Petition for Writ of Certiorari — Kionn Alls, Petitioner v. Florida Department of Revenue, on Behalf of Sharita Denise Gosa
Supreme Court briefNov 9, 2023
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Supreme Court, U.S.
FILED
NOV - 9 2023
OFFICE OF THE CLERK
No.
In The
Supreme Court of the United States
KionnAlls,
Petitioner
v.
Department Of Revenue, o/b/o
Sharita Denise Gosa
Respondent
On Petition For Writ Of Certiorari
To The Sixth District Court Of Appeal
Of The State Of Florida
PETITION FOR WRIT OF CERTIORARI
KionnAlls, Pharm.D.
Pro Se
3837 Griffith Ave
Clovis, CA, 93619
(404) 789-6195
Question Presented for Review
Do our state court of appeals have an
unrenunciable judicial duty to correct jurisdictional
or fundamental errors that were preserved at trial,
were raised on appeal in the briefing process, or
that appear on the face of the record?
(i)
(ii)
Parties to the Proceedings
The names of all parties to the proceeding in
this Court appear on the cover page of the petition.
Related Cases
The following is a list of all proceedings in other
courts that are directly related to the case in this
Court:
Department of Revenue o/b/o Sharita Denise Gosa
v. Kionn Alls, No. 2012-DR-7744-0, Circuit
Court of Ninth Judicial Circuit Court for Orange
County Florida. Judgment entered Mar. 14,
2022.
Department of Revenue o/b/o Sharita Denise Gosa
v. Kionn Alls, No. 2012-DR-7744-O, Circuit
Court of Ninth Judicial Circuit Court for Orange
County Florida. Rehearing denied Apr. 13, 2022.
Kionn Alls v. Department of Revenue o/b/o Sharita
Denise Gosa, No. 6D23-1269, Sixth District
Court of Appeal of the State of Florida. Per
curiam affirmed Jul. 18, 2023.
Kionn Alls v. Department of Revenue o/b/o Sharita
Denise Gosa, No. 6D23-1269, Sixth District
Court of Appeal of the State of Florida.
Rehearing denied Aug. 11, 2023.
(iii)
Table of Contents
Page
Question Presented for Review........... ..................
Parties to the Proceedings.......................................
(i)
(h)
Related Cases. ..............................................................
(ii)
Table of Contents.......................................................
Petition for Writ of Certiorari..............................
(iii)
(v)
1
Opinions and Orders Below......................................
1
Basis for Jurisdiction.................................................
1
Constitutional Provisions and
Statutes Involved........................................................
,2
Introduction.................................................................
4
Statement of the Case...............................................
1. The DOR’s Lack of Standing............................
8
Table of Cited Authorities.......................................
8
2. Mr. Alls Did Not Waive the Defense of
Lack of Standing................................................
10
3. The Lower Tribunal Court’s Lack
of Jurisdiction....................................................
12
4. The Florida Sixth District Court of Appeal
Violated its State’s Doctrine of
Fundamental Error...........................................
16
Reasons for Allowance of the Writ......................
22
,22
1. Mr. Alls Was Denied Procedural Due Process
2. Mr. Alls Was Denied Equal Protection Under Florida
22
Law..............................................................
3. The Integrity of Our Justice System Has
Been Undermined......................................
23
Conclusion....................................................................
23
Appendix.........................................................................
\
(iA)
Order Denying Respondent’s Motion for Relief From
Judgments and to Dismiss
(Mar. 14, 2022).........................................................
,Al
(iv)
Table of Contents
Page
Order Denying Motion for Reconsideration and for
Rehearing of Prior Orders
(Apr. 13, 2022).........................................................
,A34
Per Curiam Affirmed
(Jul. 18, 2023)..........................................................
,A36
Order Denying Motion for Rehearing, Rehearing En
Banc, Written Opinion and Certification
(Aug. 11, 2023).........................................................
.A3 8
(v)
Table of Cited Authorities
Cases
Page
Beaumont v. Bank of N.Y. Mellon,
81 So. 3d 553, 554 (Fla. 5th DCA2012)..................
17
Bell v. State,
289 So. 2d 388, 391 (Fla. 1973)................................
20
D.F. v. Dep’t of Revenue,
736 So. 2d 782, 785 n. 3 (Fla. 2d DCA1999),
aff’d, 823 So.2d 97 (Fla. 2002).................................
