Petition for Writ of Certiorari — Sierra v. Florida Department of Transportation

Supreme Court, U.S.

FILED

04 553 OCT 2 1 2008

No.

' “Ewes

IN THE

Supreme Court of the United States

SYLVIA SIERRA,

Petitioner,

Vv.

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION,

Respondent.

On Petition for Writ of Certiorari to the

District Court of Appeals,

Second District, Lakeland, Florida

PETITION FOR WRIT OF CERTIORARI

DOYLE E. RICHARDSON *

LAW OFFICES OF

GREGORY G. KEANE, P.A.

1000 SE Monterey Commons

Boulevard,

Suite 202

Stuart, Florida 34996

* Counsel of Record (772) 288-0000

August 24, 2004

A NNN IT EN PEE LL SELL NETO NL LER TEES EIN ANE LIEL LEDGES. IBLE LLLABERL DESL LED. SELILEE DLE EAE ELLE EO

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether Due Process of Law was violated in an Eminent

Domain Case when the Trial Court refused to grant the Land-

owner’s request for a continuance in order to employ a re-

placement attorney to represent her in the trial?

(i)

il

PARTIES TO THE PROCEEDING

Petitioner Sylvia Sierra was the defendant/Petitioner

below.

Respondent State of Florida Department of Transportation

was the plaintiff/Respondent below.

TABLE OF CONTENTS

QUESTION PRESENTED..........:.:s:sssssseessssenessnenenenennens

PARTIES TO THE PROCEEDING............ccceesseeeeeeeees

TABLE OF AUTHORITIES ...........:ccccsssessseeereeeneseenenes

INTRODUCTION ..........:ccsccssseesseesseseeeeesnreseeennnenseaners

OPINION BELOW............:ccccecseeeseeeseesesseneseennenensenensnes

JURISDICTION ...........::ccccccsesseesseeeseeneeessresereeeenseneneenes

PERTINENT CONSTITUTIONAL AND STATU-

TORY PROVISIONS. .........:ccccsccesseeseesereseeresereneeeneneneenes

STATEMENT OF THE CASE AND FACTS .........-+++

A. Statement Of The Case ..........:ccsseseeeeeseerseeeneenees

B. Statement Of The Facts ...........ccesseseeseeeeneneseenees

REASONS FOR GRANTING THE WRIT ..........---+++++

l. THE DECISION BELOW CONFLICTS

WITH DECISIONS OF THIS AND OTHER

COURTS ..0.....ccccecscccsscsssscscrcenrscssesssccsssnseeseesenees

A. The Decision Below Conflicts With The

Case Of Mathews V. Eldridge, Which

Propounds Three Elements To Be Eval-

uated In Deciding What Due Process Is

Required..........sssecesesesessesseesseseenenenenensnsenenens

Il. THESE CONFLICTS RESULT IN PART

FROM UNCERTAINTIES IN THIS .........-2+++

lll. THIS IS A CASE OF EXCEPTIONAL

IMPORTANCE ...........cscsesseeseeeseeeeeseenseensesnnnnes

Co oOo eC

12

12

13

19

20

iV

TABLE OF CONTENTS—Continued

Page

ace IT ciiclisininictcnsakicinsensciasaiaitinddeldacsiincsuleibaia licen anaes 22

APPENDIX A

Second District Court of Appeal’s Order .................. la

APPENDIX B

Second District Court of Appeal’s Opinion .............. 2a

APPENDIX C

Abstract from Answer Brief of Respondent ............. 3a

APPENDIX D

Cover Page and Table of Contents from Petitioner’s

NE TIE eicinaitscicnclacuhansscsnncitnteiseaiiaaneiananiaagoauiagaten 9a

APPENDIX E

Notice of Supplemental Authority ........0.0......ee lla

oF

Vv

TABLE OF AUTHORITIES

CASES Page

Alter v. Alter, 473 So. 2d 775 (Fla. 3d DCA

1985) ....ccccccscsssesecsssssssscsssresccsesesssscsceecacaseasssesees 13

Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252,

1256, 86 L.Ed. 1595 ......cscsesseseereeeeeeereteeneeneees 19

Cafeteria Workers v. McElroy, 367 U.S. 886,

WIG, scssnsiasinadetelnsantinesmeiaoasenmataeanielaannsantnnt™ 19, 20

Cash v. Culver, 120 So. 2d 590, 594 (Fla. 1960.... 19

Cervieri v. Cervieri, 814 So. 2d 528, 529 (Fla.

Ath DCA 2002) .........:sssccssseessesrcesesscsssesseneeneens 5

Cooke v. United States, 267 U.S. 517, 537, 45

S.Ct. 390, 395, 69 L.Ed. 767 ......esecsecessesceeeeeeeens 19

Felts vy. Murphy, 201 U.S. 123, 129, 26 S.Ct. 366,

GO 1 FA GOD viiicesnssisnssonnciscsndcennidinesetsensssianunentn 19

Frank v. Mangun, 237 U.S. 309, 344, 35 S.Ct.

582, 59 L.Ed. 969 .....csccsessessesseceesesseeeeeneenennees 19

Gibbs v. Burke, 337 U.S. 773, 781, 69 S.Ct.

1247, 1251, 93 L.Ed. 1686 .........:sscesseeeeseereenees 19 |

Goldberg v. Kelly, 397 U.S. 254, 260-261 (1970) .. 6 |

In Re Gault, 387 U.S. 1 (1967).....:ccsesseeereeereeeneees 21

Kelly v. State of Oregon, 273 U.S. 589, 591, 47,

S.Ct. 504, 71 L.Ed. 790 ......cceesesseesescerseeereeenenes 19

Lassiter v. Department of Social Services of

Durham County, North Carolina, 452 U.S. 18

(1981 )ecscsscecessssssessssesesesscsensenessscessnsscnsnsensncacenees 6, 20, 21

Mathews v. Eldridge,.424 U.S. 319 (1976) .......++++. passim

McDermott v. Miami-Date County, 753 So. 2d

729, 731 (Fla. Ist DCA 2000) ........cecceseeereenes 13

Onett v. Ahola, 780 So. 2d 896 (Fla. 2d DCA

1973) ..csccscscccescssssscsssssscrccsecscssececnssssscsasacnesensoees 13

Palko v. State of Connecticut, 302 U.S. 319, 325

S.Ct. 149, 152, 82 L.Ed. 288 .......sceeseesserereeeees 19

Powell y. Alabama, 287 U.S. 45, 772 L.Ed. 158,

53 S.Ct. 55 (1932).....csccscsseeseerseessencessereneeneenenes 4,5

vi

TABLE OF AUTHORITIES—Continued

Sheinheit v. Cuenca, 840 So. 2d 1122, 1123 (Fla.

