IN THE SUPREME COURT OF FLORIDA CASE NO. SC IN RE: THE ESTATE OF MARY T. OSCEOLA, Petitioners, vs. PETTIES OSCEOLA, SR.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC IN RE: THE ESTATE OF MARY T. OSCEOLA, Petitioners, vs. PETTIES OSCEOLA, SR., Respondent APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT CASE NO. 3D RESPONDENT S BRIEF ON JURISDICTION WOODWARD, PIRES & LOMBARDO, P.A Tamiami Trail North, Suite 200 Naples, Florida Steven V. Blount

2 Florida Bar No Telephone: (239) Facsimile: (239)

3 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii STATEMENT OF FACTS...1 SUMMARY OF ARGUMENT...3 ARGUMENT THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY CONSTRUE A PROVISION OF THE STATE CONSTITUTION AND THEREFORE THERE IS NO BASIS TO SUPPORT PETITIONER S REQUEST TO INVOKE THIS COURT S JURISDICTION...4 CONCLUSION CERTIFICATE OF SERVICE...8 CERTIFICATE OF COMPLIANCE FOR TYPE SIZE AND STYLE...9 i

4 TABLE OF AUTHORITIES Cases Armstrong v. City of Tampa, 106 So.2d 407 (Fla. 1958)...5,6,7 Ogle v. Pepin, 273 So.2d 391 (Fla. 1973)...6 Osceola v. Osceola, 744 So.2d 1251 (Fla. 3d DCA 1999)...1,2,4 Osceola v. Osceola, 870 So.2d 174 (Fla. 3d DCA 2004)...1,5 Rojas v. State, 288 So.2d 234 (Fla. 1973)...5,6 State ex rel. Sentinel Star Co. v. Lambreth, 192 So.2d 518 (Fla. 4 th DCA 1966)...6 STATUTES and CONSTITUTIONAL PROVISIONS Article V, Section 3(b), Florida Constitution...4 Article V, Section 20 of the Florida Constitution... 1,2,5,6 Section (2)(b), Florida Statutes ii

5 (2003)...1,2,5 Rule (a)(2)(a)(ii), Florida Rule of Appellate Procedure...4 STATEMENT OF FACTS This Petition stems from the probate of the Estate of Mary T. Osceola and the Third District Court s reversal of an order dismissing said action for lack of subject matter jurisdiction. (Appendix-1) The decedent s estate consists of personal property including a motel, restaurant, craft center, air boat tour premises and house located on State owned land several hundred feet north of the Everglades National Park and the Miccosukee Indian Reservation. Osceola v. Osceola, 744 So.2d 1251 (Fla. 3d DCA 1999). The Third District Court ruled the Trial Court does have jurisdiction over the subject action pursuant to Article V, Section 20 of the Florida Constitution and section (2)(b), Florida Statutes (2003). Osceola v. Osceola, 870 So.2d 174 (Fla. 3d DCA 2004). The Trial Court has twice erroneously dismissed said action for lack of subject matter jurisdiction, the earlier dismissal having likewise been reversed by the 1

6 Third District Court of Appeals. Osceola v. Osceola, 744 So.2d 1251 (Fla. 3d DCA 1999). In 1999, the Third District Court ruled: The uncontroverted evidence in this case established that the subject property does not lie within a dependent Indian community or Indian country. In fact, the subject property belongs to the State of Florida and the circuit court has subject matter jurisdiction to handle the present litigation. Osceola v. Osceola,, 744 So.2d 1251, 1252 (Fla. 3d DCA 1999). The 1999 decision was not appealed. The Third District Court further summarized the evidence in the subject action and the fact that the decedent was not a member of any tribe at the time of her death. Osceola v. Osceola, 744 So.2d 1251, 1252 (Fla. 3d DCA 1999). Following remand, the Respondent reopened the administration of decedent s estate. The decedent s adult children again moved to dismiss the subject action for lack of subject matter jurisdiction. The children asserted that the State of Florida granted the Seminole Indians a license to use the subject property and that this purported license divested the Circuit Court of jurisdiction over the subject area. The Trial Court erroneously agreed, finding that a license had been created and that the license divested the State Circuit Court of jurisdiction over the instant action. In reversing the Trial Court s dismissal, the Third District Court found it 2

7 unnecessary to rule on the validity of the license agreement, finding instead that, whether a license exists or not, the Circuit Court has jurisdiction over the instant matter pursuant to Article V, Section 20 of the Florida Constitution and section (2)(b), Florida Statutes (2003). SUMMARY OF ARGUMENT The Third District Court s opinion does not expressly construe a provision of the state or federal constitution as contended by the Petitioner and as would be required for this Court to exercise discretionary jurisdiction under Rule 9.030(a)(2)(A)(ii) Florida Rules of Appellate Procedure. Applying a constitutional provision is not synonymous with construing a constitutional provision and is not a basis for Supreme Court s discretionary jurisdiction. As such, the Petitioner s request for this Court to exercise discretionary jurisdiction over the instant matter must be denied. 3