14
Dep’t of Revenue ex rel. Garcia v. Iglesias and Garcia,
77 So. 3d 878 (Fla. 4th DCA 2012)..........................
9
Dep’t of Revenue o/b/o Tisdale v. Jackson,
217 So. 3d 192, 194 (Fla. 5th DCA 2017)...............
9
Dep’t of Revenue v. McLeod,
96 So. 3d 443, 446 (Fla. Dist. Ct. App. 2012).........
8
Department of Revenue v. Cummings,
871 So. 2d 1055, 1058-59
(Fla. Dist. Ct. App. 2004)..........................................
14, 15
J.B. v. State,
705 So. 2d 1376, 1378 (Fla. 1998)
Fla. Power Light v. Canal Authority,
423 So. 2d 421, 423 (Fla. Dist. Ct. App.1982).......
Florida Dep’t of Revenue v. Cummings,
930 So. 2d 604, 609 (Fla. 2006)...............................
12
9
Foucha v. Louisiana,
504 U.S. 71, 72 (1992)..............................................
17
Glynn v. First Union Nat’l Bank,
912 So. 2d 357, 358 (Fla. 4th DCA 2005)...............
10
Goss v. State,
398 So. 2d 998, 999 (Fla. 5th DCA 1981)...............
20
Honaker v. State,
199 So. 3d 1068, 1070 (Fla. 5th DCA 2016)...........
,20
I.A. v. H.H.,
710 So.2d 162, 165 (Fla. Dist. Ct. App. 1998)......
18
(vi)
Table of Cited Authorities
Cases
Page
Ibanez v. 21st Mortg. Corp.,
207 So. 3d 901 (Fla. 4th DCA2017)..................
18
Jaffer v. Chase Home Fin., LLC,
155 So. 3d 1199, 1202 (Fla. 4th DCA2015)......
10
Johnson v. State,
574 So. 2d 222, 224 (Fla. 5th DCA 1991)...........
20
Kissman v. Panizzi,
891 So. 2d 1147, 1150 (Fla. 4th DCA 2005).......
10
Lovett v. Lovett,
93 Fla. 611, 631 (Fla. 1927).................................
13
Maynard v. Florida Bd. ofEduc. ex rel. Univ. of
S. Florida,
998 So. 2d 1201, 1206 (Fla. 2d DCA 2009)........
11
Phadael v. Deutsche Bank Trust Co. Americas,
83 So. 3d 893, 895 (Fla. 4th DCA 2012).............
10
R.R. Comm’n of California v. Pac. Gas & Elec. Co.,
302 U.S. 388, 399 (1938)......................................
17
Ray v. State,
403 So. 2d 956, 960 (Fla. 1981)...........................
20
Slowinski v. Sweeney,
117 So. 3d 73 (Fla. 1st Ct. App. Jun. 27, 2013)..
Smith v. Pattishall,
127 Fla. 474, 483 (1937).......................................
Smith v. State,
521 So. 2d 106, 108 (Fla. 1988)...........................
13
18
.21
Streicher v. U.S. Bank Nat’lAss’n,
18 (S.D. Fla. Mar. 14, 2016).................. ........
16
Constitutional Provisions
U.S. Const, art. III....
24
U.S. Const, amend. V.
2, 22
(vii)
Table of Cited Authorities
Constitutional Provisions
Page
2, 22
U.S. Const, amend. XIV,
United States Codes
28 U.S.C. § 1257(a)..................................
2
42 U.S.C. Ch. 7, Subch. IV, Part D §651
3, 8
Statutes
Fla. Stat. § 382.01(2)(a)...
19
Fla. Stat. § 39.801, et seq.
13
Fla. Stat. § 409.2557(1)...
8
Fla. Stat. § 409.2557(2)...
9
Fla. Stat. § 409.2563(l)(f)
8
Fla. Stat. § 409.2564(1)...
14
Fla. Stat. § 63.087...........
13
Fla. Stat. § 742.011..........
18, 19
Fla. Stat. § 742.18...........
13, 20
Rule
Fla. R. Civ. P. 1.420(b)
3, 15
Petition for Writ of Certiorari
The Petitioner, Kionn Alls (“Mr. Alls”),
respectfully petitions this Court for a writ of
certiorari to review the decision of the Sixth
District Court of Appeal of the State of Florida.
Opinions and Orders Below
The opinion and order of the Circuit Court of
Ninth Judicial Circuit Court for Orange County
Florida is unreported and reproduced in the
Petitioner’s Appendix (“A”) at A1-A33.
The order denying Mr. Alls’ Motion for
Reconsideration and for Rehearing of Prior Orders
by the Circuit Court of Ninth Judicial Circuit Court
for Orange County Florida is reproduced at A34A35.
The per curiam affirmed decision by the Sixth
District Court of Appeal of the State of Florida is
reproduced at A36-37.