36 DCA: BGP sccccencshsccactinsisksetatebiteasiaatanaenia 5,13

Snyder v. Commonwealth of Massachusetts,

291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.

PE Ge ccccccssevitndictasncsctintnianinmeaa 19

Times Publ'g Co. v. Burke, 375 So. 2d 297, 299

CFIA, BE TR cig CFO i cttcereststnnicincideaeanipmean 4,5

CONSTITUTIONS, STATUTES, AND RULES:

2B UBC. © VEST cccscescrsensencsintneneeaantionbemmeiaen 7

Constitution of State of Florida, Article I,

DOCG D arcrrccctsintncscsicenbincadeieediimaiaidaaeeis 8

Constitution of State of Florida, Article V,

OUTST 5 ccccccoctcerccsssessesseanesvicaaaaeadna 1,2,3

Constitution of State of Florida, Article X,

Dente © cxicstccmniincointeninaiamn 2, 8, 21

Constitution of the United States, Fifth

AURATEG ccnicincrecttcrsciaiiaenaiiainiaiaaas 6, 7, 8, 13,21

Constitution of the United States, Fourteenth

AGRI cccicivirunriieviiaimmiinne 6, 7, 8, 13, 21

Florida Rules of Appellate Procedure, Rule

> > . Sea socecesecccecesecsceseoesesenssesssesssesnsssoessseees 6

Florida Rules of Civil Procedure, Rule 9.030 ....... l

Florida Statute § 73.092(1)(a) .............ccccssscesseeees 5,11

Phoridin Seatuhe © TSB ArO) <ccvecenconccasssccnsssscctecescecze 17

Tete Vetantane 1, i Sel 8 ccacscsnssaiccsumevennetgenansciinnnnes 11

‘Fetal Veteran 1, Bi. BIPAD scsccecscsssoncsnssrenssensesvantiomtes 11

Tete Vesiarmnt ©, 00, Zi scecsscsessccssesciatecsssssnesonsenens 10

Petal Veeteains £, 0. ZI SS serscccesccecscsersetssesaneneseesss 11

Total Vetnamns ©, 0. SbAd cncescssecccsscsesrvscnesssnteeamnonaes 11

Trial Volume IV, pp. 383, 399 .............cscccssssessseees 10

Trial Volume V, pp. 4733-4 .....ccsccosccescsscessscosccesssece 1]

IN THE

Supreme Court of the United States

No.

SYLVIA SIERRA,

Petitioner,

Vv.

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION,

Respondent.

On Petition for Writ of Certiorari to the

District Court of Appeals,

Second District, Lakeland, Florida

PETITION FOR WRIT OF CERTIORARI

INTRODUCTION

The District Courts of Appeal in Florida constitute “the

courts of last resort for the vast majority of litigants under

amended Article V.” Section 3 of the Florida Constitution.

Florida Rules of Civil Procedure, Rule 9.030, Jurisdiction of

Courts, committee notes regarding the 1980 amendment to

Article V of the Florida Constitution. The amendment to

Article V, Section 3 gives the Supreme Court of Florida

discretionary jurisdiction as follows:

“(3) May review any decision of a district court of

appeal that expressly declares valid a state statute, or that

expressly construes a provision of the state or federal

2

constitution, or that expressly affects a class of

constitutional or state officers, or that expressly and

directly conflicts with s decision of another district court

of appeal or of the supreme court on the same question

of law.

(4) May review any decision of a district court of appeal

that passes upon a question certified by it to be of great

public importance, or that is certified by it to be in direct

conflict with a decision of another district court of

appeal.

(5) May review any order or judgment of a trial court

certified by the district court of appeal in which an

appeal is pending to be of great public importance, or to

have a great effect on the proper administration of

justice throughout the state, and certified to require

immediate resolution by the supreme court.

(6) May review a question of law certified by the

Supreme Court of the United States or a United States

Court of Appeals which is determinative of the cause

and for which there is no controlling precedent of the

supreme court of Florida.”

When the Second District Court of Appeals of the State of

Florida issued its first order merely denying Petitioner’s

requests for a new trial without a written opinion, Petitioner,

through counsel, filed a motion for a rehearing containing a

verification by Petitioner’s counsel that issues one (1) and

two (2) set out in the motion were issues of first impression in

an eminent domain case in the State of Florida, and further,

that the Florida Constitution, Article X, Section 6(a)

requirement of “full compensation” in an eminent domain

case, as opposed to “just compensation” would require the

due process bar to be raised even higher than does the U.S.

Constitution. The verification of counsel expressed a belief

based upon a reasoned and studied professional judgment that

a written opinion could provide a legitimate basis for Florida

Supreme Couit review. The Second District—Court of

— 3

Appeals denied Petitioner’s motion for a rehearing again

without written opinion and without certification by the

District Court to the Supreme Court of Florida that the case

was of great public importance.

Since the case appeared to be a case of first impression on

the issues raised regarding due process of law in an eminent

domain case and the effect thereon by the “full com-

pensation” requirement of the Florida Constitution, and since

there was no written opinion expressly and directly declaring

anything, there was no Florida Constitutional basis for

Petitioner to appeal to the Supreme Court of Florida.

However, as can be seen from Article V, Section 3 (6) of the

Constitution the State of Florida set out above, the Supreme

Court of Florida may review a question of law certified to it

by the Supreme Court of the United States.

In this eminent domain case, Petitioner’s three (3) previous

attorneys withdrew from the case prior to trial. Petitioner

tried to get another attorney prior to trial, but was unable to

do so. Four (4) days before the trial date, and again on the

trial date, Petitioner moved for a continuance to be allowed to

try to employ replacement counsel. Petitioner, a sixty (60)

year old widow with a hearing defect, who had no legal

training, and who stated that she did not want to represent

herself and was not capable of defending herself in this case,

pleaded with the Trial Court to grant a continuance so that

she could employ replacement counsel to represent her.

Petitioner was not qualified to represent herself, was not

prepared for trial, did not have an expert value witness, and

was not able to effectively value her property herself. She

was not able to effectively cross-examine Respondent’s

expert value witnesses or to present her case in a credible

manner. Petitioner had initially valued her property at

$4,980,658.78. Through the process of taking Petitioner’s

deposition three (3) times and forcing her to state a basis for

her opinion of value, which occurred during the time that

ee ee : | ; Ee Se

4

Petitioner was without counsel, Petitioner gave values to

components to her property totaling $938.843.00, but

qualified this by saying that figure was not her full opinion

of value.

Petitioner’s basic premise is that this eminent domain case

was so complex that, by being put to trial by the Trial Court

without an attorney to represent her when she did not want to

represent herself, wanted an attorney, and literally begged for

a continuance in order to employ an attorney who understood

both eminent domain law and “historical law,”! she received

neither due process of law nor a fair trial.

