IN THE SUPREME COURT OF THE STATE OF FLORIDA CIVIL DIVISION CASE NUMBER SC

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CIVIL DIVISION CASE NUMBER SC APPELLATE CASE NO: 3D SUSAN PARKER FEIN, Circuit Case Numbers: CA CA CA 22 Consolidated Appellant/Petitioner JOHNSON & WALES UNIVERSITY, Appellee/Respondent / JURISDICTIONAL BRIEF APPELLANT/PETITIONER SUSAN PARKER FEIN S, PRO SE, JURISDICTIONAL BRIEF REGARDING JURISDICTION OF THE SUPREME COURT ON REVIEW FROM THE 11 TH JUDICIAL CIRCUIT AND THE THIRD DISTRICT COURT OF APPEAL IN AND FOR MIAMI-DADE COUNTY, FLORIDA Susan Parker Fein, Pro Se 212 Andalusia Avenue Coral Gables, Florida Tel: Fax:

2 TABLE OF CONTENTS CITATIONS...P. 3 INTRODUCTION...P. 4 JURISDICTION...P. 4 STATEMENT OF THE CASE AND FACTS...P. 5-7 SUMMARY OF THE ARGUMENT...P. 7-9 ARGUMENT...P CONCLUSION P

3 CITATIONS COURT RULES Fla. R. App. P P. 4 Fla. R. App. P (a)(2)...P. 12 FRCP, Rule 1.540: Relief From Judgment, Decrees, Or Orders because of Mistakes, Inadvertence, Newly Discovered Evidence, Fraud, etc..p. 8 CASES David Prop., Inc. v. Selk, 151 So. 2 nd 334,340(Fla. 1 st DCA 1963).P. 8, 9 SUPREME COURT GUIDELINES AND REGULATIONS The Supreme Court of Florida Uniform Guidelines for Taxation of Costs November 17, 2005 In Re: Amendments To Uniform Guidelines For Taxation Of Costs, the Supreme Court of Florida..P. 4,8 Supreme Court Jurisdiction over Florida Attorneys Supreme Court Rules of Professional Conduct and Florida s Standards For Imposing Lawyer Sanctions....P. 9 3

4 INTRODUCTION Appellant, Susan Parker Fein, Pro Se, was a Residential Tenant and had a residential rental agreement which the Appellee, Johnson & Wales University which was Inherited from a previous landlord after the Appellee purchased the property and became the Appellant s landlord. JURISDICTION Florida Rule of Appellate Procedure permits the exercise of discretionary jurisdiction when a decision of a district court of appeal expressly and directly conflicts with a decision of another district court of appeal or of the Supreme Court on the same question of law. The Third District Court of Appeal s Opinion rendered on August 1, 2007 expressly and directly conflicted with the rules of the Florida Bar and the code of ethical behavior for attorneys in which the Supreme Court has ultimate jurisdiction. Additionally, the Third District s Opinion radically conflicted with the First DCA on the main issue of the case, which is whether the Pro Se Appellant was a Trespasser without rights, or a Tenant whose rights were violated by the Appellee. Finally, the enormous Cost Judgment upheld by the 3 rd DCA is in direct conflict with the Supreme Court s November 17, 2005 Uniform Guidelines for Taxation of Costs. 4

5 STATEMENT OF THE CASE AND FACTS This Appellant is a Pro Se Indigent Litigant who has largely been Pro Se throughout the Circuit Court Case and the entire Appellate Court Case except for a brief period in which the Appellant had representation by 2 separate Florida Attorneys. Both attorneys filed Sanctions against the Appellee and its Attorneys for the Wrongful Acts in Circuit Court including Fraud, Judge Shopping, Forged Court Orders, and Altered Court Orders. The Appellant filed a transcript with the Third District proving that the opposing counsel Mark Antonelli tampered with a Non-Party Witness and Evidence, confiscating documents Subpoenaed by the Appellant at a deposition. The witness, a Florida Attorney, Maria Caserta, is also accused of perjury with clear evidence of Trust Fund violations in financial record keeping, in an attempt to hide evidence from the Pro Se Appellant. Many of these wrongful acts were sited and filed by a Florida Attorney representing the Appellant in Circuit Court in the Summary of Wrongful Acts against the Appellee and its Attorneys, and is part of the Third District s Court File. Renowned Handwriting Expert, Edward Whittaker was to expose for the Public Good, the Fraud and Forgeries and Network of Corruption by this law firm in the 11 th Judicial Circuit, at a special set hearing but was not allowed to testify. Based upon knowledge and belief, the Powerful Appellee and Law 5

