IN THE SUPREME COURT OF FLORIp

SAM ZALLOUM,

Petitioner/Appellant, Case No.: 56

v. Lower courts : 5D12-480

2011 10019 APCC

2010 12018 CODL

RIVER OAKS COMMUNITY SERVICES ASSOCIATION INC.,

Respondent/Appellee.

PETITIONER'S JURISDICTIONAL BRIEF

SAM ZALLOUM

P.O. BOX 4037

ENTERPRISE, FL 32725

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..............................................................................3,4

SUMMARY OF FACTS ....................................................................................5-8

JURISDICTIONAL STATEMENT ................................................. 8

ARGUMENT ...........................................................................8

ISSUE I. THE TRIAL COURT ACTED CONTRARY TO LAWAND WITHOUT JURISDICTION WHEN IT ALLOWED APLEADING FILED IN VIOLATION OF RULE 1.190(A) TOSTAND AS FILED.....................................................................8,9

ISSUE II. APPELLANT WAS SERVED WITH DEFECTIVESUMMONS TOGETHER WITH THE IMPROPERLY FILEDCOMPLAINT BY A PERSON NOT AUTHORIZED TO MAKESERVICE OF PROCESS. ............................................................9,11

ISSUE III. APPELLANT'S PROCEDURAL DUE PROCESSRIGHTS WERE VIOLATED IN THE TRIAL COURT, IN THECIRCUIT COURT OF APPEAL AND IN THE FIFTH DISTRICTCOURT OF APPEAL PROCEEDINGS.............................................11-18

CONCLUSION .........................................................................18

CERTIFICATE OF SERVICE ...................................................... 19

CERTIFICATE OF FONT TYPE SIZE AND STYLE ...........................19

2

TABLE OF AUTHORITIES

Cases Page

Abbate v. Provident Nat'l Bank, 631 So. 2d 312, 315 (Fla. 5* DCA 1994).....10

Beneficial Florida, Inc. v. Washington, 965 So.2d 1211

(Fla. 5th DCA 2007) ..........................................................................................17

Cheshire v. Birenbaum, 688 So. 2d 430, 430-31(Fla. 3d DCA 1997) .......... 10

Department ofLaw Enforcement v. Real Property 588 So.2d 957

(Fla. 1991)........................................................................................................14,15

Fuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 1994,

32 L. Ed. 2d 556 (1972) .....................................................................................15

Klosenki v. Flaherty, 116 So. 2d 767, 768-69 (Fla. 1959) .........................9

Maranto v. Dearborn, 687 So.2d 940, 941 (Fla. 3d DCA 1997) ........................16

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652,

94 L.Ed. 865 (1950) ...........................................................................................13

Pina v. Simon-Pina, 544 So. 2d 1161, 1162 (Fla. 5* DCA 1989). ...............10

State v. Bruno, 104 So. 2d 588 - Fla: Supreme Court 1958.................................. 18

State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649 (1936) ...........13

Shepheard v. Deutsche Bank Trust Co. Ams., 922 So. 2d 340, 343(Fla. 2001).. 10

Shurman v. Atl. Mortg. & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001) ........10

Torres v. Arnco Constr., Inc., 867 So. 2d 583, 587 (Fla. 5th DCA 2004)......10

Vidal v. Suntrust Bank, 41 So. 3d 401(Fla. 4* DCA 2010)...................... 10,11

Warner Lambert Co. v. Patrick, 428 So. 2d 718 (Fla. 4th DCA 1983)......... 9

3

Statutes

Page

. Florida Statute section 48.03.................................................................... 10

Rules Page

Fla. R. App. P. 9.030 (a) (2) (A) (iv).. . ............................................................. 8

Fla. R. Civ. P. 1.070 (a) . . ................................................................................. 10

Fla. R. Civ. P. 1.500 . . ....................................................................................... 16

Fla. R. Civ. P. 1.190(A).... . ............................................................................. 8,11

FLORIDA CONSTITUTION:

Article V, section 3 (b) (3) Florida Constitution (1980) ......................... 8

OTHER

Henry P. Trawick, Jr., Florida Practice and Procedure, § 8:20 (2007 ed.)...9

4

S Y OF FACTS

1. On December 14*2010, Apþellee filed an action to foreclose on a residential

property that is the declared homestead property ofAppellant and for money

damages.

2. Appellant and his wife filed a flurry ofmotions that included motions to

dismiss.

3. On February 22"d 2011, Ap ellee filed a motion to amend complaint. Said

Motion was granted by the ebruary 25* 2011 Order .