Respondent’s basic premise is that the trial judge’s refusal

to afford Ms. Sierra another continuance when she could not

come up with any convincing assurance that she would be

able to obtain an attorney, was a sound exercise of discretion

which should not be disturbed on appeal.

The law appears to favor Petitioner’s position. Although

Powell v. Alabama 287 U.S. 45, 772 L.Ed. 158, 53 S.Ct 55

(1932) was a capital offense criminal case, Justice Sutherland,

writing for the Court, said that the aid of counsel was a

fundamental right in the concept of due process of law. It is

Petitioner’s position that the right to the aid of counsel beizg

of a fundamental character is especially true in an eminent

domain case where, “the whole power of the state is arrayed”

against a defendant, as was the case against Ms. Sierra.

Powell, 287 U.S. 45 at 67.

The Third and Fourth District Courts of Appeal in Florida

have also spoken on this issue. “The opportunity to be

represented by counsel in both civil and criminal proceedings

has been equated with due process.” Times Publ’g Co. v.

' Petitioner’s property was located in the National Historic Landmark

District of Ybor City in Tampa, Florida.

5

Burke, 375 So. 2d 297, 299 (Fla. 2d DCA 1979), citing

Powell v. Alabama, Id.

Although the discretion to grant a continuance rests with

the Trial Court, “that discretion cannot be used to deny a

party the basic tenets of due process.” Cervieri v. Cervieri,

814 So. 2d 528, 529 (Fla. 4th DCA 2002).

In considering the above cases, the Florida Third District

Court of Appeals held that discretion was wrongfully used to

deny counsel to a party in a civil case. Sheinheit v. Cuenca,

840 So. 2d 1122,1123 (Fla. 3d DCA 2003).

Since the Appellate Court wrote no opinion of why it

denied Petitioner’s appeal, and since there did not appear to

be a conflict among the district courts of appeal, Petitioner

had no basis under the Constitution of the State of Florida to

ask the Supreme Court of Florida to resolve a conflict among

the district courts. The concurrence of the three separate

District Courts of Appeal in Florida on the issue was brought

to the attention of the Appellate Court below.

Petitioner pointed out in her Reply Brief, filed in the

Appellate Court, in reply to Respondent’s Answer Brief, that

the Trial Court could have conducted a hearing as to why the

Petitioner was having trouble locating replacement counsel.

The Trial Court could have required the lawyers named to

come into court and state why they were unavailable or

unable to be employed. It was possible that the court could

have persuaded one of the lawyers to take the case and then,

upon request, granted a continuance at that time. The Trial

Court could have appointed a lawyer or “leaned on” one of

the lawyers to represent Ms. Sierra, since it appears under the

Florida Constitution requiring full compensation that the

State is required to pay the fee for the landowner’s attorney

for benefits achieved for the client. Fla. Stat. §73.092(1)(a).

Prior to the hearing in the Florida Appellate Court, counsel

for Appellate located the case of Mathews v. Eldridge, 424

6

U.S. 319 (1976) and the case of Lassiter v. Department of

Social Services of Durham County, North Carolina, 452 U.S.

18 (1981). This supplemental authority was filed and was

before the Court when it issued its Order denying Petitioner’s

appeal.? According to Eldridge, “[p]rocedural due process

imposes constraints on governmental decisions which deprive

individuals of ‘liberty’ or ‘property’ interests within the

meaning of the Due Process Clause of the Fifth or Fourteenth

Amendment.” :

The Eldridge case goes on to hold that,

“(t]he fundamental requirement of due process is the

opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’ **** More precisely, our prior

decisions indicate that identification of the specific

dictates of due process generally requires consideration

of three distinct factors: first, the private interest that will

be affected by the official action; second, the risk of an

erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of

additional or substantive procedural safeguards; and

finally, the government’s interest, including the function

involved and the fiscal and administrative burdens that

additional or substitute procedural requirements would

entail. See, e.g., Goldberg v. Kelly supra, at 263, 271.”

In the Sierra case, the Trial Court did not consider the

“three distinct factors” set forth in the Eldridge case, supra,

before requiring her to proceed to trial without an attorney.

In the Sierra case, the private interest (full compensation) was

high; the risk of an erroneous deprivation of such an interest

through the procedures used (eminent trial domain without an

attorney) was high; the probable value of a trial with an

attorney was high; and the government’s interest and the

fiscal and administrative burden of the substitute procedure

? Florida Rules of Appellate Procedure, Rule 9.225 allows for the filing

of supplemental authority “before a decision has been rendered . . .”

7

(allowing a continuance so that Ms. Sierra could get an

attorney) was low.

So we can see that the Court, in order to satisfy the

requirement of due process of law, cannot just make a

discretionary decision not to continue a case in order to allow

more time for a party to locate and hire an attorney. The

Court must weigh the three distinct factors: the private

interest, the risk of the erroneous deprivation of such interest

through the procedures used, and the government’s interest.

There is no evidence in the record that the Court took these

three distinct factors into consideration and, as a result, the

fundamental requirement of due process, that is, the op-

portunity to be heard at a meaningful time and in a mean-

ingful manner, was lost. Eldridge, Id.

OPINION BELOW

The Second District Court of Appeals’ order is enclosed in

the Appendix A at la. There was no published or unpub-

lished Court opinion.

JURISDICTION

The Second District Court of Appeals of Florida entered

judgment on April 28, 2004. Petitioners filed a timely

petition for rehearing, which was denied on May 27, 2004.

The Court has jurisdiction pursuant to 28 U.S.C. §1257

because Petitioner is challenging the validity of the final

judgment decree rendered by the highest court of the State of

Florida in which a decision could be had involving denial of

due process law under the Fifth and Fourteenth Amendments

to the Constitution of the United States.

8

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The following constitutional and statutory provisions are

pertinent to this case:

1. The Fifth Amendment to the United States Consti-

tution provides that: “No person shall be . . . deprived of

life, liberty, or property, without due process of law, nor

shall private property be taken for public use, without just

compensation.”

2. The Fourteenth Amendment to the United States

Constitution, Section 1, provides that:

“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 of immunities of citizens of the United

States; nor shall any siate 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.”

3. Article I, Section 9 of the Florida Constitution,

Declaration of Rights provides that: “Section 9. Due Proc-

ess.—No person shall be deprived of life, liberty, or property

without due process of law. . .”

4. Article X, Section 6, Eminent Domain, of the Florida

Constitution provides that: “(a) No private property shall be

taken except for a public purpose and with full compensation

therefore paid to each owner or secured by deposit in the

registry of the court and available to the owner.”

7

9

STATEMENT OF THE CASE AND FACTS

A. Statement Of The Case

This eminent domain action was filed by the State of

Florida, Department of Transportation, herein “Respondent,”

on April 17, 2001. Petitioner’s parcel of land being taken was

identified as parcel 126.

