SUPREME COURT OF FLORIDA. PETITIONER, CASE NO.: SC Lower Tribunal No.: 5D05- AMENDED PETITIONER S BRIEF ON JURISDICTION

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1 SUPREME COURT OF FLORIDA ELIAS MORALES, ET AL vs. PETITIONER, CASE NO.: SC Lower Tribunal No.: 5D05- LETICIA J. MARQUES, RESPONDENT. / AMENDED PETITIONER S BRIEF ON JURISDICTION Elias Morales, Pro Se PO Box 882 Windermere, Florida (407) Dahlia Morales, Pro Se PO Box 882 Windermere, Florida (407)

2 TABLE OF CONTENTS Table of Authorities...3 Statement of the Case...4 Summary of Argument...4 ARGUMENT THIS HONORABLE COURT HAS JURISDICTION IN THIS CASE PURSUANT TO ART. V. Section3(b)(3), FLA. CONST. (1980). BECAUSE THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT AS WELL AS THOSE OF THE FIRST, SECOND, FOURTH, AND FIFTH DISTRICT COURTS OF APPEALS ON THE SAME QUESTIONS OF LAW...6 A. EXPRESS CONFLICT...7 B. DIRECT CONFLICT...8 Conclusion Certificate of Service...11 Certificate of Typeface

3 Compliance...11 Appendix......A CASE Page(s) TABLE OF AUTHORITIES Andrews v. Florida Parole Comm n, 768 So.2d City of Gainesville v. State, 778 So.2d 519(Fla. App. 1 DCA 2001)... 5,7 City of Jacksonville v. Florida First National Bank of Jacksonville, 339 So. 2d 632 (Fla.1976)... 9 Faro v.romani, 641 So.2d 69 (Fla.1994)...10 Nichols v. Preiser, 849 So.2d 478(Fla.2nd DCA)...10 Provence v. Palm Beach Taverns, Inc., 678 So.2d 1022 (Fla. App. 4 DCA, 2

4 1996)...5,10 Sobi v. Fairfield Resorts, 846 So.2d 1204 (Fla.5th DCA 2003)...5,10 The Florida Star v. B.J.F., 530 So.2d 286, 288 (Fla.1988)...6,11 Weekley v.knight, 116 Fla.721 (1934)...4,8 FLORIDA CONSTITUTION, FLORIDA STATUTES AND RULES Art.V, section 3(b)(3), Fla.Const. (1980)...4,6,8,10 Florida Rules of Appellate Procedure 9.030(a)(2))iv)...4 Fla. Stat STATEMENT OF THE CASE In the final order of the Fifth District Court of Appeal Opinion filed May 12, 2006, dismissing Petitioner s civil rights complaint for legal malpractice against attorney Leticia Marques( who abandoned Petitioner s case) by the Affirming,and Remanded For Determination of Fees. The Fifth District Court of Appeal ignored the Supreme Court of Florida decision that: One has a cause of action ex contractu against an attorney who neglects to perform the services that

5 the attorney agrees to perform for a client or which by implication the attorney agrees to perform when the attorney accepts employment by a client. See: Weekley v. Knight, 116 Fla.721 (1934). In addition, the Fifth District Court of Appeal also denied, on the same question of law, Petititioner s timely Motion for Rehearing and Alternative Application to Transfer to the Supreme Court of Florida, on June 12, The Petititioner then filed his Notice to Invoke Discretionary Jurisdiction pursuant to Rule 9.030(a)(2)(A)(iv) of the Florida Rules of Appellant Procedure on 06/27/2006. SUMMARY OF ARGUMENT This Honorable Court has both subject matter and discretionary jurisdiction over this matter pursuant to Art. V. section 3(b)(3), Fla. Const.(1980), because the decision below expressly and directly conflicts with this Honorable Courts 4 decisions in Weekley v. Knight,116 Fla. 721 ( 1934); Faro v. Romani, 641 So.2d 69 (Fla.1994) and as well as the decisions of the First, Second, Fourth, and Fifth District Court of Appeal in City of Gainesville v.state, 778 So. 2d 519 (Fla.App. 1 DCA.2001); Nichols v Preiser,849 So.2d. 478 (Fla.2d DCA 2003); Provence v.palm Beach Taverns, Inc.,676 So.2d 1022 (Fla.App.4 Dist. 1996) and Sobi v. Fairfield Resorts,846 So.2d 1204 (Fla. 5 th DCA 2003)on the same question of law,to wit: the exclusivity of the subject matter jurisdiction of the 5 th DCA

6 final order is operative for this Court. Specifically, in the decision below, the Fifth District Court of Appeal ruled in its final disposition that: Marques, (Respondent) has filed a motion for appellate attorney s fees pursuant to section , Florida Statutes, arguing that the appeal is frivolous. We agree.? Whether a complaint should be dismissed is a question of law. Not of acclamation. On appeal of a judgment granting a motion to dismiss, the standard of review is de novo. See Andrews v. Florida Comm n, 768 So.2d 1257.The Supreme Court of Florida and the First, Second, Fourth and Fifth District Courts of Appeals, all have state that [A] court s gaze is limited to the four corners of the complaint, including the attachments incorporated in it, and all well pleaded allegations are taken as true.. A reviewing court operates under the same constraints. 5 ARGUMENT THIS HONORABLE COURT HAS JURISDICTION IN THIS CASE PURSUANT TO ART V. SECTION 3(b)(3), FLA. CONST. (1980) BECAUSE THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT AS WELL AS THOSE OF THE FIRST, SECOND, FOURTH AND FIFTH DISTRICT COURTS OF APPEAL ON THE SAME QUESTION OF LAW. As this Honorable Court is well aware, Art.V. section 3(b)(3), Fla.Const.(1980)

