IN THE SUPREME COURT OF FLORIDA S.CT. CASE NO.: 3D DCA NO.: 12-2671 L.T. CASE NO.: 09-12436 DAVID LIBRACE Petitioner/Plaintiff Vs. WINSTON TOWERS 200 ASSOCIATION, INC., ELITE GUARD, INC., AND BETTER MAINTENANCE, INC. Respondent/Defendant(s) PETITIONER BRIEF ON DISCRETIONARY JURIS David Librace, Pro-Se Jermaine Lee Post Office Box 691 Cozen O'Connor Helena, Arkansas 72342 Attorneys for Winston Towers Tel. (786) 342-4032 200 South Biscayne Boulevard Email: dlibrace@yahoo.com Suite 4410 Miami, Florida 33131-2303 Tel. (305) 704-5940 Fax (305) 704-5955 jalee@cozen.com
Warren Kwavnick Cooney, Trybus, Kwavnick, Peets Attorneys for Better Maintenance Services, Inc. 1600 West Commercial Boulevard Suite 200 Fort Lauderdale, Florida 33309 Tel. (954) 568-6669 Fax (954) 568-0085 Email :ceotionraictkplaw.com Sabrina Levin Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP. Attorney for Elite Guard The Waterford at Blue Lagoon 1000 NW 57* Court, Suite 300 Miami, Florida 33126 Tel. (305) 774-9966 Fax (305) 774-7743 Email slevin@defensecounsel.com
TABLE OF CONTENTS TABLE OF AUTHORITIES...: ii STATEMENT OF THE CASE AND OF THE FACTS...: 1 SUMMARY OF THE ARGUMENT...: 2 ARGUMENT: 1. THE THIRD DISTRICT'S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS AND OTHER COURTS RECOGNIZING THE JURY NOT DISCLOSING LITIGATION HISTORY AND UNABLE TO FULLY UNDERSTAND INSTRUCTIONS PROVIDED BY THE COURT DUE TO A LANGUAGE BARRIER. CONCLUSION...: 6-11 CERTIFICATE OF SERVICE...: 12-13 CERTIFICATE OF COMPLIANCE...: 13
TABLE OF AUTHORITES CASE PAGE Baker v. Randolph, 239 So. 2d 110 (Fla 1* DCA 1970)...8 De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995)...6,7 Ellison v. Cribb, 271 So. 2d 174 177 (Fla. 1*DCA 1972)...9 Kelly v. Community Hospital ofthe Palm Beaches, Inc. 818 So. 2d 469 (Fla. 2002)...9 Mitchell v State, 458 So. 2d 819, 821 (Fla. 1* DCA 1984)...9 O'Conner v. State, 9 Fla. 215, 222 (Fla. 1860)...10 Palm Beach County Health Dept v. Wilson, 944 So. 2d 428 (Fla. 4* DCA 2006)...9 Parra v. Cruz, No. 3D10-2661, 36 Fla. L. Weekly D544 (Fla. 3d DCA March 16, 2011)...10 Roberts ex. Rel. Estate ofroberts v. Tejada, 814 So. 2d 334 (Fla. 2002)...6,7,8,10 Singer v. State, 109 So. 2d 7 (Fla. 1959)...9, 10 Dobson v. Predell 390 So. 2d 704...6 OTHER AUTHORITIES PAGE Fla. R. App. P. 9.030(a)(2)(A)(iv)...6 Fla. R. Of Civil Procedure 1.280(b)(3)...6
n STATEMENT OF THE CASE AND FACTS This is a proceeding for discretionary review of the decision of the Third District in Librace v. Winston Towers 200, Inc. Et al, No. 3D12-2671 (Fla. 3d DCA April 24, 2013) and denied a rehearing request was denied on June 7, 2013. The Third District Court of Appeals failed to compel Clerk of Court and Respondents all answers and pleadings as required by the Rule of Procedures. Respondents in this case have the opportunity to file electrotonically while Petitioner must rely on the United States Post Office. All Motions and Responses were filed timely and to all parties involved in this matter. Petitioner filed a change of address with the Courts and each respondent in which mail may take up to five to six days for delivery. Petitioners requested a new hearing due to Judge Darren Gayles not ruling on all Motions as he stated, Jurors failed to understand English enough to make an impartial decision to the facts presented, Jurors failed to disclose prior and present litigation, Jurors researched Petitioner even though they were advised against doing so, and finally Respondents attorney failed to follow court instructions in regards to sexual orientation, harassed Petitioners witness and were allowed to present witnesses not listed on their witness and exhibits list past the required date of filing while Petitioner was 1.
