IN THE SUPREME COURT OF FLORIDA
CASE NO: SC17-301
FOURTH DISTRICT CASE NO: 4D16-1340; 4D16-3649
L.T. FILE NO: 50 2010 CP-00 3665
DANIEL C. ANDRE,
Petitioner,
APR
8 2017
John P. Morrissey et. al.,
Respondent.
On Petition for Discretionary Review from the
District Court of Appeal, Fourth District
VERIFIED BRIEF OF PETITIONER
ON JURISDICTION
Daniel C. Andre
1599 S.W. 187th Avenue
Miami, Florida 33194¹
Pro Se Petitioner In Re
The Estate of
Ralph Raymond Andre
TABLE OF CONTENTS
PAGE NO:
Table of Authorities............................................................
ii-iii
Introduction........................................................................
1
Factual and Procedural Background..................................
1-3
Summary ofthe Argument..................................................
3-4
Argument.............................................................................
4-5
May v. Bartnett, 934 So. 2d 1184, 1187 (Florida
2006)..."WARNED
TODAY
BARRED
TOMORROW" THE DISTRICT COURT'S OPINION
WAS USED TO "CHILL," "INTIMIDATE," AND
"THREATEN"
PETITIONER'S
GOOD
FAITH
LITIGATION
VIOLATING
RUDIMENTARY
PROCESS FUNDAMENTALS OF A FULL AND FAIR
OPPORTUNITY
TO
LITIGATE.
THE
MISAPPLICATION OF THE DISTRICT'S DECISION
INVOKES BOTH SPECIES OF JURISDICTION FOR
CONFLICT REVIEW AND TO PROTECT FUTURE
EXERCISE OF SUPREME COURT JURISDICTION THE "WARNING SHOT" IS INAPPROPRIATE AND A
MISCARRIAGE OF JUSTICE."
Conclusion..........................................................................
6-7
Verification.........................................................................
7
Certificate of Service..........................................................
7
Certificate of Compliance....................................................
8
1
TABLE OF AUTHORITIES
CASES:
PAGE NO:
All State Insurance Co. v. Kaklamanos, 843 So. 2d (Fla. 1993)...
7
Broward Cnty v. GB VInt'l LTD, 787 So. 2d 838, 842 (Fla. 2001)
4
Buckley v. Wood (1591) 76 Eng. Rep. 888 (K.B.).........................
1
Chiles v. Public Employees Relations Com'n 630 So. 2d 1093
(Fla. 1994)......................................................................................
4
Cnty. OfPasco v. Riehl,635 So. 2d 17 at 18 (Fla. 1994)................
2
DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013)......................
4
Echevareia McCalla, Barrett & Frappier v. Cole, 950 So. 2d 380,
3 83 (Fla. 2007)................................................................................
4
Havenngr v. Hutchinson, 2015 Lexis Fla. App. 5663
(Fla. 18' DCA 2015).........................................................................
5
Helm v. Foot, 2003 Fla. App. Lexis 4483.......................................
3
Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981)...................
May v. Bartnet, 934 So. 2d 1184, 1187 (Fla. 2006) Misapplied..
1, 4
Nielsen v. City ofSarasota, 117 So. 2d 731 at 736 (Fla. 1960).......
3
Nordelo v. State, 913 So. 3d 178 (Fla. 2012)..................................
North Florida Women Health v. State, 866 So. 2d 612 at 637
(Fla. 2003)......................................................................................
3,4
Savoie v. State,422 So. 2d 308 at 312 (Fla. 1982).........................
The Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988)..................
4,6
4
Wallace v. Dean, 350 3d 1035 at 40 (Fla. 2008)............................
Williams v. State, 913 So. 2d 541 (Fla. 1993).................................
3
4
Zirin v. Charles Pfizr & Co., 128 So. 2d 594, 596 (Fla. 1961).......
6
11
1
TABLE OF AUTHORITIES
PAGE NO:
CONSTITUTIONAL PROVISIONS:
Article V § 2(a) Fla. Constitution..................................................
Article I §21 Fla. Constitution.......................................................
4
4
Article V § 3(b)(3)(7)(8) Fla. Constitution...................................
4,5
Article VI Section 2 U.S. Constitution..........................................
Article I § 9 Fla. Constitution........................................................ .
2
4
LANDMARK CASES:
Armstrong v. Manzo, 3 80 U.S. 545 ( 1968).....................................
5
Grannis v. Ordean, 234 U.S. 385 (1914)........................................
3
National Socialist Party ofAmerica v. Village ofSkokie, 432 U.S.
43 (1977).........................................................................................
United States v. Throckmorton, 98 U.S. 6 1 ( 1878).........................
