IN THE FLORIDA SUPREME COURT. Lower Tribunal Case Number: 1D Case Number: SC05-957

Similar documents
IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC CLEO LECROY, Petitioner, vs. STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF THE STATE OF FLORIDA. CASE NO. SC: 4 th DCA CASE NO: 4D STATE OF FLORIDA, Petitioner, vs. SALVATORE BENNETT,

Third District Court of Appeal State of Florida

IN THE SUPREME COURT OF FLORIDA DIGICAST NEW MEDIA, INC., Petitioner, -vs- FIERA.COM, INC., Respondent. APPEAL FROM THE DISTRICT COURT OF APPEAL

FLORIDA SUPREME COURT. Case No.: SC nd DCA Case No.: 2D Lower Tribunal Case No.: G Hillsborough County, Florida Circuit Court

IN THE SUPREME COURT OF FLORIDA CASE NO. SC BERTHA JACKSON, PETITIONER, vs. STATE OF FLORIDA, RESPONDENT.

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA CASE NO.: 1D CARL DORÉLIEN, Appellant, vs. MARIE JEANNE JEAN, Appellee.

IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO.: SC LOWER COURT NO.: 4D JACK LIEBMAN. Petitioner. vs.

IN THE SUPREME COURT OF FLORIDA APPEAL FROM THE THIRD DISTRICT COURT OF APPEALS PETITIONER S JURISDICTIONAL BRIEF

IN THE SUPREME COURT OF FLORIDA S. CT. CASE NO. SC

IN THE SUPREME COURT OF FLORIDA NO. SC THOMAS M. OVERTON,

IN THE SUPREME COURT OF FLORIDA CASE NO. SC CHRISTINE BAUER and THOMAS BAUER, Petitioners, ONE WEST BANK, FSB, Respondent.

FINAL ORDER AFFIRMING TRIAL COURT in favor of Appellee, Silver Glen Homeowners Association, Inc. ( Sliver Glen ). This

IN THE SUPREME COURT OF FLORIDA. COLBY MATERIALS, INC., CASE NO.: SC LOWER TRIBUNAL Petitioner, CASE NO.: 5D

IN THE SECOND DISTRICT COURT OF APPEAL IN AND FOR THE STATE OF FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA. Lower Case No.: 2012-TR A-E

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED OF FLORIDA

Third District Court of Appeal State of Florida

IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D THE STATE OF FLORIDA, Petitioner, -vs- MAXIMILIANO ROMERO, Respondent.

IN THE FLORIDA SUPREME COURT CASE NO. SC

RESPONDENT S AMENDED ANSWER BRIEF TO PETITIONER S JURISDICTIONAL BRIEF FOR DISCRETIONARY REVIEW

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

CASE NO. SC L.T. CASE NO. 4D IN THE SUPREME COURT OF FLORIDA CATHERINE STANEK-COUSINS, Petitioner, STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF FLORIDA. Petitioner, S.C. Case No. SC DCA Case No. 3D v. L.T. Case No. 08-CA-45992

IN THE SUPREME OF FLORIDA RESPONDENT S ANSWER BRIEF ON JURISDICTION ON DISCRETIONARY REVIEW FROM A DECISION OF THE FOURTH DISTRICT COURT OF APPEAL

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA EMERGENCY, VERIFIED MOTION TO VACATE FINAL JUDGMENT

IN THE SUPREME COURT OF FLORIDA CASE NO. SC ALVIN LEWIS, Petitioner. vs. STATE OF FLORIDA, Respondents. PETITIONER'S BRIEF ON JURISDICTION

Third District Court of Appeal State of Florida, July Term, A.D. 2013

IN THE FLORIDA SUPREME COURT CASE NO. SC WILLIAM DAVID MILLSAPS. Petitioner, MARIJA ARNJAS, Respondent.