The order denying Mr. Alls’ Motion for
Rehearing, Motion for Rehearing En Banc, Motion
for Written Opinion and Motion To Certify Question
by the Sixth District Court of Appeal of the State of
Florida is reproduced at A38-A39.
Basis for Jurisdiction
The Sixth District Court of Appeal of the State
of Florida denied Mr. Alls’ motion for rehearing,
1
2
motion for rehearing en banc, motion for written
opinion and motion to certify question on August
11, 2023. On November 15, 2023, the Clerk of this
Court extended the time to resubmit a corrected
petition and appendix for a period not exceeding 60
days.
Accordingly, the last day to return this
petition to the Clerk’s Office so that it may be
docketed is January 14, 2024. The statutory
provision believed to confer on this Court
jurisdiction to review on a writ of certiorari the
judgment or order in question is 28 U.S.C. §
1257(a).
Constitutional Provisions
and Statutes Involved
The Fifth Amendment to the United States
Constitution provides, “No person shall be held to
answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in
time of War or public danger; nor shall any person
be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be
taken for public use, without just compensation.”
3
The Fourteenth Amendment to the United
States Constitution provides, “All persons born or
naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No
State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
42 U.S.C. Chapter 7, Subchapter IV, Part D
§651 provides, “For the purpose of enforcing the
support obligations owed by noncustodial parents
to their children and the spouse (or former spouse)
with whom such children are living, locating
noncustodial parents, establishing paternity,
obtaining child and spousal support, and assuring
that assistance in obtaining support will be
available under this part to all children (whether or
not eligible for assistance under a State program
funded under part A) for whom such assistance is
requested, there is hereby authorized to be
appropriated for each fiscal year a sum sufficient to
carry out the purposes of this part.”
Florida Rule of Civil Procedure 1.420(b)
Involuntary Dismissal, provides, “Any party may
move for dismissal of an action or of any claim
against that party for failure of an adverse party to
comply with these rules or any order of court.
4
Notice of hearing on the motion shall be served
as required under rule 1.090(d). After a party
seeking affirmative relief in an action tried by the
court without a jury has completed the
presentation of evidence, any other party may move
for a dismissal on the ground that on the facts and
the law the party seeking affirmative relief has
shown no right to relief, without waiving the right
to offer evidence if the motion is not granted. The
court as trier of the facts may then determine them
and render judgment against the party seeking
affirmative relief or may decline to render
judgment until the close of all the evidence. Unless
the court in its order for dismissal otherwise
specifies, a dismissal under this subdivision and
any dismissal not provided for in this rule, other
than a dismissal for lack of jurisdiction or for
improper venue or for lack of an indispensable
party, operates as an adjudication on the merits.”
Introduction
On July 5, 2012, the Florida Department of
Revenue (DOR), filed a petition to establish
paternity, child support and for other relief for
minor child, C.D.G., born March 2012, on behalf of
Sharita Gosa (“Mrs. Gosa”), against putative
biological father, Mr. Alls, and husband and legal
father, Randy Gosa (“Mr. Gosa”).
On December 9, 2021, Mr. Alls filed an amended
motion for relief from judgments and to dismiss. In
5
Mr. Alls’ amended motion to dismiss he argued, in
relevant part, that the DOR lacked standing to file
its petition and thus the lower tribunal court
lacked jurisdiction, and, as a result, all judgments
entered by the lower tribunal court must be
declared void and vacated and the paternity case
against him must be dismissed.
On March 14, 2022, the lower tribunal court
denied Mr. Alls’ motion for relief from judgments
and to dismiss (A1-A33), an opined, in relevant
part, that Mr. Alls waived the defense of lack of
standing for failure to raise it as an affirmative
defense—and even if the DOR lacked of standing it
would not deprive the court of its jurisdiction, but
noted; however, that the DOR’s standing must be
established as of the date it filed its petition—, the
DOR had standing to file its petition, and that the
court had jurisdiction.
On March 24, 2022, Mr. Alls filed an amended
motion for reconsideration and for rehearing of
prior orders. In Mr. Alls’ amended motion for
rehearing he argued, in relevant part, that the
lower tribunal court erred in ruling that Mr. Alls
waived the defense of lack of standing for failure to
raise it as an affirmative defense because standing
is not necessarily required to be raised only by
means of an affirmative defense, the court erred in
ruling that the DOR had standing because the
lower tribunal case was not a Title IV-D case, all
cases the court relied on to support its position that
6
the DOR had standing were either not analogous,
instructive, and/or dispositive of the issue of the
DOR’s standing, and because the court hadn’t
considered all relevant statutes with regard to the
DOR’s standing, and, finally, that the court erred in
ruling that it had jurisdiction because the court’s
jurisdiction was not properly invoked since the
DOR lacked standing. On April 13, 2022, however,
the lower tribunal court denied Mr. Alls’ motion for
reconsideration and for rehearing of prior orders
(A34-A35).