denied any additional evidence or witnesses. The trial orders were set and due by a specific date. Due to issues with Petitioners Attorney, Petitioner was Pro-Se for a period of 45 days. Judge Darren Gayles refused to allow Petitioner an additional witness or evidences but allowed Respondents additional witnesses and evidence that were not on their final witness and exhibit list. Petitioners attorney objected to this additional witness and evidence but the court allowed them to proceed forward. The witness and evidence brought forward through his testimony had no relevance to the case except to prejudice the jury in bring up sexual orientation after the Judge Darren Gayles ruled that this issue could not be brought into the case. Respondents ordered on numerous occasions medical records of David Friedeberg and now per reviewing the file also on Frederick Friedeberg and files were presented to Dr. Orlando Garcia a personal witness and friend of Attorney Bruce Trybus who spoke together at a Lawsuit Conference in Orlando, Florida on June 5, 2008. They presented the video that was not edited per the transcript and the editors were not in courtroom with the tape to confirm this fact; furthermore, Dr. Garcia had filed false testimony in his 2.
statements. Dr. Garcia was fully aware that during my appointment I was taping the entire conversation and in his written report his answers were not the responses I provided. Prior to this appoint I filed a Motion requesting the Lower Court, the Honorable Judge Bailey requesting that another expert witness be used since the medical files contained information from my witnesses but she benched the Motion and it was never heard however all Motions filed by Sabrina Levin and that were not on the docket that day were heard and ruled upon. Being Pro-Se for this period of time while I found a new attorney was damaging to my case. Upon finally obtaining counsel, he requested a continuance in which the Respondents objected stating they were ready for trial and the hearing would only take three to four days when in fact it lasted over two weeks. In responses filed with the Florida Bar, Bruce Trybus makes statements that only one time was medical records on Petitioners Witness was made. This was a false statement since I forward emails and correspondence showing at least four times that medical records were obtained placing all opposing counsel on Notice regarding the medical records and it still continued. Knowing Mr. Friedeberg's medical condition, on day before the trial they harassed and intimidated him. Judge Darren Gayles was to review the transcript to 3.
confirm this harassment did take place but failed to ever make a decision on this. Mr. Friedeberg requested medical attention which was declined during the brutal attack of the three attorneys taking this deposition and I spoke up and was required to leave this deposition at Judge request due to Respondents attorney misinforming the court of what just transpired. Even on the witness stand Mr. Friedeberg was continued to be harassed causing him to have a pacemaker implanted within days of the trial ending due to the stress of harassment caused by respondent. The jurors from the beginning demonstrated their lack of full understanding of the English language. was English was released from jury. All those Jurors who first language Those who spoke broken English or very little English could not properly fill-out the jury selection questionnaire. Upon disclosing their responses, for the Court and Attorneys responses were changed, altered, or totally re-answered due to the fact they did not understand the questions. Secondly, again this happened upon filing the final verdict, the juror foreman was unable to fill out the form as instructed. Secondly, the jurors did not disclose past lawsuits and current lawsuits; in fact, the Juror Foreman's daughter was in a vehicle accident on the first day of trial and found out she was responsible for the damage and she vocally 4
made statements against people suing everyone and about she was tired of frivolous lawsuits and the Bailiff had to calm her down. Thirdly, two of the jurors worked with the computer lab at Miami Dade Community College. Several conversations about my political website was brought in their conversations while waiting to go into the courtroom. This information was never presented in trial and had to be obtained directly or indirectly by the jurors and upon checking IP addresses it was confirmed that one of the jurors was in the computer lab during the review of my files. Upon requesting the Third District Court of Appeal a Motion to Compel Respondent their Answers and Responses and the Miami Dade County Clerk of Court the Motion was denied. Petitioner has a right to review all pleadings filed in regards to this case and was not provided this information to respond and answers accordingly. The Third District Court of Appeals failed to follow the Florida Rules of Civil Procedure and therefore, should have permitted a rehearing as requested. Respondents failed to provide their responses in a timely manner in order for Petitioner to respond to the Court. 5.