111
6
5
INTRODUCTION
In invoking this review for misapplication of a decision ("A") that conflicts
with the Sunshine Litigation Act, 2 May v. Bartnet, 934 So. 2d 1184, 1187 (Fla.
2006) creates a gross miscarriage of justice and destroys due process. Petitioner
("Mr. Andre") is reassert[ing] the Stare Decisis 3 controlling effect the Supreme
Court decisions for the past century, cases from which this Court will never recede
from.
Mr. Andre was punished for his "good faith" for "good cause" "legally
sufficient" litigation due to his PRISONER STATUS ("A"). The District Court
litigated against Mr. Andre in a private probate matter. His cry of distress was
answered: Frustrating justice, furthering the miscarriage.....He did nothing wrong.
FACTUAL AND PROCEDURAL BACKGROUND
1.
Mr. Andre's father died while he was serving a 300 month sentence for a
incident that manifested out of Mar-A-Lago, in 2003.
2.
Mr. Andre retained counsel to protect his estate generated interest and assets.
3.
After counsel did nothing for 26 months - the personal representative was
found to have embezzled $1,065,773.00 in estate funds during that period and was
removed as personal representative (P.R.).
2 Fla. Stat. § 69.081 F.S. Florida's Absolute Privilege, Judicial Litigation Privilege, Litigation Privilege Buckley v.
Wood, (1591) 76 Eng. Rep 888 (K.B)
3 Guiding principal of Stare Decisis; North Florida Womans Health v. State 866 so. 2d 612 at 637 (Fla. 2003).
1
4.
Mr. Andre's counsel nominate a curator/fiduciary, Respondent John P.
Morrissey - who continued in the removed P.R. responsibilities never submitting a
interim accounting (corporate) these fiduciary inactions by Respondent is
"suspect."
a. Mr. Andre's counsel tried to personally extort him - Respondent did
nothing. Mr. Andre refused their offer demanding an accounting.
b. Mr. Andre's own counsel hired an extortionist to apply pressure to him to
sell estate assets to counsel - Respondent did nothing. Mr. Andre refused
the offer.
c. Months later "Respondent' (Fiduciary) defaulted on the rent by not paying
the rent "Freeing" the estate asset Mr. Andre's counsel wanted to
purchase.
5.
Respondent moved the probate Court for authorization to sell estate's
"freed" asset to Mr. Andre's counsel of record's entity. (A & B Property One,
LLC.)
6.
Counsel of record moved to purchase Freed estate asset (a 4COP dual liquor
license) from estate corporation that counsel was (is) corporate principles to.
7.
Mr. Andre moved for an adversary interim accounting, adversary
production of assets and estate information.
8.
Respondent moved to dismiss Mr. Andre's adversary petition.
9.
A hearing was held WITHOUT Mr. Andre present or an "opportunity to be
heard." Art. VI, Section 2, U.S. Constitution, Cnty ofPasco v. Riehl, 635 So. 2d 17
at 18 (Fla. 1994).
2
10.
The Probate Court granted Respondent's Motion to Dismiss WITHOUT Mr.
Andre presence seven (7) times in 2016.
11.
Mr. Andre's "Motion for Rehearing to Correct a Departure From the
Essential Requirement of Law" was denied. ("B")
12.
Mr. Andre, legally sufficiently, petitioned the Fourth District for a Writ of
Certiorari to wit: case number 4D16-1340.
13.
The District Court NEVER issued a show cause. Instead the Court issued
two supplement directives. The second directive was for actual "transcripts" which
is - impossible - for a certified indigent State prisoner.
14.
Pending the legally sufficient Petition for Writ of Certiorari Respondent and
his agent who is also Mr. Andre previous counsel of record of 47 months, had six
(6) more of Mr. Andre's legally sufficient adversary Motions dismissed
WITHOUT his presence or an "opportunity to be heard" - to wit: case number
4D16-3649; Grannis v. Ordean, 234 U.S. 385 (1914); Helm v. Foot, 2003 Fla. App.
LEXIS 4483.
SUMMARY OF ARGUMENT
The issue in this case is whether the District Court's decision freezes a pro
se prisoner's First Amendment right to litigate. By misapplication of this Court's
decision in May v. Bartnet, the District Court restrained the spirit of the First
3
Amendment, "chilling" his efforts and seriously hampering the adversary systems
Stare Decisis of participation in the judicial process free from fear.
Jurisdiction can be accepted based on Nielsen v. City ofSarasota, 117 So. 2d
731 at 734 (Fla. 1960); Wallace v. Dean, 3 So. 3d 1035 at 40 (Fla. 2009); Nordelo
v. State, 93 So. 3d 178 (Fla. 2012) or Williams v. State, 913 So. 2d 541 (Fla. 1993)
protecting future jurisdiction. Mr. Andre's litigation arises immediately upon the
doing of an act required or permitted by law in the due course of judicial
proceeding, ..."Nothing More Nothing Less." ("B") Art.V § 2(a) of the Fla. Const.
