Answer Brief

IN THE DISTRICT COURT OF APPEAL FOR THE SECOND DISTRlCT STATE OF FLORIDA STATE OF FLORIDA Appellant,

Case No.: 2D06-278 L.T. Case No's: 01-009347-CI-015 CTCAB36199I3MA

ON APPEAL FROM THE CIRCUIT AND/OR COUNTY COURT IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLEE'S ANSWER BRIEF

Mark A. Adarns JDIMBA P.O. BOX 1078 VALRICO, EL 33595 813-643-4412

TABLE OF CONTENTS

Table of Citations.. .............................................................

3

Statement of the Case and Facts.. ............................................

5

Summary of the Argument.. ..................................................

12

Argument Issue I (Restated).. ......................................................

14

THE SUCCESSOR JUDGE DID NOT ERR IN REVERSING A FINAL ORDER OF THE PREDECESSOR JUDGE. Issue I1 (Restated).......................................................

18

THE SUCCESSOR JUDGE DID NOT ERR IN RULING THE WEBER AFFIDAVIT WAS LEGALLY INSUFFICIENT.

Issue 111...................................................................

21

THIS COURT IS REQUIRED TO DISMISS THE STATE'S APPEAL BECAUSE THE RECORD SHOWS THAT THE LOWER COURT LACKED JURISDICTION TO ENTER ANY ORDER CONCERNING THE APPELLEE. Issue IV.. .................................................................

23

THE ORDER TO SHOW CAUSE CONCERNS ACTS WHICH DO NOT CONSTITUTE CIVIL OR CRIMINAL CONTEMPT. Issue V.. ..................................................................

25

THE STATE DID NOT HAVE A RIGHT TO APPEAL THE LOWER COURT'S ORDER VACATING THE ORDER TO SHOW CAUSE AND THIS COURT DOES NOT HAVE JURISDICTION TO GRANT ANY RELIEF REQUESTED BY THE STATE.

Conclusion.. .....................................................................

26

Certificate of Service............................................................

27

Certificate of Compliance......................................................

27

TABLE OF CITATIONS Cases Mansfiled v. Swan. 111 U.S. 379 (1884).....................................

22. 23

U S. v. Lanier. 520 U.S. 259 (1997)..........................................

24, 26

Alger v. Peters. 88 So.2d 903 (Fla. 1956)....................................

16

Esch v. Forster. 127 So. 336 (Fla. 1930).....................................

22

Exposito v. State. 891 So.2d 525 (Fla. 2004) .................................

25

Exparte Senior, 19 So. 652 (Fla. 1896).....................................

14, 23

Farish v. Smoot. 58 So2d 534 (Fla. 1952)..................................

26

Chapman v Lake. 151 So. 399. 402 (Fla. 1933)............................

26

Coleman v. State. 182 So. 627 (Fla. 1938)..................................

26

Hofman v. Jones. 280 So.2d 43 1 (Fla.1973)...............................

21, 22. 24

Lovett v. Lovett. 112 So. 768 (Fla. 1927)....................................

17, 19

Polk County v. SoJka. 702 So.2d 1243 (Fla. 1997).........................

20

Regan v. ZTTZndustrial Credit Co., 469 SoZd 1387 (Fla. 1st DCA 1984) approved, 487 So.2d 1047 (Fla.1986) ..............

20.22. 24

State ex re1. Everette v. Petteway. 179 So. 666 (Fla. 1938)...............

22

State v. MacLeod. 600 So.2d 1096 (Fla. 1992)..............................

25

West 132 Feet v. City of Orlando. 86 So. 197 (Fla. 1920)................. Wilson v. State. 184 So. 3 1 (Fla. 1938)....................................... Woods-Hoskins-Young Co. v. Taylor Development Co., 122 So. 224 (Fla. 1929)......................................................... 84 Lumber Co. v. Cooper. 656 So.2d 1297 (Fla. 2d DCA 1994).........

Decoro v. State. 771 So.2d 627 (Fla. 3rd DCA 2000)...................... Dicaprio v. State. 352 So.2d 78 (Fla. 4th DCA 1977)..................... Edler v. State. 673 So2d 970 (Fla. 1st DCA 1996)........................ Hertz International. LTD v . Richardson. 3 17 So2d 824 (Fla. 3d DCA 1975).............................................................

