# Petition for Writ of Certiorari — Sierra v. Florida Department of Transportation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1489%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 543 U.S. 1052 ## Text 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) 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 SR Oe SE EO Seisintintiicententiniciaiaaitctons li EPRI: COP AALS CRITE ON i incstennssinsasesanerniswiitesonanens lll, 1V IDENTIFICATION OF THE PARTIES AND DOCU TF eiiiiccdensniohiacceiscaleiponidtansbaiaiiintianhchilentétebianeidnibiaarsibonas l 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 PURESRINSES DROID SIRO acscsinnascnnniinisnmnissinadianasins hb ee PRR RENE SAB RMED RPMS siccncncsssntenscceintionimsicoinonell SEAL MRCE CAE SOME WP BR scconncccssnccizasionininnsnsianens + SUMMARY OF ARGUMENT..................cssccssscsssseseees FAA TE « sssiissipninasondianaiainininciidebninpelanssalemsdiiaiates 10 CN RARITY niihbisuissienanrsciapiinnininienanndiunhanistiasapeloiiapladena 23 CER LEAT ie COS RORY BR wnessssscensassnrenanianiolenbeibiies 24 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 LAW OFFICES OF GREGORY G. KEANE, P.A. 1000 S.E. Monterey Commons Blvd., Suite 202 Stuart, Fl 34996 (772)268-0000 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1489%3A1. Public record. Not legal advice.