Petition for Writ of Certiorari — Kersh v. Estate of Schwartz

Supreme Gourr, U.S.

FILED

O5=3562 JUL15 2008

OFFICE OF THE CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

RICHARD KERSH - PETITIONER

vs.

ESTATE OF MARILYN SCHWARTZ AND

WACHOVIA BANK, N. A. - RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO

FOURTH DISTRICT COURT OF APPEALS OF FLORIDA

PET: TION FOR WRIT OF CERTIORARI

2 RICHARD KERSH

139 BRIGHTON D

BOCA RATON, FLORIDA 33434

(561) 477-1515

QUESTIONS PRESENTED

Are the Fifth, Eighth, and Fourteenth Amendmenis violated by the

Florida Court not adhering and abiding by the Florida Constitution

article V, section 2 (a) ”.....practice and procedure..”

Are the Fifth, Eighth, and Fourteenth Amendments violated by the

Florida Court not adhering and abiding by Florida Constitution

article V, section 2 (a) “...the transfer to the court having

jurisdiction of any proceeding when the jurisdiction of another

court has been improvidently invoked...”

Are the Fifth, Eighth, and Fourteenth Amendments violated by the

Florida Court not adhering to the limitation on the court in the

Florida Constitution article V, section 2 (a) “... and a requirement

that no cause shall be dismissed because an improper remedy has

been sought.”

List Of Parties

1. Estate of Marilyn Schwartz

2. Wachovia Bank, N. A.

TABLE OF CONTENTS

Page

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NUE Ge ctasikisiedtisaiduissainadyndbidiiabanenipatsipianbiaitins 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .cceccccccsvssscossesccososcseeeoce 3

STATEMENT OF THE CASE.......:..ccsccsccsoscesssoees 6

REASONS FOR GRANTING THE WRIT.......... 1]

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iii

INDEX TO APPENDICES

APPENDIX A Al

APPENDIX B A2

APPENDIX C A3

iV

TABLE OF AUTHORITIES CITED

CASES PAGE

Carey v Piphus (1978) 435 US 247, 55 L Ed

2d 252, 98 S Ct 1042 13

Cooper Indus. v Leatherman Tool Group, Inc 15

(2001, US) 149.

Ford v Wainwright (1986) 477 US 399, 91 L 15

Ed 2d 335, 106 S Ct 2595.

Johnson v Robinson (1974) 415 US 361, 39

L Ed 2d 389. 94 S Ct 1160 (criticized in Hall

v United States Dep’t Veterans’ Affairs (1996

CA 11 Fla) 85 F 3d 532, 9 Fl W Fed C 1171). 16

Mayberry v Pennsylvania (1971) 400 US 455,

27 L Ed 2d 532, 91 S Ct 499. 13

Rupp v Grantsville City (1980, Utah) 610 P2d

338. 12

State v Johnson, 306 So.2d 102 (1974). 13,14

Symon-Ryals Group, Inc. V Citizens & Southern

Mortg. Co., App. 1 Dist., 334 So.2d 133 (1976). 13,14

Vacco v Quill (1997) 521 US 793, 138 L Ed 2d

834, 117 S Ct 2293, 97 CDOS5027, 97 Daily

Journal DAR 8122, 11Fl W Fed S174. 14

STATUTES AND RULES

Florida Statute § 772.11 9

Florida Banking Statute § 655.79 (1) and (2) 7,13

Florida Probate Statute § 733.105(3) 8

Florida Rule 1.410(a), Subpoena 9,13

OTHER

Florida Constitution Art. V, 2(a) 12

Florida Constitution annotate, art.1 § 17 13

vi

- . .

IN THE

SUPREME COURT OF THE UNITED STATES

PE” “ION FOR WRIT OF CERTIORARI

Petitioner respecifully prays that a writ of certiorari issue to

review the judgment below.

OPINIONS BELOW

[X] For cases from state courts:

The opinion of the highest state to review the merits

appears at Appendix A to the petition and is

[X] reported at 892 4Dist, 1047 So.2d (2004); or ,

[ ] has been designated for publication but is not yet

reported; or

{ ]1is unpublished.

