IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT. RECEIVED, 2/18/2017 8:05 PM, Mary Cay Blanks, Third District Court of Appeal

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1 IN THE DISTRICT COURT OF APPEAL OF FLORIDA RECEIVED, 2/18/2017 8:05 PM, Mary Cay Blanks, Third District Court of Appeal THIRD DISTRICT FRANCISCO LACOUTURE, CASE NO.: 3D Appellant(s)/Petitioner(s), L.T. NO.: vs IN RE: DANIEL FRANCISCO LACOUTURE, ET AL., Appellee(s)/Respondent(s), BRIEF Judge Muir argument and decision has no fundamental of law. on May, 28, 2015 Under Mayra authorization for Michael Arriola to drive Mayra s 2007 dodge grand caravan, Michael was driving on south bound turnpike over the speed limit when Michael rear ended the tractor trailer in front of him, killing my son Daniel and rendering Katerina paraplegic.(see Florida crash report number FHPK15OFF and Arriola traffic citation # A4WFZVE, Case Number: 2015TR A. Also in St Lucie county) Michael Arriola being the driver is in direct liability to me (Francisco lacouture) for killing my son Daniel and in direct liability to my daughters (Katerina lacouture and Arianna lacouture) for their personal injuries It comes now that under the vicariously liable instrumentally doctrine, common law doctrine which provides that the owner of an inherently dangerous tool is liable for any injuries caused by that tool's operation. The Florida Supreme Court in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441,

2 469 (Fla. 1920), extended the doctrine to motor vehicles, holding that owners may be held accountable for any damages suffered by third parties as the result of the negligent operation of their vehicles, when they are driven by others with their knowledge and consent. Michael is directly liable to me (francisco lacouture) for the death of my son Daniel and in direct liable to my daughters personal injuries, Katrina lacouture and Arianna lacouture. Mayra being the vehicle owner negligently driven by Michael with Mayra authorization under the superior court instrumentally doctrine mentioned above is vicariously liable to me (Francisco Lacouture) for the death of my son Daniel and vicariously liable as well for my daughters (Katrina lacouture and Arianna lacouture) personal injuries. Mayra vicariously responsible for the death of my son and my daughter injuries came to appoint her cousin Alejandro Garcia to file wrongful death/personal injuries claims for all parties in different cases before the estate was even open ( one For Mayra in St. Lucie County Case Number: 2015CA001110) and ( one for Michael in St Lucie Case Number: 2015CA001720) The wrongful death/injury claims went underway without conflict of interest waiver and attorney client agreement, the estate wasn t open yet when it was supposed to be open before filling lawsuit and the estate was supposed to have a free of conflict, adverse interest personal representative to pursue everyone for the wrongful death/injury, including Mayra lacouture and Michael Arriola, both torfeasors.

3 being me (Francisco lacouture) sole survivor for the estate of Daniel under fl. Statute (1) under Florida wrongful death act. Under unknown/unclear circumstances, day(s), hearing(s) Judge Muir without my asking me or if I would have any objection to appoint Mayra as personal representative without giving me the opportunity to object or pick my own personal representative a require by Fla.Sts (b) 2. Judge Muir appointed Mayra as my personal representative to go after no wrongful death claim or personal injuries claims, direct violation of my 22, 6 Florida Constitution rights. I cannot file for wrongful death action against Mayra and Michael and take Mayra and Michael to trial before a jury because Mayra wont self-lawsuit or lawsuit Michael for the wrongful death of my son Daniel, not only my 22, 6 of the Florida constitution are being violated by judge Muir by my daughters 22,6 are also being violated from such appointment, Katerina lacouture and Arianna lacouture have the right to pursue Mayra and Michael for their own personal injuries claims. A curator should it have been appointed to make claims and bring any and all actions necessary under Fla. Stat against tortfeasors Mayra and Michael to recover the benefits for my daughters and for the benefits of the decedent s survivor and state all damages as specified in the Florida wrongful death act. Fraud on the Court as a Basis for Dismissal with Prejudice or Default The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with

4 the judicial system s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party s claim or defense. Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)... Destafano v. State Farm Mutual Automobile Insurance Co., 28 Fla. L. Weekly D1077 (Fla. 1st DCA April 28, 2003), and Long v. Swofford, 805 So. 2d 882 (Fla. 3d DCA 2003), have been more favorably disposed to affirm dismissals with prejudice for serious, palpable fraud on the court. Of course, therein lies the rub. Basic standards governing fraud on the court are reasonably straightforward. As set forth in Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998): Offender, vicarious tortfeasors Mayra lacouture through her attorney Edward Holodak filed lies and omitted statements that goes to the heart of the both cases facts in Application For Appointment as Guardian e-filling on 04/05/2016, in re Lacouture Katerina The lower tribunal case number ; running together with The lower tribunal case number Also, see SUPPORTING EVIDENCE PERJURY IN OFFICIAL PROCEEDINGS e-filing e-filed 01/18/ ; Mayra s arrest report for FALSE STATEMENT TO LAW ENFORCEMENT Fla. Sts in Osceola County $500.00usd bond posted. SUPPORTING EVIDENCE PERJURY IN OFFICIAL PROCEEDINGS e-filling e-filed 02/03/2017. the two clear and convincing evidence above mention shows that Mayra was arrested for false statement to law enforcement officer, posted bond, was judicially involve in dependency court for termination of our parental rights, clear and convincing evidence has been shown to judge Muir