6 firm through its Network of Corruption also had Trial Judge Roberto Pinero Transferred to the Criminal Division so the Pro Se Appellant could not get the long awaited and rescheduled Trial. After 5 years of litigation and after 1 year of the court rolling over the Trial, and the Appellant s case next to go to Jury Trial, a Final Summary Judgment was issued against the Pro Se Appellant for all the numerous counts (originally counterclaims) by the new Judge, Judge David C. Miller, in spite of the fact that at least 2 counts required live testimony. Additionally, Judge Miller allowed the Appellee s Amended Complaint suing the Appellant for Rent as a Tenant to remain pending and it continues to be pending to this date. On March 29, 2006 about 2 days after the Final Summary Judgment, an unexplained $50, was deposited in Judge Miller s campaign fund (as a matter of public record), to be refunded to the Judge at a later date. Judge Miller was unopposed in his election campaign and the deadline for filing of any opposition had nearly expired. Further, there is suspicion that some of the Court Orders and the actual Opinion of the Third District have been tampered with and a Clerk at the Third District said that things must be taken out of the Third District s file before public viewing. A clerk refused to permit viewing of the Court file on 2 occasions at the Third District, although on at least one occasion, a clerk 6

7 admitted the file was available. There is a Court Order from the Third District dated August 28, 2007 that was mailed to the Appellant, was docketed on line, then about 2 days later was mysteriously removed from the docket without any reference. The Order that was mysteriously removed from the docket shows evidence of being copied and pasted on a computer. Additionally, a Cost Judgment of over $10, was awarded against the Pro Se Appellant by the same Judge (Judge Miller) who received the $50, in his campaign account. Previously, at the Calendar Call where the Appellant was next on the roster to go to a Jury Trial, Judge Miller asked the Pro Se Litigant how much is the case worth? The approximate amount stated for settlement purposes by the Appellant appeared in Judge Miller s campaign account 2 days after he rendered the Final Summary Judgment against the Pro Se litigant. Finally, the Appellant in a Verified Motion in Circuit Court certified that the Head Transfer Clerk in an excited utterance said that "the opposing attorney wants a new Judge with the three consolidated cases being transferred to the same unrelated section 3 times. SUMMARY OF ARGUMENT The Circuit Court permitted the Appellant to be considered a Trespasser without rights which is a direct and clear contradiction of the existing Opinion 7

8 from the 1 st district, David prop., inc. V. Selk,. Further, in equity and law both Lower Court s decisions should not have been rendered until the alleged fraud, forgeries, altered court orders and the alleged network of corruption in the 11 th Judicial Circuit, in relation to this case had been adequately investigated. FRCP, Rule 1.540: RELIEF FROM JUDGMENT, DECREES, OR ORDERS allows for, during the pendency of an appeal for decisions to be overturned because of Mistakes, Inadvertence, Newly Discovered Evidence, Fraud; etc. Although the Public Corruption Unit of the State Attorneys Office briefly investigated only the forged court orders, after the Assistant State Attorney said to the Appellant that You don t have to be a Handwriting Expert to see this is a forgery, their investigation did not continue when according to the Detective, Judge Stuart Simons believed that the forged signatures were his (although he was not sure and had to ask his J.A., who filed the forgeries). The Public Corruption Unit has not investigated the law firm nor does it have the power to do so and all the alleged Wrongful Acts listed in the Pro Se Appellant s Argument, all remain unaddressed. Finally, the Third District, failed to use its Discretion in reversing a $10,000 Cost Judgment, which the Supreme Court has jurisdiction by virtue of its own 2005 Amendments To Uniform Guidelines For Taxation Of Costs. The Supreme Court of Florida has ultimate jurisdiction to administer the 8

9 disciplinary system and enforce the Supreme Court Rules of Professional Conduct for all lawyers in Florida including the Florida s Standards For Imposing Lawyer Sanctions. Argument Point 1: ARGUMENT THE THIRD DISTRICT UPHELD THE CIRCUIT COURT RULING BY PERMITTING THE APPELLANT TO BE TREATED AS A TRESPASSER WHILE BEING SUED AS A TENANT FOR RENT. See the conflict in the existing case law, David Prop., inc. V. Selk. The 1 St District in its previous ruling specifically says that the Defendant/ landlord must choose whether to treat the Pro Se Appellant (holdover tenant) as a Trespasser or a Tenant, but once they sue the Pro Se Appellant for Rent, they can no longer proceed with the thesis that the Appellant was a Trespasser without Rights. The Third District utilized this case law in its Opinion, but the case law supports the Appellant s position as expressed by the 1 st DCA.: David Prop., inc. V. Selk. Optionally, a landlord may treat a tenant failing to surrender possession of the leased premises as a trespasser, or he may waive the wrong occasioned by the holding over and treat him as a tenant.. In this case, the defendant, as the landlord, had at least several courses of action available when the plaintiff, as the tenant, continued to live on the leased property after expiration of the term of the lease. The defendant could probably have chosen to demand the 'double the monthly rent' provided for by the statute; it elected not to do so, and the plaintiff could not force the defendant to do so. The defendant undoubtedly could have treated the 9