IN THE SUPREME COURT OF FLORIDA CASE NO.: SC

IN THE SUPREME COURT OF FLORIDA CASE NUMBER: SC Lower Tribunal Case Number: 2D RESPONDENT S RESPONSE TO PETITIONER JURISDICTIONAL BRIEF

IN THE SUPREME COURT OF FLORIDA. Petitioner, v. Supreme Court Case No.: SC Lower Tribunal Case No.:

IN THE SUPREME COURT OF FLORIDA. Case No.: SC DCA Case No.: 4D RESPONDENT'S BRIEF ON JURISDICTION

IN THE SUPREME COURT OF FLORIDA CASE NO. SC INTERNATIONAL UNION OF POLICE ASSOCIATIONS, Petitioner, vs. STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF FLORIDA CASE NUMBER: SC Lower Tribunal Case Number: 2D

Third District Court of Appeal State of Florida

IN THE SUPREME COURT OF FLORIDA. vs. L.T. NO.: 3D ON NOTICE TO INVOKE DISCRETIONARY JURISDICTION FROM THE THIRD DISTRICT COURT OF APPEAL

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE SUPREME COURT OF FLORIDA

Supreme Court of Florida

Third District Court of Appeal State of Florida

In the Supreme Court of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

IN THE SUPREME COURT OF THE STATE OF FLORIDA. CASE NO. SC (4 th DCA 4D ) MALCOLM HOSWELL, Petitioner, vs. STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF FLORIDA. BRIEF OF PETITIONER ON APPEAL On Appeal from the Fourth District Court of Appeal

IN THE SUPREME COURT OF FLORIDA CASE NO. SC12- DEMARIOUS CALDWELL, Petitioner, - versus - STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC WILLIE L. CLARK, Petitioner, vs. STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF FLORIDA. DAPHNE ELAINE HENSON, Florida Second District Court of Appeal Case Appellee. Number: 2D /

Third District Court of Appeal State of Florida

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2011

Third District Court of Appeal State of Florida, July Term, A.D., 2008

Third District Court of Appeal State of Florida, January A.D. 2010

IN THE SUPREME COURT OF FLORIDA REPLY BRIEF OF APPELLANT

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Third District Court of Appeal State of Florida

CASE NO.: 2014-CV A-O Lower Case No.: 2013-SC O

IN THE SUPREME COURT OF FLORIDA

Third District Court of Appeal State of Florida, January Term, A.D. 2012

IN THE DISTRICT COURT OF APPEAL SECOND DISTRICT, LAKELAND, FLORIDA. v. Case No.: 2D12- PETITION FOR WRIT OF PROHIBITION

IN THE SUPREME COURT OF FLORIDA PAMELA A. BARCLAY 4D RESPONDENT S AMENDED BRIEF ON JURISDICTION. On Review from the District Court

Third District Court of Appeal State of Florida

IN THE SUPREME COURT OF FLORIDA. IN RE: ESTATE OF CASE NO. SC04- Lower Tribunal No. 2D ALVARADO KELLY,

The 2008 Florida Statutes

IN THE SUPREME COURT STATE OF FLORIDA

MOTION TO VACATE FINAL JUDGMENT OF FORECLOSURE AND INCORPORATED MEMORANDUM OF LAW

IN THE SUPREME COURT OF FLORIDA. CASE NO.: SC Lower Tribunal Nos.: 5D CA W HOWARD BROWNING, Petitioner, vs. LYNN ANNE POIRIER,

IN THE SUPREME COURT OF FLORIDA CASE NO. Second District Court of Appeal Case Number: 2D L.T. No. 05-CA Parrot Cove Marina, LLC

Third District Court of Appeal State of Florida

Third District Court of Appeal State of Florida, July Term, A.D. 2011

IN THE SUPREME COURT OF FLORIDA. : Case No. SC MANDATORY REVIEW OF DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

IN THE SUPREME COURT OF FLORIDA

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA. Plaintiff, Case No CI-11 MOTION TO DISQUALIFY JUDGE

In the District Court of Appeal Fourth District of Florida

IN THE SUPREME COURT OF THE STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

IN THE SUPREME COURT OF FLORIDA. v. Lower Tribunal No. 2D ON PETITION FOR DISCRETIONARY JURISDICTION BASED ON ALLEGED CONFLICT OF DECISIONS

IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA. THE FLORIDA BAR, Case No. SC Complainant, TFB Nos ,725(13F) ,532(13F) v.