On June 23, 2022, Mr. Alls filed his initial brief
in the Florida Fifth District Court of Appeal.1 In
Mr. Alls’ initial brief he argued, in relevant part,
that he did not waive the defense of lack of
standing, the DOR did not have standing because
the lower tribunal case was not a Title IV-D case,
the jurisdiction of the lower tribunal court was not
properly invoked and perfected, and that the lower
tribunal court fundamentally erred when it entered
judgment in favor of a nonparty and granted relief
pursuant to nonexistent cause of action.2 On July
18, 2023, however, the Florida Sixth District Court
of Appeal per curiam affirmed the lower tribunal
court (A36-A37).
1 Mr. Alls’ appeal was later transferred to the Florida
Sixth District Court of Appeal as a result of redistricting due
to case overload.
2 Mr. Alls raised the fundamental error: judgment entered
in favor of a nonparty, in his reply brief.
7
On August 2, 2023, Mr. Alls filed his amended
motion for rehearing, motion for rehearing en banc,
motion for written opinion and motion to certify
question in the intermediate-level state appellate
court. In Mr. Alls’ amended motion for rehearing he
argued, in relevant part, that a rehearing was
warranted because the court overlooked the lower
tribunal court’s jurisdictional defects and
fundamental errors that were raised, a rehearing
en banc was warranted because the DOR exceeded
the statutory limitations placed upon it by the
legislature, a written opinion was warranted
because a written opinion would would provide an
explanation for the court’s apparent deviation from
prior precedent and provide a legitimate basis for
Florida Supreme Court review because its per
curiam affirmed opinion conflicted with opinions of
the United States District Court Southern District
of Florida, the Florida Supreme Court and other
intermediate-level state appellate courts, and,
finally that certification was warranted because the
lower tribunal case implicated questions of great
public importance.
On August 11, 2023, the Florida Sixth District
Court of Appeal denied Mr. Alls’ amended motion
for rehearing, motion for rehearing en banc, motion
for written opinion and motion to certify question
(A38-39) and this timely petition for writ of
certiorari in this Court ensued.
8
Statement of the Case
The facts material to consideration of the
question presented are as follows:
1. The DOR’s Lack of Standing
Section 409.2557(1), Florida Statutes,
designates the DOR “as the state agency
responsible for the administration of the child
support enforcement program, Title IV-D of the
Social Security Act , 42 U.S.C. ss. 651 et seq.”
(Emphasis added).
Section 409.2563(l)(f), Florida Statutes, defines
a “Title IV-D case” as “a case or proceeding in
which the [DOR] is providing child support services
within the scope of Title IV—D of the Social Security
Act.”
The lower tribunal court’s case was not a Title
IV-D case. There was no evidence in the record
that supported that Mrs. Gosa or her dependent
child ever received public assistance and no
enforcement action was pending when the DOR
filed its petition in 2012. See Dep’t of Revenue v.
McLeod, 96 So. 3d 443, 446 (Fla. Dist. Ct. App.
2012) (based on the relevant statutes, there is no
Title IV-D case with respect to child support
obligations unless either or both parents, or the
dependent child, are receiving public assistance, or
if the custodial parent has requested DOR’s
9
assistance in enforcing or modifying a child support
order).
Additionally, based on the DOR’s own contention
in Mcleod, they would not have standing in the
following situations:
1. Providing child support establishment
services to the custodial parent in those
circumstances in which neither the
custodial parent nor child are receiving
public assistance [or]
2. Providing paternity establishment
services to the custodial parent in those
circumstances in which neither the
custodial parent nor child are receiving
public assistance [.]
Id, 449.
Accordingly, the lower tribunal court erred as a
matter of law when it relied solely on Section
409.2557(2), Florida Statutes, to support, in part,
its ruling that the DOR had standing to provide
paternity and child support establishment services
on Mrs. Gosa’s behalf.
The lower tribunal court also relied on Dep’t of
Revenue o/b/o Tisdale v. Jackson, 217 So. 3d 192,
194 (Fla. 5th DCA 2017); Florida Dept, of Revenue
v. Cummings, 930 So. 2d 604, 609 (Fla. 2006); and
Dep’t of Revenue ex rel. Garcia v. Iglesias and
10
Garcia, 77 So. 3d 878 (Fla. 4th DCA 2012) to
support its ruling that the DOR had standing.