Lindman v. Ellis. 658 So.2d 632 (Fla. 2d DCA 1995)...................... Lockwood v. Pierce. 730 So.2d 1281 (Fla. 4th DCA 1999)............... McGahee v. State. 293 So.2d 98 (Fla. 1st DCA 1974)..................... Proctor v. State. 764 So.2d 752 (Fla. 2d DCA 2000) ...................... Statutes

18 U.S.C. 9 242 .................................................................. Florida Statutes 5 38.23 ......................................................... Florida Statutes $ 117.05 ....................................................... Florida Statutes 8 775.08. ...................................................... Florida Statutes $ 924.07 .......................................................

Rules Florida Rule of Civil Procedure 1.560 .......................................

11

Florida Rule of Judicial Administration 2.160..............................

15,17

Florida Rule of Criminal Procedure 3.840.. .................................

10, 18, 19

Florida Rule of Appellate Procedure 9.140..................................

25

Florida Rule of Appellate Procedure 9.200 ..................................

6,21

STATEMENT OF THE CASE AND FACTS The State's Statement of the Case and Facts is woefully inadequate, misleading, and conveniently ignores key facts and controlling issues, and therefore, the undersigned will clarify the pertinent information for the Court. On January 3,2006, the lower court entered its order properly vacating the Order to Show Cause "finding that the notarized jurat contained in the Affidavit of Timothy W. Weber, Esq. filed September 30,2003 was insufficient pursuant to Florida Statutes and case law.. .." (R. 258). The lower court based this decision on Point One of the Appellee's Memorandum of Law in Support of Defendant's Motion to Reconsider Order to Show Cause which showed that as a matter of law, the purported affidavit was insufficient to invoke the lower court's jurisdiction to issue an order to show cause. (R. 258 and R. 237-240). As has been pointed out to this Court in the Appellee's Motion to Require Preparation of the Record in Compliance with the Rules of Procedure or to Dismiss

this Proceeding, the State transmitted an incomplete record to this Court. The two progress dockets transmitted by the clerk of the lower tribunal show that the State filed a Notice of Appeal on January 11,2006 and that the State did not file any directions to the clerk concerning the record within 10 days as required by Rule 9.200(a)(3). Instead, the progress dockets show that the State filed its directions on February 27,2006,37 days late, (R. 261) and that the State did not file a statement of judicial acts to be reviewed as required by Rule 9.200(a)(3). Furthermore, the first document in the record which was transmitted to this Court was an order granting sanctions filed in the lower tribunal on July 3 1,2003. The progress docket for Case No.: 01-009347-CI-015 shows that the record does not include any of the required documents filed in the lower court between December 13,2001 and July 3 1,2003, and that a number of documents filed after July 3 1,2003 are also missing from the record transmitted to this Court including the motion filed by the Appellee on September 15,2003 seeking to vacate the order granting sanctions and seeking a protective order concerning the same. Most importantly, the progress docket for Case No.: 01-009347-CI-015 shows that no pleading was filed to invoke the lower court's subject matter jurisdiction to enter any order concerning the Appellee and no process was served to acquire personal jurisdiction over the Appellee between the time that the order approving the Appellee's withdrawal as counsel was approved without any

reservation of jurisdiction as of October 1,2002 (R. 85-86) and the time that the lower court entered an order granting sanctions against the Appellee on July 3 1, 2003 (R 1-38). Of course, no such documents could be included in the record because none exist. In addition, prior to the lower court's approval of the Appellee's withdrawal as counsel for the Plaintiffs in Case No.: 01-009347-CI-015, Timothy W. Weber objected to the approval of the Appellee's withdrawal without any reservation of jurisdiction admitting that such action would be prejudicial to his clients' ability to obtain sanctions against the Appellee (R. 95-96?! 3), and the State admitted these facts (R. 163, T[ 3). However, the lower court entered an order approving the Appellee's withdrawal as counsel without any reservation of jurisdiction as of October 1,2002 (R. 85-86). Also, the progress docket for Case No.: 01-009347-CI-015 shows that on October 2,2002 a notice of hearing was filed by Tirnrny Weber scheduling a hearing on November 20,2002, the date which the progress docket and the judgment for expenses show that the lower court entered orders on the motions to compel which are the basis of the judgment for expenses. (R. 39-41). However, if the complete record had been produced as required by the rules, the notice of hearing for the hearing on November 20,2002 would show that it was for a status conference not for motions to compel, and therefore, that the lower court entered