IN THE SUPREME COURT STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT. Appellant, v. Case No. 4D L.T. No.: MM000530A STATE OF FLORIDA,

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE September 13, 2017 Session

SUPREME COURT OF FLORIDA. Case No.: 98,448 SAUL ZINER, Petitioner, NATIONSBANK, N.A., Respondent. RESPONDENT S ANSWER BRIEF

Third District Court of Appeal State of Florida

IN THE SUPREME COURT OF FLORIDA. vs. L.T. NO.: 3D ON NOTICE TO INVOKE DISCRETIONARY JURISDICTION FROM THE THIRD DISTRICT COURT OF APPEAL

IN THE FIFTH DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

IN THE SUPREME COURT OF FLORIDA. ALVIN MITCHELL, Petitioner, Case No.: 4D L.T. No.: CF-10A PETITIONER'S JURISDICTIONAL BRIEF

IN THE SUPREME COURT OF FLORIDA. RED REEF, INC 4 th DCA Case Number: 4DO D L.T. Case No.: CL (AF) Plaintiff/Petitioner

IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR S ANSWER BRIEF

IN THE SUPREME COURT OF FLORIDA. DALE JOHNSON, ) ) Petitioner, ) ) vs. ) CASE NO. SC ) (4DCA ) STATE OF FLORIDA, ) ) Respondent.

IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC TYRA WILLIAMS, Petitioner, vs. STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF FLORIDA JURISDICTIONAL BRIEF OF RESPONDENT

IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC ROBERT RANSONE, Petitioner, vs. STATE OF FLORIDA, Respondent.

STATEMENT OF THE CASE. Appellee, BAC HOME LOANS SERVICING, L.P., f/k/a COUNTRYWIDE

No. 74,092. [May 3, 19891

IN THE SUPREME COURT OF FLORIDA. Case No. SC06-56 BEVERLY PENZELL AND BANK OF AMERICA, N.A., Petitioners, vs.

ORPHANS' COURT DIVISION RULE 14

Supreme Court of Florida

IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D VINCENT MARGIOTTI. Petitioner, -vs- STATE OF FLORIDA, Respondent.

Filing # E-Filed 04/17/ :27:36 PM. RECEIVED, 04/17/ :28:29 PM, Clerk, Supreme Court STRICKEN

CASE NO: FORECLOSURE SCHEDULING ORDER. 1. Any prior order referring this case to Senior Judge Sandra Taylor is hereby VACATED.

Transcription:

IN THE FLORIDA SUPREME COURT Lower Tribunal Case Number: 1D03-4621 Case Number: SC05-957 ANN LYON, ETC., vs. Petitioner/ Appellant, KEITH SANFORD, ET AL. Respondent/ Appellee. AMENDED PETITIONER S BRIEF ON JURISDICTION W. DAVID VAUGHN, P.A. Florida Bar No.: 977780 817 North Main Street Jacksonville, FL 32202 Telephone: (904) 475-1646 Telecopier: (904) 475-1647

TABLE OF CONTENTS STATEMENT FACTS...Pg. 1 SUMMARY OF ARGUMENT...Pg. 4 ARGUMENT...Pg. 5 CONCLUSION...Pg. 9 CERTIFICATE OF SERVICE AND COMPLIANCE APPENDIX: 1 ST DCA OPINION STATEMENT OF FACTS AND THE CASE The following facts are derived from the opinion of the court below, a copy of which is included in the appendix. Katherine A. Lyon, appellant, now through her guardian Ann Lyon, defaulted on two $50,000.00 home equity mortgages securing a debt on her home in early 2003. The Bank of New York, filed a complaint for foreclosure of the mortgages and, following appellant s failure to answer, the trial court entered a final judgment of foreclosure. On August 1,2003, the property was sold to appellee Keith Sanford for a bid of $120,001.00, and certificate of title was issued to him. The bid was for about one-third the fair market value of Ms. Lyon s home. On August 13, 2003, within nine days of the buyer s application for writ of possession of the property, Thomas Rosenblum, Esquire appeared on behalf of Ms. Lyon and immediately filed verified motions to vacate the judgment of foreclosure and to set aside the judicial sale. In