The case came on to be tried beginning on October 28,

2002, before the Honorable Herbert Bauman, Jr. and a jury of

twelve (12). On November 1, 2002, the jury reported their

verdict for the value of the land taken, including two (2)

buildings and one (1) garage as one hundred ninety thousand

dollars ($190,000.00). The verdict was entered of record on

November 4, 2002. Petitioner filed her notice of appeal on

December 3, 2002. The appeal was denied without published

or unpublished opinion on April 28, 2002. Petitioner timely

filed her Motion for Rehearing which was denied without

published or unpublished opinion on May 27, 2004. See

Appendix A, page la.

B. Statement Of The Facts

The Petitioner, Sylvia Sierra’s, property (herein “the

property” or “La Gallega’s building”) consisting of a sixteen

(16) room boarding house and another smaller boarding

house on the same lot, located in the National Historic

Landmark District of Ybor City in Tampa, Florida, was taken

in 2001 for public use in the widening of Highway I-4.

The property had originaily been built in 1903 and owned

by Vincent Martinez and later by Perfecto Garcia, a cigar

magnate. The property had been in Petitioner’s family since

1917 and had been owned and operated as a boarding house

since that time. Petitioner’s grandmother, Mrs. Hernandez,

was renowned as a matriarch of Ybor City and became fondly

known as “La Gallega,” meaning person from Galacia, Spain.

10

The sixteen (16) room boarding house also became known as

“La Gallega’s building.”

The boarders that Mrs. Hernandez took in were primarily

from Spain and Cuba, and a smaller portion came from Italy.

Mrs. Hernandez would find jobs for these men in the cigar

industry or restaurants, both for which Ybor City became

famous, and these men would stay at the boarding house until

they had enough money to purchase or build a home; then

they would bring their families over from Spain or Cuba, or

wherever they were from. Much of the early population of

Ybor City lived in the Petitioner’s boarding house for a while,

until they could acquire property of their own. “La Gallega’s

building” was the subject of an article in the Spanish

newspaper, “La Gaceta,” on March 10, 1995, where the editor

characterized it as “possible the last of the sizeable boarding

houses in this National Historic Landmark District, Ybor

City.” The sixteen (16) bedroom boarding house was rated

number 13 in historical significance of the homes being taken

for the stated public purpose in the National Historic

Landmark District of Ybor City, and the smaller house was

rated number 25 in historical significance.

Petitioner, Sylvia Sierra, a sixty (60) year old widow who

has no legal training and who has a hearing defect (Trial

Volume IV, p. 383, 399), was required by the Trial Court to

represent herself at trial after the last of three previous

attorneys who had represented her prior to trial withdrew.

Petitioner stated in a pleading in response to one of Re-

spondent’s Motions in Limine Regarding Self-Representation

that she had been forced to act as her own attorney because

of unfaii dealings and unethical conduct of the Florida

Department of Transportation, which forced Petitioner to

represent herself; that Petitioner, Ms. Sierra, was not a lawyer

and did not want to represent herself, and that she was “not

capable of defending herself in this case and to make her do

so is a travesty of justice” (Trial Volume I, pp. 27-8).

11

Petitioner’s position was that an offer of judgment made it

“nearly impossible to acquire an attorney” because the fee

structure, after the offer of judgment, would not allow an

attorney to make any money on the case. (See Fla. Stat. ch.

73.092(1)(a) (2001).) Petitioner alleged that there could be

“no full or just compensation with such a mismatch of

power.” Petitioner asked for a continuance to resolve an

underlying apportionment issue, to obtain expert witnesses, to

acquire counsel, and to prepare to obtain full and just

compensation for the taking (Trial Volume I, pp. 27-32).

The Court refused to grant Petitioner's Motion for a

Continuance and announced the case would proceed to trial

(Trial Volume I, pp. 32-3).

There is attached in Appendix B an abstract from

Respondent Answer Brief, filed in the Appellate Court,

containing an abstract of the Court proceedings on October

24, 2002 and October 28, 2004 in respect to Petitioner’s

request for a continuance in order to locate and hire a

replacement attorney.

At the same time, the Court granted Respondent’s Motion

in Limine Regarding Improper Components of Owner’s

Opinion of Value and other motions, which clearly dem-

onstrated Petitioner’s lack of understanding of eminent

domain law and historic preservation law (Trial Volume I,

pp. 7-17).

The Respondent’s (Florida Department of Transportation)

Motion in Limine Regarding Self-Representation stated that it

could not get a fair trial with Ms. Sierra representing herself

(Trial Volume I, pp. 20-2). Later, during the trial of the case,

the Respondent moved for a mistrial based on the way

Petitioner had conducted her case (Trial Volume V, pp.

473-4).

Petitioner raised the Constitutional Due Process of Law

question in her initial brief. A copy of the cover page and the

12

Table of contents of her initial brief are attached hereto as

Appendix C.

Petitioner submitted additional authority to the court before

the first order of the Court denying her a new trial was filed

on April 28, 2002. This Notice of Supplemental Authority is

attached hereto as Appendix D.

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari for three reasons: the

decision below conflicts with decisions of this and other

Courts; these conflicts result in part from uncertainties in this

Court’s jurisprudence; and this is a case of exceptional

importance.

I. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS AND OTHER COURTS.

The decision of the Trial Court, which was allowed to

stand by the Florida Appellate Court, conflicts with this

Court’s precedents in at least three (3) respects: it allows the

use of Court’s discretion in granting continuances to deny a

party one of the basic tenants of due process of law, the aid of

counsel; it fails to protect the right of a landowner, whose

land is taken by state action, to receive just compensation for

her property; it fails to protect the right of a_ Florida

landowner whose land is taken by state action to receive just

compensation under the Constitution of the United States,

and full compensation under the Constitution of the State

of Florida.

13

A. The Decision Below Conflicts with the Case of

Mathews v. Eldridge’, Which Propounds Three

Elements to be Evaluated in Deciding What

Process is Due.

The Trial Court came into conflict with this Court’s

decisions in failing to evaluate due process requirement

protected by the Fifth Amendment, as made applicable to the

states by the Fourteenth Amendment. The Respondent,

Florida Department of Transportation, does not dispute that

the opportunity to be represented by counsel in both civil and

criminal proceedings has been equated with due process.

Sheinheit v. Cuenca, 840 So. 2d 1122, 1123 (Fla. 3rd DCA

2003). Respondent also has agreed that the discretion

afforded a Trial Court’s disposition of a motion for a

continuance cannot be used to deny a party the basic tenets of

due process of law. Respondent insisted, however, that civil

litigants have fewer protections than those available to

criminal defendants, McDermott v. Miami-Dade County, 753

So. 2d 729, 731 (Fla. 1st DCA 2000), and that there is no

absolute right to counsel in a civil proceeding. Onett v. Ahola,

780 So. 2d 896 (Fla. 2d DCA 1973).The Respondent argued

from this line of cases that an attorney’s withdrawal in a civil

case does not give his client an absolute right to a

continuance, Alter v. Alter, 473 So. 2d 775, 776 (Fla. 3d

DCA 1985), and that a continuance under such circumstances

is still a matter within the Trial Court’s discretion. The

Respondent concluded that the trial judge’s refusal to grant

“yet another continuance to allow Ms. Sierra additional time

to seek replacement counsel was a sound exercise of

discretion which should be upheld.”