However, these cases were either not analogous,
instructive, and/or dispositive of the issues
presented in Mr. Alls’ case.
Mr. Alls was not challenging the DOR’s standing
to file for modification of child support obligations
as in Tisdale. Whether or not a legal father is an
indispensable party was at issue in Cummings. And
there was neither a legal father, nor established
paternity, as no father was listed on the birth
certificate, nor finding of fact that the marriage was
intact in Iglesias. Accordingly, the lower tribunal
court also erred as a matter of caselaw because the
DOR’s standing cannot be conferred simply by
virtue of previously filed, similarly-styled petitions.
2. Mr. Alls Did Not Waive the Defense of Lack
of Standing
The lower tribunal court relied on Phadael v.
Deutsche Bank Trust Co. Americas, 83 So. 3d 893,
895 (Fla. 4th DCA 2012); Glynn v. First Union Nat’l
Bank, 912 So. 2d 357, 358 (Fla. 4th DCA 2005);
Kissman v. Panizzi, 891 So. 2d 1147, 1150 (Fla. 4th
DCA 2005); and Jaffer v. Chase Home Fin., LLC,
155 So. 3d 1199, 1202 (Fla. 4th DCA 2015) to rule
that Mr. Alls’ defense of lack of standing was
deemed waived for failure to raise it as an
affirmative defense.
11
On Mr. Alls’ amended motion for reconsideration
and for rehearing of prior orders, he, in opposition
to waiver, relied on Maynard v. Florida Bd. of
Educ. ex rel. Univ. of S. Florida, 998 So. 2d 1201,
1206 (Fla. 2d DCA 2009), which ruled that standing
may not be raised for the first time on appeal;
however, it does not necessarily require that
standing be raised only by means of an affirmative
defense. Additionally, Mr. Alls also urged the trial
court to reconsider and, subsequently, reject
Phadael, Glynn, Kissman and Jaffer because the
facts in those cases were not analogous to those in
the lower tribunal court’s case.
In Phadael, the Appellant was defaulted and
failed to defend the action at any point before entry
of the final judgment. In Glynn, the Appellant
never filed a motion or an answer in the trial court.
The central issue in Kissman was whether the
buyer complied with the financing provision of a
contract, not the buyers lack of standing. In Jaffer,
the Appellants did not file an answer or affirmative
defenses, and a default judgment was entered
against them. Unlike Phadael, Glynn, and Jaffer,
in which the Appellants were defaulted or never
filed a motion or an answer in the trial court,
resulting in waiver of the defense of standing, Mr.
Alls was not defaulted and filed multiple motions in
the lower tribunal court. And unlike Kissman, lack
of standing was a central issue in the lower
tribunal court’s case.
12
Maynard is instructive and dispositive of
whether or not the defense of standing is waived for
failure to raise it as an affirmative defense.
Though Mr. Alls did not raise the issue of standing
as an affirmative defense, he raised the issue before
the lower tribunal court court in a motion for
relief from judgments and to dismiss. The parties
filed memoranda on the issue of standing, argued
the issue at a hearing, and the trial court decided
the issue on its merits. Accordingly, Mr. Alls did
not waive the defense of lack of standing.
3. The Lower Tribunal Court’s Lack of
Jurisdiction
The lower tribunal court’s order remained silent
on whether the jurisdiction of the court was
properly invoked and perfected despite the
pleadings and argument presented at trial. See Fla.
Power Light v. Canal Authority, 423 So. 2d 421, 423
(Fla. Dist. Ct. App. 1982) (subject matter
must
jurisdiction
be
properly invoked and perfected).
In regards to its jurisdiction, the lower tribunal
court failed prongs (2), (3) and (4) of the Lovett
quadripartite test:
A Court has jurisdiction of the subjectmatter of any given cause, if these words are
to be given their full meaning, they imply,
generally speaking, (1) that the Court has
jurisdictional power to adjudicate the class of
13
cases to which such case belongs; and (2)
that its jurisdiction has been invoked in the
particular case by lawfully bringing before it
the necessary parties to the controversy, and
(3) the controversy itself by pleading of some
sort sufficient to that end; and (4) when the
cause is one in rem, the Court must have
judicial power or control over the res, the
thing which is the subject of the controversy.
Lovett v. Lovett, 93 Fla. 611, 631 (Fla. 1927) (italics
in original; emphasis added).
The lower tribunal court failed prong (2)
because the DOR lacked standing and thus the
court’s jurisdiction was not invoked.
The lower tribunal court failed prong (3)
because the DOR filed a petition to establish
paternity; therefore, the lower tribunal court did
not have the jurisdiction to disestablish Mr. Gosa’s
paternity or terminate his parental rights because
they were not properly plead.