addition to alleging her mental incapacity to manage her property, Lyon stated that in the event the court granted hearing on the motion, she would immediately post a cash bond with the clerk of the court in the sum of $130,000.00, in order to protect the interest of the buyer at the judicial sale. Attached to the motion to vacate was an affidavit of Lee Lyon, appellant s cousin and financial advisor, who averred that as of January 1, 2003, Katherine Lyon had substantial liquid assets, and no financial impediment existed that precluded her from paying off the two mortgages in full. He also stated that he did not learn of the foreclosure suit until after appellant had been served with the writ of possession. During oral argument before the First DCA, appellee s counsel represented that the trial court afforded appellant a full hearing on her motions for emergency stay of the writ of possession and to vacate the foreclosure sale. Based on these representations and the absence of a hearing transcript, the First District Court of Appeal issued an order directing respective counsel for appellant and the buyer, appellee Sanford, to prepare a statement of the evidence or proceedings which took place at the August 22, 2003 hearing in the circuit court on the motions for emergency stay and to vacate the foreclosure sale. The order further directed respective counsel to submit these statements to the trial court for settlement and approval. The circuit court complied with the First District Court of Appeal s order by filing a statement of the proceedings that were conducted on August 22, 2003. The statement by the circuit court did not support appellee s argument

that appellant had the opportunity to offer evidence at August 22 hearing in support of her motions. The statement reflects that Thomas F. Rosenblum, Esquire, newly retained counsel for appellant, presented the emergency motions to the trial court on Friday morning, August 22, 2003. The trial court advised counsel that time was available that morning to discuss the motions if opposing counsel could attend. Appellant s counsel located the buyer, Mr. Sanford, and his attorney, and the three met in the judge s chambers on the same morning as the motions were presented, i.e., on August 22, 2003, at 11:00 a.m. In pertinent part, the trial court s statement provides: 4. There was no court reporter present for the hearing. The court reviewed the motions and either the docket or court file and noted that valid service was had, a default was entered, and all pleadings post-default were served on the defendant. The court further noted that Defendant sought relief from the court only after the property had been sold and certificate of title issued. 5. Mr. Rosenblum alluded to emotional problems of the defendant, but confirmed that she had never been declared incompetent. 6. The court denied relief that day, August 22, 2003, confirmation of which is attached. The lower court s recitation of the facts indicates that no testimony was taken at the emergency hearing. The Verified Motion to Vacate Sale and Set Aside Final Judgement, attached to the circuit court s statement of proceedings, in addition to setting out details of

Ms. Lyon s mental condition, averred that appellant can provide experts to show that as a result of [her] illnesses, she exhibits selfdestructive behavior, a severely low self-esteem, and denial. Ms. Lyon s motion to vacate the judgement of foreclosure also alleged that her counsel would produce an affidavit from a treating psychiatrist who could establish the existence of her mental illness. At the so-called hearing on August 22, 2003, the only evidentiary matter before the court were the two verified motions signed by Rosenblum and Ms. Lyon. These verified motions were not refuted - there were no opposing affidavits. The only evidence before the circuit court was contained in the verified motions, and these motions established that Ms. Lyon was mentally incapacitated. SUMMARY OF ARGUMENT The lower court majority addressed a situation wherein the circuit court had entered its decision on Ms. Lyon s motion for Rule 1.540(b) relief on evidence that was undisputed. The majority opinion is based on the premise that a circuit court s decision on Rule 1.540(b) motion is always a question of fact. This is an erroneous proposition and totally contrary to the Florida Supreme Court s longstanding rule as stated in its commentary to the Florida Rules of Civil Procedure that where the evidence is undisputed, a Rule 1.540(b) decision is a pure question of law and not fact. The majority opinion should have addressed the circuit court s decision as a question of law and therefore entirely reviewable. ARGUMENTI THE OPINION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH THE FLORIDA SUPREME COURT S COMMENTARY TO THE AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE (TWO YEAR CYCLE) FOR 2003 REGARDING THE APPLICATION FOR RELIEF UNDER RULE 1.540(b) IN THAT THE CIRCUIT COURT S DECISION ON MS. LYON S RULE 1.540(b) MOTION INVOLVED A PURE QUESTION OF LAW AND NOT FACT. THE EVIDENCE WAS UNDISPUTED THAT MS. LYON S MENTAL CONDITION PREVENTED HER FROM REACTING TO THE FORECLOSURE, AND THEREFORE THE COURT BELOW WAS WRONG IN STATING THAT RULE 1.540 (b) ISSUES ARE ALWAYS QUESTIONS OF FACT AND NOT OF LAW.