ARGUMENT
"THE CRY OF DISTRESS IS A CALL TO RESCUE" ...after...
Petitioner was foreclosed from having his day in a probate - adversary- Court Mr.
Andre called for the District Court to "reach down and halt a miscarriage of
justice where no other remedy exist" Broward Cnty v. GBV Int'l LTD., 787 So. 2d
838, 842 (Fla. 2001).
However, ...INSTEAD... of applying "the principle of the litigation
privilege in Florida, essentially providing legal immunity for action that occur in
judicial proceedings Echevareia klcCalla, Barrett & Frappier v. Cole, 950 So. 2d
380, 383 (Fla. 2007) The District "chilled" Mr. Andre with an inappropriate threat
of barrment. ("A") Inflicting fear of reprisal, Art. I, § 21 Florida Constitution.
Deprived access to the courts and Fla. Const. Art. I § 9 guaranteed of due process.
4
In an attempt to "freeze" his good faith litigation. The District Court
erroneously interpretated May v. Bartnet, 934 So. 2d 1184, 1187 (Fla. 2006). This
misapplication warrants accepting jurisdiction; Art. V, § 3(b)(3) Fla. Constitution;
Delmonico v. Traynor, 116 So. 3d 1205 (Fla. 2013); Nordello v. State, 913 So. 3d
178 (Fla. 2012); Not limited to the Constitutional Writ: See State ex rel Chiles v.
Public Employees Relations Com 'n 630 So. 2d 1093 (Fla. 1994) invoked to protect
jurisdiction conferred elsewhere in the Constitution; Art. V, § 3(b)(7) Fla.
Constitution. See Savoie v. State, 422 So. 2d 308 at 312 (Fla. 1982). In The Florida
Star v. B.lF., 530 So. 2d 286 (Fla. 1988) this Court explained jurisdiction under
Article V § 3(b)(3) of the Florida Constitution.
"...Thus it is not necessary that conflict actually exist for
this Court to possess subject matter jurisdiction only that
there be some statement or CITATION IN THE
OPINION
THAT
HYPOTHETICALLY
COULD
CREATE CONFLICT if there were another opinion
reaching a contrary result."
Mr. Andre asserts, the citation in the opinion ("A") and Florida stature
quoted ("A") creates conflict and the misapplication requires this Court to invoke
jurisdiction.
The extrinsic fraud committed cannot be overlooked. United States v.
Throckmorton, 98 U.S. 61 (1878). Mr. Andre was "keep out of Court," his due
process destroyed. Armstrong v. Manzo, 380 U.S. 545 (1968); Havenngr v.
Hutchinson, 2015 Lexis Fla. App. 5663 (Fla. 1" DCA 2015) Then, Mr. Andre was
5
punished by the District Court for litigating. He did nothing wrong only tried to
hold an appointed fiduciary (Respondent) accountable for embezzling millions of
dollars in generated estate funds and subsequent sabotage of an estate asset. The
Respondent's bad faith actions are evident and the "casual connection" is
overwhelming.
CONCLUSION
This is truly extraordinary - and totally inconsistent with the basic structure
of the appellate process - that the District Court "chilled" Mr. Andre for exercising
his constitutional right to access the Courts, a protected action. National
Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977). The
constitutional implications are obvious. For Respondent set into motion this
miscarriage by false representation. It would be unjust and equitable to permit
Respondent who has made false representation to retain the fruits of a bargain
induced by such misrepresentation.
In a case of first impression, Mr. Andre is respectfully requesting this Court
to exercise the holding, witnessed in Savoie, 422 So. 2d 308 at 310 using the
Court's raw power and authority to address this issue, as justice requires. Mr.
Andre incorporates Justice Drew's explanation in Zirin v. Charles Pfizer & Co.,
128 So. 2d 594 at 596 (Fla. 1961) it speaks volumes.
6
In good faith, Mr. Andre properly lodges jurisdiction before this Court. To
fix the toxic - adversary - atmosphere created from Mr. Andre's good faith
"absolutely privileged" pro se prisoner litigation. Mr. Andre prays for a stay of all
proceeding in this estate be issued pending disposition, to prevent further material
injury and irreparable harm. See All State Insurance Co. v. Kaklamanos, 843 So.
2d (Fla. 1993).
VERIFICATION
Under the penalties of perjury the facts are true pursuant to § 92.525 F.S.
Executed this __ day of
, 2017.
