IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA NORMA VAUGHAN, Petitioner, CASE NO.: SC Lower Tribunal Case No.: 5D vs. WILLIAM DREW VAUGHAN and ATTORNEY DONALD W. SCARLETT, Respondents. / W ANSWER BRIEF/JURISDICTION W ON APPEAL FROM THE FIFTH DISTRICT COURT OF APPEAL THE HONORABLE J. GRIFFIN, PLEUS AND TORPY, J.J. 5D GREGORY M. WILSON ATTORNEY AT LAW 29 East Pine Street Orlando, Florida (407)

2 FAX: (407) Fl. Bar No: Attorney for Respondent TABLE OF CONTENTS Page TABLE OF CONTENTS i TABLE OF CITATIONS ii OTHER AUTHORITIES....iii STATEMENT OF THE CASE AND FACTS....1,2 SUMMARY OF ARGUMENT....3 ARGUMENT CONCLUSION....8 CERTIFICATE OF SERVICE....9 CERTIFICATE OF COMPLIANCE....9

3 i TABLE OF CITATIONS: CASES Davis v. Mandau, et al 410 So2d 915 (Fla. 1981)... 5 Department of Health and Rehabilitative Services v. National Adopting Counseling Service, Inc., 498 So2d 888 (Fla. 1986)...5 Gandy v. State of Florida Hill v. Hill 846 So2d 1141 (Fla. 2003) So2d 967 (Fla. 2001)... 5 Persaud v. State of Florida 838 So2d 529 (Fla. 2003)... 5 Reaves v. State of Florida 485 So2d 829 (Fla. 1986)... 5 ii

4 OTHER AUTHORITIES Page Article V, Section 3, Constitution of the State of Florida....4 Rule 9.030, Florida Rules of Appellate Procedure....3,4 Rule 9.030(a)(2), Florida Rules of Appellate Procedure....4 Rule 9.030(a)(2)(iv), Florida Rules of Appellate Procedure....2,6 Rule 9.030(a)(2)(A)(v), Florida Rules of Appellate Procedure....2,6 Rule 9.030(a)(2)(B)(ii), Florida Rules of Appellate Procedure....2,6,7 iii

5 STATEMENT OF THE CASE AND FACTS Norma Vaughan is seeking review of an appellate decision, which affirmed the trial court s dismissal of what appeared to be an action to set aside a final judgment entered on March 21, 1996, dissolving her marriage to Buford Vaughan. Buford Vaughan died on the 30th day of May, Norma Vaughan s appeal of the Order dissolving her marriage to Buford Vaughan was dismissed shortly after Buford s death by the Fifth District Court of Appeal. Norma Vaughan brought this latest action in March of The trial court found that there was no basis in law and fact for the suit. The Appellate Court agreed and affirmed the trial court s decision. The Appellate Court decision recites no facts or law but merely states the following: Appellant, Norma Vaughan, appeals an Order dismissing the suit she filed below, which appears to be in the nature of an action to set aside the final judgment dissolving her marriage to Buford Vaughan. The trial court found that there was no basis in law or fact for the suit. We have reviewed the briefs and the record and conclude that the trial court s ruling was correct. AFFIRMED Norma Vaughan seeks review jurisdiction of the Supreme Court, based on an apparent theory of her fundamental right to be married. She asserts in her answer to William Drew Vaughan s Motion to Dismiss, at paragraph 2, that her appeal to 1

6 the Supreme Court is based on...equity principles, because it involves our fundamental right to stay married. She additionally asserts jurisdiction based on Rule 9.030(2)(iv) and (v), sic, and 9.030(2)(B)(II) sic, Fla. R. App. P. She, apparently, is referring to Rule 9.030(a)(2)(iv) Fla. R. App. P., which deals with an express and direct conflict with a decision of another district court of appeal or of the Supreme Court on the same issue of law, Rule 9.030(a)(2)(A)(v) Fla. R. App. P., which deals with a question certified to be of great public importance, and Rule 9.030(a)(2)(B)(ii) Fla. R. App. P., which refers to orders and judgments of the trial court certified by the District Court of Appeal to require immediate resolution by the Supreme Court and to have a great affect on the proper administration of justice. William Drew Vaughan has filed a Motion to Dismiss Petitioner s Fourth Jurisdictional Brief. William Drew Vaughan was advised that his Motion to Dismiss is to be considered at the time the Court determines jurisdiction. He was ordered to submit an Answer Brief on or before March 12,

7 SUMMARY OF ARGUMENT Norma Vaughan has no jurisdictional right of review by the Supreme Court of Florida. Article V, Section 3, of the Constitution of the State of Florida, and Rule of the Florida Rules of Appellate Procedure, does not allow review by the Supreme Court of the decision by the Fifth District Court of Appeal in its opinion dated February 28,