4. Appellant responded by fili g an amended motion to dismiss.

5. On March 24* 2011, the tri 1 court granted the motions to dismiss.

6. On March 29* 2011, and a er the dismissal Appellee filed a second amended

complaint without filing a 1 otion for Leave of Court to Amend.

7. On May 17*2011, Appelle filed a motion to amend complaint and to accept

the complaint as docketed o March 29* 2011.

8. On May 20* 2011, the trial ourt, without holding a hearing, granted the

Motion to Amend.

9. On May 5* 2011, Appellee had a person not authorized to serve process, deliver

to Appellant summons with the amended complaint attached to it.

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10. On May 20* 2011, Appellaut filed a Motion to Quash service ofprocess and

summons.

11.On June 28* 2011, a hearing was held on all the Motions including the Motion

to Quash.

12. At the June 28* 2011 heari g Appellee did not enter into evidence any

admissible evidence showin the summons were regular on its face and the

person who made the servic was authorized to serve process.

13.On July 7* 2011, the trial cdurt entered an Order denying the Motion to Quash

and denied other Motions to strike the improperly filed complaint.

14.On August 4*2011, Appell nt filed a Notice ofAppeal appealing the July 7*

2011 Order to the Circuit C urt in its Appellate capacity.

15.On August 26* 2011, Appe lee filed a Motion to Dismiss Appeal for lack of

subject matter jurisdiction t which Appellant Objected on September 1* 2011.

16.On January 4* 2012, the Ci cuit Court entered an Order dismissing the appeal

with an opinion.

17. On January 13*2012, App llant filed a Motion to Toll time or Enlarge time to

allow Clerk to send the part es copies of the Order filed on January 4* 2011.

18.On January 13*2012, Appdllant filed a Motion for Hearing.

19.On January 25*2012, the Circuit Court in its Appellate capacity denied the

Appellant's Motion for Reliearing and denied the Motion to toll or enlarge time.

6

20.On February 3'd 2012, Appe lant filed a Notice ofAppeal appealing the January

25* 2012 Order to the Fifth istrict Court ofAppeals.

21.On February 13* 2012, the ifth DCA entered an Order stating that Appellant

shall file a Petition for Writ fCertiorari and Appendix within 10 days of

Order.

22.On February 15* 2012, App llee filed a Motion to Dismiss.

23.On March 14* 2012, The Fi h DCA denied Appellee Motion to Dismiss and

Accepted Appellant's petitida for Writ ofCertiorari and stated that cause shall

proceed as a Petition for Wr t ofCertiorari.

24.On March 16* 2012, the Fif h DCA Ordered Appellee to file a Reply within 20

days of date of Order.

25.On April 3'd 2012, Appellee filed a response to the Appellant's petition for Writ

of Certiorari.

26.On April 13* 2012, Appella t filed a reply to Appellee's response.

27.On June 8* 2012, the Fifth DCA denied the petition for Writ ofCertiorari

without a written opinion.

28.On June 25*2012, Appella t filed a Motion for Rehearing, Clarification and a

request for a written opinio$.

29.On July 6*2012, Appellant filed a Notice ofDiscretionary Jurisdiction

appealing the June 8'2012 Order to this court.

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30.On July 10* 2012, Review as sent to this court.

31.On July 12*2012, the Fifth CA denied Appellant's Motion for Clarification

and denied the request for a vritten opinion.

JURISDICTIONAL STATEMENT

The Florida Supreme Court han a discretionary jurisdiction to review a decision of

a district court of appeal that expressly and directly conflicts with a decision of the

supreme court or another distri;t court of appeal on the same point of law. Article

V, section 3 (b) (3) Florida Constitution (1980); Florida Rule ofAppellate

Procedure 9.030 (a) (2) (A) (iv).

ARGUMENTS

I. THE TRIAL COURT ACTED CONTRARY TO LAW ANDWITHOUT JURISDICTION WHEN IT ALLOWED A PLEADINGFILED IN VIOLAT[ON OF RULE 1.190(A) TO STAND AS FILED.

Because the trial court had disn ssed the complaints, it was without jurisdiction.