The majority opinion in the case below bases its decision on what appears to be an unshakeable principle of law embraced by the Third District Court of Appeal in a recent decision: Whether relief should be granted pursuant to rule 1.540 is a fact specific question and the trial court s ruling should not be disturbed on appeal absent adverse abusive discretion. LPP Mortgage v. Bank of America, N.A., 826 So. 2d (Fla. 3 rd DCA 2003). The LPP Mortgage Limited case deals with a circuit court ruling on a Rule 1.540(b) motion after a full blown evidentiary hearing with live witness testimony. The majority opinion s reliance on this case is at complete odds with the Florida Supreme Court s long heldprinciple that when facts are essentially undisputed, the legal effect of the evidence will be a question of law. The Florida Supreme Court s commentary on a Rule 1.540(b) motion clearly sets forth this principle in the 2003 edition of its Amendments to the Florida Rules of Civil Procedure (Two Year Cycle): The application of the [Rule 1.540(b)] relief provision is generally within the discretion of the court except when questions of law are involved. For example, if judgement or decree is void as a matter of law, no discretion would exist but to give proper relief. Id. (emphasis supplied) Hence the majority s reliance on the LPP Mortgage Limited case is inappropriate because the circuit court had only undisputed evidence before it. In Town of Palm Beach v. Palm beach County, 460 So. 2d 879 (Fla. 1984) the Supreme Court of Florida clearly stated this long standing rule regarding questions of law as follows: What is at issue is the legal conclusion to be drawn from this fact. As this court has consistently stated, where the facts are

essentially undisputed, the legal effect of the evidence will be a question of law. Id. It is very easy to reconcile LPP Mortgage Limited with Town of Palm Beach, in that the former dealt with an appeal after there had been a full blown evidentiary hearing with conflicting factual evidence, while Town of Palm Beach addressed the situation where there was no factual dispute. The strong dissent in Ms. Lyon s case below makes this point emphatically: It appears to me that the circuit court concluded, that regardless of what evidence appellant could conceivably present, she would not, under any set of facts, be entitled to the remedy that she sought. If this was the effect of the court s ruling, it was, in my judgment, erroneous. Because I am of the firm conviction that appellant s motion and supporting affidavits reveal a colorable basis for relief, I would reverse and remand the lower court s order denying appellant Katherine A. Lyon s motion, filed pursuant to Florida Rule of Civil Procedure 1.540(b), to set aside a mortgage judicial sale and to cancel certificate of title on the ground of excusable neglect or mistake. In my judgment, the lower court s denial of the motion without affording appellant a hearing at which evidence could be presented supporting her motion to vacate was an abuse of discretion. (See, Dissent)(Emphasis supplied) II. REMARKABLY THE MAJORITY IN THE COURT BELOW STATES THAT THE ISSUE AS TO WHETHER AN UN-ADJUDICATED MENTAL INCAPACITY CAN SERVE AS A BASIS FOR RELIEF ON A RULE 1.540(b) MOTION IS AN ABSTRACT QUESTION THAT DOES NOT HAVE TO BE REACHED.