7 provides that the Florida Supreme Court may review any decision of a district court to appeal...that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. As this Honorable Court explained in The Florida Star v. B.J.F, 530 So. 2d 286, 288 (Fla.1988), this constitutional provision creates and defines two separate concepts. The first is a general grant of discretionary subject-matter jurisdiction, and the second is a constitutional command as to how the discretion itself may be exercised. In effect, the second is a limiting principle dictated to this Court by the people of Florida. However, this Court also stated that the Florida Supreme Court, [a]s the final authority on the meaning of the Florida Constitution...has the final and inherent power to determine what constitute express and direct conflict. Id. (citation omitted). Below, the Petitioner separately addresses the three requirements for invoking section 3(b)(3) jurisdiction as they apply to this case. 6 A. EXPRESS CONFLICT The opinion dated May 12, 2006, constitute a prima facie express conflict which allows this Honorable Court to exercise its jurisdiction. In making this determination, the 5 th DCA and the trial court did not confined itself to Petitioner s four corners of the complaint.when an appellate court reviews an order determining the sufficiency of a complaint, the appellate court

8 must apply the same principles as the trial court.city of Gainesville v.state Dept.of Transp., 778 So. 2d 519 (Fla. 1 st DCA 2001). Since the year 2003, Respondent did not mail, in writing a disengagement letter to Petitioner, nor Respondent did not filed said complaint, nor prosecuted the case; Florida Middle District Court did not have a case number nor any paper activity. Subsequently, the only letter, since 2003, that Petitioner received from Respondent was a letter in the summer of 2004 of her pending vacation and emergency contact person. Respondent abandoned her contractual duty to Petitioner.Respondent did not request court permission to withdraw, nor informed Petitioner of her abandonment. As a result, Petitioners rights of action were lost or severely compromised. Thus, the Petitioner respectfully asserts that the expressly requirement of Art. V, section 3(b)(3) of the Fla. Const. is satisfied in this matter. 7 B. DIRECT CONFLICT Art. V, section 3(b)(3), Fla. Const., in addition to requiring an express conflict between the decision of one district court and that of either the Supreme Court or another district court, also requires that there be a direct conflict. In City of Jacksonville v. Florida First National Bank of Jacksonville, 339 So.2d 632, 633 (Fla.1976),

9 This Honorable Court explained that it had previously identified two basic forms of decisional conflict which properly trigger the exercise of our jurisdiction under Art.V, section 3(b)(3), Fla.Const.. Such a conflict may exist either (1) where an announced rule of law conflicts other appellate expression of law, or (2) where a rule of law is applied to produce a different result in a case which involves substantially the same controlling facts as a prior case. The Petitioner respectfully asserts that the instant case involves an announce rule of law that conflicts with other appellate expression of law. The 5 th DCA concede that there is a direct conflict. That is, a contrary view has been expressed. We further note that one of our sister: courts has questioned its ability to assess attorney s fees against indigent and/or pro se litigants in light of their right of access to courts. 8 In Faro v. Romani, 641 So.2d 69 (Fla.1994), the Florida Supreme Court held that when an attorney who represents a client on a contingency basis voluntarily withdraws from representation before the contigency occurs, the attorney forfeits all rights to compensation. Id.at 71. When the lawyer voluntarily withdraws, terminating the attorney-client relationship, the contingency agreement

10 likewise terminates. Petitioner have retained Respondent to represent Mr. and Mrs. Morales on a contingency basis as validated by Petitioner s and Respondents mutual assent during the formation of the contract. To state a claim for legal malpractice, a plaintiff must have some valid claim that is compromised by the negligent actions or omissions of her attorney. See. Nichols v.preiser,849 So.2d 478 (Fla.2nd DCA). The Fourth District echoed the language of Faro and Nichols, which states that: The trial court must look only to the four corners of the complaint and the allegations contained therein should be taken as true without regard to the pleader s ability to prove the same. Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022 (Fla.App. 4 Dist. 1996). In Sobi v. Fairfield Resorts, 846 So.2d 1204 the Fifth District went on to discuss: In ruling on Fairfield s motion to dismiss for failure to state a cause of action, improperly considered matters outside the four corners of the complaint. Concluding that it did, we reverse and remand for further consideration. 9 Based on the foregoing, the Petitioner respectfully asserts that the directly requirement of Art. V, section 3(b)(3), Fla. Const. is satisfied in this matter. CONCLUSION Based on the foregoing, the Petitioner respectfully asserts that this Honorable Court has subject matter jurisdiction in this matter, would be well within its discretion to assert its jurisdiction over it pursuant to Art. V, section 3(b)3

11 Fla. Const., and that doing so would not fall outside the restriction on the exercise of this discretion as outlined in The Florida Star v. B.J.F., 530 So.2c 286, 288 (Fla.1988). The Petitioner also respectfully request that this Honorable Court exercise its discretionary jurisdiction and address the substantive issue of whether the Fifth District Court of Appeal opinion and disposition of Petitioner s case and the review of the presenting legal malpractice case and denial of Petitioner s access to court is consistent with the Florida Constitution and the United States Constitution. Dated: This 7 th day of August, 2006 Respectfully submitted, 10 Elias Morales Elias Morales CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by regular U.S. Mail on this 7 th day of August, 2006 to: William J.McClellan, Esq., 601 N. Magnolia Avenue, Suite 300, Orlando, FL Elias Morales Elias Morales PO Box 882 Windermere, FL (407)

12 CERTIFICATE OF TYPERFACE COMPLIANCE I HEREBY CERTIFY that this brief was computer-generated using Times New Roman fourteen point font, and hereby complies with the font standard as required by Fla. R. App. P for computer-generated briefs. Elias Morales Elias Morales PO Box 882 Windermere, FL (407)