Because the parties had not beeþ served with process, the court was acting without

jurisdiction over the parties. Assuming arguendo that it had jurisdiction, a

pleading filed in violation of ru e 1.190(a)[rule governing amendment of

complaint] is a nullity, and the controversy should be determined based on the

properly filed pleadings. Warn r Lambert Co. v. Patrick, 428 So. 2d 718 (Fla. 4th

DCA 1983). The trial court graåted Appellant's motions to dismiss the initial

complaint and the amended con plaint. Appellee thereafter, filed a second

amended complaint without fili g a motion for leave of court to amend. Therefore,

Appellee Second Amended Coi plaint is a nullity and the controversy should be

determined based on the prope y filed pleading. The trial court however dismissed

the initial complaint and the an ended complaint leaving the case without a legally

sufficient complaint and the tri l court was left without case jurisdiction. The

record shows that Appellee fail d to file a new complaint and pay a new filing fee.

IL APPELLANT WAS SERVED WITH DEFECTIVE SUMMONSTOGETHER WI THE IMPROPERLY FILED COMPLAINTBY A PERSON NO AUTHORIZED TO MAKE SERVICE OFPROCESS.

The summons served on Appellant was defective because Appellee did not comply

with the strict Rules governing service ofprocess. The return of service is

defective on its face. The perso who made the service on Appellant was not

appointed by the court to serve the process. At the hearing on the Motion to Quash,

no admissible evidence was en ered that would prove valid service ofprocess was

made on Appellant. . Florida e se law is clear on the matter ofprocess: "The court

can not proceed in a matter unt 1 proofofvalid service is made". Klosenki v.

Flaherty, 116 So. 2d 767, 768-69 (Fla. 1959); Henry P. Trawick, Jr., Florida

Practice and Procedure, § 8:20 (2007 ed.). "The party seeking to invoke the

9

court's jurisdiction has the burdþn to prove the validity of service of

process". Torres v. Arnco Conntr., Inc., 867 So. 2d 583, 587 (Fla. 5th DCA 2004).

The courts require strict constr ction of, and compliance with, the provisions of

statutes governing service ofpröcess. Shurman v. Atl. Mortg. & Inv. Corp., 795

So. 2d 952, 954 (Fla. 2001); Shepheard v. Deutsche Bank Trust Co. Ams., 922 So.

2d 340, 343(Fla. 2001); Torres iv. Arnco Constr. Inc., 867 So. 2d 583 (Fla. 5* DCA

2004); Pina v. Simon-Pina, 544 So. 2d 1161, 1162 (Fla. 5* DCA 1989). .

F.R.C.P. 1.070(a) states in part 'Upon the commencement of the action, summons

or other process authorized by 1 w shall be issued forthwith by the clerk or judge

under the clerk's or the judge's signature and the seal of the court....". In the

instant case, the summons was hot issued under the clerk's or the judge's signature

and the seal of court requiring <‡uashof summons. Florida Statute section

48.031(5) states in part "A person serving process shall place, on the copy served,

the date and time of service and his or her identification number and initials for all

service ofprocess." In the instant case, the person serving process did not place his

or her identification number on all service ofprocess. Where service is made by a

person not legally authorized tá serve process, service is defective, and the

jurisdiction is not acquired ovet the person, even though the defendant received

actual notice of the suit. See C1 eshire v. Birenbaum, 688 So. 2d 430, 430-31(Fla.

3d DCA 1997); Abbate v. Provjdent Nat'l Bank, 631 So. 2d 312, 315 (Fla. 5*

DCA 1994). . "A process seryer makes a return of service which is filed with the

court. It includes the date and time of service. The return should match the

information noted on the served copy." Vidal v. Suntrust Bank, 41 So. 3d 401(Fla.

4* DCA 2010). In the instant clase, the information on return of service does not

match the information on the s‡mmonsrequiring quash of return of service. "The

legislative direction is clear and unambiguous. It is not for the court to disregard

10

the specific statutory language". Vidal v. Suntrust Bank, 41 So. 3d 401(Fla. 4*

DCA 2010).

IH. APPELLANT'S PROCEDURAL DUE PROCESS RIGHTSWERE VIOLATED INlTHE TRIAL COURT, IN THE CIRCUITCOURT OF APPEAL AND IN THE FIFTH DISTRICT COURT OFAPPEAL PROCEEDINGS.