Daniel C. Andre
7
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this document was placed in the
hands of a State agent for mailing on this __ day of M/WIG
, 2017 to:
Clerk of Court, John P. Morrissey (Fiduciary/Curator), 330 Clematis Street, 213,
West Palm Beach, Florida 33401; Casey Ciklin Lubitz Martens & O'Connell, P.A.,
515 N. Flagler Drive, 20th Floor, West Palm Beach, Florida 33401; Hon. Judge
John Phillips (Case No. 4D16-1340), 3188 PGA Blvd., Palm Beach Gardens,
Florida 33410 Hon. Judge Roger Colton (Case No. 4D16-3649), 3188 PGA Blvd.,
Palm Beach Gardens, Florida 33410; Brian O'Connell (Personally and as agent to
John P. Morrissey), and Ashley N. Crispin-Ackal (personally and as director of A
& B Property One, LLC) and Joilette Foglietta (Agent to A & B Property One,
LLC), 515 N. Flagler Drive, 20th Floor, West Palm Beach, Florida 33401; Donna
Levine, 3003 S. Congress Ave., # 1-A, Palm Springs, Florida 33461; Stacey
McKindles, 1120 S.W. Elm Grove Court, Palm City, Flori
34990.
Daniel Andre
Everglades Correctional Inst.
1599 S.W. 187th Avenue
Miami, Florida 33194
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this document was prepared in compliance with
the font standards required by Florida Rule of Appellate Pro dure, R
9.210.
Daniel Andre
Everglades Correctional Inst.
1599 S.W. 187th Avenue
Miami, Florida 33194
8
FLORIDA SUPREME COURT
IN RE: ESTATE OF
RALPH RAYMOND ANDRE,
Deceased,
DANIEL ANDRE, SOLE
BENEFICIARY IN RE ESTATE
OF RALPH R. ANDRE,
Petitioner,
CASE NO: SC17-301
4th DCA CASE NO 16-1340, 16-3649
L.T. FILE NO: 502010CP003665
v.
JOHN P. MORRISSEY et. al.,
Respondent.
¹APPENDIX IN SUPPORT OF
VERIFIED BRIEF OF Petitioner
ON JURISDICTION (VERIFIED)
EXHIBIT "A" PAGE 01-01
Conformed copy of the Fourth District decision adjudicating the issue "on
the merits" 2 with misapplication of May v. Barnett, 934 So. 2d 1184 (Fla. 2006)
used to invoke fear and "chill" Petitioner's absolutely privileged prison pro se
litigation.
EXHIBIT "B" PAGE 02 Primafacie miscarriage offustice. 3 This second-tier certiorari is intended
to correct an inherent illegality or irregularity, an abuse ofjudicial power, an act of
judicial tyranny perpetrated with disregard of procedural requirement, resulting in
a gross miscarriage ofjustice.
* Applegate v. Barnett Bank ofTallahassee, 1979 Fla./ Lexis 4810
2 Topps v. State, 865 So. 2d 1253 (Fla. 2009).
3 Nader v. Fla. Dept. Highway Safety, 87 So. 3d 712, 716 (Fla.2012)
EXHIBIT
"A"
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL 33401
November 04, 2016
CASE NO.: 4D16-1340, 4D16-3649
L.T. No.:
502010CP003665XXXXNB,
502010CP003665
DANIEL CHRISTOPHER ANDRE
v.
Appellant / Petitioner(s)
JOHN P. MORRISSEY, et al.
Appellee / Respondent(s)
BYORDEROFTHECOURT:
ORDERED that case numbers 4D16-1340 and 4D16-3649 are consolidated for
purposes of resolution by the same panel; further,
ORDERED that petitioner's October 31, 2016 Motion for Extension of Time and
Emergency Motion to Stay in case number 4D16-1340 are denied; further,
ORDERED that the petitions for writ of certiorari in case numbers 4D16-1340 and
4D16-3649 are denied on the merits.
Petitioner is cautioned that abusive, repetitive, malicious, and/or frivolous filing may
result in sanctions, such as a bar on pro se filing in this court or referral to prison officials for
disciplinary procedures. See May v. Barthet, 934 So. 2d 1184, 1187 (Fla. 2006); §
944.279(1), Fla. Stat. (2016).
TAYLOR, DAMOORGIAN and LEVINE, JJ., concur.
Served:
cc: Donna Phylis Levine
John P. Morrissey
Stacey Tosi
Ashley N. Crispin
Daniel Christopher Andre
Hon. Roger B. Colton
Joielle A. Foglietta
Brian M. O'Connell
Hon. John L. Phillips
ms
LOftN WEISSBLUM, Clerk
Fourtit District Coud of Appeal
F
0F F
FlLED
SHARON R.BOOK
CLERit & COMPTROLLER
CIRCUlT CIVil DIVISION