The opinion of the Circuit Court Of The 15" Judicial Circuit

In And For Palm Beach County, Florida Appears at Appendix C

to the petition and is

[ ] reported at -

or,

[ ] has been designated publication but is not yet reported;

or, |

[ ]1is unpublished.

JURISDICTION

[X] For cases from state courts:

The date on which the highest state court decided niy case

was

December15, 2004. A copy of the decision appears at

Appendix A.

[XJ A timely petition for rehearing was thereafter denied on

the following date: February 28, 2005, and a copy of the

order denying rehearing appears at Appendix B.

[X] An extension of time to file the petition for writ of

certiorari was granted to and including July 15, 2005 on

June 1, 2005 in Application No. 04A1009.

The jurisdiction of this Court is invoked under 28 U.S.C. §

1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The State of Florida ‘s Constitution, article V, section 2(a) The

Supreme Court shall adopt rules for the practice and procedure

in all courts including the time for seeking appellate review, the

administrative supervision of all courts, the transfer to the court

having jurisdiction of any proceeding when the jurisdiction of

another court has been improvidently invoked, and a

requirement that no cause shall be dismissed because an

improper remedy has been sought. These rules may be repealed

by general law enacted by two-thirds vote of the membership of

each house of the legislature.

The Florida Constitution annotate, art.1§17, access to courts, the

courts shall be open to every person for redress of any injury,

and justice shall be administered without sale, deniai or delay.

Under Florida Court Rule 1.410(a), Subpoena; _ generally,

Subpoena for testimony before the court, subpoenas for

production of tangible Evidence, and subpoenas for taking

depositions may be issued by clerk of court or by any

attorney of record in an action

Florida Probate Statute § 733.105(3), Determination of

Beneficiaries. A separate civil action to determine beneficiaries

may be brought when an estate has not been administered.

Florida Banking Statute § 655.79 (l)and (2). Deposits and

accounts in two or more names; presumption as to vesting on

death:

(1) Unless otherwise expressly provided in a contract,

agreement, or signature card executed in connection with the

opening or maintenance of an account, including a certificate of

deposit, a deposit account in the names of two or more persons

shall be presumed to have been intended by such persons to

provide that, upon the death of any one of them, all rights, title,

interest, and claim in , to, and in respect of such deposit account,

less all proper setoffs and charges in favor of the institution, vest

in the surviving person or persons.

(2) The presumption created in this section may be overcome

only by proof of fraud or undue influence or clear and

convincing proof of a contrary intent. In the absence of such

proof, all rights, title, interest, and claims in, to, and in respect

of such deposits and account and the additions thereto, and the

obligation of the institution created thereby, less all proper

setoffs and charges in favor of the institution against any one or

more of such persons, upon the death of any such person, vest in

the surviving person or persons, notwithstanding the absence of

proof of any denotive intent or delivery, possession, dominion,

control, or acceptance on the part of any person and

notwithstanding that the provisions hereof may constitute or

Cause a vesting or disposition of property or rights or interests

therein, testamentary in nature, which, except for the provisions

of this section, would or might otherwise be void or voidable.

Statute 772.11, Civil Theft.

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Grand Jury........ nor be deprived of life, liberty, or property,

without due process of law\.....

Eighth Amendment: cruel and unusual punishment

Fourteenth Amendment:

(1) 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; nor deny to any

person within its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

On August 30, 2000, Belle Kersh entered into an agreement with

her two children, Richard Kersh and Marilyn Schwartz, that they

would go by the terms of her will on her death. Belle Kersh

retained the right to change her wil! anytime up to death. If Belle

Kersh wanted Marilyn Schwartz to have all her money and/or

property, she would have changed her will to reflect this. Belle

Kersh had two and half years in which to change her will.