Appellant contends beforé this Court is that he was denied his

constitutionally protected procedural due process rights when (1) The trial court

proceeded to supplant the dismissed complaints with new complaint Appellee

filed in violation of Florida Rules ofCivil Procedure 1.190(A). Said complaint

was filed without paying a new filing fee; (2) The trial court limited the discovery

available to Appellant to the dismissed complaints; (3) The trial court held

hearings on filed motions prior to serving all the named parties with process; (4)

The trial court allowed and acted in tandem with Appellee to cause Appellant to

prepare and expend his resources preparing to defend frivolous motions for default

filed during the pendency ofAppeal in the Fifth District Court and in this court, (5)

The Circuit Court in its Appellate capacity dismissed the appeal without the

prerequisite notice; (6) The Circuit Court in its Appellate Capacity Opined that it

does not have subject matter jurisdiction while it proceeded to rule on the merits;

(7) The Fifth District Court ofAppeals denied the petition for Writ ofCertiorari

11

without a written opinion and denied the request for clarification and for a written

opimon.

See id. at 1068. As aptly explained by this Court therein:

While there is no laundry list of specific procedures that must be followed to

protect due process guarantees, an analysis of the United States Supreme Court's

prior decisions identifies certain procedures that are typically required before an

individual can be deprived ofa property or liberty interest. In all situations, the

Court has required fair procedures and an unbiased decision maker. Additionally,

the Court has also required notice of the government's action and an opportunity to

respond before termination of the interest.

In this case, the required fair Florida Rules ofCivil Procedure and the

Appellate Rules ofCivil Procedure were not followed by the trial court, the Circuit

Court in its Appellate capacity and the Fifth District Court ofAppeals causing

unwarranted exposure for Appellant to lose his homestead property without due

process of law. The lack ofNotice to all the named partied that, a new complaint

has supplanted the dismissed complaints, that the case is still alive and pending ,

deprived all the named parties of due process and exposes Appellant to losing his

interest in his property by the trial court entering a judgment of foreclosure and

money damages against un-noticed parties.

12

The decision maker in the trial court chose to proceed in the case after he

dismissed the initial complaint and the amended complaint. Then, months later, the

decision maker simply decided, during a hearing on Appellant's Motion to strike

the improperly filed complaint, to supplant the dismissed complaints with an

improperly filed complaint. The supplanting maneuver is not available to the trial

court or the Appellee under the Rules and violates Appellant's due process rights

under the law.

Appellant appealed to the Circuit Court ofAppeals a Non-final Order on the

grounds that the trial court acted without jurisdiction because service ofprocess

was not proper and or defective. This is an appealable order under the Rules and

Circuit Court erred when it dismissed the case for lack of subject matter

jurisdiction.

The Due Process Clause of the Fourteenth Amendment "require [s] that

deprivation of life, liberty or property by adjudication be preceded by notice and

[an] opportunity for [a] hearing appropriate to the nature of the case." Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed.

865 (1950). The fundamental right to have a meaningful opportunity to be heard

"has little reality or worth unless one is informed that the matter is pending and can

13

choose for himself whether to appear or default, acquiesce or contest."

Id. at 314, 70 S.Ct. 652.

The United States Supreme Court has explained that in order to

satisfy the requirements ofdue process, the notice given must be "reasonably

calculated, under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present their objections."

The Appellant has tried at every turn to receive the process he is due under

the United States Constitution. As the Florida Supreme Court held in Department

of Law Enforcement v. Real Property 588 So.2d 957, 960 (Fla. 1991):

Procedural due process serves as a vehicle to ensure fair treatment

through the proper administration ofjustice where substantive rights

are at issue. Procedural due process under the Florida Constitution

guarantees to every citizen the right to have that course of legal procedure which

has been established in our judicial system for the protection and enforcement of

private rights. It contemplates that the defendant shall be given fair notice[ ] and

afforded a real opportunity to be heard and defend [ ] in an orderly procedure,

14

before judgment is rendered against him. (quoting State ex rel. Gore v.

Chillingworth, 126 Fla. 645, 657-58, 171 So. 649, 654 (1936) (citations omitted));

accord, e.g., Fuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 1994, 32 L. Ed. 2d

556 (1972) (procedural due process under the fourteenth amendment of the United

States Constitution guarantees notice and an opportunity to be heard at a

meaningful time and in a meaningful manner).

Moreover, "[t]here is no single, inflexible test by which courts determine whether

the requirements ofprocedural due process have been met." Department ofLaw

Enforcement, 588 So. 2d at 960.

Moreover, there has been no evidence that the failure ofnotice to the named

parties to actually receive the complaint or any motion was due to the parties

intentional conduct or refusal to receive or avoid service ofprocess.

In fact, the trial case docket shows that Appellee intended to serve process on

Appellant's wife and Appellant, Appellee requested that the clerk issued the

summonses for Appellant and his wife. The trial case docket shows that service of

process on Appellant's wife is pending as ofMarch 29* 2011. Appellant was

served with defective service ofprocess and moved to quash service ofprocess.