As a result, the lower tribunal court created a
“dual fathership,” which is not recognized under
Florida law, because Mr. Gosa’s paternity was not
lawfully disestablished nor were his parental rights
and attendant responsibilities of support ever
terminated under any of the state’s applicable legal
procedures. See §§ 39.801, et seq., §§ 63.087,
742.18, Fla. Stat.; see also Slowinski v. Sweeney,
14
117 So. 3d 73 (Fla. 1st Ct. App. Jun. 27, 2013) (...
because the parental rights of the man married to
the mother at the time the child was born have not
been terminated in accordance with Florida law,
which does not recognize dual or concurrent
fathers).
The DOR’s intent of a petition to establish
paternity is two-fold: determining (1) a legal father
—listing someone’s name as the father on the birth
certificate—and determining (2) who has the legal
duty to provide support for the child in question.
See § 409.2564(1), Fla. Stat. (2002) (requiring DOR
to institute “action as is necessary to secure the
obligor’s payment of current support” when regular
support payments are not being made to obligee
receiving public assistance: emphasis added); see
also D.F. v. Dep’t of Revenue, 736 So. 2d 782, 785 n.
3 (Fla. 2d DCA 1999), aff’d, 823 So.2d 97 (Fla.
2002) (These paternity cases seek to determine the
man who has a legal duty to support the children
involved); Department of Revenue v. Cummings,
871 So. 2d 1055, 1058-59 (Fla. Dist. Ct. App. 2004)
(noting paternity action is filed to establish legal
father who will be legally responsible to support
child).
The lower tribunal court failed prong (4)
because there was no subject of controversy;
paternity was already established, Mr. Gosa’s name
was listed on the minor child’s birth certificate and,
because the Gosa’s remain married, he was the one
15
who had the legal duty to provide support. See
Department of Revenue v. Cummings, 871 So. 2d
1055, 1059 (Fla. Dist. Ct. App. 2004) (so long as a
couple remains married, the husband and legal
father stands in loco parentis to the child and owes
a duty of support to the child).
The DOR’s lack of standing did deprive the
lower tribunal court of it’s jurisdiction because
standing is also jurisdictional within the meaning
of rule 1.420(b), Florida Rule of Civil Procedure:
Indeed, it seems that the rule’s intent is
not to give a dismissal preclusive effect when
it is based on a court’s lack of power over the
case, regardless of whether the defense
divesting the court of such power is
waivable. Case jurisdiction embraces a
court’s power to hear a case (even if it has
jurisdiction over the class of cases to which it
belongs). When a party lacks standing, it
cannot invoke the court’s jurisdiction to hear
the particular case even if the court
otherwise has jurisdiction over the subject
matter of the class of cases to which the
particular case belongs. Roberts, 29 So. 2d at
750 (“‘[A]n entire failure to invoke the court’s
jurisdiction over the subject matter or an
attempt to do so in a manner wholly
inadequate to bring the court’s powers into
activity would prevent any valid
determination of the case.’” (citation
16
omitted)); Lovett, 112 So. at 775 (“The
jurisdiction and power of a court remain at
rest until called into action by some
suitor . . . .”).
Stretcher v. U.S. Bank Nat’l Ass’n, 18 (S.D. Fla.
Mar. 14, 2016).
Without standing the DOR could not invoke the
jurisdiction of the trial court. Id.
Without jurisdiction the lower tribunal court
lacked any authority to render its decisions and, as
such, all orders stemming from the filing of the
DOR’s petition should have been declared void and
vacated and the lower tribunal court’s case should
have been dismissed.
4. The Florida Sixth District Court of Appeal
Violated its State’s Doctrine of
Fundamental Error
Under Florida caselaw, an error is deemed
fundamental “when it goes to the foundation of the
case or the merits of the cause of action and is
equivalent to a denial of due process.” See F.B., 852
So. 2d at 229 (quoting J.B. v. State, 705 So. 2d
1376, 1378 (Fla. 1998)).
Mr. Alls was denied procedural due process
when the lower tribunal court arbitrarily decided
that he was the minor child’s biological father in
the absence of any evidence to support its decision.
See Superintendent, Massachusetts Corr. Inst.,
17
Walpole v. Hill, 472 U.S. 445, 455 (1985) (decision
does not comport with the minimum requirements
of procedural due process, unless the tribunal’s
findings are supported by some evidence in the
record); Louisville & N.R. Co., 227 U.S. at 91 ,(a
finding without evidence is arbitrary and baseless);
Foucha v. Louisiana, 504 U.S. 71, 72 (1992) (the
right to due process also bars arbitrary decisions,
regardless of the fairness of the procedures used to
reach them); R.R. Comm’n of California v. Pac. Gas
& Elec. Co., 302 U.S. 388, 399 (1938) (an order is
arbitrary and violates due process if it depends on a
finding reached without supporting evidence, or a
finding based on evidence that does not support it.