The Respondent’s reasoning is flawed in many respects.

First of all, the facts in the cases relied on by Respondent

differ greatly from the facts of the Sierra case. Secondly,

> Mathews v. Eldridge, 424 U.S. 319 (1976).

eee ee ee nner

14

none of the cases cited involve an eminent domain case,

which involves the presentation of so much expert testimony.

The Sierra trial lasted four (4) days. Twelve (12) witnesses

testified, eleven (11) of which had various expert qual-

ifications. It was particularly difficult for Ms. Sierra to

conduct her own testimony. The amount of evidence was

voluminous, involving over fifty (50) exhibits, many of which

had been prepared by experts and Florida Department of

Transportation specialists. The issues of the cases were

extremely complex, evidenced by the number of expert

witnesses used by the Department and the number of

professionally prepared exhibits used in the trial. The case

was of great importance, ranking along with life and liberty in

the Constitutions of the United States and the State of Florida.

An eminent domain case in Florida requires a twelve person

jury, as opposed to a six (6) person jury, evidencing its

importance.

The amount of money involved was significant. The

Respondent had made an offer of judgment of $503,000.00 of

which the Trial Court was aware as early as September 4,

2002. Ms. Sierra was of the opinion initially that the fair

market value of her property on the date of value was

$4,980,658.78. During the period of time that Ms. Sierra did

not have an attorney, between September 4, 2002 and the date

of trial on October 28, 2002, Ms. Sierra made one of many

critical mistakes. During multiple discovery depositions of

her, the Respondent, by persisting in its demand that she state

a basis for her opinion of value, which a landowner does not

have to give (apparently this rule of law was not known by

Ms. Sierra), required her to break the value down to

$938,852.00. Ms. Sierra qualified that statement that it was

not her opinion of value.

Ms. Sierra was seriously prejudiced by being without

counsel during this discovery process. The Respondent’s

expert testified to a value for the taking of $160,000.00, well

15

below its $503,000.00 offer of judgment. The jury returned a

verdict of $190,000.00, also significantly below the Respon-

dent’s offer of judgment, and even more significantly below

Ms. Sierra’s opinion of the value of her property. Ms. Sierra

was seriously prejudiced by being without counsel during this

discovery process.

The Trial Court in refusing to grant a continuance, in order

for Petitioner to hire a replacement attorney, made no

statement about a press of time. If a continuance had been

granted on October 24, 2002, the Court could have probably

scheduled other matters for trial on the dates set aside for the

Sierra trial or used that time for other Court business. The

fact of the number of attorneys and assistants used by the

Respondent and the lack of an attorney for Ms. Sierra was a

factor to be considered by the Trial Court in whether or not to

grant a continuance or assist her in getting an attorney. Ms.

Sierra did not even have the assistance of her agent, Arthur

Martin, who had done much of the “historical” research for

her, because of his being sequestered. Ms. Sierra was not

aware of the rule of sequestering witnesses and had at least

counted on Mr. Martin to assist her with the trial when she

could not retain an attorney. Because of her emotional

involvement, Ms. Sierra was not able to relate the factual

argument to the governing principles of law. On the date of

trial, before the trial began, the Trial Court ruled, “. . . that

most of the elements of preservation that you’ve identified,

and I’ve ruled that way already, are speculative.”

Also, eminent domain cases are different from most civil or

criminal cases. After the taking, it is a case involving fair

market value at the date of value and frequently, as did the

Sierra case, involve expert testimony of value. The Sierra

case was even more difficult because her property was

located in a Historical Preservation Landmark District and

required a special kind of value expert. Yet, her last attorney

was allowed to withdraw as that process was beginning, only

al

Diahe@ eng ,

16

six (6) weeks before the trial date, with no replacement

attorney on Ms. Sierra’s case.

On August 19, 2002, Petitioner’s last attorney had re-

quested and was granted a two (2) months continuance in

order to obtain an expert witness who understood historic

value and have that witness come from Boston to Tampa to

examine the property and be prepared for testimony at the

trial. The Trial Court’s action in allowing the last attorney to

withdraw two (2) weeks later, during this critical time for

trial preparation, was detrimental to both Ms. Sierra and the

Trial Court.

Ms. Sierra was a sixty (60) year old widow who was hard

of hearing and admittedly was not trained in the law. She did

not want to represent herself and literally begged the Court to

continue the case again so that she could find an attorney who

would take her case. No reasonable person knowing the

complexity of the Sierra case would have expected that Ms.

Sierra could match wits with two (2) Department attorneys

specialized in the field of eminent domain law. In fact, one

(1) of the jurors on voir dire gratuitously stated that he did not

believe that Ms. Sierra should try the case without an

attorney.

Considering the nature and complexity of this case, the

Constitutional requirements in an eminent domain case, and

the fact that Ms. Sierra did not want to try the case without an

attorney, coupled with her statement that she could not find a

lawyer who would take her case, the Court abused its

discretion in not granting a continuance of the case on either

October 24, 2002, at a preliminary hearing, or on October 28,

2002, the date of trial when Ms. Sierra again moved for a

continuance. The Court admonished Ms. Sierra for appearing

without an attorney, and when she tried to explain, the Court

cut her off and told her to be quiet.

17

On either October 24 or October 28, 2002, the Court

should have conducted a hearing and make a record of why

Ms. Sierra was having trouble hiring an attorney and what the

Department had done, if anything, to interfere with her

getting an attorney. The Court could have asked Ms. Sierra

to name the attorneys she had contacted and called some of

those attorneys to come into court and verify or deny her

efforts and learn why the attorneys would not take her case.

If it was true that none of the attorneys that Ms. Sierra had

contacted would take her case because of prior attorney’s fee

liens or concern that there was no potential in the case for

them to earn a fee, the Court could have explained Fla. Stat.

73.032(6) to them.

Since the Respondent’s attorney’s interpretation of Fla.

Stat. 73.032(6) is contrary to the clear reading of that statute,

there is uncertainty in respect to the payment of attorney’s

fees in an eminent domain case in Florida. This uncertainty

could have been cleared up in a hearing on the matter.

The Court could have perhaps persuaded one of the

attorneys who had refused to take the case to reconsider, and,

failing that, could have appointed-one of the lawyers who had

been concerned about the attorney’s liens and attorney’s fees

or appointed another member of the Bar who the Court knew

would step forward and take the case for reasons of pro-

fessional responsibility to help a person in need of counsel.

