Electronically Filed 08/26/2013 04:20:02 PM ET RECEIVED, 8/26/2013 16:23:40, Thomas D. Hall, Clerk, Supreme Court SUPREME COURT OF FLORIDA JAMES LEVOY WATERS, Petitioner, v. SHERIFF, ESCAMBIA COUNTY FLORIDA, Respondent. CASE NO. SC13-1487 On Review from the District Court of Appeal, First District, State of Florida Appeal No.: 1D12-4720 JURISDICTIONAL ANSWER BRIEF OF RESPONDENT ESCAMBIA COUNTY SHERIFF, in his official capacity BARBARA C. FROMM bcf@jollylaw.com Florida Bar No. 894273 JOLLY & PETERSON, P.A. Post Office Box 37400 Tallahassee, Florida 32315 (850) 422-0282 COUNSEL FOR RESPONDENT
TABLE OF CONTENTS TABLE OF CITATIONS...ii STATEMENT OF THE CASE AND FACTS...1 A. Course of Proceedings and Disposition Below................. 1 SUMMARY OF THE ARGUMENT...6 ARGUMENT I. THE FLORIDA SUPREME COURT DOES NOT HAVE CONFLICT JURISDICTION TO REVIEW THE ORDER OF THE FIRST DISTRICT COURT OF APPEAL THAT SUA SPONTE CHANGED THE STYLE OF THIS CASE.... 7 CONCLUSION...9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF FONT SIZE...10 i
TABLE OF CITATIONS CASES PAGES Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla. 2006)...9 Beaty v. State, 701 So.2d 856 (Fla. 1997)...9 The Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988)...8 Jackson v. State, 926 So.2d 1262 (Fla. 2006)...9 Jenkins v. State, 385 So.2d 1356 (Fla. 1980)...8, 9 Tippins v. State, 897 So.2d 1278 (Fla. 2005)...8 RULES Rule 2.515(a)(b), Fla.R.Jud.Admin....5,6,9 ii
STATEMENT OF THE CASE AND FACTS A. Course of Proceedings and Disposition Below Plaintiff initially filed in the Circuit Court in and for Escambia County, Florida, his Complaint/Petition for Writ of Replevin on June 4, 2009. (R-2-1-3) On July 26, 2010, the Clerk of the Circuit Court entered its Notice of Lack of Prosecution stating that no activity by filing of pleadings, order of court or otherwise has occurred for a period of ten months immediately preceding service of this notice, and no stay has been issued or approved by the Court. (R-7-12) On September 28, 2010, the Honorable Paul A. Rasmussen, Circuit Court Judge, entered an order to show cause, which acknowledged that Plaintiff has never requested that a summons be issued in this matter. Accordingly, the Court ordered Plaintiff to take some action toward serving the Defendant in this case within thirty (30) days from the date hereof, or show cause why this matter shall not be dismissed for lack of prosecution. (R10-17- 18) On October 10, 2011, the Clerk of the Circuit Court entered a second Notice of Lack of Prosecution, acknowledging that no court activity by filing of pleadings, order of court or otherwise has occurred for a period of ten months immediately preceding service of this notice, and no stay has been issued or approved by the Court. The Court s notice further provided that,...if no such record activity 1
occurs within 60 days following service of this notice, and if no stay is issued or approved during such 60-day period, this action may be dismissed by the court on its own motion or on the motion of any interested person unless good cause is shown in writing five days before the hearing on such motion. (R-14-32). On May 25, 2012, Plaintiff filed a Motion for Entry of Default. (R-19-51-60). On June 1, 2012, the Honorable Paul A. Rasmussen entered an order denying Plaintiff s Motion for Entry of Default. The order specifically recognized: The Plaintiff has amended the pleadings, but has yet to properly serve the Defendant. On September 28, 2010, this Court entered an order to show cause requiring the Plaintiff to take some action toward serving the Defendant within thirty (30) days from the date thereof or show cause why the matter should not be dismissed for lack of prosecution. The Plaintiff responded to the order to show cause by filing a motion to amend the Writ of Replevin, but still has not properly served the Defendant. (emphasis added.) The Court s order denying Plaintiff s Motion for Entry of Default, recognized that Plaintiff attempted to serve Defendant, through his counsel, by requesting 1 counsel to accept service of process on behalf of the Defendant. The Court s order further recognized: Although it appears that the acceptance of process was initially signed by the Defendant s counsel, that signature was struck through and marked refused to accept. Therefore, upon review of the court file, it still appears that Plaintiff has yet to properly serve the Defendant 1 Counsel refers to Defendant Sheriff s in-house legal counsel, Gerald Champagne. 2