Marilyn Schwartz lived with her mother because she did not

work and had no income or money of her own. Belle Kersh had

Marilyn Schwartz's name on her account for convenience. Before

her husband death in 1998, Belle Kersh had his name on her

account. Belle Kersh always had someone on her bank account

with her. That is how she wanted it. On March 15, 2003, Belle

Kersh died. Marilyn Schwartz was in physical control of all Belle

Kersh’s assets. Marilyn Schwartz would not probate the estate of

Belle Kersh nor would she divide up Belle Kersh’s estate

according to Belle Kersh’s will. Belle Kersh had named Marilyn

Schwartz executive of her estate in her will. The first complaint

was filed on Marilyn Schwartz on March 18, 2003. The

complaint was not served on Marilyn Schwartz because her

address was unknown. On April 1, 2003, a copy of the decedent,

Belle Kersh’s agreement and will was handed delivered to

Wachovia Bank, N.A. with a letter warning that the bank about

civil theft and giving the money left to Petitioner to the wrong

party. On this date, the money was still in Wachovia Bank, N.A.

On April 3, 2003, Petitioner tried to serve a subpoena on

Wachovia. Wachovia employees had an off duty Broward County

Sheriff deputy, working for the bank, threaten arrest for trespass.

Petitioner has an relationship with Wachovia and as such in a

business contact is suppose to be able to bank at any branch.

Now, Petitioner is unable to bank at least one branch. On March

25, 2003, Petitioner filed an amended complaint adding

Wachovia Bank, N.A. but did not allege any causes against

Wachovia. Marilyn Schwartz was served April 26, 2003. At the

April 21,2003 hearing, the lower court told Petitioner to send the

order denying freezing funds when Petitioner finds out where

Schwartz is living. May 27, 2003, Petitioner filed second

amended adding causes against Wachovia. Petitioner had a

Marilyn Schwartz’s telephone number Defendant, Marilyn

Schwartz told Petitioner, she hired an attorney to get the money

from Wachovia Bank, N.A. Petitioner wanted to know what

Defendant Marilyn Schwartz said to the bank to have the money

released. Petitioner can only allege that his sister, Marilyn

Schwartz, told the bank the agreement was a fake even though it

turned out to be a valid agreement that was admitted at the

August 8, 2003 by the attorney for Schwartz. The bank released

the money on this basis without checking further. When the bank

released the money to Marilyn Schwartz, this amounted to

helping the theft of an estate under Florida banking statute §

655.79. Statute § 655.79 says that the decedent is giving a gift of

all the funds in a joint bank account to the joint account holder

unless there is intent to the contrary. Belle Kersh had this

agreement and a will showing her intent. Plus, Belle Kersh could

have changed her will any time if she wanted Marilyn Schwartz

to have all monies in her accounts. On March 16, 2003 Petitioner

called Schwartz to ask what is going to happen to Belle Kersh’s

estate. The answer was Schwartz would keep it. This was a

estate, Marilyn Schwartz had also told relatives she was going to

run with the money and keep it all. Bringing this to the attention

of the State of Florida, Florida law enforce would not bother

with it, saying it is a civil matter. The bank is fighting tooth and

nail that it did nothing wrong except gave the money to the

wrong party. The lower court where civil actions are litigated,

will not bother with estate law. At the August 8, 2003 or sooner,

the civil division found out this was an estate matter, the judge,

with no jurisdiction to handle this type of litigation, should have

transferred it to the probate division, but did not. Under probate

statute § 733.105(3), Determination of Beneficiaries, Petitioner

filed a civil action in what should have been a probate action.

Petitioner went into civil court four times to get an injunction to

put Belle Kersh’s money into court to determine how it would be

split between Belle Kersh’s two children. The lower court

refused. The civil court would treat this case as a simple breach

of contract and would not protect Petitioner’s share of the estate.

The first three times the petitioner went before the lower court

seeking an injunction, the lower court refused. The judge said at

the third motion hearing to freeze the funds, “don’t come back

to my court unless you have an attorney any attorney. “The fourth

time was with the attorney from Wachovia Bank, N.A. In a May

9, 2003 motion, the bank stated it had no accounts in the name of

Belle Kersh and that an inheritance is a mere expectancy. The

Bank admitted releasing Belle Kersh’s money. The lower court

stated that an inheritance is a mere expectancy in its April 21,

2003 order denying the motion to freeze the money from Belle

Kersh’s bank accounts. The judge now knew this was basically

a matter for probate court and know her court did not have

jurisdiction. The judge would not transfer the complaint to the

proper court. Petitioner alleged that this is a going estate

because the Belle Kersh died. It is not where a beneficiary is

waiting for the person to die. The lower court here decided the

defendants are always right and the Petitioner is always wrong

except for breach of contract against Schwartz. The lower court

decided to change the decedent’s intent by disregarding a will

and rule it is a simple agreement breach. Maybe, Petitioner had

the wrong remedy of going into the wrong division of circuit

court. Probate division would have been better than civil

division. However, Probate Statute 733.105(3) influenced which

court. It mentions civil. The Palm Beach sheriff said it is a civil

matter. Petitioner has very limited legal experience. Petitioner

issued a subpoena to Wachovia Bank, N.A. to find out how much

money was in Belle Kersh’s bank account on the date of death.

In accounting audits, you always go to the independent source,

the bank. Wachovia Bank, N.A. ignored the subpoena and the

lower court refused to enforce the subpoena. The circuit court

refused to allow the Petitioner to discover the dollar balances in

the bank. The history of Marilyn Schwartz was that she could not

be trusted for the right balances. She had doctored a statement in

the past so that the true balance would not be found out. The

State of Florida has labeled on all court documents Petitioner as

attorney of record. Under Florida court rule 1.410(a) an attorney

of record can issue a Subpoena. Petitioner’s original complaint

was against Marilyn Schwartz. The first amended the complaint

added Wachovia Bank, N.A. without stating any causes. There

was never any court action on either the original and the first

amended complaint. The second amended complaint expanded

to add causes with a remedies against Wachovia Bank, N.A. In

a hearing August 8, 2003, Attorneys for both defendants argued

that Petitioner had causes with the wrong remedy. The attorney

for Marilyn Schwartz admitted that the agreement was valid. This

admission should have ended the case and monies should have

been put in court. The lower court refused to do anything. The

lower court dismissed all causes for Wachovia Bank, N.A. with

prejudice and for Marilyn Schwartz without prejudice. Petitioner

appealed the decision. The 4th District Court of Appeals

affirmed.

The causes against Wachovia Bank, N.A. which were dismissed

with prejudice are:

1. Florida Statute § 772.11. Civil Theft. The Bank helped Schwartz

steal Petitioner’s share of his mother’s estate.

2. Florida Banking statute § 655.79 (1)and(2}, Deposits and accounts

in two Or more names; presumption as to vesting on death.

3.Florida Probate Statute § 733.105 (3), Determination of Beneficiaries.

4. Florida Court Rule 1.410(a). Subpoena.

5. Having an off duty Broward County Sheriff Deputy working for the

Wachovia Bank, N. A threaten arrest of trespass at that branch to deliver

a subpoena to, because the bank employees did not want to receive a

subpoena.

Petitioner issued interrogatives to Wachovia Bank, N.A. to find

out bank balances of date of death and what defendant. Marilyn

Schwartz said to the bank to have the money released. Wachovia

Bank, N.A. motioned for a protective order not to answer the

interrogatives. The lower court issues a protective order on the

grounds of privacy for Schwartz because it is Schwartz’s money.

This is where the lower court decided the case before any trial.

Petitioner went before the lower court for a motion for default

because the defendant, Marilyn Schwartz, did not answer a

pleadings in over sixty days. The lower court refused to sign

anything. The lower court left the Petitioner without a remedy.

After motion to 4" District Court of Appeal, lower court sent a

default. The Lower court refuses to give an order for a judgment.

The Petitioner has gone three times for a judgment with the lower

court refusing to issue anything. The Petitioner motioned the

judge to remove herself. The judge refused. The 4 District Court

of Appeals affirmed. Both courts say Wachovia bank, N.A. did

nothing wrong. Both courts refused to enforce the constitutional

law in Florida. Because the lower court feels this is a simple

breach of contract, Petitioner may have filed in the wrong court

seeking a remedy but asking the wrong court for it. Marilyn

Schwartz died on October 29, 2003. Petitioner was not notified

about the death of his sister till November 24, 2003 letter

appeared in the mail. The petition for the estate of Marilyn

Schwartz were two attorneys who said they do not have a client

who hired them. One attorney says he heard about the death from

a source at the nursing home. The two attorneys filed a petition

for curator for the estate of Marilyn Schwartz. The petition had

discrepancies but was allowed by Judge George Greer. The estate

of Marilyn Schwartz holds the estate of Belle Kersh. Judge

George Greer ruled that separation of the estates will not come

until he rules on the validity of the will. Petitioner alleges that the

estate of Marilyn Schwartz is spending the monies and throwing

or giving away the assets belonging to the estate of Belle Kersh.

