IN THE DISTRICT COURT OF APPEAL FOR THE SECOND DISTRICT STATE OF FLORIDA STATE OF FLORIDA Case No.: 2D06-278 L.T. Case No’s: 01-009347-C1-015 Appellant, CTCAB36199MMANO vs. MARK A. ADAMS, Appellee. f APPELLEE’S MOTION TO VACATE ORDERS ENTERED CONTRARY TO FLORIDA’S CONSTITUTION AND MOTION TO DISMISS THIS PROCEEDING AS THE RECORD CANNOT SHOW THAT THE LOWER COURT HAD JURISDICTION TO ENTER ANY ORDER SANCTIONING THE APPELLEE OR CHARGING THE APPELLEE WITH CRIMINAL CONTEMPT COMES NOW, the Appellee, MARK A. ADAMS, and files the Appellee’s Motion to Vacate Orders Entered Contrary to Florida’s Constitution and Motion to Dismiss this Proceeding as the Record Cannot Show that the Lower Court had Jurisdiction to enter any Order Sanctioning the Appellee or Charging the Appellee with Criminal Contempt showing: 1. Article 5, § 4 of the Constitution of Florida provides for the organization and jurisdiction of Florida’s District Courts of Appeal, and the pertinent part states, “Three judges shall consider each case and the concurrence of two shall be necessary to a decision.” (Emphasis added). Florida’s Constitution docs notww allow more than three judges to consider a case before a district court of appeal nor does it allow any decision to be entered if less than two judges concur. Florida Rule of Judicial Administration 2.210(a)(1) governs the exercise of the powers and jurisdiction of Florida’s district courts of appeal, and the pertinent part states, “Three judges shall constitute a panel for and shall consider each case, and the concurrence of a majority of the panel shall be necessary to a decision.” The Florida Rules of Judicial Administration do not allow more than three judges to consider a case before a district court of appeal nor do they allow any decision to be entered if less than two judges concur, and if they did, such rule would be void as it would be contrary to Article 5, § 4 of the Constitution of Florida. . The pertinent part of Florida Rule of Judicial Administration 2.130 states, “The Florida Rules of Appellate Procedure shall control all proceedings in the supreme court and the district courts...” . The pertinent part of Florida Rule of Appellate Procedure 9.020(f) defines order as a decision or order. Of course, both Black’s Law Dictionary and Gilbert’s Law Dictionary define an order as a decision of a court and define a decision as an order of a court. . In spite of the clear mandates of Article 5, § 4 of the Constitution of Florida that three judges shall consider cach case and of Florida Rulc of Judiciala ~ Administration 2.210(a)(1) that three judges shall constitute a panel and consider each case, the undersigned has been informed by the Clerk of this Court that no panel has been assigned to this case. See paragraph 2 of the letter to the undersigned from James Birkhold, the Clerk of this Court, dated September 15, 2008 which is attached as Exhibit A. . In spite of the foregoing, the online docket shows that as of October 5, 2008, at Icast nine (9) orders have been entered in this case, and the record shows that at least 12 orders have been entered, see Exhibit A paragraph 3. . The record shows that at Icast ten different judges have been involved in approving, various orders issued in this case in spite of the clear mandates of Article 5, § 4 of the Constitution of Florida and Florida Rule of Judicial Administration 2.210(a)(1) that three judges shall consider each case. . Furthermore, the record shows that at least five orders have been issued by the Clerk of this Court even though only one judge had supported the issuance of such orders in clear violation of the mandates of Article 5, § 4 of the Constitution of Florida and Florida Rule of Judicial Administration 2.210(a)(1) that the concurrence of two judges shall be necessary to a decision. The foregoing may explain why the key decisions made in this case are contrary to the Florida Rules of Appellate Procedure and controlling precedent.10.For example, on August 6, 2008, the clerk of this Court entered an order which states, “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, which shall be served within 25 days.” See Exhibit B which indicates that Judge Stevan T. Northcutt, the Chief Judge of this Court, and Judge Darryl C. Casanucva directed the Clerk to issue this order. 