The trial court denied the motion and Appellant appealed the Order to the Circuit

Court in its Appellant capacity.

15

Under the Florida Rule ofCivil Procedure 1.500 "when a party against

whom affirmative relief is sought has failed to plead or otherwise defend as

provided by these rules or any applicable statute or any order ofcourt, the court

may enter a default against such party; provided that if such party has filed or

served any paper in the action, that party shall be served with notice of the

application for default." See also Maranto v. Dearborn, 687 So.2d 940, 941 (Fla.

3d DCA 1997) (holding that "[a]ny default entered in violation of the due process

notice requirement ofRule 1.500 [ Fla. R. Civ. P.] must be set aside without any

regard as to whether a meritorious defense is presented or excusable neglect is

established."). Here the parties have not been served with process but the trial

court refuses to acknowledge lack of service ofprocess. Here the trial court is

moving to enter default against parties whom the record shows a lack of service of

process. The trial court has actual knowledge that all the named parties have not

been served with process through filed Affidavits. Where the parties have not

actually received the notice, the dictates of due process should at a minimum

require an evidentiary hearing to determine whether the parties knowingly avoided

service ofprocess and ignored the mail or whether there was excusable neglect for

16

the failure to pick-up the certified mail. Compare Beneficial Florida, Inc. v.

Washington, 965 So.2d 1211, 1213 (Fla. 5th DCA 2007) (holding in the context of

jurisdictional issues under the general rules ofcivil procedure that an evidentiary

hearing must be held where the defendant who has been subject to a default asserts

that he did not receive service ofprocess).

The Appellant here has been afforded none of the protections of due

process. He was unable to have his appeal heard on the merits. The trial court, in a

clearly bias behavior in favor ofAppellee and against Appellant, supplanted

dismissed complaints with an improperly filed complaint thereby violating

procedural due process that serves as a vehicle to ensure fair treatment

through the proper administration ofjustice where substantive rights

are at issue. The trial court denied Appellant procedural due process under the

Florida Constitution which guarantees to every citizen the right to have that course

of legal procedure which has been established in our judicial system for the

protection and enforcement ofprivate rights. It contemplates that the defendant

shall be given fair notice[ ] and|afforded a real opportunity to be heard and defend

[ ] in an orderly procedure, before judgment is rendered against him.

17

The Appellant is owed his constitutional protections under the Fourteenth

Amendment of the United States Constitution to due process of law.

Therefore I contend that my constitutional rights ofequal protection and due

process have been denied and that the jurisdiction of the Florida Supreme Court is

the appropriate forum per State v. Bruno, 104 So. 2d 588 - Fla: Supreme Court

1958 as follows:

My situation is exactly as the State v. Bruno, 104 So. 2d 588 - Fla:

Supreme Court 1958 describes... impossible to know how, why and where to

appeal. Furthermore, it seems to me that the courts' ruling without stating a cause

is in and of itself a denial of the right to know the reason for the denial and denies

the party the opportunity to properly and adequately prepare an appeal.

CONCLUSION

This court has discretionaryjurisdiction to review the decision below, and the court

should exercise that jurisdiction to consider the merits of the petitioner's argument.

Resp lly submitted,

SAM ZALLOUM

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing wasserved U.S. Mail upon Erin A. Zebell, WEAN & MALCHOW, PA., Attorney for

Plaintiff, 646 E. Colonial Drive, Orlando, Florida 32803 on _f£p_ of -vJ \ ,2012.

217 River Village DriveDeBary, Florida 32713Telephone: 407-467-0161Fax: 386-845-9217

CERTIFICATE OF TYPE SIZE AND STYLE

This brief is typed using Times New Roman 14-point font, which complies

with the requirements ofFla. R. App. P. 9.100(1).

SAM UM

19

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT

SAM ZALLOUM,

Petitioner,

v. CASE NO. 5D12-480

RIVER OAKS COMMUNITY SERVICESETC., o

Respondent. 2 --J

DATE: June 8, 2012 o

BY ORDER OF THE COURT:

ORDERED that the Petition for Writ of Certiorari, filed February 22, 2012,

is denied.

I hereby certify that the foregoing is(a true copy of) the original Court order.

OmAdA. dAÅ{AoPAMELA R. MASTERS, CLERK

cc: Sam ZalloumErin Zebell, Esq. and James Olsen, Esq.