Otherwise, a court “could disregard all rules of
evidence, and capriciously make findings by
administrative fiat.” Such authority, however
beneficently exercised in one case, could be
injuriously exerted in another, is inconsistent with
rational justice, and comes under the Constitution’s
condemnation of all arbitrary exercise of power).
Under Florida caselaw, “it is fundamental error
to enter judgment in favor of a nonparty.” See
Beaumont v. Bank of N.Y. Mellon, 81 So. 3d 553,
554 (Fla. 5th DCA 2012).
Private counsel for Mrs. Gosa filed the notice of
final hearing in the lower tribunal court’s case and
she and her attorney were the only two in
attendance at the final hearing on March 28, 2016;
however, absent filing a motion to intervene, they
18
were nonparties. See Ibanez v. 21st Mortg. Corp.,
207 So. 3d 901 (Fla. 4th DCA 2017). Mrs. Gosa nor
her counsel had standing when they filed the notice
of final hearing and thus the lower tribunal court
had no jurisdiction to entertain Mrs. Gosa’s notice
and proceed with the final hearing.
The Florida Supreme Court instructed that
appellate courts have an independent duty to
correct fundamental error at issue even if not
raised on appeal. See Smith v, Pattishall, 127 Fla.
474, 483 (1937); see also LA. v. H.H., 710 So.2d 162,
165 (Fla. Dist. Ct. App. 1998) (where the trial court
has granted relief that is not authorized by law, or
pursuant to a cause of action that either does not
exist or is not available to the plaintiff[,]” it is the
reviewing court’s “duty to notice and correct [such]
jurisdictional defects or fundamental errors even
when they have not been identified by the parties).
The lower tribunal court granted relief pursuant
to a cause of action that does not exist under
Section 742.011, Florida Statutes. According to
Section 742.011, Florida Statutes, Determination of
Paternity Proceedings; Jurisdiction:
Any woman who is pregnant or has a
child, any man who has reason to believe
that he is the father of a child, or any child
may bring proceedings in the circuit court, in
chancery, to determine the paternity of the
19
child when paternity has not been
established bv law or otherwise.
(Emphasis added).
Paternity in the court’s case was established by
law under operation of Section 382.01(2)(a), Florida
Statutes, which provides that:
If the mother is married at the time of
birth, the name of the husband shall be
entered on the birth certificate as the father
of the child, unless paternity has been
determined otherwise by a court of
competent jurisdiction.
Reading these provisions together, they indicate
a child born to an intact marriage cannot be the
subject of a paternity proceeding brought under
Section 742.011, Florida Statutes, by the DOR, nor
could its paternity suit be recognized as a
cognizable cause of action.
The lower tribunal court also granted relief that
was not authorized by Section 742.011, Florida
Statutes. The court, in its final judgment of
paternity entered against Mr. Alls on March 28,
2016, ordered that Mr. Gosa’s name be removed
and Mr. Alls’ name be added to the birth certificate
of the minor child. And, although removing Mr.
Gosa’s name did disestablish his paternity, it was
done so unlawfully. Disestablishment of paternity
20
or termination of child support obligation is only
authorized by Section 742.18, Florida Statutes.
The Florida Sixth District Court of Appeal was
duty bound to correct the fundamental errors that
Mr. Alls raised on appeal. See Rosier v. State, No.
1D16-2327, 10 (Fla. Dist. Ct. App. Jun. 28, 2019) (it
is also a well-established practice of this [c]ourt to
remedy fundamental errors on the face of the
record. E.g., Honaker v. State, 199 So. 3d 1068,
1070 (Fla. 5th DCA 2016); Johnson v. State, 574 So.