its orders on Weber's motions to compel without notice and an opportunity to be heard by anyone especially the Appellee whose withdrawal had been approved as of October 1,2002, and also contrary to the rule on conferences and contrary to due process. Furthermore, the style of the order granting sanctions (R. I), the judgment for expenses (R. 39), the purported affidavit of Timothy W. Weber (R. 4 9 , the order to show cause (R. 49), the order for arrest (R. 54), and every other document filed in the lower court in Case No.: 01-009347-CI-015 shows that the Appellee was not a named party in that civil action. The progress docket for Case No.: CTCAB36199MMANO shows that the first document was filed in that case on June 18,2004 and that no pleading was filed to invoke the lower court's subject matter jurisdiction in that case either. Of course, no such document could be filed because criminal contempt is not a misdemeanor. Was this "case" opened to provide cover for the "State"? As of January 6, 2009, the clerk of this Court still maintained that no panel has been assigned to this case. Yet, on August 6,2008, the clerk of this Court entered an order which stated, "Appellee's motion to require preparation of the record in compliance with the rules of procedure or to dismiss this proceeding is denied. However, the appellee may attach records from the civil case to his answer brief.. .." That sounds reasonable, but naturally, as no pleading was filed and no

process was served between the time that the lower court entered its order approving the Appellee's withdrawal without any reservation of jurisdiction as of October 1,2002 (R. 85-86) and the time that the lower court entered an order granting sanctions against the Appellee on July 3 1,2003, it is impossible to include any non-existent document as an attachment to this brief or in an appendix to it. Curiously, the State also failed to include the Motion to Vacate Order Granting Defendants' Amended Renewed Motion for Fees and Sanctions, Motion to Quash Notices of Depositions and Motion for Protective Order which were served to Timothy W. Weber via facsimile and U.S. Mail on September 12,2003 and filed with the clerk of the lower tribunal on September 15,2003. (R. 97, T/ 13). The State admitted service to and receipt of the foregoing motion by Timothy W. Weber on September 12,2003 prior to the date scheduled for the Appellee's deposition and prior to the time that any fact information sheet was due. (R. 166,l 13). The State also admitted that it was appropriate for the Appellee to seek a

protective order instead of complying with the orders for fees and sanctions. (R. 165, T/ 9). Yet, for some reason, the State continued to pursue this prosecution. The Order to Show Cause Why Mark A. Adams and Mark A. Adams, P.A. Should Not Be Held In Indirect Criminal Contempt (hereinafter referred to as the Order to Show Cause) was entered on October 1,2003 by Judge Crockett Farnell, and the pertinent part of it states, "THIS CAUSE came before the Court pursuant

to F1a.R.Crim.P. 3.840 on the affidavit of Timothy W. Weber, Esq., and the Court, having reviewed the affidavit, finds sufficient grounds exist for the issuance of an order to show cause.. .." (R. 49 -53). In addition, the Order to Show Cause shows that it was not initiated on the judge's own motion. (R. 49 -53). The notarial certificate or jurat on the document titled "Affidavit of Timothy W. Weber, Esquire" states, "The foregoing instrument was acknowledged before ~ of September, 2003 by TIMOTHY W. WEBER ...." (Emphasis me this 3 0 day added). (R. 48). It does not state, "Sworn to or affirmed and subscribed before me." (R. 48). The Order to Show Cause ordered the Appellee to show cause why he should not be held in criminal contempt for: A. Willfilly failing to serve a fact information sheet, including all required

attachments, ordered in the Judgment for Expenses on Motions to Compel entered on July 30,2003, in this cause. B. Willfully failing to serve a fact information sheet, including all required

attachments, as provided by the Order Granting Defendant's Amended Renewed Motion for Fees and Sanctions against plaintiffs, JEFFREY S. SMITH and SHARON P. SMITH, and plaintiffs former counsel, MARK A. ADAMS and MARK A. ADAMS, P.A., entered on July 30,2003.