These are reasonable alternatives to putting an elderly woman

to trial who was admittedly “hard of hearing,” who was not

schooled in the law and legal proceedings, and who had

demonstrated to the Court in previous hearings that she did

not understand the law of eminent domain. A hearing of this

type would have provided the Trial Court an opportunity to

evaluate the “three distinct factors” to be satisfied as

propounded by the Eldridge case, 424 U.S. 319.

The totality of the nature and complexity of this case, the

amount involved, the withdrawal of counsel without an

18

explanation of his reasons, the warning to the Trial Court by

the attorney for the Respondent that Ms. Sierra might have

trouble getting an attorney and the expert witnesses that she

wanted, and Ms. Sierra’s demonstrated inability to separate

her emotional involvement with the property from the legal

issues involved, dictated that she have counsel to represent

her in the trial of this case as a matter of due process of law.

The Trial Court did not consider the “three distinct factors”

set forth in the Eldridge case, supra, before requiring her to

proceed to trial without an attorney. In the Sierra case, the

private interest (full compensation) was high; the risk of an

erroneous deprivation of such an interest through the

procedures used (eminent domain trial with one party being

without an attorney) was high; the probable value of a trial

with an attorney was high; and the government’s interest and

the fiscal and administrative burden of the substitute

procedure (allowing a continuance so that Ms. Sierra could

get an attorney) was low.

A simple hearing on the question of why Ms. Sierra was

having trouble locating and hiring an attorney could possibly

have gone a long way in identifying the problem. It would

have required the Trial Court to evaluate and weigh the “three

distinct factors” propounded in Eldridge, Id. It probably

would have helped Ms. Sierra in locating an attorney who

understood “eminent domain and historical property” law and

probably would have avoided the resulting travesty of justice

(a $190,000.00 verdict for a sixteen (16) room boarding

house and one-additional building and lot located in the

National Historical Preservation District of Ybor City, in

Tampa, Florida, valued by the Petitioner to be worth from

$938,852.00 to $4,980,658.78, and for which the Respondent

had offered $503,900.00 before the trial).

19

Il. THESE CONFLICTS RESULT IN PART

FROM UNCERTAINTIES IN THIS COURT’S

JURISPRUDENCE.

This Court has attempted many times to define due process

of law, but we have been told that it “is not susceptible to

reduction to a mathematical formula.” Gibbs v. Burke, 337

U.S. 773, 781, 69 S. Ct. 1247, 1251, 93 L.Ed. 1686. “It is a

concept less rigid and more fluid than those envisaged in

other specific and particular provisions of the Bill of Rights.”

Betts v. Brady, 316 U.S. 455, 462, 62 S. Ct. 1252, 1256, 86

L.Ed. 1595.

The late Mr. Justice Cardoza wrote that the guarantee of

due process of law mandates respect for those personal

freedoms and immunities which are “so rooted in the

traditions and consciences of our people as to be ranked as

fundamental.” Snyder v. Commonwealth of Massachusetts,

291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, or which

are “implicit in the concept of ordered liberty.” Palko v. State

of Connecticut, 302 U.S. 319, 325, S.Ct. 149, 152, 82

L.Ed. 288 (cited in Cash v. Culver, 120 So. 2d 590, 594

(Fla. 1960)).

In numerous cases before the Supreme Court of the United

States, the Court, in determining that due process was

accorded, had stressed the fact that the Defendant had the aid

of counsel. (See Cooke v. United States, 267 U.S. 517, 537,

45 S.Ct. 390, 395, 69 L.Ed. 767; Felts v. Murphy, 201 U.S.

123, 129, 26 S.Ct. 366, 50 L.Ed. 689; Frank v. Mangun, 237

U.S. 309, 344, 35 S.Ct. 582, 59 L.Ed. 969; Kelly v. State of

Oregon, 273 U.S. 589, 591, 47 S. Ct. 504, 71 L.Ed. 790;

Cafeteria Workers v. McElroy, 367 U.S. 886, 895.

Mathews v. Eldridge, 424 U.S. 319 (1976) gave us the first

formulae with which to analyze the various interests that

are at stake in assuring that due process of law is afforded in

a case.

20

This Court in the case of Lassiter v. Department of Social

Services of Durham County, North Carolina, 452 U.S. 18,

101 S.Ct. 2153, 68 L.Ed. 640 (1981), was faced with whether

a parent faced with a petition to terminate his alleged parental

rights and who had been denied the appointment of counsel in

the Trial Court had been denied due process of law.

In upholding the Appellate Court,‘ this Court stated that,

“For all its consequence, ‘due process’ has never been,

and perhaps can never be, precisely defined. ‘[Unlike]

some legal rules,’ this Court has said, due process ‘is not

a technical conception with a fixed content unrelated to

time, place and circumstances.’ Cafeteria Workers v.

McElroy, 367 U.S. 886, 895. Rather, the phrase ex-

presses the requirement of ‘fundamental fairness’ a

requirement whose meaning can be as opaque as its

importance is lofty. Applying the Due Process Clause is

therefore an uncertain enterprise which must discover

what ‘fundamental fairness’ consists of in a particular

situation by first considering any relevant precedents and

then by assessing the several interests that are at stake.”

Lassiter at 24-25.

It must be remembered that Ms. Sierra, in the case at bar,

did not request appointed counsel, she merely requested a

continuance in order to locate and employ replacement

counsel for her previous attorney, who had withdrawn from

her case. As far as this writer is aware, this Court has never

assessed the interests at stake in such a case as this.

Il, THIS I A CASE OF EXCEPTIONAL

IMPORTANCE

The Respondent, Florida Department of Transportation,

has the obligation imposed by the Florida Constitution to see

* The Supreme Court of North Carolina summarily denied Ms. Lassi-

ter’s application for discretionary review, 299 N.C. 120, 262, S.E. 2d 6.

21

that Ms. Sierra receives “full compensation” for her property

taken by eminent domain proceedings. This Court will not

see many cases involving the taking of land for public

improvement where the resources of the landowner were so

outweighed by the power of the State. The Court in the

Lassiter case stated: “If as our adversary system presupposes,

accurate and just results are most likely to be obtained

through the equal contest of opposed interests,” the State’s

interest in assuring that Ms. Sierra receives full compensation

would “perhaps best be served by a hearing in which” both

Ms. Sierra and the State “are represented by counsel, without

whom the contest of interest may become unwholesomely

unequal.” 452 U.S at 28.

The people of Florida have recognized as much by

adopting a Constitution that requires the State to pay “full

compensation” for the taking of property by the state, not

merely “just compensation.” Article X, Section 6(a) of the

Florida Constitution; United States Constitution, Fifth and

Fourteenth Amendments.

