistance Corporation; J W LIENS LLC, FOOTHILL CAPITAL AS SECURED PARTY; MTAG CUST FOR COLORADO ASSET MANAGEMENT LLC; Florida Department of Revenue; Defendant(s)/Respondent. / PETITIONER, CHARLOTTE TAYLOR S JURISDICTIONAL BRIEF On Review from the District Court of Appeal, Fourth District State of Florida Charlotte Taylor, Pro Se 1121 S. Federal Hwy. Lake Worth, Florida No Phone

2 TABLE OF CONTENTS Table of Citations 3 Statement of the Case and Facts.. 4 Summary of the Argument.. 7 Jurisdictional Statement.. 8 Argument The decision of the Fourth District Court of Appeal in this case expressly and directly conflicts with the decision of this Court in Totura and Co., Inc. v. Williams, 754 So.2d 671, [Supreme Court of Florida Fla. 2000]; expressly affects a class of constitutional or state officers and the discipline of their attorney(s). 9 Conclusion. 11 Certificate of Service. 12 Certificate of Compliance

3 TABLE OF CITATIONS Cases Boca Burger, Inc. v. Forum, 912 So.2d 561, 569 (Fla.2005) 7 Hamilton County v. State, 469 So.2d 789 (1DCA 1985).. 7 Taylor v. City of Lake Worth, 964 So.2d 243 (Fla. 4 th DCA 2007).. 9 Totura & Company, Inc v. Williams, 754 So.2d 671 (Fla. 2000). 7, 9, 10 Constitutional Provisions and Statutes Art. V, 3(b)(3) Fla. Const. (1980) 8 Art. V, 15 Fla. Const. (1980) 8 Court Rules Florida Rules of Civil Procedure - Rule , 10 Fla.R. App.P (a)(2)(A)(iv) 8 3

4 STATEMENT OF THE CASE AND FACTS As part of a multi-count complaint against various government entities and employees, the plaintiff and petitioner taxpayer, Charlotte Taylor filed a motion for Leave to File a Fourth Amended Complaint. Plaintiff /Petitioner sought to make, with regards to another tax year, the same allegations as she made regarding prior years regarding the tax assessment [count 6 page(s) 35]. The complaint itself contained allegations, in addition to the Contest of the Tax Assessment Cause of Action [count 6 page(s) 35], against the property appraiser of Palm Beach County, Florida allegations regarding Violation of Due Process [count 3 page(s) 14]; Failure To Perform Ministerial Duties- Negligence-Violation of Statute [count 5 page(s) 32]; Civil Conspiracy which included Civil Theft [count 8 page(s) 47, 54 of the complaint] through his employees [Scott Gregory, Jim Michael and other unknown employees]. The allegations include but were not limited to changing the classification of the property which is the subject of this action without notice to petitioner/ plaintiff, by ALLOWING HIS RECORDS TO BE ALTERED and other similar matters. In the trial court s Order Denying Plaintiff s Motion for Leave To File Amended Complaint docket entry 363 in the lower court record (Appendix B), the trial court held, As Plaintiff did not make the MOTION within the 60-day time 4

5 limit required, she is barred from filing the amendment. The foregoing was based upon the representations of the property appraiser s attorney, Jeffrey M. Clyman that appellant had filed her MOTION to amend AFTER the 60 day period for filing her lawsuit. The Property Appraiser s Attorney, Jeffrey M. Clyman had mislead the trial court judge in violation of Rules of Professional Conduct Rule Candor Toward the Tribunal and Truthfulness In Statements To Others with regards to when the motion to amend the complaint was filed. This is NOT the only instance this took place. The property appraiser s attorney filed in the trial court PROPERTY APPRAISER S MOTION TO CLARIFY ORDER DENYING PLAINTIFF S MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT [docket entry 383 in the lower trial court] just after appellant filed her notice of appeal [docket entry 379]. In the motion to clarify the property appraiser s attorney admitted that appellant filed her motion on March 16, 2006 and that the motion to amend was filed prior to the expiration of the 60 day claim period. Appellant, Charlotte Taylor filed a motion to allow concurrent jurisdiction, so the trial court could rule on the motion to clarify and sanction the property appraiser s attorney if proper, the property appraiser s attorney withdrew the motion in the trail court and the Fourth District held in an interim order that the matter was moot. There could NOT have been any prejudice to the property appraiser or any 5

