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:[email protected]
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
Griffith v. Shamrock Village, Inc.,
94 So. 2d 854 (Fla. 1957) ...........................................................2, 4, 6, 7
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 ofEducation, 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 of the 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 0921176, 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: [email protected]
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 of Miami, 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:[email protected]
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