in this case. (emphasis added.) The Court s order denied Plaintiff s Motion for Entry of Default and specifically instructed Plaintiff as follows: Plaintiff shall serve the Defendant with a summons and copy of the complaint in accordance with the Florida Rules of Civil Procedure within sixty days from the date hereof or show cause why the matter should not be dismissed for lack of prosecution. (emphasis added.) (R-21-62-63). Plaintiff did not serve Defendant with a summons and a copy of the complaint within sixty days as ordered by the Court. Instead, on August 2, 2012, Plaintiff filed a second Motion for Entry of Default. (R-24-82-94). On that same day, the Honorable Ross M. Goodman entered an order denying Plaintiff s Motion for Entry of Default. (R-24-95). On August 16, 2012, for the first time in this case, and more than sixty days after the Court s June 1, 2012 Order instructing Plaintiff to serve Defendant with a summons and a copy of the complaint, Plaintiff issued a summons to be served on Defendant. (Plaintiff s Appendix No. 7, pp. 1-2). On August 22, 2012, the Honorable Ross M. Goodman entered an order dismissing Plaintiff s alleged cause of action without prejudice. The Court s order of dismissal specifically stated: THIS CAUSE is before the court upon review of the Order Denying Motion for Entry of Default rendered June 1, 2012. That order required 3
(R-29-99). the Plaintiff, James Levoy Waters, to take some action toward effecting service of process against the Defendant and move the matter toward final conclusion within sixty (60) days from the date of that order or to show cause why the matter should not be dismissed. Upon review, no action has been taken by the Plaintiff toward effecting service of process against the Defendant and the Plaintiff has not responded to the Order Denying Motion for Entry of Default rendered June 1, 2012. (emphasis added.) Accordingly, it is ORDERED AND ADJUDGED that the above-styled cause of action is dismissed without prejudice. Plaintiff filed a Motion for Rehearing (R-30-100-138) which was denied by the Court. (R-31-139). On September 24, 2012, Plaintiff filed his Notice of Appeal. (R- 33-145-149). On February 21, 2013, Plaintiff filed his Initial Brief on the merits. Appellee s Answer Brief was filed on March 14, 2013. Plaintiff/Appellant s Reply Brief was filed on April 10, 2013. On June 7, 2013, the First District Court of Appeal entered its opinion that per curium affirmed the trial court s order dismissing Plaintiff s cause of action. On the same date, the First District Court of Appeal also entered an order that sua sponte changed the style of this case to James Levoy Waters v. Sheriff, Escambia County Sheriff s Office. 2 2 The Court s order appears to be procedural. Petitioner is the only purported Plaintiff who has ever made an appearance or signed any pleading in this case. It is well- 4
On June 21, 2013, Appellant filed his Motion for Rehearing. Appellee filed his response on July 2, 2013. On July 17, 2013, the district court denied Appellant s Motion for Rehearing without opinion. On July 25, 2013, Appellant filed his Notice to Invoke the Discretionary Jurisdiction of the Florida Supreme Court. On August 2, 2013, the First District Court of Appeal issued its Mandate in this matter with a certified copy of the Court s per curium affirmed opinion. On or about August 1, 2013, Petitioner herein served on counsel for Respondent herein by U.S. Mail his Jurisdictional Brief. Attached to Petitioner s Brief is a conformed copy of the order of the Court entered July 7, 2013 that sua sponte changed the style of this case to James Levoy Waters v. Sheriff, Escambia County Sheriff s Office. Petitioner s Jurisdictional Brief did not attach either the district court s per curium affirmed opinion entered June 7, 2013 or the district court s order denying Appellant s Motion for Rehearing entered July 17, 2013. Petitioner seeks review only of the order of the court entered July 7, 2013, that sua sponte changed the style of this case. established that every pleading, motion or paper must be signed by the party representing himself or herself or by an attorney who must be a member of the Florida Bar. See, Rule 2.515(a)(b), Fla.R.Jud.Admin. ( A party who is not represented by an attorney shall sign any pleading or other paper and state the party s address and telephone number, including area code. ) 5
SUMMARY OF THE ARGUMENT Plaintiff improperly seeks to have this Court, pursuant to Article V, Section 3(b)(3) of the Florida Constitution, review the order of the First District Court of Appeal that, without opinion, sua sponte changed the style of this case to James Levoy Waters v. Sheriff, Escambia County Sheriff s Office. The district court s opinion appears to be procedural. Petitioner James Levoy Waters is the only purported Plaintiff who has made an appearance or signed any pleading in this matter. Every pleading, motion or other paper filed must be signed by the party, if he represents himself, or by his attorney who must be a member of the Florida Bar. Rule 2.515(a)(b), Fla.R.Jud.Admin. Accordingly, the designation et al. has never been proper in this case. The district court s order, without opinion, appears to simply clarify that James Levoy Waters is and always has been the only plaintiff in this alleged cause of action. In any event, Petitioner fails to acknowledge that the district court s order sua sponte changing the style of this case is not supported by any legal opinion. This Court has conflict jurisdiction under Article V, Section 3(b)(3) only if the decision of the District Court to be reviewed expressly conflicts with the decision of the Supreme Court or another district court of appeal. The Supreme Court does not even have potential jurisdiction to review a decision that is not supported by an 6