5 for Dismissal with prejudice for Mayra s claims, in both mentions cases. However, judge Muir has ignored the presented evidence as clear Fraud upon the court for Dismissal with prejudice. the offending litigant Mayra Lacouture should not be allowed to prosper in the legal system, Dismissal with prejudice has long been available as the ultimate civil sanction against litigation misconduct. The trial court has the inherent authority, to dismiss an action when a petioner has perpetrated a fraud on the court, Kornblum v. Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992). Nothing in the elements of fraud on the court or its implementation tilts the playing field in favor of defendants Mayra Lacouture. When I refer to fraud, I am not just referring to forge document as judge Muir refer to, I am referring to fraud on every context, aspect and definition of fraud, committed by Mayra Lacouture; Alejandro Garcia; Edward Holodak; Frank Hollander. wildly speaking to fraud but not limited to the following: Fraud A false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.

6 Extrinsic fraud n. fraudulent acts which keep a person from obtaining information about his/her rights to enforce a contract or getting evidence to defend against a lawsuit. This could include destroying evidence or misleading an ignorant person about the right to sue. Intrinsic fraud n. an intentionally false representation (lie) which is part of the fraud and can be considered in determining general and punitive damages. Fraud in the inducement n. the use of deceit or trick to cause someone to act to his/her disadvantage, such as signing an agreement or deeding away real property. The heart of this type of fraud is misleading the other party as to the facts upon which he/she will base his/her decision to act. Frank Hollander was hire on a contingency agreement with a signed agreement of 33% payment from any recovery of the estate of Daniel and it comes now Judge Muir is giving Frank Hollander the sum of $ usd without me getting any money from the settlement, the contract is clear. Frank knew from day one, I am all against Mayra for killing my son Daniel and for Katerina s catastrophic injuries and ready to pursuit Mayra and Michael for all claims. I find myself to discharge Frank for breaching his fidutiary duty by concealing, not disclosing tangible information, evidence, by slowly and very ambiguously getting to me to agree to hurtful actions for the best interest in the cases before this court and St Lucie county court. It comes now that I advised Frank of Mayra arrest in 2012, judicially termination of parental rights before a

7 dependency court in Miami in 2004 and Mayra s attempted suicide on or about 2000 to 2001 which where Mayra end up been institutionalized for a about week and then release for two month behavioral therapies, it happened that Frank never released this information to the court. Frank deter me from me being in court, direct violation of section 21;24 of Florida Constitution and Fla,Sts so far by not inviting me to be present in court the day(s) and hearing(s) Mayra was fraudulent appointed by Judge Muir as personal representative for the estate of Daniel without judge Muir asking me if I(sole survivor) have any objection of such appointment, I see Frank did some sort of objection to Mayra s fraudulent appointment as Personal representative but Frank never disclosing, concealing, omitting the truthful and central facts of the cases that s goes to the heart of claims to defend my claims. Frank Hollander mislead me like a ignorant person about the right to sue Mayra and Michael, Frank declined getting evidence in favor to my interest (Mayra arrest report 2012,mental record and dependency case, Frank also decline to get me the Daniel life insurance policy number where Mayra is the beneficiary ( judge Muir estates without clear or convincing evidence on the record in her final order approving distribution of settlement proceeds that there was no life insurance at the time of the death insuring Daniel lacouture, I saw the insurance policy last time in 2011). Frank never objected to Judge Muir false statement on number 6 Francisco lacouture told Mayra lacouture to return to the United States with the children and that I did not want them with him any longer this statement it is false, prejudice statement from judge Muir to sustain without clear and convincing evidence, see e-filling , e-filed 02/12/2017. Frank never objected number 8 of the final order approving distribution of settlement proceeds where judge Muir omitted that Mayra is the vehicle owner and was driven by Michael on the day of the crash with Mayra authorization which it resulted in the death of Daniel lacouture and catastrophic injuries to Katerina lacouture. Frank decline to object