8 ARGUMENT THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY CONSTRUE A PROVISION OF THE STATE CONSTITUTION AND THEREFORE THERE IS NO BASIS TO SUPPORT PETITIONER S REQUEST TO INVOKE THIS COURT S JURISDICTION This court can not exercise discretionary jurisdiction over the subject action pursuant to Article V, Section 3(b) of the Florida Constitution or Rule (a)(2)(a)(ii) of the Florida Rules of Appellate Procedure, 1 because the Third District Court opinion did not expressly construe any provision of the state or federal constitution to invoke such jurisdiction. The Petitioners attempts to argue the merits of their case in their jurisdictional brief and to sway this Court with irrelevant and false claims of intrusion on Indian Sovereignty do not create a basis for this Court s discretionary jurisdiction. 2 In the present case the Third District Court merely applied Article V, 1 Rule 9.030(a)(2)(A)(ii) Florida Rules of Appellate Procedure provides in relevant part: The discretionary jurisdiction of the supreme court may be sought to review (A) decisions of district courts of appeal that... (ii) expressly construe a provision of the state or federal constitution 2 Despite Petitioner s claims, it is the law of the case that the decedent was not affiliated with any tribe, and the subject property lies outside any Indian reservation on land owned by the State of Florida. Osceola v. Osceola, 744 So.2d 1251, 1252 (Fla. 3d DCA 1999). 4

9 Section 20 of the Florida Constitution and section (2)(b), Florida Statutes (2003) to the facts at hand and held as follows: Article V, Section 20 of the Florida Constitution, and section (2)(b), Florida Statutes (2003), provide that circuit courts shall have exclusive jurisdiction over proceedings relating to the settlement of estates of decedents We find that the language of the purported license itself does nothing to divest the circuit court of this jurisdiction. To the contrary, the limiting language contained in the purported license seeks to preserve the State s jurisdiction over this property and only allows the Indians to use, occupy and enjoy the committed areas as tribal lands, consistent with all limitations set forth, not in conflict with laws of the United States and the State of Florida. Osceola v. Osceola, 870 So.2d 174 (Fla. 3d DCA 2004). The above language is merely the application of a constitutional provision. The Third District court did not expressly construe the Florida Constitution and therefore there is no basis for Supreme Court jurisdiction. Applying a constitutional provision is not synonymous with construing a constitutional provision and the former ( applying ) is not a basis for Supreme Court s direct appeals jurisdiction, while express construction is. Rojas v. State, 288 So.2d 234 (Fla. 1973). This Court defined construing in its constitutional sense in the case of Armstrong v. City of Tampa, 106 So.2d 407 (Fla. 1958). In Armstrong, this court held that an opinion or judgment does not construe a provision of the 5

10 Constitution unless it undertakes to explain, define, or otherwise eliminate existing doubts arising from language or terms of a constitutional provision. Id at 409. The Third District Court did not undertake to explain, define, or otherwise eliminate existing doubts arising from the language or terms of Article V, Section 20 of the Florida Constitution. As such, and pursuant to this Court s decision in Armstrong the Petitioner s request for this Court to exercise its jurisdiction must be denied. Although not directly stating such, the Petitioners appear to be arguing in their jurisdictional brief that the District Court s construction of Article V, Section 20 is inherent in its decision. This court has held however that the Armstrong rule above, rather than the inherency doctrine relative to a statute, should apply to district court decisions which construe a provision of the state or federal constitution. Ogle v. Pepin, 273 So.2d 391, 392 (Fla. 1973), (See also State ex rel. Sentinel Star Co. v. Lambreth, 192 So.2d 518,522 (Fla. 4 th DCA 1966) it is not sufficient to confer jurisdiction on the Supreme Court that there was inherent in the judgment appealed, the construction of a controlling provision of the constitution. ). In revitalizing the Armstrong rule in Ogle this Court specifically stated: we do not have jurisdiction to decide this appeal because the decision 6

11 below failed to explain or define any constitutional terms or language as required by the Armstrong rule revitalized here. Id. at 393. Since the decision below in the present case did not explain or define any constitutional terms or language as required by the Armstrong rule, (and the inherency doctrine has no application to the instant action), this Court does not have jurisdiction over the instant action. 7

12 CONCLUSION In light of the foregoing arguments, citations and authorities outlined above, Florida Supreme Court discretionary jurisdiction does not lie in this action and the instant petition should be dismissed. CERTIFICATE OF SERVICE I hereby certify a true and accurate copy of the foregoing has been furnished by regular U.S. Mail to: David Howard Goldberg, Esq., 900 S.W. Second Avenue, Miami, Florida 33130, Keith D. Diamond, Esq., Bank Atlantic Building, Fourth Floor, 46 Southwest First Street,Miami, Florida 33130, and Bambi Blum, Esq. 46 S.W. 1 st Street, Fourth Floor, Miami, Florida 33130, this day of, WOODWARD, PIRES & LOMBARDO, P.A Tamiami Trail, North, Ste 200 Naples, Florida Telephone (239) Facsimile (239) By: Steven V. Blount Florida Bar No.: Attorney for Respondent 8

13 CERTIFICATE OF TYPE SIZE AND STYLE I HEREBY CERTIFY that this Respondent s Brief on Jurisdiction complies with the font requirements of Rule 9.201(a)(2) of the Florida Rules of Appellate Procedure. The font utilized by the undersigned is Times New Roman, 14 point font. By: Steven V. Blount, Esq. FLA Bar No.: