IN THE SUPREME COURT OF FLORIDA Case No. SC12-2445 District Court Case No. 3D12-2250 Lower Court Case No. 09-21176 11-13319 12,-32975 MATTIE LOMAX Petitioner, V. THE CITY OF MIAMI POLICE DEPARTMENT, ET AL., Respondents. PETITIONER'S CORRECTED AMENDED BRIEF IN SUPPORT OF JURISDÎCTION MATTIE LOMAX, PRO SE P.O. Box 310464 Miami, Florida 33231-0464 (305) 573-0702 (305)573-0920 Fax Email:tamatwynette1950@bellsouth.net
TABLE OF CONTENTS Page TABLEOFCONTENTS...ii TABLEOFCITATIONS...iii CONTINUECITATIONS...iv SUMMARYOFTHEARGUMENT...1 ARGUMENT...5 ONC SION...................................................................... 11 CERTIFICATEOFSERVICE...12 CERTIFICATEOFCOMPLIANCE...13 11
TABLE OF CITATIONS P...gra 94 So. 2d 854 (Fla. 1957)...2, 4, 6, 7 Griffith v. Shamrock Village, Inc., Tiny's Liquors, Inc. v. Davis, 353 So, 2d 168 (Fla. 3rd DCA 1977)...2, 3, 4, 6,7 Winn Dixie Stores, Inc. v. Robinson, 472 So. 2d 722 (Fla. 1985)...2,4, 6,7 Jenkins v. State, 385 So.2d 1356 (Fla. 1980)... 4, 8 Reaves v. State, 485 So.2d 829 (Fla. 1986)...4 Swift v. Tyson, 41 U.S. (1842)...3 Erie Railroad v. Thompkins, 304 U.S. 64 (1938), (1938)...8 Cooper v. Aaron, 358 U.S. 1 (1958)...9 Brown v. Board of Education, 347 U.S. 483(1954)...9 Baron v. Baltimore, 32 U.S. (1833)...9,10 Twinin v. New Jersey, 211 U.S. 78 (1908)...10 Gitlow v. New York, 268 U.S. 652 (1925)...10 United State v. Hudson and Goodwin, 11 U.S. (1812)...9 Wheaton v. Peters, 33 U.S. (1834)...9 Swift v. Tyson, 41 U.S. (1842)...9 Erie Railroad v. Thompkins, (1938)...9 Cooper v. Aaron,(1958)...10 Brown v. Board ofeducation, (1954)...10 111
TABLE OF CITATIONS/ CONTINUE P.,,gge Twining v. New Jersey, 211 U.S. 78 (1908)...13 Malloy v. Hogan, (378 U.S. 1 (1964)...13 Other Authorities: F.R.A.P. 9.0130(a)(2)(A)(iv)...8 F.R.A.P. r 53 (b)(3)...8 F.R.A.P 9.190(c), Sections 120.57(1)(f)...5 F.R.A.P. (2)(b), 120.574(2)(d)...5 Article V, 3(b) (3) Florida Constitution (1980)...4 IV
SUMMARY OF ARGUMENT The elements of a false imprisonment claim is to protect against unlawful confinement. To prove a false imprisonment claim in a civil lawsuit, the following elements must be present:. There must have been a willful detention;. The detention must have been without consent; and. The detention was unlawful. False arrest, a name sometimes given to the tort more generally known as false imprisonment, has also been defined as the unlawful restraint by one person ofthe physical liberty of another, by acting to cause a false arrest, that is, an arrest made without legal authority, or without sufficient legal authority, resulting in damages. However, the tort of false arrest does not require a formal arrest, but rather a manifest intent to take someone into custody and subject that person to the defendant's control. For false arrest, there is no requirement that the arrest be formal, that the detention be for the purpose of arraignment or that the detention continue until presentation to a judicial officer in order for the arrest to be actionable. The decision in the case at bar expressly and directly conflicts with the Supreme Court decisions of Winn Dixie Stores, Inc. v. Robinson, 472 So. 2d 722 (Fla. 1985) and Griffith v. Shamrock Village, Inc., 94 So. 2d 854 (Fla. 19571, as well as the Third District Court of Appeal case of Tiny's Liquors. Inc. v. Davis, 353 So. 2d 168 (Fla. 3d DCA 1977). 1
The Supreme Court is a common-law court that operates in a system that has little "federal common law." Yet its common-law nature is important to the Court's functioning as a constitutional arbiter. "Common law is a system of law made not by legislatures but by courts and judges. Although often called "unwritten law," the phrase actually refers only to the source of law, which is presumed to be universal custom, reason, or "natural law." In common law, the substance ofthe law is to be found in the published reports of court decisions. Two points are critical to the workings of a common-law system. First, law emerges only through litigation about actual controversies. Second, precedent guides courts: holdings in a case must follow previous rulings, ifthe facts are identical. This is the principle of stare decisis. But subsequent cases can also change the law. Ifthe facts of a new case are distinguishable, a new rule can emerge. And sometimes, ifthe grounds of a precedent are seen to be wrong, the holding can be overruled by later courts. The Third District Court of Appeal case of Tiny's Liquors, Inc. v. Davis, 353 So. 2d 168 (Fla. 3d DCA 1977). More particularly, the appropriateness ofthe Recovery of punitive damages in cases where Police officers conduct inadequate of the facts surrounding this false imprisonment or false arrest primarily as a tort, treating such matters as the nature and elements ofthe wrong, liability, defenses, procedural issues, and damages. And to the 2
consideration is also given to false imprisonment as a crime. In asserting conflict, Petitioners misstate the facts found by the majority, and erroneously rely on the factual interpretations stated in Justice Zehmer's Issenting opinion. As noted in this court's decisions in Jenkins v. State, 385 So.2d 1356 (Fla. 1980), and Reaves v. State, 485 So.2d 829 (Fla. 1986), Article V, 93(b) (3) conflict jurisdiction may not be founded upon factual assertions recited only in a dissenting opinion. Based on the facts presented in the four corners ofthe majority opinion, there is no conflict with this court's decisions in Winn Dixie Stores. Inc. v. Robinson and Griffith v. Shamrock Villase. Inc. Unlike the instant case, the case of Tiny's Liquors. Inc. v. Davis does not even address the issue of what evidence is sufficient to sustain an award of punitive damages. Any conflict with the above cited cases must be express and direct under Article V, 33(b)(3) ofthe Florida Constitution. Petitioners cannot "create" conflict by asking this court to disregard the facts as found by the majority, or otherwise accept those factual interpretations found only in Justice Zehmer's dissent. Pro se litigants, as well as those represented by counsel, are entitled to meaningful access to the courts.' Sufficient access to the courts, a right protected by the due process clause of the fourteenth amendment and the 3
first amendment, guarantees to all persons use ofthe judicial process to redress alleged grievances. The types of documents that should be included in the record on appeal will depend on the type of agency action being appealed, and the types of mistakes the agency made. In this regard, it is very important to review Florida Rule of Appellate Procedure 9.190(c), Sections 120.57(1)(f) and (2)(b), 120.574(2) (d), Florida Statutes, which specifically identify the types of documents that must be included in various types of agency action appeals. As in other types of appeals, such documents normally include, all notices, pleadings, motions, memoranda of law, hearing transcripts, evidence, proposed orders, and orders issued in the administrative proceeding. A malicious prosecution is one that is begun in malice, without probable cause to believe it can succeed, and that ultimately ends in failure. The essential difference between false imprisonment and malicious prosecution is the validity ofthe legal authority for the restraint imposed action for malicious prosecution. However, a suit for false arrest or imprisonment is the proper action where the aggrieved party is arrested without legal authority, as where he or she is arrested pursuant to process that is void. 4
ARGUMENT The decision in the case at bar expressly and directly conflicts with the Supreme Court decisions of Winn Dixie Stores, Inc, v. Robinson, 472 So. 2d 722 (Fla. 1985) and Griffith v. Shamrock Village, Inc., 94 So. 2d 854 (Fla, 19571, as well as the Third District Court ofappeal case of Tiny's Liquors, Inc, v. Davis, 353 So. 2d 168 (Fla. 3d DCA 19771, The decision in the case at bar directly and expressly conflicts with the Robinson case. As stated by Justice Zehmer in his dissent: "The [trial] court did not err in allowing the jury to decide whether the defendant's conduct under the circumstances was sufficiently wrongful to warrant the imposition of punitive damages. The facts in this case are no less egregious than the facts in Winn Dixie Stores, Inc. v. Robinson, 472 So. 2d 722 (Fla. 1985), and Griffin v. Shamrock Village, Inc., 94 So. 2d 854 (Fla. 1957). The majority ruling in this case that the lack of investigation by the defendant was "an honest albeit mistaken effort" leaves this decision in conflict with the Supreme Court's decision of Robinson. It is error to take the punitive damages issue from the jury. I would affirm the judgment in all respects. " As stated by Justice Zehmer, the case at bar should be controlled by this Court's decision in Lomax v. City of Miami Police Department. The operative facts in the above case law, are as follows: 5
Ms. Lomax was arrested for crossing a pathway that lead up to the Florida East Coast Rail Road crossing in the community that she reside. The Officers arrested Ms. Lomax and imprison her as other persons cross over the rail road tracks pathway. Ms. Lomax was acquitted ofthe charges. The officer's had no jurisdiction at the Florida East Coast Rail Road tracks and free Ms. Lomax of her innocence. Petitioners Ms. Lomax bring this action seeking discretionary review of Third District Court Case No. 3D12-2250 to Consolidated case No.'s 09-21176, 11-13319 and lower case No: 12-32975 all of the same issues, Mattie Lomax v. The City of Miami Police Department, Specifically, Petitioners allege that the decision in the case at bar expressly and directly conflicts with the Supreme Court decisions in Winn Dixie Stores, Inc, v, Robinson, 472 So.2d 722 (Fla. 1985), and Griffith v. Shamrock Villase. Inc., 94 So.2d 854 (Fla. 1957), as well as the Third District Court ofappeal case Tiny's Liquors. Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1977). In asserting conflict, Petitioners rely principally on Justice Zehmer dissenting opinion wherein he asserts that the facts in this case are no less egregious than the facts in Winn Dixie Stores, Inc. v. Robinson, 472 So.2d 722 (Fla. 1985), and Griffith v. Shamrock Villacre. Inc., 94 So.2d 854 (Fla. 6
1957). Petitioners further assert that the majority has effectively re-weighed the evidence and the credibility of documents on appeal, and that they have taken the facts in a light most favorable to the defendant when the law requires them to do just the opposite. Petitioners and Justice Zehmer simply disagree with the majority's presentation and interpretation ofthe facts, which were thoroughly analyzed in the majority opinion. Article V, Section 3(b) (3) of the Florida Constitution empowers this Court to review a decision of the District Court of Appeal which expressly and directly conflicts with a decision of another District Court of Appeal or ofthe Supreme Court on the same question of law. Art. V, 3(b) (3), Fla. Const. (1980), see also F.R.A.P. 9.0130(a) (2) (A) (iv). It is fundamental that expressions found in a dissenting or concurring opinion cannot support jurisdiction under 53 (b) (3) because they are not the decision ofthe District Court of Appeal. Jenkins v. State, 385 So.2d 1356 (Fla. 1980). In Jenkins, this court addressed the question of whether or not a per curiam affirmed decision ofthe District Court of Appeal, with an accompanying dissenting opinion, was a "decision" upon which discretionary review could be granted. This court explained: "When facts and testimony are set forth in a majority opinion, they are assumed to be an accurate presentation upon which the judgment ofthe court is based. However, a 7
dissent does not rise to a similar level of dimity and is not considered as precedent; by definition, a dissent contains information, interpretations or legal analysis which has been rejected in whole or part by the majority 385 So.2d at 1358. (emphasis added) To be "justifiable," the claim must be suitable for judicial inquiry, which requires determining whether the controversy (a) is definite and concrete, (b) concerns legal relations among parties with adverse interests and (c) is real and substantial so as to be capable of a decision granting or denying specific relief of a conclusive nature." The Constitution left open the question whether there was a federal common law. The Supreme Court first held, in United State v. Hudson and Goodwin, 11 U.S. (1812), that there is no federal common law of crimes, and then, in Wheaton v. Peters 33 U.S. (1834), that there is no federal civil common law. But in Swift v. Tyson, 41 U.S. (1842), the Court permitted lower federal courts to decide commercial law questions on the basis of "the general principles and doctrines of commercial jurisprudence" thus opening the door to later growth of a general federal common law. A century later, the Court put a stop to this development in Erie Railroad v. Thompkins (1938) by declaring Swift unconstitutional. (Yet, at the same time, it acknowledged the existence of bodies of specialized federal common law, such as, for example, it refuses to render advisory opinions, waiting instead 8
for litigants to bring issues before it. Precedent shapes the Court's power of judicial review; because of it, any ruling ofthe Court is a precedent for similar cases. Thus if one state's law is held unconstitutional, all similar statutes in other states are unconstitutional a point the Court was obliged to underscore forcibly in Cooper v. Aaron (1958) in the face of intransigent southern resistance to the Court's holding in Brown v. Board of Education (1954). Though the Supreme Court had ruled in 1833 in Baron v. Baltimore that guarantees of the Bill of Rights did not limit the states, many Republicans thought state officials were obligated to respect those guarantees. The Fourteenth Amendment prohibited states from abridging privileges and immunities of citizens of the United States and from depriving persons of due process of law or equal protection of the laws. Early interpretations of the Fourteenth Amendment drastically curtailed the protection afforded by the amendment. Decisions such as Twinin v. New Jersey in 1908 and Gitlow v. New York in 1925 expanded the Fourteenth Amendment to the Bill of Rights meaning that Federal protections applied to protect the individual from trespass on God-given rights by states. Supreme Court decisions have also brought offense to rights done under color of law by private persons 9
within reach of Federal protection. Source to the Oxford Companion to the Supreme Court of the United States. The Constitution of the United States was written to protect Ms. Lomax from intrusion on our God Given Rights by the Federal Government. The Fourteenth Amendment was necessary to protect Ms. Lomax from intrusion on our God Given Rights by state governments, political subunits, and individuals who act under color of law. Therefore a vexatious litigation is a type of malicious prosecution that enables the defendant to file a tort action against the plaintiff. A plaintiff in a malicious prosecution must prove that a legal proceeding (or multiple proceedings) was instituted by the defendant, that the original proceeding was terminated in favor ofthe plaintiff, that there was no probable cause for the original proceeding, and that malice, or a primary purpose other than that of bringing the original action, motivated the defendant. A plaintiff in such an action may recover, for example, the expenses incurred in defending the original suit or suits, as well as resulting financial loss or injury. A plaintiff may also recover damages for mental suffering of a kind that would normally be expected to follow from the original action. 10
CONCLUSION In conclusion, Petitioners, Mattie Lomax, would respectfully request this Court to take jurisdiction of this cause because the majority decision conflicts with the Supreme Court cases of Winn Dixie Stores, Inc. v. Robinson; and Griffith v. Shamrock Village, Inc., as well as the district court case of Tiny's Liquors, Inc. v. Davis. In the case of Twining v. New. Jersey 211 U.S. 78 (1908) This decision was later overturned on dueprocess grounds in Malloy v. Hogan (378 U.S. 1 (1964). MATTIE LOMAX, P P.O. Box 310464 Miami, Florida 33231-0464 (305) 573-0702 (305) 573-0920 Fax Email: Tamatwynette1950@bellsouth.net 11
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was Served via U.S. Mail, this / day of February, 2013 to Attorney John A. Greco at the Office of the City Attorney, City ofmiami, 444 SW 2" Avenue, Ste. 945, Miami, Florida 33130. MA E LOMAX, PRO S P.O. Box 310464 Miami, Florida 33231-0464 (305) 573-0702 (305)573-0920 Fax Email:Tamatwynette1950@bellsouth.net 12
CERTIFICATE OF COMPLIANCE The undersigned, (Pro Se) hereby certifies that she has complied with the Format requirements of the Rules of Appellate Procedure. This Petition For Writ of Prohibition and or writ of mandamus was prepared using Times New Roman 14 point font. Respectfully submitted, TIE LOMAX, In Properper P.O. Box 310464 Miami, Florida 33231-0464 (305) 573-0702 (305) 573-0920 Fax 13