11.However, when issuing this order, these judges overlooked the fact that the record does not include any document showing that any pleading was filed or any process was served to acquire 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! and the time that the lower court entered an order granting sanctions against the Appellee on July 31, 2003. Of course, no such document could be included in the record because none exists. 12. In addition, this order indicates that Judges Northcutt and Casanueva also overlooked or misapprehended points of law including Florida Rules of « The lower court's Order Permitting Withdrawal and Substitution of Counsel and Denying Motion for Protective Order can be found at pages 85-86 of the incomplete record transmitted to this Court. A copy is attached as Exhibit C.Appellate Procedure 9.140(£)(1), 9.200(a)(1), 9.200(£)(2), and 9.200(e) and controlling precedent as follows herein. 13.Florida Rule of Appellate Procedure 9.140(£)(1) states, “The clerk of the lower ribunal shall prepare and serve the record prescribed by rule 9.200 within 50 days of the filing of the notice of appeal.” 14.The pertinent part of Florida Rule of Appellate Procedure 9.200(a)(1) states, “the record shall consist of the original documents, exhibits, and transcript(s) of proceedings, if any, filed in the lower tribunal...” 15.Florida Rule of Appellate Procedure 9.200(f)(2) states, “If the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined, because of an incomplete record, until an opportunity to supplement the record has been given.” 16.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.”” 17.The progress docket transmitted by the clerk of the lower tribunal shows that an incomplete record of the proceedings was transmitted to this Court, 2. By the way, the Appellant in this case is the State of Florida which has chosen to pursue this appeal in spite of the fact that the lower court lacked jurisdiction to enter any sanctions judgment against the Appellee on July 31, 2003 and in spite of the fact that this Court lacks jurisdiction to even hear any appeal by the State of Florida based on the dismissal of a contempt charge.18.The Rules do not provide that this Court may allow the Appellee to attach non- existent records to his answer brief which the Rules and controlling precedent require the Appellant and the clerk of the lower tribunal to provide if any such records did exist. Instead, controlling precedent requires this Court to dismiss this appeal if the record on appeal does not show that the lower court’s subject matter jurisdiction had been properly invoked, 19. “This cow 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. Ist DCA 1984) approved, 487 So.2d 1047 (Fla.1986) citing Ho//man v. Jones, 280 So.2d 431 (Fla.1973). (Emphasis added). 20. “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 (Pla. 1930). 21.Due process requires a complete record on appeal. See, e.g., Thomas v. State, 828 So.2d 456, 457 (Fla. 4th DCA 2002) and Berube v. State, 771 So.2d 1263 (Fla. 2d DCA 2000). 22.An accurate and comprehensive record of the proceedings below is absolutely essential to fair and efficient appellate review.” Huist v. Scarp, 366 Sv.2d 402,404 (Fla. 1978). “This Court should provide every incentive to parties to develop and preserve an adequate record.” Id. 23. Failure to timely file directions to the clerk and to prepare and serve the record as required by the appellate rules requires dismissal of the appeal. In re Lofton’s Estate, 12 So.2d 587, 589 (Fla. 1943). 24.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 he dismissed. Woods-Hoskins-Young Co. v. Taylor Development Co., 122 So. 224, 225 (Fla. 1929). 25.“A party must cither 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, 317 So.2d 824, 828 (Fla. 3d DCA 1975). 26.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 $0.24 903, 906 (Fla. 1956). Ifa 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. 27.Before a trial court’s potential jurisdiction of the subject matter can be exercised, it must be lawfully invoked and called into action by pleading and process. Lockwood v. Pierce, 730 So.2d 1281, 1283 (Fla. 4th DCA 1999) citing Lovell v, Lovell, 112 So. 768 (Fla. 1927). When no proceedings have been brought against a particular person or entity, the court docs 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. 28.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. Jd. 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, 29.Once a party has been dismissed from an action, the trial court is divested of jurisdiction over that party and the trial court may only regain jurisdiction overthat party by personal service of original process. See. e.g., Federal Ins. Co. v. Fatolitis, 478 So.2d 106, 109 (Fla. 2d DCA 1985). 30. 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, V1 U.S. 379, 381 (1884). 31. Violation of a right made specific by statutes, rules or settled interpretations of them is a violation of 18 U.S.C. § 242 which provides criminal penaltics for a deprivation of rights under color of law. U.S, v, Lanier, 520 U.S. 259, 267 (1997). 32.As no panel has been assigned to this case, all orders entered in it are void as they are contrary to the clear mandates of Article 5, § 4 of the Constitution of Florida and Florida Rule of Judicial Administration 2.210(a)(1). 33.As the Appellant has failed to produce a complete record as required by Florida Rule of Appellate Procedure 9.200, the dictates of due process, and controlling precedent, this Court is required to dismiss this action. Jn re Lofton's Estate, 12 So.2d 587, 589 (Fla. 1943). 34, As the Appellant has failed to produce any pleading showing that the lower court had jurisdiction to cnter any order concerning the Appelice after the Appellee’s withdrawal as counsel was approved without any reservation of jurisdiction as of October 1, 2002 as required by the dictates of duc process andcontrolling precedent, this Court is required to enter an order distnissing this appeal. See, e.g., Woods-Hoskins-Young Co. v. Taylor Development Co, 122 So. 224, 225 (Fla. 1929) and Mansfiled v, Swan, 111 U.S. 379, 381 (1884). WHEREFORE, the Appellee respectfully requests that this Court immediately comply with Article 5, § 4 of the Constitution of Florida and Florida Rule of Judicial Administration 2.210(a)(1) by assigning a panel to this case and immediately comply with the Florida Rules of Appellate Procedure and controlling precedent by issuing an order dismissing this appeal. CERTIFICATES OF SERVICE AND COMPLIANCE HEREBY CERTIFY that this document complies with the requirements of Florida Rule of Appellate Procedure 9.210(a)(2) and that a copy hereof has been furnished by U.S. Mail to Donna §. Koch, Assistant Attomey General, at 3507 E. Frontage Road, Suite 200; Tampa, FL 33607, facsimile phone number 813-281 5500 on this_ © day of October, 2008. Vez Va Mark A. Adams P.O. Box 1078 Valrico, FL 33595 0Exhibit ASaas Bon HIOLD As 2xp Disniacr Count Or Arrrat Cun POST OFFICE BOX 327 [LaxcaN, FL 33802-0327 Fase MCCARROLL (863) 499.2200 Cues Devry Cox September 15, 2008 Mark A. Adams, JD/MBA P.O. Box 1078 Valrico, FL 33595 Dear Mr, Adams: This responds to your letter of September 10, 2008, which makes requests for access to judicial records. These are governed by Florida Rule of Judicial Administration 2.420. As to your requests: 1) 1am advised that during your visit to the court on September 10, 2008, you were provided the case file in 2D06-278 so your request for inspection has been fulfilled. If you wish a copy of the file, please advise us and we will conduct a page count, and upon receipt of the required fee of $1 per page we will provide you a copy of the file. All records referenced below are housed in the court's file- -and may be inspected by perusing the file-except the docket report which is an electronic document generated from the court's case management system, which may be inspected at this office upon reasonable notice. 2) There are no records that disclose the identity of judges assigned to 2006-278. No panel has been assigned and it is unlikely one will be until briefing has been concluded. 3) The records that disclose the dates orders issued in this case would be the copies certified by the clerk to be true copies of the arders themselves, which number twelve. These can be viewed by looking at the file in this office or we would be pleased to copy and provide them to you for $1 per page and each of them consume a single page. Also there is a docket report that will identify the date each order issued. This is six pages in length and will be provided for the fee of $6. The records that disclose the dates the individuals ruled upon matters that resulted in issued orders are housed within the court file and number twelve. and will be provided to you at a cost of $12. These are the orders themselves. These are not the same twelve documents alluded to above, which are records certified by the clerk to be true copies of the actual orders. There are no records that provide the full name of judges engaged in the rulings on any of these orders.Mr. Mark Adams September 15, 2008 Page Two 4) As noted in answer #3 above, there are no records that provide the full name of judges engaged in entering rulings in this case. As for the dates of the orders, this was addressed in answer to question #3. 5) This court maintains no incoming mail lags or other records showing what this court receives by mail on any given day. 6) This court maintains no records documenting internal distribution of mail to judges. 7) Documents the court may have that reflect the distribution or circulation of a submission for consideration of its judges are part of the decision-making process and are exempt from disclosure per rule 2.420(c)(1). Sincerely, oe Ly James Birkhold Clerk JB:bjExhibit BIN THE DISTRICT COURT OF APPEAL. FOR THE SECOND DISTRICT STATE OF FLORIDA vy STATE OF FLORIDA Case No.: 2D06-278. L.T. Case No’s: 01-009347-CI-015 Appellant, CTCAB36199MMANO- vs. MARK A. ADAMS. | Appellee. i APPELLEE’S MOTION TO <} REQUIRE PREPARATION OF THE RECORD IN COMPLIANCE WITH THE RULES OF PROCEDURF’ V OR TO DISMISS THIS PROCEEDING * COMES NOW, the Appellee, MARK A. ADAMS, and files the Appellee’s Mation to Require Preparation of the Record in Compliance with the Rules of « Procedure or to Dismiss this Proceeding showing: 1. Florida Rule of Appellate Procedure 9.140 provides for appeal proceedings in criminal cases, 2. Florida Rule of Appellate Procedure 9.140(f)(1) states, “The clerk of the lower A J 4 tribunal shall prepare and serve the record prescribed by rule 9.200 within 50 days of the filing of the notice of appeal.” 3. The pertinent part of Florida Rule of Appellate Procedure 9.200(a)(1) states, “the record shall consist of the original documents, exhibits, and transcript(s) ofExhibit CIN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINEL AS COUNTY, FLORIDA CIVIL DIVISION IBFFREY S. SMITH and SHARON P. SMITH, Plaintiffs, vs, CORPORATE SPORTS MARKETING GROUP, INC., CHRISTOPHER C. KING, and DWAYNE MARTINS, Defendants. CORPORATE SPORTS MARKETING GROUP, INC., Counter-plaintiff, vs. CASE NO.; 01-9347-CI-015 JEFFREY S. SMITH, JOHN D, KERIN, and LAFAYETTE MARKETING GROUP, INC., a Florida Corporation, Counter-defendants / ORDER PERMITTING WITHDRAWAL AND SUBSIIIUTION OF COUNSEL AND DENYING MOTION FOR PROTECTIVE ORDER THIS MATTER came before the Court on October 1, 2002 on the Motion for Protective Order fled by Jesse L. Skipper, Esq. and John W. Day, Beq. on behalf of the Plaintiffs, JEFFREY SMITH and SHARON SMITH, bearing cenificate of service date of September 30, 2002; the Motion to Withdraw of Jesse L. Skipper, and John W. Day, bearing certificate of service date of September 20, 20U2; the Notice of Substitution of Counsel (and apparent request of Mark A. Adams, Hsq. to withdraw), bearing certificate of serviee date of August 29, 2002; and EXHIBIT 8 itDefendants’ Notice of Objections to the Withdrawal of Mark A. Adams, Esq. as Cvunsel and Notice of Substitution of Counsel, bearing certificate of service date uf September 5, 2002. The Cour, having considered the motions and representations of counsel at the hearing, and being otherwise fully advised in the premises, hereby. ORDERS as follows: 1 Jesse L. Skipper, John W. Day and Mark A. Adams are hereby pernitted to Withdraw Grom representation of any and all parties to this action to whom they were previously counsel of record, effective October 1, 2002 2 The Court's prior order recognizing Joseph R, Park, Esq. as counsel af record for John D. Kerin and Lafayctte Marketing Group. Inc. is hereby expressly reaffirmed % PlaintiffS JEFFREY S. SMITH and SHARON P. SMITH are now proceeding pro se; and all future pleadings, papers, and other matters to be served on them may be served at the following address 5952 Curley Road Wesley Chapel, Florida 33544 4. Plaintiffs’ Motion for Protective Order bearing certificate of service date of September 30, 2002 1s DENIED. SO ORDERED this _ day of October, 2002 CROCKETT FARNELL Hina, - Circuit Court Judge Sinn, eer 24 4 2% Dna,