8 ARGUMENT Norma Vaughan claims in her Argument asserting jurisdiction that her First Amendment right to associate with her husband and her right to stay married are issues allowing review by the Supreme Court. Article V, Section 3, of the Constitution of the State of Florida, and Rule of the Fla. R. App. P., set forth the jurisdiction of the Supreme Court. Norma Vaughan does not seek review of an appellate decision of the Fifth District Court of Appeal dealing with the death penalty, or a district court decision declaring invalid a State Statute or provision of the State Constitution, or a District Court opinion declaring invalid a state statute or provision of the State Constitution, or a District Court opinion dealing with the validation of a bond or a certificate of indebtedness, or an action of a state-wide agency relating to rates or service of utilities. That only leaves the discretionary jurisdiction of the Supreme Court, pursuant to Rule 9.030(a)(2), as follows: Decision of an appellate court that 1. expressly declares valid a state statute 2. expressly construes a provision of the State or Federal Constitution 3. expressly affects a class of constitution or State officers 4. expressly and directly conflicts with the decision of another District Court of Appeal or the Supreme Court on the same question of law. 4

9 5. passes upon a question certified to be of great public importance. 6. are certified to be in direct conflict with decisions of other courts of appeal. 7. are certified by the District Court of Appeal to require immediate resolution by the Supreme Court and be of great public importance, or have a great affect on the proper administration of justice, or 8. questions of law certified by the Supreme Court of the United States, or a United States Court of Appeal, which has no controlling precedent by the Supreme Court of Florida. Norma Vaughan s Jurisdictional Brief sets forth no facts or law that would allow jurisdiction of the Supreme Court. The Order appealed from also sets forth no facts or law that would allow review jurisdiction of the Supreme Court. See Gandy v. State of Florida, 846 So2d 1141 (Fla. 2003), Persaud v. State of Florida, 838 So2d 529 (Fla. 2003), Hill v. Hill, 778 So2d 967 (Fla. 2001), Department of Health and Rehabilitative Services v. National Adopting Counseling Service, Inc., 498 So2d 888 (Fla. 1986), Reaves v. State of Florida, 485 So2d 829 (Fla. 1986), Davis v. Mandau, et al, 410 So2d 915 (Fla. 1981). 5

10 Norma Vaughan merely asserts that she has a fundamental right to be married. She does assert in her Answer to William Drew Vaughan s Motion to Dismiss that jurisdiction of the Supreme Court is explained by, 1. Equity 2. Rule 9.030(2)(iv)(v), sic 3. Probably 9.030(2)(B)(ii), sic Equity is not a reason to grant review jurisdiction to the Supreme Court of Florida. If Norma Vaughan is relying on Rule 9.030(a)(2)(iv), Fla. R. App. P. for Supreme Court jurisdiction, she fails to assert any express and direct conflict of her decision with another district court of appeal decision or the Supreme Court on the same question of law. There not only is no such conflict, but the opinion of the Fifth District Court of Appeal, by its exclusion, does not cite any law or fact that would show an express and direct conflict with the decision of another district Court of Appeal or the Supreme Court on the same question of law, nor is any such conflict law asserted by Norma Vaughan to this Court. If Norma Vaughan is referring to Rule 9.030(a)(2)(v) Fla. R. App. P., for Supreme Court jurisdiction, she fails to assert the existence of a question certified 6

11 to be of great public importance by the Fifth District Court of Appeal, nor is such set forth in the appellate decision. If Norma Vaughan is referring to Rule 9.030(a)(2)(B)(ii) Fla. R. App. P., for Supreme Court jurisdiction, she fails to assert the existence of an order or judgment of a trial court certified by the District Court of Appeal, in which the appeal is pending, to require immediate resolution by the Supreme Court and to have great affect on the proper administration of justice. None is stated by the District Court of Appeal. As stated by the District Court of Appeal in its opinion, Norma Vaughan s suit appears to be in the nature of an action to set aside a Final Judgment dissolving her prior marriage to Buford Vaughan. The Court of Appeal found that there was no basis in law or fact for the suit, as did the trial court. As a matter of fact, Norma Vaughan was divorced from her prior husband, Buford Vaughan. He died May 30, Norma Vaughan s appeal of that Dissolution of Marriage was dismissed by the Fifth District Court of Appeal shortly thereafter. No further action was taken on that dismissal until it was brought up in this lower court litigation, some 6 years later. 7

12 CONCLUSION Not only has Norma Vaughan failed to assert any reason for jurisdiction of the Supreme Court, but also the Fifth District Court of Appeal opinion fails to show the existence of jurisdiction on its face, and no fact or law is in existence that would allow discretionary jurisdiction of the Supreme Court. Jurisdiction of the Supreme Court of Florida should be denied and application for review by the Supreme Court should be, in turn, denied by Norma Vaughan. Respectfully Submitted, GREGORY M. WILSON ATTORNEY AT LAW 29 East Pine Street Orlando, Florida (407) FAX: (407) Fl. Bar No: Attorney for Respondent 8

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was furnished via U.S. Mail to: Norma Vaughan, 151 N.E. Triplett Drive, Casselberry, Florida 32707; and Donald Scarlett, Esquire, 1003 Concord, Orlando, Florida 32803, this the day of March, GREGORY M. WILSON ATTORNEY AT LAW 29 East Pine Street Orlando, Florida (407) FAX: (407) Fl. Bar No: Attorney for Respondent CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the Reply Brief complies with the font requirements of Rule of the Florida Rules of Appellate Procedure. DATED, this the day of March, GREGORY M. WILSON ATTORNEY AT LAW 29 East Pine Street Orlando, Florida (407) FAX: (407) Fl. Bar No: Attorney for Respondent 9