< /. IN THE SUPREME COURT OF THE STATE OF FLORIDA Case No.: SC11-1580 Case No.: 3D10-1320 Case No.: LT99-1046 MICHELE G. HARDIN, vs. Appellant/Petitioner, MONROE COUNTY, FLORIDA and MONROE COUNTY CODE ENFORCEMENT BOARD, Appellee (s) /Respondents. SECOND AMENDED JURISDICTIONAL BRIEF OF APPELLANT Partial Appeal of Order of Florida Third District Court of Appeal November 7,2011 Michele G. Hardin. Pro Se P.O. Drawer 1647 Key West, Florida Phone: (305) 745-4656
TABLE OF CONTENTS TABLE OF CONTENTS 2 TABLE OF AUTHORITIES 3 I SUMMARY OF THE ARUMENT 4 II Statement of Case and Procedural Background 5 in ARGUMENT 9 I Portion Of Opinion Of Third District Court District Court Saying Appeal Is In Part Untimely Contradicts Law Of The Case Doctrine Announced By This Court 9 II Order Finding Timeliness Remains Valid 11 CONCLUSION 12 CERTIFICATE OF SERVICE 14 CERTIFICATE OF COMPLIANCE 14 APPENDIX 1: Opinion Third District Court Of Appeal 15 And Deny of Motion For Rehearing
TABLE OF AUTHORITIES McGregor v Providence Trust Co. of Philadelphia, 162 So. 323 (Fla. 1935) 4,11 Tyson v. Mattair, 8 Fla. 107 (1858) 12 White Sands, Inc. v Sea Club V Condominium Ass'n. 581 So. 2d 286,287(Fla. 2d DCA 1991) 11 OTHER SOURCES The United States Constitution, Amendments 4,5,6,8, and 14 The Florida Constitution, Art. I, Sec.10 Florida Rule of Civil Pro. 1.510
I SUMMARY OF THE ARGUMENT Appellant/Petitioner, Michele Hardin, respectfully submits my Second Amended Jurisdictional Brief, pursuant to Fla. R. App. Pro. 9.120(d) and seeks review of a portion of the Opinion of the Third District Court of Appeal, entered on May 18,2011, with ensuing Motion For Rehearing denied on July 7, 2011. The in part Questioned Opinion, regarding the Sixteenth Judicial Circuit In and for Monroe County, Florida was entered on April 14, 2010, dismissing my 12 year Appeal as untimely. The decision of the Circuit Court to find my Notice of Appeal as in part untimely, is in conflict with decisions of the Florida Supreme Court, such as McGregor v Providence Trust Co. of Philadelphia, 162 So. 323 (Fla. 1935). There is conflict with the McGregor decision of this Court because by entering the Questioned Order, the Third District in part didn't recognize that the Order entered by the Circuit Court in November 4, 2004 (the "2004 Order"), which specifically found that I had timely filed my Notice of Appeal, was law of the case. The determination of timeliness in November of 2004 rendered improper the Circuit Court's later finding of untimeliness in the Dismissal and Deny Orders of March and April 2010. Moreover, by affirming the Dismissal Order which dismissed my Appeal of the Violation Order, the Questioned Opinion is contrary to my due process rights. I have, since the commencement of these proceedings, contested the illegal search
and seizure that occurred when the Code Enforcement Officer entered my Property without authority and took unauthorized photographs. This unauthorized entry resulted in my home being cited and imposed with accruing Excessive Fines, even with my on-going due process Motions for Stay of fines, and even though my home had Certificate Of Occupancy, as fully permit code compliant as purchased. II Statement of Facts and Procedural Background In 1988, I purchased my home and property on Sugarloaf Key, which included a permitted lower level enclosure. The permits issued by the County bore no FEMA flood stamp restrictions. I have affidavit letters from the builder and owner/builder confirming that my home was fully permitted and a Certificate of Occupancy [CO-6799] County Code inspected. I am in possession of the original permits (Permits #1213896/10084 and #166915/6799) which indicates no flood stamp restrictions. The permits submitted by the County bore flood stamp restriction which was not present on original permits, and are Spoilage of Records. My home with enclosure was selected for a environmentally friendly Florida Ruck Sewer System Study, which was also 1997 County and State Permitted, status quo. Ten years later in 1998, while I was away at University of Florida working on my post-grad degree in media production services, Code Enforcement entered my "No Trespass" permitted property without my authorization, took unauthorized photos, and cited me and my property as having an alleged illegal enclosure. My