C. Willfully failing to appear at a duly noticed deposition duces tecum in aid

of execution on September 15,2003. (R. 49-53). The progress docket for Case No.: 01-009347-CI-015 also shows that the order to show cause was entered on an ex park basis as no motion was filed, no notice of hearing was filed, and no hearing was held concerning Timothy W. Weber's improper request for the lower court to charge the Appellee with indirect criminal contempt. If the complete record had been produced as required by the rules and controlling precedent, it would have shown that Timmy Weber never made any request in a motion or at a hearing for the lower court to enter any order requiring anyone to serve a fact information sheet pursuant to Florida Rule of Civil Procedure 1.560. Instead, Weber just put that in the order granting sanctions (R. 138) and the judgment for expenses (R. 39-41) which he prepared and sent in for the lower court to sign without ever being requested to do so by the lower court on the record, and Weber's cover letter to the lower court shows that he included envelopes for the transmittal of copies of the foregoing to counsel for the parties. Furthermore, the progress docket for Case No.: 01-009347-CI-015 also shows that the next orders entered concerning the Appellee were returned to the court on August 27,2003 because the lower court sent them to the wrong address which most likely was the same one provided by Weber for transmittal of his wish

list sanctions order and judgment for expenses to the Appellee. In the Amended Motion to Dismiss (C-4), counsel for the Appellee raised the lack of timely service of the order granting sanctions and the judgment for expenses to the Appellee. (R.

97,

nn 9 and 11). The State improperly denied the failure to serve the order

granting sanctions and the judgment for expenses based solely on the claim that the foregoing documents which had been prepared by Weber indicate service to the Appellee as a conformed copy. (R. 165, f[ 9 and 11). The progress dockets show that the State did not file any response to the Appellee's Motion to Reconsider Order to Show Cause or to the Appellee's Memorandum of Law in Support of Defendant's Motion to Reconsider Order to Show Cause. Finally, at the hearing on the Appellee's Motion to Reconsider the Order to Show Cause, the State did not make any claim or objection that the lower court did not have any power to reconsider such order. (R. 266-3 14). SUMMARY OF THE ARGUMENT The lower court properly vacated the Order to Show Cause "finding that the notarized jurat contained in the Affidavit of Timothy W. Weber, Esq. filed September 30,2003 was insufficient pursuant to Florida Statutes and case law.. ..

71

(R. 258). The lower court based this decision on Point One of the Appellee's Memorandum of Law in Support of Defendant's Motion to Reconsider Order to Show Cause which showed that as a matter of law, the purported affidavit was

insufficient to invoke the lower court's jurisdiction to issue an order to show cause. (R. 258 and R. 237-240). In addition, no pleading was filed in Case No.: 01-009347-CI-015 to invoke the lower court's subject matter jurisdiction to enter any order concerning the Appellee and no process was served to acquire personal jurisdiction over the Appellee between the time that the order approving the Appellee's withdrawal as counsel was approved without any reservation of jurisdiction as of October 1,2002 (R. 85-86) and the time that the lower court entered an order granting sanctions against the Appellee on July 3 1,2003 (R 1-38). Furthermore, a motion to vacate, a motion to quash notices of deposition, and a motion for a protective order are all allowed by the Florida Rules of Civil Procedure and controlling precedent. The Appellee served a Motion to Vacate Order Granting Defendants' Amended Renewed Motion for Fees and Sanctions, Motion to Quash Notices of Depositions and Motion for Protective Order to Timothy W. Weber via facsimile and U.S. Mail on September 12,2003 and filed the same with the clerk of the lower tribunal on September 15,2003. (R. 97,T 13). The State admitted service to and receipt of the foregoing motion by Timothy W. Weber on September 12,2003 prior to the date scheduled for the Appellee's deposition and prior to the time that any fact information sheet was due. (R. 166,1[ 13). The State also admitted that it was appropriate for the Appellee to seek a

protective order instead of complying with the orders for fees and sanctions. (R. 165,19). The Florida Supreme Court has held that "where the act is necessarily innocent or justifiable, it would be preposterous to hold it a cause of imprisonment." Exparte Senior, 19 So. 652,653 (Fla. 1896). If an act is "only the assertion of the undoubted right of the party, it will not become a criminal contempt by being adjudged so." Id. See, also, Lindman v. Ellis,658 So.2d 632 (Fla. 2d DCA 1995). Therefore, it was preposterous for Tirnrny Weber to ask the lower court to enter any order charging the Appellee with contempt based on the Appellee's Motion to Vacate Order Granting Defendants' Amended Renewed Motion for Fees and Sanctions, Motion to Quash Notices of Depositions and Motion for Protective Order, and it was preposterous for the lower court to enter an order to show cause when the record showed that such motions had been filed and served. Finally, contempt is not a crime. Therefore, the State did not have the power to appeal the lower court's order vacating the order to show cause, and this Court does not have jurisdiction to grant the State any relief reversing such order. ARGUMENT ISSUE I (Restated) THE SUCCESSOR JUDGE DID NOT ERR IN REVERSING