SUMMARY OF ARGUMENT The Third District Court of Appeals had a Judiciary responsibility to ensure that Petitioner received copies of all filings from Respondents Attorneys Bruce M. Trybus, Attorney Sabrina Brooks Levin, and Attorney Jermaine Andre Lee. In fact, the Law Firm of Cozen O'Conner failed to file notice that Jermaine Andre Lee was no longer the Attorney representing Respondent Winston Towers 200. The denial of Petitioner request to Compel filings has placed an undue hardship as described in Florida Rule of Civil Procedure 1.280(b)(3). Petitioner has demonstrated irreparable harm and the petition should be granted. See Criswell, 636 So. 2d at 563; Ruiz v. Steiner, 599 So. 2d 196 (Fla. 3d DCA 1992); Carroll, 593 So. 2d at 954; Colonial Penn, 380 So. 2d at 1306. Jurisdiction in this case is proper under Fla. R. App. P. 9.030(a)(2)(A)(iv). The Thirds District's Court should have heard this Appeal based on the decisions in De La Rosa v. Zequira, 659 So. 2d 239, 241 (Fla 1995); Kelly v. Community Hospital of the Palm Beaches, Inc, 818 So. 2d 469 (Fla 2002); and Roberts v. Tejada, 814 So. 2d 334 (Fla 2002), and conflicts with the Fourth District Decision in Palm Beach County Health 6.
Department v. Wilson, 944 So. 2d 428 (Fla. 4* DCA 2006), on the same question of law: namely that the materiality of a juror's prior litigation may be shown even when the litigation history does not involve an action similar to the one in which the juror may be required to service. Florida courts have consistently held that the litigation history of a potential juror is relevant and material to jury service, even if that history involves a different type of case. "A person involved in prior litigation may sympathize with similarly situated litigants or develop a basis against legal proceedings in general." De La Rosa 659 So. 2d at 24 (quoting Zequeira v. dissenting)). On numerous occasions, our appellate courts have reversed for jury interviews or new trials, where jurors allegedly failed to disclose a prior litigation history or where other information relevant to jury service was not disclosed.... Similarly, we find that the trial court here acted well within its authority in concluding that the juror's failure to disclose his prior history of litigation deprived De La Rosa of a fair and impartial trial. 659 So. 2d at 241. Rd upon its earlier decision in De La Rosa, this court specifically held in Roberts v. Tejada, 814 So. 2d 334 (Fla 2002), that "[t]o be material, a prospective jurors litigation history does not necessarily have to involve an action similar to the one in which he or she may be required to serve." Id. At 341. It only makes sense that a trial court be allowed to question a jurors 7.
questionnaire based on extensive in-disclosed litigation-as the trial court did here--and the determination of whether that prior litigation was sufficiently material to warrant a new trial awaiting the findings. The Third District's decision in this case expressly and directly conflicts with the Roberts decision, in that the Third District below held that all jurors' nondisclosure of "all types of prior litigation history relating to himself or herself and family members, including divorce actions, paternity actions, contact indebtness actions, eviction proceedings and criminal matters" were not even possibly material to the suitability for jury service of those jurors in this personal injury action. The jurors were give every opportunity to advise the court on any action in which they failed to do. The Thirds District's decision is, as shown, contrary to the well-established case law in which Florida Courts have consistently held that false statements by a juror voir dire, strike at the very heart of the adversary process itself. Such misconduct necessarily degrades counsel ability to make reasoned and informed judgments about the composition of the trial jury and, subverts the dispassionate administration of justice. "When the right to make an intelligent judgment as to whether a particular juror should be challenged is lost or unduly impaired, the right to a fair trial by an 8.
impartial jury is destroyed. When this occurs, the verdict should be set aside and a new trial granted." Ellison v. Cribb, 271 So. 2d 174, 177 (Fla. 1* DCA 1972) (footnote omitted); accord, Mitchell v. State, 458 So. 2d 819, 821 (Fla. 1* DCA 1984)("The right of peremptory challenge implies the right to make an intelligent judgment as to whether a juror should be excused. Counsel have the right to truthful information in making that judgment.") It should therefore come as no surprise that juror concealment during voir dire is almost universally recognized as grounds for new trial. In Ellison, for example, the eventful foreperson of the jury failed to disclose, in response to an inquiry, that his daughter had once been involved in an automobile accident. The First District held that a new trial was required:, "failure of a juror to honestly answer material questions propounded to him on voir dire examination constitutions bad faith requiring his disqualification from service in this case." Ellison, 271 So. 2d at 177 (footnote omitted). The right to fair and impartial jury, as guaranteed by the United State Constitution, is crucial to the administration ofjustice under our legal system. Singer v. State, 109 So, 2d 7 (Fla 1959) (This includes a juror full understanding of the English language.) The fundamental necessity of a fair 9.
and impartial jury was heralded in this Court's early decision. See O'Connor v. State, 9 Fla. 215, 222 (Fla 1860) cited in Singer, 109 2d at 23 (jurors should, if possible, be not only impartial, but beyond even the suspicion of partiality). The Third District opinion in this case, however, renders hollow the right to a fair and impartial jury. The very purpose of voir dire is to determine whether a prospective juror is qualified and will be completely impartial in his or her judgment. The impartiality of the finders of fact is an absolute prerequisite to our Prospective jurors have a duty to give complete and truthful answers during vore dire. Tejada, 814 So. 2d at 342. Concealment or non-disclosure of a material fact during voir dire may effectively deprive a party of the right to exercise a challenge for cause or a peremptory challenge. A new trial on the ground that a juror testified falsely on voir dire examination is required where, without fault of his or her own, party has been deprived the constitutionist guaranty of a trial before a fair and impartial jury. Loftin, 67 So. 2d at 193. 10.
CONCLUSION Due to express and direct conflict with this Court and the Third District court regarding that the materiality of a juror prior and pending litigation may be shown even where the litigation does not involve an action similar to the one in which the juror my be required to serve, this Court has discretionary jurisdiction to review the decision rendered by the Third District in this case. Furthermore, the Third District Failure to Compel all Pleadings and filings by Respondents Attorneys and the Miami Dade County Clerk of Court placed an undue burden to Petitioner. And finally, the majority of the jurors lack of understanding English denied Petitioner to a fair and impartial jury. Respectfully Submitted, David Librace Post Office Box 691 Helena, AR 72342-0691 (786) 342-4032 dlibrace@yahoo.com By: AVID LIBRACE, PRO-SE 11.
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copies of the foregoing were served by email and by U.S. Mail to: Jermaine Lee Cozen O'Connor Attorneys for Winston Towers 200 South Biscayne Boulevard Suite 4410 Miami, Florida 33131-2303 Tel. (305) 704-5940 Fax (305) 704-5955 jalee@cozen.com Warren Kwavnick Cooney, Trybus, Kwavnick, Peets Attorneys for Better Maintenance Services, Inc. 1600 West Commercial Boulevard Suite 200 Fort Lauderdale, Florida 33309 Tel. (954) 568-6669 Fax (954) 568-0085 Email reception@ctkplaw.com Sabrina Levin Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP. Attorney for Elite Guard The Waterford at Blue Lagoon 1000 NW 57* Court, Suite 300 Miami, Florida 33126 Tel. (305) 774-9966 Fax (305) 774-7743 12.
Email slevin@defensecounsel.com CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing brief has been computer generated in 14 point Times New Roman and complies with the requirements of Rule 9.210. By: DAVID LIBRACE, PRO-SE 13.