f^ first of three Code Hearings was held on February 26, 1999, whereby my Pro Bono Attorney contested on my behalf, that my property was victim to illegal search and seizure of unauthorized photos, that my due process was violated, that there was no County witness to face, and that County and Code had violated my Constitutional Rights, including my Fourth, Fifth, Eighth, and Fourteenth Amendments. After what seemed to me to be County biased and Court condescending behavior towards my Pro Bono Attorney, who stayed soldiering-on defending me by speaking to my Points of Law, my Due Process and my Constitutional Rights being violated, plus no County witness to face, but the Special Master Overby still found in favor of the County. I had two other continued consecutive Code Hearings on April 29, 1999, and May 28, 1999, after I duly filed a Motion and Order for Stay of Fines and Time, on April 14, 1999, before said April 16, 1999 Violation Order that must have suffered one of many County Scrivener's Error mailings to me. And I also filed a May 14, 1999, Motion and Order To Stay of Fines and Time. Both Motions were filed for my due process time needed to deal with the loss of my Pro Bono Counsel due to illness, for mandatory make-a-living work commitments, and to allow time to research find and receive records, County missing or misplaced documents, as well as awaiting my on-going Code Hearing cassettes and video for transcription documentation. All of the above I timely acted upon as all was necessary to my Due Process defense, and proving my timely
timeline, my permit documented legal enclosure home, and my Constitutional Rights violated by various County selective enforcement egregious tactics, including Scrivener's Error, Spoilage of Records, Excessive Fines to accrue. Even though, I did indeed find pertinent records to my Appeal For Justice Served, some of which were tampered with, delayed, and/or never received, be it by Scriveners Error, or just plain missing in action. And even though I had duly documented, with affidavits proving that without hearing reset, I'd miss it due to my annual mandatory make a living Chicago Coca-Cola job, the May 28, 1999 hearing proceeded without me there to defend myself, and/or present records and documents. Special Master Overby again denied my due process saying, "She had requested a stay of the fines pending her appeal. It says until she's in receipt of all judgment documents, transcripts and research. I'm not going to be able to grant that because that could be forever."( May 28th Hearing transcribed). On June 28, 1999, after some hearing cassettes were finally received from Code Enforcement for legal temp transcription, plus proof of records were retrieved, I filed a Motion for Rehearing. On August 16, 1999, the Special Master entered Orders denying my Motion for Rehearing, my Motion For Stay Of Fines, and Imposing Penalty, Violation, and Lien, (some with Scrivener's Error). On September 3, 1999, within thirty days, I timely filed my Appeal to the Sixteenth District Court Of Appeals from Monroe County and Code Enforcement Orders Denying my Due Process to defend my CO and permitted home, and against the
violations of my Constitutional Rights. My Appeal and Initial Brief were received and accepted in Sixteenth Appeal System by my first assigned Circuit Judge Jones. After many legal wranglings via various County Attorneys trying to dismiss my Appeal, ~ on November 5, 2004, my second assigned Sixteenth District Court Judge Payne entered an Order finding my Appeal timeliness. The Court stated: It appears that the Order entered August 16,1999 by the Special Master in Code Enforcement Case L-9-98-409 was an appealable order which by its terms recited that the Special Master had conducted a hearing on March 23,1999, adjudged violations and ordered that various corrective actions be taken by Appellant by April 15,1999. Said Order of August 16, 1999 went on further to recite that the compliance deadline had been extended to May 20,1999, and that thereafter on May 28,1999 the Special Master had determined that corrective action had not been taken, and that thereafter on August 16,1999 the Special Master entered his order imposing fine of $20 per day from May 20,1999 and adjudged that said fines would constitute a lien against the property. The Order dated August 16,1999 was forwarded to Appellant by U.S. Mail August 20,1999 as certified by the Code Enforcement Liaison. Appellant timely Sled the instant appeal on September3, 1999. Judge Payne retired in 2005, and I carried on thru my 12 years in the Sixteenth DistrictCourt of Appeals, with my now the third Sixteenth District Court Judge Audlin, who took over for Judge Payne. A status conference was held on June 23, 2008, at which I Pro Se appeared with counsel assist, who entered an appearance for the purpose of that hearing. Judge Audlin requested supplemental briefings which were submitted timely. Despite the timely submissions, no ruling was made until March 19, 2010, when the Court entered the Order Dismissing my