6 other defendant because a stay was entered, as to discovery almost from the beginning of the case out of deference to the governmental attorneys. Since the trial Court did NOT lift the STAY ON DISCOVERY until July 10, 2006 [docket entry 378], the whole case was at the beginning and because the Florida Rules of Civil Procedure encourage the assertion of all available causes of action and claims against a defendant in one lawsuit, Charlotte Taylor moved to amend her complaint to add tax year The trail Court also held correctly, Plaintiff seeks to make, with regard to another the calendar year, the same allegations as she has made herein regarding prior years. The district court correctly held petitioner filed her motion to amend to add the 2005 tax year on March 16, The motion was argued in a non-evidentiary hearing in the circuit court and the trial court entered an order on June 12, At the conclusion of the hearing the trial court judge DENIED plaintiff/petitioner s motion for Leave to File a Fourth Amended Complaint. An appeal was filed to the Fourth District Court of Appeal to review the trial court order denying the plaintiff/petitioner s motion for Leave to File a Fourth Amended Complaint on July 11, 2006; the district court affirmed the order of the trial court. The district court held among other things the following, We conclude that filing the motion for leave to file, without attaching a copy of the fourth amended complaint which was not yet prepared, was insufficient to meet the 6

7 non-claim provisions of the statute. Therefore, the circuit court lacked jurisdiction to consider this claim. and With regard to Taylor s additional claim for sanctions, no authority exists for an appellate court to impose sanctions for conduct occurring in the trial court. Boca Burger, Inc. v. Forum, 912 So.2d 561, 569 (Fla.2005). SUMMARY OF THE ARGUMENT In this case, the district court of appeal held that We conclude that filing the motion for leave to file, without attaching a copy of the fourth amended complaint which was not yet prepared, was insufficient to meet the non-claim provisions of the statute. Therefore, the circuit court lacked jurisdiction to consider this claim. The decision of the district court cannot be reconciled with the previous decision of this Court in Totura & Company, Inc v. Williams, 754 So.2d 671 (Fla. 2000), wherein the court interpreted Rule When Action Commenced as follows: As explained above, the Fourth District in Frew ultimately concluded that the defendants statute of limitations defense did not obtain because an action is commenced for limitations purposes, when a complaint is filed. 654 So.2d at 25. Consequently, Frew s amended complaint adding the new defendants was deemed filed when her motion for leave to amend was submitted to the court, notwithstanding the fact the motion was not granted until six months later, well past the running of the four-year statute of limitations. 7

8 Further, in Hamilton County v. State, 469 So.2d 789 (1DCA 1985) held that the illness of counsel constituted good cause for extending time in which to file appellants brief. The district court stated, the next day, Taylor filed a motion for a twenty-day extension of time to file the fourth amended complaint, alleging that she had been too ill to complete it. Thus, the petitioner contends that the decision of the district court expressly and directly conflicts with a previous decision of this Court, expressly affects a class of constitutional or state officers and the discipline of their attorney(s). JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly affects a class of constitutional or state officers, as well as, expressly and directly conflicts with a decision of the supreme court or another district court of appeal on the same point of law. Art. V, 3(b)(3) Fla. Const. (1980); Fla.R.App.P (a)(2)(A)(iv). AND The Florida Supreme Court has exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted. Art. V, 15 Fla. Const. (1980). 8