10 plaintiff as trespasser, and sued or counterclaimed against the plaintiff for damages for depriving it of reasonable rental value and any special damages; it elected not to do so, and neither the plaintiff nor the chancellor could force it to do so. The defendant also could waive the wrong occasioned by the holding over and treat the plaintiff as a tenant, demanding an increased rent of the plaintiff if the plaintiff chose to remain on the property; this the defendant elected to do, and neither the plaintiff nor the chancellor could force it to claim damages instead of rent. Since the Appellee/Landlord is only entitled to one course of action, and since the Appellee/Landlord chose to sue the Appellant/Tenant as a Tenant for Rent, the Appellee/Landlord clearly abandoned its right to claim that the Appellant is a Trespasser, according to the 1 st DCA. Therefore, the Appellant s Complaint should not have been dismissed in the Final Summary Judgment on the basis that the Appellant was a Trespasser. Argument Point 2: THE THIRD DISTRICT RENDERED AN OPINION WITHOUT INVESTIGATION OF ANY OF THE NUMEROUS IMPROPRIETIES IN THE 11 TH JUDICIAL CIRCUIT IN RELATION TO THIS CASE. If even one of the allegations brought forth in the Circuit Court and the Third District of Fraud, Forgeries, or an altered Court Order etc. by the Appellee and its attorneys remains unaddressed and not investigated, the Third District s Opinion to Affirm the Lower Court s Civil Rulings must be reversed since the alleged criminal activity and improprieties by the Appellee and its law firm would have tainted decisions from the lower courts on up. 10

11 Further, the Pro Se Appellant has realized, after the fact, that the Appellate Judge Richard Suarez, who wrote the actual Opinion, should have recused himself since the Pro Se Appellant represented herself after Hurricane Andrew, SUSAN FEIN vs. STATE FARM GENERAL INS CO, Case CA-01, and incurred bitter litigation, where Judge Suarez was the opposing Attorney. There was a tremendous legal and emotional conflict between Attorney Suarez practicing in Kendall, Miami, Florida and the Pro Se litigant when the Pro Se Appellant was prevailing in Circuit Court. Attorney Suarez reluctantly settled with the Appellant. Attorney Suarez, now Judge Suarez, has presided as one of the Appellate Judges hearing this case including writing the Opinion in the Third District now under Appeal with this Supreme Court. ARGUMENT POINT 3. THE THIRD DISTRICT DID NOT ENFORCE THE GUIDELINES FOR TAXABLE COSTS SET FORTH BY THE SUPREME COURT. The Third District failed to use its discretion in reversing a $10, Cost Judgment that was obtained at a Motion Calendar by the opposing attorney, which violates the Supreme Court Guidelines, in which the Supreme Court has ultimate jurisdiction. CONCLUSION This Court should make its determination to exercise jurisdiction on the 11

12 Question of whether a holdover residential tenant can be treated as a Trespasser and simultaneously be sued for rent as a Tenant and resolve the conflict between the 1st DCA and the 3rd DCA. Further, the Supreme Court should launch an independent investigation into the allegations as put forth by the Pro Se Appellant and 2 separate Florida Attorneys in Circuit Court. Finally, the Appellant requests this Honorable Court to Vacate the Extremely Excessive Cost Judgment of over $10, which violates The Supreme Court s Guidelines and is largely based on Fraud. STATEMENT OF COMPLIANCE WITH RULE 9.210(a)(2) I hereby CERTIFY that this Brief of the Appellant, Pro Se, has been prepared in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure, using 14 point Times New Roman font. Susan Parker Fein, Pro Se 212 Andalusia Avenue Coral Gables, Florida CERTIFICATE OF SERVICE THIS IS TO CERTIFY THAT THE FOREGOING WAS FILED WITH THIS HONORABLE COURT, THIS 15 th DAY OF NOVEMBER 2007 AND WAS MAILED TO THE ATTORNEY FOR THE APPELLEE, JOHNSON & WALES UNIVERSITY, MARK R. ANTONELLI, ESQUIRE, 420 SOUTH DIXIE HIGHWAY, 3 RD FLOOR, CORAL GABLES, FLORIDA AND MAILED TO NORMAN C. POWELL, ESQUIRE NE 19 TH AVE, NORTH MIAMI BEACH, FLORIDA Susan Parker Fein, Pro Se 212 Andalusia Avenue Coral Gables, Florida Tel: Fax: