IN THE SUPREME COURT OF FLORIDA

Case No. SC12-2445District Court Case No. 3D12-2250

Lower Court Case No. 09-2117611-1331912,-32975

MATTIE LOMAX

Petitioner,

V.

THE CITY OF MIAMI POLICE DEPARTMENT, ET AL.,

Respondents.

PETITIONER'S CORRECTED AMENDED BRIEF IN SUPPORT OFJURISDÎCTION

MATTIE LOMAX, PRO SEP.O. Box 310464Miami, Florida 33231-0464(305) 573-0702(305)573-0920 FaxEmail:tamatwynette1950@bellsouth.net

TABLE OF CONTENTSPage

TABLEOFCONTENTS............................................................ii

TABLEOFCITATIONS...........................................................iii

CONTINUECITATIONS..........................................................iv

SUMMARYOFTHEARGUMENT...............................................1

ARGUMENT..........................................................................5

ONC SION 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CERTIFICATEOFSERVICE....................................................12

CERTIFICATEOFCOMPLIANCE.............................................13

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TABLE OF CITATIONSP...gra

Griffith v. Shamrock Village, Inc.,94 So. 2d 854 (Fla. 1957) ...........................................................2, 4, 6, 7

Tiny's Liquors, Inc. v. Davis,353 So, 2d 168 (Fla. 3rd DCA 1977) ...................................2, 3, 4, 6,7

Winn Dixie Stores, Inc. v. Robinson,472 So. 2d 722 (Fla. 1985)....................................................2,4, 6,7

Jenkins v. State, 385 So.2d 1356 (Fla. 1980).................................. 4, 8

Reaves v. State, 485 So.2d 829 (Fla. 1986).......................................4

Swift v. Tyson , 41 U.S. (1842).....................................................3

Erie Railroad v. Thompkins, 304 U.S. 64 (1938), (1938)........................8

Cooper v. Aaron, 358 U.S. 1 (1958)................................................9

Brown v. Board ofEducation, 347 U.S. 483(1954)...............................9

Baron v. Baltimore, 32 U.S. (1833).............................................9,10

Twinin v. New Jersey, 211 U.S. 78 (1908)......................................10

Gitlow v. New York, 268 U.S. 652 (1925)......................................10

United State v. Hudson and Goodwin, 11 U.S. (1812)...........................9

Wheaton v. Peters, 33 U.S. (1834)..................................................9

Swift v. Tyson, 41 U.S. (1842)......................................................9

Erie Railroad v. Thompkins, (1938)................................................9

Cooper v. Aaron,(1958)............................................................10

Brown v. Board ofEducation, (1954).............................................10

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TABLE OF CITATIONS/CONTINUE

P.,,gge

Twining v. New Jersey, 211 U.S. 78 (1908).....................................13

Malloy v. Hogan, (378 U.S. 1 (1964).............................................13

Other Authorities:

F.R.A.P. 9.0130(a)(2)(A)(iv)......................................................8

F.R.A.P. r 53 (b)(3)..................................................................8

F.R.A.P 9.190(c), Sections 120.57(1)(f) ..........................................5

F.R.A.P. (2)(b), 120.574(2)(d)......................................................5

Article V, 3(b) (3) Florida Constitution (1980)..............................................4

IV

SUMMARY OF ARGUMENT

The elements of a false imprisonment claim is to protect against

unlawful confinement. To prove a false imprisonment claim in a civil

lawsuit, the following elements must be present:

. There must have been a willful detention;

. The detention must have been without consent; and

. The detention was unlawful.

False arrest, a name sometimes given to the tort more generally known as

false imprisonment, has also been defined as the unlawful restraint by one

person ofthe physical liberty ofanother, by acting to cause a false arrest,

that is, an arrest made without legal authority, or without sufficient legal

authority, resulting in damages. However, the tort of false arrest does not

require a formal arrest, but rather a manifest intent to take someone into

custody and subject that person to the defendant's control. For false

arrest, there is no requirement that the arrest be formal, that the detention

be for the purpose of arraignment or that the detention continue until

presentation to a judicial officer in order for the arrest to be actionable.

The decision in the case at bar expressly and directly conflicts with the

Supreme Court decisions ofWinn Dixie Stores, Inc. v. Robinson, 472 So. 2d

722 (Fla. 1985) and Griffith v. Shamrock Village, Inc., 94 So. 2d 854 (Fla.

19571, as well as the Third District Court ofAppeal case ofTiny's Liquors.

Inc. v. Davis, 353 So. 2d 168 (Fla. 3d DCA 1977).

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The Supreme Court is a common-law court that operates in a system that

has little "federal common law." Yet its common-law nature is important to

the Court's functioning as a constitutional arbiter. "Common law is a

system of law made not by legislatures but by courts and judges. Although

often called "unwritten law," the phrase actually refers only to the source of

law, which is presumed to be universal custom, reason, or "natural law." In

common law, the substance of the law is to be found in the published reports

ofcourt decisions. Two points are critical to the workings ofa common-law

system. First, law emerges only through litigation about actual controversies.

Second, precedent guides courts: holdings in a case must follow previous

rulings, if the facts are identical. This is the principle of stare decisis. But

subsequent cases can also change the law. Ifthe facts ofa new case are

distinguishable, a new rule can emerge. And sometimes, if the grounds ofa

precedent are seen to be wrong, the holding can be overruled by later courts.

The Third District Court ofAppeal case ofTiny's Liquors, Inc. v. Davis,

353 So. 2d 168 (Fla. 3d DCA 1977). More particularly, the appropriateness

ofthe Recovery ofpunitive damages in cases where Police officers conduct

inadequate of the facts surrounding this false imprisonment or false arrest

primarily as a tort, treating such matters as the nature and elements of the

wrong, liability, defenses, procedural issues, and damages. And to the

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consideration is also given to false imprisonment as a crime.

In asserting conflict, Petitioners misstate the facts found by the majority,

and erroneously rely on the factual interpretations stated in Justice Zehmer's

Issenting opinion. As noted in this court's decisions in Jenkins v. State, 385

So.2d 1356 (Fla. 1980), and Reaves v. State, 485 So.2d 829 (Fla. 1986),

Article V, 93(b) (3) conflict jurisdiction may not be founded upon factual

assertions recited only in a dissenting opinion.

Based on the facts presented in the four corners ofthe majority opinion,

there is no conflict with this court's decisions in Winn Dixie Stores. Inc. v.

Robinson and Griffith v. Shamrock Villase. Inc. Unlike the instant case, the

case ofTiny's Liquors. Inc. v. Davis does not even address the issue ofwhat

evidence is sufficient to sustain an award ofpunitive damages.

Any conflict with the above cited cases must be express and direct under

Article V, 33(b)(3) ofthe Florida Constitution. Petitioners cannot "create"

conflict by asking this court to disregard the facts as found by the majority,

or otherwise accept those factual interpretations found only in Justice

Zehmer's dissent.

Pro se litigants, as well as those represented by counsel, are entitled to

meaningful access to the courts.' Sufficient access to the courts, a right

protected by the due process clause of the fourteenth amendment and the

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first amendment, guarantees to all persons use ofthe judicial process to

redress alleged grievances.

The types ofdocuments that should be included in the record on appeal

will depend on the type ofagency action being appealed, and the types of

mistakes the agency made. In this regard, it is very important to review

Florida Rule ofAppellate Procedure 9.190(c), Sections 120.57(1)(f) and

(2)(b), 120.574(2) (d), Florida Statutes, which specifically identify the types

ofdocuments that must be included in various types ofagency action

appeals. As in other types ofappeals, such documents normally include, all

notices, pleadings, motions, memoranda of law, hearing transcripts,

evidence, proposed orders, and orders issued in the administrative

proceeding.

A malicious prosecution is one that is begun in malice, without probable

cause to believe it can succeed, and that ultimately ends in failure. The

essential difference between false imprisonment and malicious prosecution

is the validity ofthe legal authority for the restraint imposed action for

malicious prosecution. However, a suit for false arrest or imprisonment is

the proper action where the aggrieved party is arrested without legal

authority, as where he or she is arrested pursuant to process that is void.

4

ARGUMENT

The decision in the case at bar expressly and directly conflicts with the

Supreme Court decisions of Winn Dixie Stores, Inc, v. Robinson, 472 So.

2d 722 (Fla. 1985) and Griffith v. Shamrock Village, Inc., 94 So. 2d 854

(Fla, 19571, as well as the Third District Court ofAppeal case ofTiny's

Liquors, Inc, v. Davis, 353 So. 2d 168 (Fla. 3d DCA 19771, The decision in

the case at bar directly and expressly conflicts with the Robinson case. As

stated by Justice Zehmer in his dissent:

"The [trial] court did not err in allowingthe jury to decide whether the defendant's conductunder the circumstances was sufficientlywrongful to warrant the imposition ofpunitive damages. The facts in this caseare no less egregious than the facts inWinn Dixie Stores, Inc. v. Robinson,472 So. 2d 722 (Fla. 1985), and Griffin v.Shamrock Village, Inc., 94 So. 2d 854

(Fla. 1957). The majority ruling in thiscase that the lack of investigation by thedefendant was "an honest albeit mistakeneffort" leaves this decision in conflictwith the Supreme Court's decision ofRobinson. It is error to take the punitivedamages issue from the jury. I would affirmthe judgment in all respects. "

As stated by Justice Zehmer, the case at bar should be controlled by this

Court's decision in Lomax v. City ofMiami Police Department. The

operative facts in the above case law, are as follows:

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Ms. Lomax was arrested for crossing a pathway that lead up to the

Florida East Coast Rail Road crossing in the community that she reside. The

Officers arrested Ms. Lomax and imprison her as other persons cross over

the rail road tracks pathway. Ms. Lomax was acquitted of the charges.

The officer's had no jurisdiction at the Florida East Coast Rail Road

tracks and free Ms. Lomax of her innocence.

Petitioners Ms. Lomax bring this action seeking discretionary review of

Third District Court Case No. 3D12-2250 to Consolidated case No.'s 09-

21176, 11-13319 and lower case No: 12-32975 all of the same issues,

Mattie Lomax v. The City ofMiami Police Department, Specifically,

Petitioners allege that the decision in the case at bar expressly and directly

conflicts with the Supreme Court decisions in Winn Dixie Stores, Inc, v,

Robinson, 472 So.2d 722 (Fla. 1985), and Griffith v. Shamrock Villase. Inc.,

94 So.2d 854 (Fla. 1957), as well as the Third District Court ofAppeal case

Tiny's Liquors. Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1977).

In asserting conflict, Petitioners rely principally on Justice Zehmer

dissenting opinion wherein he asserts that the facts in this case are no less

egregious than the facts in Winn Dixie Stores, Inc. v. Robinson, 472 So.2d

722 (Fla. 1985), and Griffith v. Shamrock Villacre. Inc., 94 So.2d 854 (Fla.

6

1957). Petitioners further assert that the majority has effectively re-weighed

the evidence and the credibility ofdocuments on appeal, and that they have

taken the facts in a light most favorable to the defendant when the law

requires them to do just the opposite. Petitioners and Justice Zehmer simply

disagree with the majority's presentation and interpretation ofthe facts,

which were thoroughly analyzed in the majority opinion.

Article V, Section 3(b) (3) of the Florida Constitution empowers this

Court to review a decision of the District Court ofAppeal which expressly

and directly conflicts with a decision ofanother District Court ofAppeal or

of the Supreme Court on the same question of law. Art. V, §3(b) (3), Fla.

Const. (1980), see also F.R.A.P. 9.0130(a) (2) (A) (iv). It is fundamental

that expressions found in a dissenting or concurring opinion cannot support

jurisdiction under 53 (b) (3) because they are not the decision ofthe District

Court ofAppeal. Jenkins v. State, 385 So.2d 1356 (Fla. 1980). In Jenkins,

this court addressed the question ofwhether or not a per curiam affirmed

decision ofthe District Court ofAppeal, with an accompanying dissenting

opinion, was a "decision" upon which discretionary review could be granted.

This court explained:

"When facts and testimony are set forth ina majority opinion, they are assumed to bean accurate presentation upon which thejudgment ofthe court is based. However, a

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dissent does not rise to a similar level ofdimity and is not considered as precedent;by definition, a dissent contains information,interpretations or legal analysis which has beenrejected in whole or part by the majority385 So.2d at 1358. (emphasis added)

To be "justifiable," the claim must be suitable for judicial inquiry, which

requires determining whether the controversy (a) is definite and concrete, (b)

concerns legal relations among parties with adverse interests and (c) is real

and substantial so as to be capable ofa decision granting or denying specific

reliefof a conclusive nature."