9 ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN TOTURA AND CO., INC. V. WILLIAMS, 754 SO.2D 671, [SUPREME COURT OF FLORIDA FLA. 2000]; EXPRESSLY AFFECTS A CLASS OF CONSTITUTIONAL OR STATE OFFICERS AND THE DISCIPLINE OF THEIR ATTORNEY(S). The Supreme Court interpreted Rule When Action Commenced in Totura & Company, Inc v. Williams, 754 So.2d 671 (Fla. 2000) held in part, In a similar manner, under proper analysis, the motion to amend was sufficient to stand in place of an amended complaint and the action was, therefore, deemed commenced as to Geico pursuant to rule within the applicable limitation period. In the decision of the district court, reported as Taylor v. City of Lake Worth, 964 So.2d 243 (Fla. 4 th DCA 2007) (Appendix A), the decision of the trial judge was affirmed but on different grounds than the trial courts order stated. The district court held: 1) Filing of motion for leave to file amended complaint was insufficient to meet non-claim provisions of applicable statute. 2) Circuit court lacked jurisdiction to entertain motion to amend 9

10 complaint in taxpayer s action contesting tax assessment of appellant s property, where taxpayer failed to attach copy of amended complaint to her motion to amend within statutory filing period. 3) Circuit court lacked jurisdiction to entertain motion to amend complaint. The Florida Supreme Court held in Totura and Co., Inc. v. Williams, 754 So.2d 671 the motion itself would stand in place of an actual amendment, and therefore, timely filing of such motion defeated a statute of limitations defense. In addition the court held, As explained above, the Fourth District in Frew ultimately concluded that the defendants statute of limitations defense did not obtain because an action is commenced for limitations purposes, when a complaint is filed. 654 So.2d at 275. Consequently, Frew s amended complaint adding the new defendants was deemed filed when her motion for leave to amend was submitted to the court, notwithstanding the fact the motion was not granted until six months later, well past the running of the four-year statute of limitations. and the motion itself would stand in place of an actual amendment, and therefore, timely filing of such motion defeated a statute of limitations defense. Thus, the petitioner contends that the decision of the district court expressly and directly conflicts with a previous 10

11 decision of this Court. The district court held petitioner s motion to amend was filed on March 16, 2006 prior to the sixty-day period which expired on March 20, Thus, petitioner respectfully contends that the decision of the district court expressly and directly conflicts with a previous decision of this Court. This court should grant discretionary review and resolve the conflict by quashing the decision of the district court, that it expressly affects a class of constitutional or state officers and their attorneys. This court correctly interpreted Rule When Action Commenced in Totura and Co., Inc. v. Williams, and the court should now reaffirm that interpretation by accepting discretionary review and quashing the contrary decision of the district court below. CONCLUSION This court has discretionary jurisdiction to review the decision below, and the court should exercise that jurisdiction to consider the merits of the petitioner s argument. Charlotte Taylor, Pro Se 1121 South Federal Hwy. Lake Worth, Florida

12 CERTIFICATE OF SERVICE I hereby certify that I have served the foregoing PETITIONER, CHARLOTTE TAYLOR S JURISDICTIONAL BRIEF upon: Larry Karns, Esq. City Attorney 7 North Dixie Highway Lake Worth, FL Jeffrey M. Clyman, Esq. C/O Legal Department Government Center 5th Floor Palm Beach County Property Appraiser's Office 301 North Olive Ave. West Palm Beach, Florida JOHN K. CLARK As Tax Collector Of Palm Beach County, Florida 301 North Olive Ave. West Palm Beach, Florida Holland & Knight LLP For JW Liens 222 Lakeview Avenue, Suite 1000 West Palm Beach, FL Michael M. Phillips C/O Herman Perfit 7730 Northwest 50th Street Lauderhill, FL John Mika, Office Of Attorney General, PL-01, The Capitol-Revenue Litigation Section, Tallahassee, Floirda National Tax Assistance Corporation, C/O The Florida Secretary of State 409 East Gaines Street, Tallahassee, Florida MTAG CUST FOR COLORADO ASSET MANAGEMENT LLC, C/O The Florida Secretary of State, 409 East Gaines Street, Tallahassee, Florida By hand delivery and mail this 22 nd day of October, CHARLOTTE TAYLOR, PRO SE 12

13 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the above and foregoing Brief is submitted in compliance with the font requirements [ Times New Roman 14 point font or Courier New 12 point font] pursuant to Florida Rules of Appellate Procedure 9.210(a)(2). Charlotte Taylor, Pro Se 1121 South Federal Hwy. Lake Worth, Florida