opinion. The District Court of Appeal s order sua sponte changing the style of this case does not include any opinion, or statement of any nature, effectively establishing a point of law upon which the decision rests. Accordingly, the Florida Supreme Court does not have conflict jurisdiction to review the First District Court of Appeal s sua sponte order changing the style of this case. Petitioner s request for jurisdictional review by this Court should be denied. ARGUMENT I. THE FLORIDA SUPREME COURT DOES NOT HAVE CONFLICT JURISDICTION TO REVIEW THE ORDER OF THE FIRST DISTRICT COURT OF APPEAL THAT SUA SPONTE CHANGED THE STYLE OF THIS CASE. Plaintiff improperly seeks to have this Court, pursuant to Article V, Section 3(b)(3) of the Florida Constitution, review the order of the First District Court of Appeal that, without opinion, sua sponte changed the style of this case to James Levoy Waters v. Sheriff, Escambia County Sheriff s Office. The district court s opinion appears to be procedural. Petitioner James Levoy Waters is the only purported Plaintiff who has made an appearance or signed any pleading in this matter. Pleadings, motions or other papers filed must be signed by a party representing himself or herself, or by the party s attorney who must be a 7
member of the Florida Bar. Rule 2.515(a)(b), Fla.R.Jud.Admin. Accordingly, the designation et al. has never been proper in this case. The district court s order, without opinion, appears to simply clarify that James Levoy Waters is and always has been the only plaintiff in this alleged cause of action. In any event, Petitioner fails to acknowledge that the district court s order sua sponte changing the style of this case is not supported by any legal opinion. 3 This Court has conflict jurisdiction under Article V, Section 3(b)(3) only if the decision of the District Court to be reviewed expressly conflicts with the decision of the Supreme Court or another district court of appeal. By definition, the term expressly requires some written representation or expression of the legal grounds supporting the decision under review. Jenkins v. State, 385 So.2d 1356 (Fla. 1980). A decision of a district court of appeal is only reviewable if the conflict can be demonstrated from the district court of appeal s opinion. The Supreme Court does not even have potential jurisdiction to review a decision that is not supported by an opinion. See, Tippins v. State, 897 So.2d 1278 (Fla. 2005); The Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988). (To be within the Supreme Court s jurisdiction to review a District Court of Appeals decision and express direct conflict with another decision, 3 The District Court s per curium affirmed opinion and the district court s denial of Plaintiff/Appellant s Motion for Rehearing also do not include any opinion; however, as set forth above, it does not appear that Plaintiff seeks review of either of those orders. 8
the district court decision under review must contain a statement or citation effectively establishing a point of law upon which the decision rests.) As this Court has previously explained, one of the tests of expressing direct conflict is whether it has been shown from the opinions that the two decisions are irreconcilable. Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla. 2006). This test cannot be met without some expression of the principles supporting the decision. For example, per curium affirmence without an opinion is unreviewable under Article V, Section 3(b)(3) because it does not expressly conflict with another appellate decision. See, Jenkins v. State, 385 So.2d 1356; Beaty v. State, 701 So.2d 856 (Fla. 1997); Jackson v. State, 926 So.2d 1262 (Fla. 2006). The District Court of Appeal s order sua sponte changing the style of this case does not include any opinion, or statement of any nature, effectively establishing a point of law upon which the decision rests. Accordingly, the Florida Supreme Court does not have conflict jurisdiction to review the First District Court of Appeal s sua sponte order changing the style of this case. Petitioner s request for jurisdictional review by this Court should be denied. CONCLUSION Based on the foregoing, this Court should decline to review the order of the First District Court of Appeal that sua sponte changed the style of this case. 9
Respectfully submitted this 26th day of August, 2013. /s/ Barbara C. Fromm BARBARA C. FROMM bcf@jollylaw.com Florida Bar No. 894273 JOLLY & PETERSON, P.A. Post Office Box 37400 Tallahassee, Florida 32315 Tel: (850) 422-0282 Fax: (850) 422-1913 Counsel for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document was furnished by Certified U.S. Mail this 26th day of August, 2013 to the following: James L. Waters DC# 207757, Santa Rosa Correctional Institution-Annex, 5850 E. Milton Rd., Milton, FL 32583-7914. /s/ Barbara C. Fromm BARBARA C. FROMM CERTIFICATE OF FONT SIZE Pursuant to Florida Rule of Appellate Procedure 9.210(a), undersigned counsel hereby certifies that this brief complies with the font requirements of the rule and is formatted in Times New Roman 14 point font. /s/ Barbara C. Fromm BARBARA C. FROMM 10