A FINAL ORDER OF THE PREDECESSOR JUDGE. Without any legal basis, the State claims that an order denying a motion to dismiss is a final order. However, "an order is not a final appealable order until it disposes of all the issues presented below." Edler v. State, 673 So.2d 970,971 (Fla. 1st DCA 1996). An order denying a motion to dismiss is not a final order and is not subject to appeal before a final judgment. See e.g., McGahee v. State, 293 So2d 98,99 (Fla. 1st DCA 1974). Although the State acknowledges that Judge Crockett Farnell entered an order disqualifying himself, the State fails to note that Florida Rule of Judicial Administration 2.16001) specifically authorizes a successor judge to reconsider any orders entered by a judge who enters an order disqualifying himself based on a timely motion for reconsideration which was filed in this action. Instead, the State claims that Judge Farnell should not have disqualified himself because this Court had improperly denied a petition for a writ of prohibition in 2D03-4844. However, the progress docket, the record, and the transcript of the hearing on hearing on the Appellee's Motion to Reconsider the Order to Show Cause (R. 266-3 14) shows that the State did not make any claim or objection that the lower court did not have any power to reconsider such order. As the State did not raise the foregoing baseless arguments in the lower court, such arguments are waived. Furthermore, the progress docket shows that no pleading was filed in Case

No.: 01-009347-CI-015 to invoke the lower court's subject matter jurisdiction to enter any order concerning the Appellee and no process was served to acquire personal jurisdiction over the Appellee between the time that the order approving the Appellee's withdrawal as counsel was approved without any reservation of jurisdiction as of October 1,2002 (R. 85-86) and the time that the lower court entered an order granting sanctions against the Appellee on July 3 1,2003 (R 1-38).

"A party must either be in a suit or out; there is no area of limbo where it is subject to recall. Once a party is dropped from a suit, that party can be joined again only by service of process." Hertz International, LTD v. Richardson, 3 17 So.2d 824, 828 (Fla. 3d DCA 1975). It is fundamental to our concept of justice that the rights of an individual cannot be adjudicated in a judicial proceeding to which he has not been made a party and in which the moving party has failed to bring him properly into court. Alger v. Peters, 88 So.2d 903, 906 (Fla. 1956). If a party wants to obtain a

judgment against a person, that party should take the simple steps required to bring that person into the jurisdiction of the court according to the dictates of due process. Id. Before a trial court's potential jurisdiction of the subject matter can be exercised, it must be lawfi~llyinvoked and called into action by pleading and process. Lockwood v. Pierce, 730 So.2d 1281, 1283 (Fla. 4th DCA 1999) citing

Lovett v. Luvett, 112 So. 768 (Fla. 1927). When no proceedings have been brought against a particular person or entity, the court does not have subject matter jurisdiction to enter a judgment against that person or entity, and if any such judgment is entered, it must be reversed. Id.

Subject matter jurisdiction cannot be created by waiver, agreement, or error of the parties or counsel or by the exercise of the power of the court. 84 Lumber Co. v. Cooper, 656 So.2d 1297,1298 Fla. 2d DCA 1994). (Emphasis added). The entry of an order or judgment without jurisdiction is a fundamental error which requires the appellate court to vacate that order or judgment. Id. Once a court has lost jurisdiction, a court may only acquire the jurisdiction to determine a cause through a lawfully instituted proceeding. Id. at 1299. As the State did not raise the issues presented by it in Issue I in the lower court, as an order denying a motion to dismiss is not a final appealable order, as Florida Rule of Judicial Administration 2.160(h) specifically authorizes a successor judge to grant motions for reconsideration, and as the lower court properly found that the purported affidavit was insufficient to invoke the lower court's jurisdiction to issue an order to show cause (R. 258 and R. 237-240), this Court does not have any power to determine that the successor judge in the lower court did not have any power to grant the Appellee's Motion for Reconsideration of the Order to Show Cause and vacate the Order to Show Cause.

ISSUE I1 (Restated) THE SUCCESSOR JUDGE DID NOT ERR IN RULING THE WEBER AFFIDAVIT WAS LEGALLY INSUFFICIENT.