2d 222, 224 (Fla. 5th DCA 1991); Goss v. State, 398
So. 2d 998, 999 (Fla. 5th DCA 1981).); Id, 26:
(Florida’s appellate courts have long recognized
judicial authority—and a “unrenunciable” duty—to
correct fundamental errors, meaning those of such
gravity that ignoring and not correcting them
would diminish public respect for the judicial
process, even if those errors were not preserved at
trial, not raised on appeal in the briefing process, or
raised by the appellate court on its own. See, e.g.,
Bell v. State, 289 So. 2d 388, 391 (Fla. 1973) (it is
the long standing rule of this [cjourt that when
assignments of error are not argued in the briefs
they will be deemed abandoned unless
jurisdictional or fundamental error appears in the
record.) (emphasis added in original)); Id, 27-28:
([The Florida Sjupreme [Cjourt has made clear that
an appellate court has an obligation to correct
fundamental errors in the “interests of justice.” Ray
v. State, 403 So. 2d 956, 960 (Fla. 1981); see also
21
Smith v. State, 521 So. 2d 106, 108 (Fla. 1988);
Bain, 730 So. 2d at 302 (purpose of fundamental
error doctrine “extends beyond the interests of a
particular aggrieved party; it protects the interests
of justice itself. It embodies the courts’ recognition
that some errors are of such a magnitude that
failure to correct them would undermine the
integrity of our system of justice.)). Id, 38: ([a
court’s] duty is to correct fundamental error on the
face of the record as the Legislature and our
supreme court have authorized).
However, despite Rosier, Bell, Ray, Smith, Bain
et al., the Florida Sixth District Court of Appeal
was derelict in its judicial duty to correct the
jurisdictional and fundamental errors that were
raised by Mr. Alls on appeal.3
3 Florida’s Sixth District Court of Appeal duty to correct
jurisdictional and fundamental errors, as it relates to the
federal question sought to be reviewed, was raised in Mr. Alls’
amended motion for rehearing, motion for rehearing en banc,
motion for written opinion and motion to certify question filed
in the intermediate-level state appellate court, “[a] rehearing
is warranted in this case because this [cjourt has overlooked
the lower tribunal court’s jurisdictional defects and the
following fundamental errors that were raised by Appellant:
relief granted pursuant to a nonexistent cause of action and
judgment entered in favor of a nonparty,” but was passed on
by the state appellate court when the court denied his motion.
22
Reasons for Allowance of the Writ
The per curiam affirmed decision by the Florida
Sixth District Court of Appeal conflicts with
decisions of the United States District Court
Southern District of Florida, the Florida Supreme
Court and Florida’s First, Second, Fourth and Fifth
District Courts of Appeal and, as a result:
1. Mr. Alls Was Denied Procedural Due
Process
The Florida Sixth District Court of Appeal failed
to correct the lower tribunal court’s arbitrary ruling
that Mr. Alls was the minor child’s biological father
and, as a result, his rights under the Due Process
Clauses of both the Fifth and Fourteenth
Amendments to the United States Constitution,
which this Court interprets as a guarantee to
procedural due process, were denied.
2. Mr. Alls Was Denied Equal Protection
Under Florida Law
The Florida Sixth District Court of Appeal failed
to correct the jurisdictional and fundamental errors
of the lower tribunal court raised by Mr. Alls on
appeal, as dictated by, and collectively known as,
Florida’s Fundamental Error Doctrine; and, as a
result, his right under the Equal Protection Clause
of the Fourteenth Amendment to the United States
Constitution, which this Court interprets as a
guarantee that each state must provide equal
23
protection under the law to all people, including all
non-citizens, within its jurisdiction, was also
denied.
3. The Integrity of our Justice System Has
Been Undermined
As a result of the per curiam affirmed decision
by the Florida Sixth District Court of Appeal in Mr.
Alls’ case, it can still be argued that the DOR
lacked standing, the lower tribunal court lacked
jurisdiction, exceeded its jurisdiction, if properly
invoked and perfected, granted relief pursuant to a
cause of action that did not exist and that was not
authorized by law, denied Mr. Alls procedural due
process, and entered judgment in favor of a
nonparty. And, since these jurisdictional and
fundamental errors remain uncorrected, it can also
be argued that the integrity of our justice system
has been undermined. Justice, however, does not
permit such ambiguity. Justice is either upheld or it
is undermined. And, when justice is undermined, as
is the case in Mr. Alls’ case—or in any case for that
matter—it is an issue of great public importance.
Conclusion
This petition for a writ of certiorari should be
granted because Mr. Alls believes a state court of
last resort has decided an important federal
question in a way that conflicts with the decision of
another state court of last resort or of a United
24
States court of appeals in accordance with Rule
10(b), a state court of appeals has decided an
important question of federal law that Mr. Alls
believes has not been, but should be, settled by this
Court in accordance with Rule 10(c), Mr. Alls’ case
involves an issue of great public importance, an
issue of federal law, or an issue concerning the
United States Constitution in accordance with
Article III of the United States Constitution, and/or
because of other reasons within this Court’s
discretion.
Respectfully submitted,
KlONNALLS, Pharm.D.
Pro Se
3837 Griffith Ave
Clovis, CA, 93619
(404) 789-6195
December 27, 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.