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Argument
Issue I1 (Restated)....................................................... 18
Issue 111................................................................... 21
Conclusion.. ..................................................................... 26
Certificate of Service............................................................ 27
Certificate of Compliance...................................................... 27
TABLE OF CITATIONS
Cases
Statutes
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
Florida Statutes and case law.. .." (R. 258). The lower court based this decision on
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
As has been pointed out to this Court in the Appellee's Motion to Require
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
first document in the record which was transmitted to this Court was an order
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.
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
lower court entered an order granting sanctions against the Appellee on July 3 1,
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
Also, the progress docket for Case No.: 01-009347-CI-015 shows that on
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
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
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
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
October 1,2002 (R. 85-86) and the time that the lower court entered an order
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.
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).
added). (R. 48). It does not state, "Sworn to or affirmed and subscribed before
The Order to Show Cause ordered the Appellee to show cause why he
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
Procedure 1.560. Instead, Weber just put that in the order granting sanctions (R. 1-
38) 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.
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
The progress dockets show that the State did not file any response to the
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).
The lower court properly vacated the Order to Show Cause "finding that the
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
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.
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
(R. 85-86) and the time that the lower court entered an order granting sanctions
and a motion for a protective order are all allowed by the Florida Rules of Civil
Order Granting Defendants' Amended Renewed Motion for Fees and Sanctions,
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
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
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)
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
order disqualifying himself, the State fails to note that Florida Rule of Judicial
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
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
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
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.
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
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
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
As the State did not raise the issues presented by it in Issue I in the lower
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 Order to Show Cause Why Mark A. Adams and Mark A. Adarns, P.A.
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).
added). (R. 48). It does not state, ''Sworn to or affirmed and subscribed before
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
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
than an oath.
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).
compliance with Florida Rule of Criminal Procedure 3.840, and an order to show
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,
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
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
show cause.
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
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
ISSUE I11
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
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.
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.
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
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.
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
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
ISSUE IV
for a protective order are all allowed by the Florida Rules of Civil Procedure and
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
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
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
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
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
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 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
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
commission of a criminal offense, but it does not provide the State with the right to
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.,
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
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
I I3l5REBY CERTIFY that a copy hereof has been furnished by U.S. Mail
Road, Suite 200; Tampa, FL 33607, facsimile phone number 813-281-5500 on this
f L-,~.
a,>
n(. ,/
day of January, 2009.
Mark A. Aaams
CERTIFXCATE OF COMPLIANCE
.f -
Mark A. Adams
P.O. Box 1078
Valrico, FL 33595
813-643-4412