The Order to Show Cause Why Mark A. Adams and Mark A. Adarns, P.A. Should Not Be Held In Indirect Criminal Contempt (hereinafter referred to as the Order to Show Cause) was entered on October 1,2003 by Judge Crockett Farnell, and the pertinent part of it states, "THIS CAUSE came before the Court pursuant to F1a.R.Crim.P. 3.840 on the affidavit of Timothy W. Weber, Esq., and the Court, having reviewed the affidavit, finds sufficient grounds exist for the issuance of an order to show cause.. .." (R. 49 -53). In addition, the Order to Show Cause shows

that it was not initiated on the judge's own motion. (R. 49 -53). The notarial certificate or jurat on the document titled "Affidavit of Timothy W. Weber, Esquire" states, "The foregoing instrument was acknowledged before me this 30" day of September, 2003 by TIMOTHY W. WEBER.. .." (Emphasis added). (R. 48). It does not state, ''Sworn to or affirmed and subscribed before me." (R. 48). The pertinent part of Florida Statutes 5 117.05(13) (2003) states, "The following notarial certificates are sufficient for the purposes indicated, if completed with the information required by this chapter.. .. (a) For an oath or affirmation:... Sworn to (or affirmed) and subscribed before me.. .." Therefore, the

document titled "Affidavit of Timothy W. Weber, Esquire" does not meet the requirement of Florida Statute 5 117.05(13)(a) (2003) for execution of an oath. The Florida Supreme Court has held that the notarial certificate or jurat "must be taken as absolutely true." Wilson v. State, 184 So. 31,34 (Fla. 1938). Therefore, the lower court properly found that in the document titled "Affidavit of Timothy W. Weber, Esquire" an acknowledgment was taken by the notary rather

than an oath. Before a trial Court's potential jurisdiction of the subject matter can be exercised, the Court's subject matter jurisdiction must be lawfully invoked and called into action by pleading and process, prescribed law. Lockwood v. Pierce, 730 So.2d. 1281, (Fla. 4'h DCA 1999), citing Lovett v. Lovett, 112 So. 768, (Fla. 1927). Issuance of an order to show cause why a defendant should not be held in indirect criminal contempt based on an unsworn document is hdamental error.

See, e.g.,Proctor v. State, 764 So.2d 752 (Fla. 2d DCA 2000). The court's jurisdiction to issue an order to show cause why a defendant should not be held in indirect criminal contempt can only be invoked by compliance with Florida Rule of Criminal Procedure 3.840, and an order to show cause based on a document that was acknowledged is fundamental error. Decoro v. State, 771 So.2d 627,627-628 (Fla. 3rd DCA 2000).

"Courts are bound to take notice of the limits of their authority and if want of jurisdiction appears at any stage of the proceedings, original or appellate, the court should notice the defect and enter an appropriate order." Polk County v. So*,

702 So.2d 1243, 1245 (Fla. 1997) quoting West 132 Feet v. City of Orlando,

86 So. 197,198-199 (Fla. 1920). "This is because the limits of a court's jurisdiction are of "primary concern" requiring the court to address the issue "sua sponte when any doubt exists."" Id. An order entered without jurisdiction must be quashed. Id. All proceedings flowing from a void order are a nullity and must be reversed. Dicaprio v. State, 352 So.2d 78 (Fla. 4th DCA 1977). As the notarial certificate or jurat on the document titled "Affidavit of Timothy W. Weber, Esquire" states that the document was acknowledged before the notary and as the Florida Supreme Court in Wilson has held that the notarial certificate or jurat "must be taken as absolutely true," the lower court properly held that the purported affidavit was insufficient pursuant to Florida Statutes and controlling precedent to invoke the lower court's jurisdiction to issue an order to show cause. This Court "is enjoined to follow controlling decisions of the Florida Supreme Court; indeed, the court is powerless to do otherwise." Regan v. ITT Industrial Credit Co., 469 So.2d 1387, 1390 (Fla. 1st DCA 1984) approved, 487