The court below offered the observation that under Rule 1.540, the First DCA does not have to address questions of law as long as some sort of a hearing occurred at the circuit court level: On appeal, counsel, now representing Ann Lyon, Katherine s afterappointed guardian, argues that a homestead owner s putative, unadjudicated incapacity to make mortgage payments and respond to legal process, because of a dissociative disorder since childhood causing self-destructive behavior, a severely low self-esteem, and denial, can be basis to set aside a default foreclosure judgment and judicial sale. But this abstract question is not before us for decision. (See, Majority Opinion). In the majority opinion there is an assertion that the circuit court judge took into account competing equities. This is a strange remark in light of the fact that the only evidentiary matter put before the court were the verified motions submitted by Ms. Lyon s first counsel Thomas Rosenblum. Rosenblum attested to the mental incompetency of Ms. Lyon. He states that Ms. Lyon suffered from a bipolar condition that impeded her capacity to respond to foreclosure, even though she was financially capable of fully redeeming the two mortgages at issue. Counsel for third party bidder Keith Sanford submitted no opposing affidavit at August 22, 2003 hearing. The circuit court had before it only the un-refuted verified motions which established that Ms. Lyon had an un-adjudicated mental incapacity that prevented her from responding to the foreclosure. Given that the verified motions were un-refuted, on what basis did the circuit court make its decision? What were the competing equities? Circuit court Judge Bowden in his Rule 9.200 statement recalls that he reviewed Rosenblum s motions and either the docket or court

file, noted that Rosenblum alluded to emotional problems of Ms. Lyon, and that Rosenblum confirmed that [Ms. Lyon] had never been declared incompetent. It is this sentence in Judge Bowden s Rule 9.200 statement that reveals his true reservations about granting relief to Katherine. It is evident that Judge Bowden deemed an un-adjudicated mental incompetency to be a non-valid basis for Rule 1.540(b) relief. Although Judge Bowden does not expressly say this, it is the only logical inference one can draw from the sparse language of his statement. There were no factual disputes before him. He had only the un-refuted verified pleadings before him. That being the case, Judge Bowden made a ruling on a question of law that was erroneous and, therefore, was an abuse of discretion. The majority s reliance upon the vague concept of competing equities simply runs counter to the Florida Supreme Court s longstanding mandate to the District Courts of Appeal that they step up to the plate and fully review a circuit court s decision when it is a pure question of law. Contrary to Judge Bowden s opinion, an un-adjudicated incompetency can serve as a basis for granting Ms. Lyon relief under Rule 1.540(b) per Jax Sani Serva System, Inc. v Burkett, 509 So. 2d 1251 (Fla. 1 st DCA 1987). In Jax Sani, the First DCA declared that even though the party seeking relief had not been adjudicated incompetent (W)e are of the view that excusable neglect can be grounded on the psychological condition of the party seeking relief. Jax Sani, id., at 1252. CONCLUSION

The court is respectfully urged to accept jurisdiction. W. DAVID VAUGHN, P.A. W. David Vaughn, Esquire Florida Bar No.: 977780 817 North Main Street Jacksonville, FL 32202 Telephone: (904) 475-1646 Telecopier: (904) 475-1647 AMENDED CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to Lawrence Bernard, Esquire, 300 West Adams Street, Suite 300, Jacksonville, Florida 32202, by U.S. Mail on this 28th day of June, 2005. W. David Vaughn APPELLATE CERTIFICATE OF COMPLIANCE WITH FLA.R.App.P. 9.210 Ala. R. App. P. 9210 COMES NOW the Appellant by and through the undersigned counsel and hereby certifies that the Brief submitted on her behalf was in compliance with FLA.App.P. 9.210 Ala.R.App. P. 9.210 (a) (2). W. DAVID VAUGHN, P.A. W. David Vaughn, Esquire Florida Bar No.: 977780 817 North Main Street Jacksonville, FL 32202 Telephone: (904) 475-1646 Telecopier: (904) 475-1647