8 judge Muir from false statements, frank failed to articulate judge Muir has fail to corroborate whether or not there was not a life insure at the time Daniel died, I demanded Frank to corroborate with clear and convincing evidence there was or not a life insurance for Daniel lacouture. Frank became insensibly persistence in signing documents apparently in good faith, he will pushed 10 in less than 15 min apparently for me to check any error and approve it but, I now believe that there is fabrication of document and false statements frank as of right now has not disclosed. Frank was pushing to get a notary to swear me in with the intent to give up all my rights and legalize any and all fabricated documentation and false statement for the best interest of all fraudsters, that includes him for failing to enforce and informed me of all and any of my rights in the mention cases before, therefore I am waiting for any documentation that contradicts me in regards to my best interest for both cases. Frank fidutiary duty was to maintain my rights and stop Mayra from succeeding in the case base in fraud fact to deter this court from fully discovering the central fact of the cases. Frank breached his duty own to me a s sole survivor, parent/father next in friend of Katerina lacouture and Arianna lacouture, Frank was agreeing with everything come to close this cases with the multiple law violation and law sues I want to pursue, Frank intention to now not fully disclose the fraud perpetrated upon this court goes against my interest. Frank was intending and being permissive in benefit Mayra, Alejandro, Edward from consoling their fraudulent claims, omissions, misrepresentation, false statements freely be perpetrated without Frank Hollander opposition to protect my rights, frank became part of the fraud by not fully disclosing with clear and convincing evidence all the facts I uncovered to the court. It is clear now that frank had a curtain and wall a door locked to deter me from disclose all the fraud perpetrated, object to Mayra and for me to pursuit Mayra and Michael for all claims. It was frank free,

9 mandated fidutiary duty to enforce my rights for my best interest, it was contrary to my interest allow Mayra to perpetrate fraud and assist Mayra s fraudulent responsibility as personal representative position. It was frank indisputable duty to deter any and all fraud from any and all parties involve. It was Frank fiduciary duty to present any and all evidence including evidence to deter fraud imposed to the lower court the day of the hearing (14/15/2016 which I was not invited to be present) to avoid any and all fraudulent final and non final orders, intentional omissions of evidence for the best interest of Mayra Alejandro and Holodak to succeed in their fraudulent allegations before the lower court. Frank should it never allow Mayra to succeed in all of her claims base on the fraud she had perpetrated with help of her attorneys. Frank declined to change the court course of action by declining to get all evidence regarding to fraud and have it exposed and presented it in the evidentiary hearing held before the court, evidentiary hearing that give raised to fraudulent content in the final order signed by judge Muir, final order that contains multiple violation of fundamental rights due to fraud imposed and ignore by the lower court. Frank has conflict out by declining and failing to take a full adversary objection position, in defending the two cases Frank was fully endowed to act in protection and enforcement of any of my rights and for my best interest. Frank action contradict his Previous statement in its motions on the lower court records, example: Francisco is entitle to benefit from the insurance proceed but frank s action shows total different, even tough by law I'm entitle to recover money from the accident.

10 Clear and convicting evidence has been submitted to the court to corroborate both cases has been founded in fraud but, in the event the court for any reason object the evidence to corroborate fraud upon the court, I have asked judge Muir to request Mayra, her fingerprint to corroborate her arrest record, as of today judge Muir has ignore my petition of finger print non professional guardian, I filed before the court. I respectfully request this superior court not only to deny the validity of the non final order but to Also deter any and all other fraudulent order, the lower court is full of fraud as whole and has been corrupted by Mayra and her attorneys., I apposed all action in theses case for fraud upon the court with the clear intent for injustice upon the victims. It is requested to this court not only to dismiss the non final order but to dismiss the entire action, claims Mayra has establish so far before the lower court. It requested to this court to allow me to enforce my fundamental rights and pursue Mayra and Michael for the wrongful action. It is here requested to this higher court to dismiss the entire action before the lower court where Mayra has imposed fraud to be appointed as personal representative estate of Daniel and guardianship of Katerina. I wish to exercise my right to choose for a free of adverse and conflict of interest personal representative to pursue Mayra and Michael for all claim and take them before a jury trial. It requested to this higher court to let me benefit from the insurance proceeds since I'm entitle by law to befit from the insurance proceeds. It requested to this higher court to dismiss judge Muir fraudulent apportion of settlement proceed due to fraud upon the lower court. I request this court to give me free will to enforce my right 21, 22, 6 of the Florida constitution. It is Also requested to this court to waive appeal fee, please see application indigent status, I am student no work etc.it requested to this court to deter any and all

11 fraud judge Muir. Frank ignored to deter as whole.it requested to this higher court to grant all of the above. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the forgoing was served this 18 th day of February,2017 via Florida Court E-filling porta, upon: edward@holodakpa.com, pleadings@klapholzpa.com, dml@klapholzpa.com;7951 SW 6TH Street,ste. 210,plantation Florida And Alejandro Garcia, Steinger,Iscoe&Green, 2400 E Commercial Blvd., Ste. 900, Fort Lauderdale, FL , agarcia@injurylawyers.com; Joseph Klapholz, jklap@klapholzpa.com, Frank L. Hollander, frank@hollander.lawyer, frankh99@aol.com /S/ Francisco Lacouture