So.2d 1047 (Fla.1986) citing HofSman v. Jones, 280 So.2d 431 (Fla.1973). Therefore, Judge Robert E. Beach did not err in holding that the purported affidavit of Timothy W. Weber was insufficient to invoke the lower court's jurisdiction to issue an order to show cause to the Appellee, and this Court does not have the power to ignore the facts and controlling precedent and falsely claim that an oath was taken by the notary instead of an acknowledgement. ISSUE I11 THIS COURT IS REQUIRED TO DISMISS THE STATE'S APPEAL BECAUSE THE RECORD SHOWS THAT THE LOWER COURT LACKED JURISDICTION TO ENTER ANY ORDER CONCERNING THE APPELLEE. The progress docket for Case No.: 01-009347-CI-015 shows that no pleading was filed to invoke the lower court's subject matter jurisdiction to enter any order concerning the Appellee and no process was served to acquire personal jurisdiction over the Appellee between the time that the order approving the Appellee's withdrawal as counsel was approved without any reservation of jurisdiction as of October 1,2002 (R. 85-86) and the time that the lower court entered an order granting sanctions against the Appellee on July 3 1,2003 (R 1-38). Of course, no such documents could be included in the record because none exist. Florida Rule of Appellate Procedure 9.200(e) states, "The burden to ensure that the record is prepared and transmitted in accordance with these rules shall be on the petitioner or appellant." "All rules prescribed for court procedure are

binding on the court and its clerk as well as on litigants and their counsel." Esch v.

Forster, 127 So. 336, 336 (Fla. 1930). 'This court is enjoined to follow controlling decisions of the Florida Supreme Court; indeed, the court is powerless to do otherwise." Regan v. IlT

Industrial Credit Co., 469 SoZd 1387, 1390 (Fla. 1st DCA 1984) approved, 487 So.2d 1047 (Fia. 1986) citing Hoffian v. Jones, 280 So.2d 43 1 (Fla. 1973). The record must show that the lower court's subject matter jurisdiction had been properly invoked, and if an appellant fails to produce the record with the pleading showing that a cause of action has been filed against the appellee, then the appeal must be dismissed. Woods-Hoskins-Young Co. v. Taylor Development Co., 122 So. 224,225 (Fla. 1929). If an examination of the record shows that the trial court did not have jurisdiction, an appellate court must reverse the judgment. See.

e.g.,Mansfiled v. Swan, 111 U.S. 379,381 (1884). Disobedience of a void order issued by a court without jurisdiction is not contempt. State ex rel. Everette v.

Petteway, 179 So. 666,671 (Fla. 1938). As the State has failed to produce any pleading showing that the lower court had jurisdiction to enter any order concerning the Appellee after the Appellee's withdrawal as counsel was approved without any reservation of jurisdiction as of October 1,2002, pursuant to the dictates of due process and controlling precedent, this Court is required to enter an order dismissing this appeal. See, e.g., Woods-

Hoslcins-Young Co. v. Taylor Development Co., 122 So. 224,225 (Fla. 1929) and Mansfied v. Swan, 1 1 1 U.S. 379,38 1 (1884).

ISSUE IV THE ORDER TO SHOW CAUSE CONCERNS ACTS WHICH DO NOT CONSTITUTE CIVIL OR CRIMINAL CONTEMPT.

A motion to vacate, a motion to quash notices of deposition, and a motion for a protective order are all allowed by the Florida Rules of Civil Procedure and controlling precedent. The Appellee served a Motion to Vacate Order Granting Defendants' Amended Renewed Motion for Fees and Sanctions, Motion to Quash Notices of Depositions and Motion for Protective Order to Timothy W. Weber via facsimile and U.S. Mail on September 12,2003 and filed the same with the clerk of the lower tribunal on September 15,2003. (R. 97, 7 13). The State admitted service to and receipt of the foregoing motion by Timothy W. Weber on September 12,2003 prior to the date scheduled for the Appellee's deposition and prior to the time that any fact information sheet was due. (R. 166,y 13). The State also admitted that it was appropriate for the Appellee to seek a protective order instead of complying with the orders for fees and sanctions. (R. 165,y 9). The Florida Supreme Court has held that ''where the act is necessarily innocent or justifiable, it would be preposterous to hold it a cause of imprisonment." Expavte Senior, 19 So. 652,653 (Fla. 1896). If an act is "only the assertion of the undoubted right of the party, it will not become a criminal

contempt by being adjudged so." Id. See, also, Lindman v. Ellis, 658 So.2d 632 (Fla. 2d DCA 1995). Therefore, it was preposterous for Timmy Weber to ask the lower court to enter any order charging the Appellee with contempt based on the Appellee's Motion to Vacate Order Granting Defendants' Amended Renewed Motion for Fees and Sanctions, Motion to Quash Notices of Depositions and Motion for Protective Order, and it was preposterous for the lower court to enter an order to show cause charging the Appellee with contempt when the record showed that such motions had been filed and served. "This court is enjoined to follow controlling decisions of the Florida Supreme Court; indeed, the court is powerless to do otherwise." Regan v. I T