The Sierra case presents a classic fact situation where

counsel for the landowner was essential to help equalize the

balance of power between the landowner and the State of

Florida so that the landowner would receive “fundamental

fairness at trial.” Jn Re Gault 387 U.S. 1 (1967).

Both the United States and the Florida Constitution

guarantee that no person shall be deprived of life, liberty, or

property “without due process of law” and “just” and “full”

compensation. Under the facts of this, the only way possible

for these requirements to be met was for Petitioner to be

represented by counsel.

As matters now stand, Petitioner was denied due process of

law and just and full compensation for her property taken by

eminent domain by being put to trial without counsel.

22

Judicial discretion was used to trump constitutional rights.

This Court’s review is needed now.

CONCLUSION

For the foregoing reasons, the petition for write of cer-

tiorari should be granted.

Respectfully submitted,

DOYLE E. RICHARDSON *

LAW OFFICES OF

GREGORY G. KEANE, P.A.

1000 SE Monterey Commons

Boulevard,

Suite 202

Stuart, Florida 34996

* Counsel of Record (772) 288-0000

August 24, 2004

APPENDICES

la

APPENDIX A

IN THE DISTRICT COURT OF APPEAL OF THE STATE

OF FLORIDA SECOND DISTRICT,

POST OFFICE BOX 327,

LAKELAND, FL 33802-0327

CASE NO.: 2D02-5767

L.T. No.: 01-3228

SYLVIA SIERRA,

Appellant/Petitioners,

V.

STATE, DEPARTMENT OF TRANSPORTATION,

Appellee/Respondents.

May 27, 2004

BY ORDER OF THE COURT:

Appellant’s motion for rehearing is denied.

I HEREBY CERTIFY that the foregoing is a true copy of

the original court order.

Served:

Doyle E. Richardson, | Gregory G. Costas, Esq. Richard Ake, Clerk

Esq.

bl

[SEAL]

/s/ James Birkhold

JAMES BIRKHOLD

Clerk

2a

APPENDIX B

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

Case No. 2D02-5761

SYLVIA SIERRA,

Appellant,

Vv.

DEPARTMENT OF TRANSPORTATION,

Appellee.

Opinion filed April 28, 2004

Appeal from the Circuit Court for Hillsborough County;

Herbert J. Baumann, Jr., Judge.

Doyle E. Richardson of Law Office of Gregory G. Keane,

P.A., Stuart, for Appellant.

Pamela S. Leslie, General Counsel, and Gregory G. Costas,

Assistant General Counsel, Tallahassee, for Appellee.

PER CURIAM.

Affirmed.

WHATLEY, SILBERMAN, and VILLANTI, JJ., Concur.

3a

APPENDIX C

(R12 1353-1354)

Approximately two weeks later, on September 4, 2002 the

parties were back in front of the trial judge on Mr. Haapa’s

motion to withdraw. (R12 1363, 1366) Ms. Sierra agreed to

Mr, Haapa’s withdrawal.? (RI2 1367) Concerning Mr.

Haapa’s withdrawal, counsel for the Department observed:

The other reality that this court needs to know the

history of this case, Ms. Sierra will be going out looking

to hire the fourth attorney, and the court having practiced

law a number of years, you can appreciate the difficulty

she’s going to have to find an attorney to represent her

with the knowledge that she’s already been through three

attorneys.

And the other issue is she’s talking about hiring a new

team of experts. In this case there is an offer of judgment

made by the department that there’s a real possibility

that Ms, Sierra’s judgment might not exceed, and if that

happens, the experts that do eminent domain cases repre-

sent or do their work under the contingency that they'll.

be paid from whatever the court awards or whatever they

negotiate with the department.

With an offer of judgment this high, I believe it’s like

five hundred and three thousand dollars, she’s going to

have difficulty getting new experts on board at this

point.

(R12 1368-13697

The trial judge allowed Mr. Haapa to withdraw but kept the

trial set for October and told Ms. Sierra that he would expect

2 At a subsequent hearing, Ms. Sierra indicated that Mr. Haapa had quit

six times and she accepted the last time he quit. (R13 1468-1469)

4a

her to try the case if she did not have new counsel. (R12

1369) The trial judge further warned her in this regard stating:

If you have a new counsel, he’ll have to appear before

the court and explain why I should move the trial date.

Okay. But the trial date is set.

I may not permit the continuance of the trial, but I am

not precluding your new counsel from making a request

of the court. But if you don’t have .a new counsel, I'll

expect you to try it, and I’ll expect you to know the rules

of evidence and the rules of procedure.

* * *

My only comment to you is if you’re going to find

somebody, do it quick. You know, because—

MS. SIERRA: We have, Your Honor—

THE COURT:—with having somebody show up the

day we’re supposed to start trial is—is going to be—

problematic at that time to do anything but proceed with

the trial because everybody will have been there so—

* * *

If you have an attorney, he needs to get in front of me

and ask me to change deadlines if they’re in place or

anything else. But you have to have an attorney. I mean,

I can’t re-arrange things on the—assuming you’re going

to have an attorney. I want to see the attorney. Okay.

So you need to go out and hire an attorney as soon as

possible. That’s what I’m telling you. If you’re going to

have one.

* * *

If you’re going to find somebody find them quick,

okay, Ms. Sierra. All right.

(R12 1370-1371, 1376, 1383)

Sa

On October 24, 2002, some seven weeks after Mr. Haapa

withdrew, and four days before the scheduled commencement

of trial, Ms. Sierra was before the court seeking another con-

tinuance to enable her to retain counsel. (R13 1463, 1466)

| The following excerpts are illustrative of the trial judge’s

| efforts to deal with the matter:

THE COURT: Okay. Well, I had previously indicated,

you know, I’ve continued this case before, Ms. Sierra.

MS. SIERRA: Uh-huh.

THE COURT: And I’ve indicated on that occasion

that we were going to go to trial. But if you were going

to retain a new counsel I’d entertain a motion from him.

But you have no new attorney.

MS. SIERRA: No. But I haven’t been able to get an

attorney and it’s all been because of deception from the

DOT. I mean they stopped me from getting an attorney.

THE COURT: Well, ma’am, there are a lot of

attorneys.

MS. SIERRA: I’ve called them.

THE COURT: And you’ve already had a number of

attorneys representing you. Okay?

MS. SIERRA: Your Honor, they’ve had six attorneys.

I’ve only had three. They’ve had six attorneys. I’ve had

five judges, so you know, I’m still ahead of the game

with just three attorneys.

* * *

THE COURT: Let me explain this. It would be my

tremendously great preference to have you in here with

an attorney.

MS. SIERRA: Me, too. Me, too. I’m not here by

choice.

6a

THE COURT: But I don’t see one here and I don’t

know—I have no assurances that you’re going to have

one at any time—

MS. SIERRA: Of course you have an assurance

because—

THE COURT: What’s that?