The Constitution left open the question whether there was a federal

common law. The Supreme Court first held, in United State v. Hudson and

Goodwin, 11 U.S. (1812), that there is no federal common law ofcrimes,

and then, in Wheaton v. Peters 33 U.S. (1834), that there is no federal civil

common law. But in Swift v. Tyson , 41 U.S. (1842), the Court permitted

lower federal courts to decide commercial law questions on the basis of "the

general principles and doctrines ofcommercial jurisprudence" thus opening

the door to later growth of a general federal common law. A century later,

the Court put a stop to this development in Erie Railroad v. Thompkins

(1938) by declaring Swift unconstitutional. (Yet, at the same time, it

acknowledged the existence ofbodies of specialized federal common law,

such as, for example, it refuses to render advisory opinions, waiting instead

8

for litigants to bring issues before it. Precedent shapes the Court's power of

judicial review; because of it, any ruling of the Court is a precedent for

similar cases. Thus if one state's law is held unconstitutional, all similar

statutes in other states are unconstitutional a point the Court was obliged to

underscore forcibly in Cooper v. Aaron (1958) in the face of intransigent

southern resistance to the Court's holding in Brown v. Board ofEducation

(1954).

Though the Supreme Court had ruled in 1833 in Baron v. Baltimore that

guarantees of the Bill ofRights did not limit the states, many Republicans

thought state officials were obligated to respect those guarantees. The

Fourteenth Amendment prohibited states from abridging privileges and

immunities ofcitizens of the United States and from depriving persons of

due process of law or equal protection of the laws. Early interpretations of

the Fourteenth Amendment drastically curtailed the protection afforded by

the amendment. Decisions such as Twinin v. New Jersey in 1908 and Gitlow

v. New York in 1925 expanded the Fourteenth Amendment to the Bill of

Rights meaning that Federal protections applied to protect the individual

from trespass on God-given rights by states. Supreme Court decisions have

also brought offense to rights done under color of law by private persons

9

within reach ofFederal protection. Source to the Oxford Companion to the

Supreme Court of the United States.

The Constitution of the United States was written to protect Ms. Lomax

from intrusion on our God Given Rights by the Federal Government. The

Fourteenth Amendment was necessary to protect Ms. Lomax from intrusion

on our God Given Rights by state governments, political subunits, and

individuals who act under color of law.

Therefore a vexatious litigation is a type ofmalicious prosecution that

enables the defendant to file a tort action against the plaintiff. A plaintiff in a

malicious prosecution must prove that a legal proceeding (or multiple

proceedings) was instituted by the defendant, that the original proceeding

was terminated in favor of the plaintiff, that there was no probable cause for

the original proceeding, and that malice, or a primary purpose other than that

ofbringing the original action, motivated the defendant. A plaintiff in such

an action may recover, for example, the expenses incurred in defending the

original suit or suits, as well as resulting financial loss or injury. A plaintiff

may also recover damages for mental suffering of a kind that would

normally be expected to follow from the original action.

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CONCLUSION

In conclusion, Petitioners, Mattie Lomax, would respectfully request this

Court to take jurisdiction of this cause because the majority decision

conflicts with the Supreme Court cases ofWinn Dixie Stores, Inc. v.

Robinson; and Griffith v. Shamrock Village, Inc., as well as the district court

case of Tiny's Liquors, Inc. v. Davis. In the case of Twining v. New

. Jersey 211 U.S. 78 (1908) This decision was later overturned on dueprocess

grounds in Malloy v. Hogan (378 U.S. 1 (1964).

MATTIE LOMAX, PP.O. Box 310464Miami, Florida 33231-0464(305) 573-0702(305) 573-0920 FaxEmail: Tamatwynette1950@bellsouth.net

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

Served via U.S. Mail, this / day ofFebruary, 2013 to Attorney John

A. Greco at the Office of the City Attorney, City ofMiami, 444 SW 2"

Avenue, Ste. 945, Miami, Florida 33130.

MA E LOMAX, PRO SP.O. Box 310464Miami, Florida 33231-0464(305) 573-0702(305)573-0920 FaxEmail:Tamatwynette1950@bellsouth.net

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CERTIFICATE OF COMPLIANCE

The undersigned, (Pro Se) hereby certifies that she has complied with the

Format requirements of the Rules ofAppellate Procedure. This Petition For

Writ ofProhibition and or writ ofmandamus was prepared using Times New

Roman 14 point font.

Respectfully submitted,

TIE LOMAX,In ProperperP.O. Box 310464Miami, Florida 33231-0464(305) 573-0702(305) 573-0920 Fax

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