Industrial Credit Co., 469 So2d 1387,1390 (Fla. lStDCA 1984) approved, 487 So.2d 1047 (Fla. 1986) citing HofJinan v. Jones, 280 So.2d 43 1 (Fla. 1973). Therefore, this Court does not have the power to call the Appellee's exercise of his undoubted rights contempt. In fact, not only would it would be preposterous to do so, it would also be a criminal violation of a right made specific by statutes, rules or settled interpretations of them which is a violation of 18 U.S.C.

tj 242

which provides criminal penalties for a deprivation of rights under color of law.

US.v. Lanier, 520 U.S. 259,267 (1997). Lanier is about a judge being prosecuted.

ISSUE v

THE STATE DID NOT HAVE A RIGHT TO APPEAL THE LOWER COURT'S ORDER VACATING THE ORDER TO SHOW CAUSE AND THIS COURT DOES NOT HAVE JURISDICTION TO GRANT ANY RELlEF REQUESTED BY THE STATE. The order vacating the order to show cause (R. 258) was a final order which disposed of all of the issues presented in the lower court regarding the order to show cause. See e.g., Edler v. State, 673 So.2d 970,971 (Fla. 1st DCA 1996). In its statement of the case and facts, the State also describes the order vacating the order to show cause as a final order. The State's right to appeal a final order must be expressly conferred by statute, and if not, the District Courts of Appeal lack jurisdiction to entertain the appeal. See e.g., State v. MacLeoa', 600 So.2d 1096 (Fla. 1992) and Exposito v. State, 891 So.2d 525 (Fla. 2004). The State's right to file an appeal of a final order

in a criminal proceeding is governed by Florida Statutes 4 924.07. Like Florida Rule of Appellate Procedure 9.140 (c)(l)(A), Florida Statutes 9 924.07(1)(a) allows the State to appeal an order dismissing an affidavit charging the commission of a criminal offense, but it does not provide the State with the right to appeal an order vacating an order to show cause or dismissing an affidavit charging the commission of any act of contempt. However, as shown previously, the actions of the Appellee could not be construed as contempt. Furthermore, the legislature has the power to define what

is a crime. See e.g., Chapman v Lake, 151 So. 399,402 (Fla. 1933). When the legislature enacts a law concerning what was formerly a crime under the common law, the courts must follow the Florida Statutes concerning that matter. See e.g.,

Coleman v. State, 182 So. 627,629 (Fla. 1938). Florida Statutes § 775.08(4) states, "The term "crime" shall mean a felony or misdemeanor." Florida Statutes 9 38.23 defines contempt, and it does not define it as a crime. Therefore, even if the actions of the Appellee could constitute contempt or even criminal contempt as defined by precedent, the legislature has decided that contempt is not a crime, and therefore, the State has no power to institute this appeal and this Court has no jurisdiction to hear it. For the foregoing reasons, this Court does not have jurisdiction to entertain the appeal brought improperly by the State. When a judge acts without jurisdiction, the judge proceeds at his peril and is personally liable for the damages flowing Grom such acts. Farish v. Smoot, 58 So.2d 534,537-538 (Fla. 1952). Also, when a judge acts without jurisdiction, the judge violates 18 U.S.C.

5 242 which provides

criminal penalties for a deprivation of rights under color of law. US.v. Lanier, 520 U.S. 259,267 (1997). Once again, Lanier is about a judge being prosecuted. CONCLUSION

For the foregoing reasons, this Court should enter an order dismissing this improperly brought appeal.

CERTEFICATE OF SERVICE I I3l5REBY CERTIFY that a copy hereof has been furnished by U.S. Mail

and facsimile to Donna S. Koch, Assistant Attorney General, at 3507 E. Frontage Road, Suite 200; Tampa, FL 33607, facsimile phone number 813-281-5500 on this

a,>

n(.

f L-,~. ,/

day of January, 2009.

Mark A. Aaams CERTIFXCATE OF COMPLIANCE 1HEREBY CERTIFY that this document complies with the requirements of

Florida Rule of Appellate Procedure 9.210(a)(2).

.f

Mark A. Adams P.O. Box 1078 Valrico, FL 33595 813-643-4412

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