Appeal as untimely. I moved for rehearing and reconsideration, which was denied, on April 14,2010, by Order Denying Motion for Reconsideration. Since Sixteenth Circuit Appeal Judge Audlin, who replaced Judge Payne dismissed my appeal by his 2010 Order on the basis of being untimely, which was in direct contradiction to Sixteenth Circuit Appeal Judge Payne's 2004 Order, I filed my Notice of Appeal of Judge Audlin untimely Order with the Third District Court of Appeal on May 14, 2010. On April 20, 2011, the Third District Court of Appeal heard my Pro Se Oral Argument, and I so appreciate my Third DCA Judges for their respect for me as Pro Se and hearing my Appeal. I am eternally grateful for their May 18, 2011 Opinion, in favor of my Appeal, by quashing the County's imposing run of $84,000 accrued Excessive Fines, which saved me from losing my home to the County. But I must Appeal the Third DCA in part decision acknowledging some untimeliness, because after Pro Se walking the walk, and talking the talk, all these years, I know that my Appeal has always been timely. So I filed my Motion for Rehearing which was denied by Order dated July 7, 2011. This appeal is directed only toward that portion of the Third District Court's Opinion alleging in part untimely Notice of Appeal. ARGUMENT I Portion Of Opinion Of Third District Court District Court Saying Appeal Is In Part Untimely Contradicts Law Of The Case Doctrine Announced By This Court
The Questioned Order is erroneous in its affirmation of the Dismissal Order to the extent that it also finds that Appellant had untimely filed the Notice of Appeal of the Violation Order. The District Court appears to have not taken into account the fact that Appellant filed a Motion to Stay Fines and for Rehearing on April 14, 1999 and again on May 14, 1999. As indicated in the transcript of the continued Code hearing on April 29,1999, Special Master Overby continued the Code hearing to the next hearing date of May 28,1999. Even Third DCA Judge Rothenberg and Judge Lagoa, seemed convinced that I was indeed timely, as Judge Rothenberg stated at my Oral Hearing, -- "...I mean, first of all, the length of this case beginning in 1998 and the first hearing in 1999, and then you have a Judge who makes a finding that this is a timely appeal in 2004. You then have a Judge making a finding in 2010 that it's not a timely appeal and kicks her out of the courthouse without her hearing because it's not allegedly timely I have, not only the timely issue and the fact that one Judge is overruling another Judge on the same level, is the fact that all this is going on without a stay and she's being charged $20 a day as a fine from...1999." (Oral Hearing/Trans.P-19/Lines 19 thru 24 and P 20/Linesl thru 12) And also as Judge Lagoa stated, "I also am very troubled by the fact that there is an order from 2004 which finds that her appeal is timely, and then in 2010, another Judge, without any reference to the 2004 order, completely disregards what I believe is the law of the case and finds her appeal untimely." (Oral Hearing P20/Lines 15 thru 21.) Because the Circuit Court had expressly found in favor of my Appeal on all timeliness issues in 2004, with Circuit Court Judge Payne specifically stating in his 2004 Order, "Appellant timely filed the instant appeal." Therefore the later order, 10