MS. SIERRA:—because the minute that I get rid of

Bill Haapa’s liens, if an attorney came in here and got

rid of all the liens, Michael Gains, who doesn’t have a

lien because he quit either—he quit as well, and he left

here saying, “you owe me nothing.” And now all of a

sudden all of these things are the ones that are getting in

the way of my getting an attorney. They’ve told me this.

I’ve contacted atiorney after attorney and they’ve said

there’s no money in there. So, you know, you have to

take care of these things first.

THE COURT: All right. Well,’come on in Monday

morning. We’re going to start trial at this point. If you

have an attorney show up Monday morning and say to

the Court, I am going to represent Ms. Sierra.

I would prefer to have an attorney representing you and I'll

just let the DOT know that I will work with that. But if you

don’t have an attorney I have no assurance that you’re ever

going to have an attorney.

MS. SIERRA: You know—

THE COURT: And this case has to go to trial.

MS. SIERRA: Ah-huh. After the number of calls, and

I’ve called a number of attorneys after, and a number of

calls and they’re all telling me the same things [sic] is

that you need to clear up some of these issues before you

can get another attorney. You know, and by the

Ta

deception and the abuse of the FDOT, I’m the one that’s

paying the price. I’m the one that’s here’ without an

attorney because they put me in that a [sic] situation.

THE COURT: Ma’am, all I want you to do is find an

attorney. Okay? That’s what I’m for you to do.

MS. SIERRA: And all I want you to do is give me

time to get one.

THE COURT: You’ve had—MS SIERRA: No, I’ve

not.

THE COURT: All right, ma’am. We'll see you

Monday morning at 9:00.

(R13 1466-1467, 1469-1471)

The cause came on for trial on October 28, 2002, with Ms.

Sierra announcing that she was ready to proceed “under

duress.” (TI 5) During argument on a pre-trial motion, Ms.

Sierra again raised the issue of 2 continuance stating:

MS. SIERRA: So, well, then why am I not granted a

continuance so that I can get a historical lawyer so that I

can prove to that the law is different?

THE COURT: Because—

MS. SIERRA: That the Historic Preservation Law of

1966 is together with eminent domain. They’re both;

they’re not separate. They’re both.

THE COURT: All right. The reason is I’ve granted

you continuances already. I’ve heard argument from

your attorney already. I advised you if you wanted to

retain a new counsel, have him appear, ask for a continu-

ance, but you’ve done none of those. And so—

MS. SIERRA: Yes—

THE COURT: Don’t. Quiet, ma’am. And so we’re

going to have the trial today. It’s going to be about the

8a

taking. It’s going to be the value of the property and my

ruling is that most of the elements of preservation that

you've identified, and I’ve ruled this way already, are

speculative.

(TI 19-20)

9a

APPENDIX D

IN THE DISTRICT COURT OF APPEAL,

SECOND DISTRICT LAKELAND FLORIDA

CASE NO: 01-01-3228 Parcel 126

SYLVIA SIERRA,

Defendant/Appellant

Cross/Appellee,

VS.

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION,

Plaintiff/Appellee Cross/Appellant.

APPELLATE CASE NO. 02-5761

APPEAL FROM THE CIRCUIT COURT, CIVIL DIVISION

OF THE THIRTEENTH JUDICIAL CIRCUIT OF

THE STATE OF FLORIDA, IN AND FOR

HILLSBOROUGH COUNTY

THE HONORABLE HERBERT BAUMAN JUDGE OF

CIRCUIT COURT

ORAL ARGUMENT REQUESTED

DOYLE E. RICHARDSON, ESQ. GREGORY G. COSTAS, ESQ.

LAW OFFICES OF GREGORY G. DEPUTY GENERAL COUNSEL

KEANE, P.A. 605 Suwanee Street Ms 58

1000 S.E. Monterey Commons Tallahassee, Fl 32399

Bivd., Suite 202

Stuart, Fl 34996

Attorney For Appellant Attorney For Appellee

10a

TABLE OF CONTENTS

Page

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IDENTIFICATION OF THE PARTIES AND DOCU

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ISSUES PRESENTED FOR REVIEW. .................ceccooees 2

1. IS DUE PROCESS OF LAW _ VIO-

LATED IN AN EMINENT DOMAIN CASE

WHEN THE TRIAL COURT REFUSES TO

GRANT THE LANDOWNER’S REQUEST

FOR A CONTINUANCE IN ORDER TO

EMPLOY AN ATTORNEY TO_ REP-

RESENT HER IN THE DREAL .....c0..ccscsccssaes 10

2. WAS THE APPELLANT PRENDICED BY

NOT BEING REPRESENTED BY

COUNSEL AND NOT BEING GRANTED

A CONTINUANCE IN ORDER FOR HER

TOP EGP UAST CORI! ccscnisacetisasetionaisserass 15

3. THE TRIM, COURT ERRED IN NOT

GRANTING A MISTRIAL WHEN IT

BECAME OBVIOUS THAT APPEL-

LANT COULD NOT PROPERLY

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lla

APPENDIX E

IN THE SECOND DISTRICT COURT OF APPEAL

STATE OF FLORIDA

[Filed Apr. 20, 2004]

CASE NO.: 2D02-5761

SYLVIA SIERRA,

Appellant,

VS.

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION,

Appellee.

NOTICE OF SUPPLEMENTAL AUTHORITY

ON APPEAL FROM THE THIRTEENTH NDICIAL

CIRCUIT COURT, IN AND FOR HTLLSBOROUGH

COUNTY, FLORIDA CASE NO. CASE NO. 01-02 2990

PARCEL NO. 126

DOYLE E. RICHARDSON, ESQ.

Florida Bar No.: 0564494

LAW OFFICES OF

GREGORY G. KEANE, P.A.

1000 S.E. Monterey Commons Blvd.,

Suite 202

Stuart, Fl 34996

(772)268-0000

12a

IN THE SECOND DISTRICT COURT OF APPEAL

STATE OF FLORIDA

CASE NO.: 2D02-5761

SYLVIA SIERRA,

Appellant,

VS.

STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION,

Appellee.

NOTICE OF SUPPLEMENTAL AUTHORITY

Comes the Appellant, SYLVIA SIERRA, and gives notice

of supplemental authority that is relevant to Issues 1 and 2 of

her Initial Brief and to her Rebuttal in her Reply Brief.

The case of Mathews v. Eldridge, 424 U.S. 319 (1976), is

attached hereto as Appendix 1. The case of Lassiter v. Depart-

ment cf Social Services of Durham bounty. North Carolina,

452 U.S. 18 (1981), is attached as Appendix 2.

Respectfully submitted,

/s/ Doyle E. Richardson

DOYLE E. RICHARDSON, ESQ.

Florida Bar No.: 0564494

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