entered some six years later in 2010, finding the Notice of Appeal untimely contradicts the law of the case doctrine announced by this Court. See, e.g. McGregor v Providence Trust Co. ofphiladelphia, 162 So. 323 (Fla. 1935). II Order Finding Timeliness Remains Valid The 2004 determination that my Appeal had been timely filed constitutes the law of the case with respect to the issue of timeliness as stated by this Court in McGregor where the Court stated that the doctrine of law of the case requires that questions of law decided on appeal must govern the case through all stages of the proceedings, and please see also White Sands, Inc. v Sea Club V Condominium Ass 'n, 581 So. 2d 286,287(Fla. 2d DCA 1991). Moreover, the Third District's affirmation of the Circuit Court's Dismissal Order and its finding that there was no "adequate allegation of procedural irregularity, due process or abuse of discretion" overlooks certain portions of the record. For example, statements reflected in the transcript of the initial hearing before the administrative tribunal on February 26,1999 indicates that my Counsel, appearing at that 1999 hearing noted and objected to procedural irregularities and violations of Appellant's Fourth, Fifth, Eighth and Fourteenth Amendment due process rights.1 These include the admission of evidence taken from my home 1 Transcript of Hearing of February 26,1999, Page 34, Lines 18-19. 11
while I was not there, by a person unauthorized to be on the Property. Further assertions of due process violations were raised in Appellant's subsequent briefs. CONCLUSION First and foremost I want to express my appreciation to the Third District Court of Appeal for recognizing: a) my twelve years of loss of due process while languishing in the lower district; and b) the relief of the excessive fines (totaling more than $85,000) provided for under their Order. However, to the extent that the Order affirms in part untimeliness of my Appeal, it is erroneous because it directly contravenes the 2004 Order specifically finding that I had timely filed the appeal of the Violation Order. I relied upon the finding of timeliness in pursuing my appeal of Code Enforcement Orders, including the Violation Order, an order that should never have been issued, and the 2010 Order dismissing my Appeal after 12 years, of being in safe harbor of Appeal set down by Judge Payne's 2004 Order of law. In Tyson v. Mattair, 8 Fla. 107 (1858). this principle of respecting earlier court decisions on the same point is clearly stated: "Where the same points come again in litigation, as well to keep the scale of justice even and steady, and not liable to waiver with every new judge's opinion, as also because the law in that case being solemnly declared and determined, what before was uncertain and perhaps indifferent is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments." Tyson, 8 Fla. at 124 12
The County made no attempt for more than ten years after I purchased the Property to assert any action regarding the lower level structure despite clearly having knowledge of it. I have paid taxes on the Property as it exists and thus the County had ample opportunity to act but chose not to do so for more than a decade. After remaining silent for more than ten years with respect to any grievance it may have regarding the Property, the County chose to act in a manner that did not accord with my due process rights because the property was entered upon while I was not there by a person with no authority to be on the property. Therefore, I respectfully petition this Court take jurisdiction of this matter, quash the Order of the Third District Court of Appeal to the extent that such order finds the appeal untimely and quash the order of the Circuit Court finding me to have violated the referenced sections of the Monroe County Code. The damages I have already suffered being tossed around in the legal system for 12 years without Justice Served, and the damages I will incur if the Questioned Order is allowed to stand would be violations to my Constitutional Rights, deprivation of my property rights, and my due process rights. Because as Martin Luther King said "Injustice Anywhere is Injustice Everywhere," and "Justice Delayed is Justice Denied." Respectfully Submitted For My Justice Sake Mibhele G. Hardin, Pro Se P.O. Drawer 1647 Key West, Florida 13
CERTIFICATE OF TYPEFACE COMPLIANCE I HEREBY CERTIFY that the typeface of this brief is 14 point, Times New Roman, and complies with the font standards prescribed in Fla. R. App. Pro. 9.210(a)(2). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of foregoing is furnished by U.S. mail to Robert Shillinger, Chief Assistant County Attorney, Monroe County Attorney's Office, 1111 12th Street, Suite 408, Key West, FL 33040 Michele G. Hardin, Pro Se P.O. Drawer 1647 Key West, Florida Telephone: (305) 745-4656 14