The will of Marilyn Schwartz was a self proofing will. In Florida,

a self proofing will must have two witnesses and a notary. The

will is void to form because there is only one witness and one

notary. A notary can not be a witness because the notary is not

authorized by the State of Florida to notarize his own signature.

Judge George Greer has not ruled on the validity of the will as

the court says it is always premature. The will has been filed in

court. Meanwhile, Judge Greer allows money from Belle Kersh’s

estate to be spent through the estate of Marilyn Schwartz. In

conclusion, this is not fair and it is not justice. Justice in the State

of Florida is broken. The rule of law exist on paper only not in

the courtroom.

REASONS FOR GRANTING THE CASE

The first reason for granting the case is that of the“‘due process” and

equal protection clause” of the Fourteenth Amendment. The State of

Florida refused to abide by it’s constitution. The Florida

Constitution is the law of the state. This is the rule of law. The

courts have ignored from the Florida Constitution the rules for the

practice and procedure, the transfer to the court having

ll

jurisdiction of any proceeding when the jurisdiction of another

court has been improvidently invoked, and a requirement that no

cause shall be dismissed because an improper remedy has been

sought. The 4" District Court of Appeals affirmed the dismissal by

the circuit court, civil division. Both courts did not abide by the

Florida Constitution making up their own law and imposing attorney

costs. The circuit court-civil should have transferred this case to the

circuit court-probate. Petitioner file the complaint in circuit court-

civil division using probate statutes to get the will of Decedent Belle

Kersh to be honored per an agreement signed by Belle Kersh,

Richard Kersh and Marilyn Schwartz. The circuit court-civil

division learned that it had no jurisdiction to handle an estate but

kept the case anyway. The Petitioner used the wrong remedy by

going into civil court and not probate court to have a will

administered and the enforcement of an agreement to go by a will

where the parties of the agreement agreed to go by the will if Belle

Kersh died. Belle Kersh died.

Under “due Process” of the Fourteenth Amendment, it is the

concept of basic fairness. If Florida will not apply the procedures

fairly, then there is no due process. In Rupp v Grantsville City

(1980, Utah) 610 P2d 338, “Due process” rest on concept of basic

fairness of procedure and demand procedure appropriate to case and

just to parties involved. The State of Florida did not use the transfer

procedure to the proper jurisdiction fairly. After the circuit court-

civil learned that this was a probate matter where it had no

jurisdiction, the proper procedure under the Florida Constitution

article V section2(a), was for this circuit court-civil division to

transfer the case to the probate division and did not. The circuit

court-civil could not apply the law fairly because it had no

jurisdiction. Thus, the circuit court-civil could not administrate

justice fairly. With no jurisdiction, there is no due process and no

justice. With no jurisdiction, the circuit court-civil ignored the will

and dismissed all causes the were estate related with prejudice

because the circuit court-civil could not rule on those causes. The

12

State of Florida did not use the procedure of dismissal with

prejudice fairly. All causes dismissed, with prejudice against

Wachovia, were not fair. These causes can not ever be brought back

with the right remedy. Petitioner second amended complaint was

the first complaint that encompassed causes against defendant,

Wachovia Bank, N.A. These first time causes were all dismissed for

the wrong remedy with prejudice. Besides not adhering to form in

cause writing which Petitioner could correct by amending, there is

a constitutional mandate that no cause can be dismissed for the

wrong remedy. In State v Johnson, 306 So.2d 102 (1974), the

Florida Supreme Court recognizes the constitutional mandate. In

Symon-Ryals Group, Inc. v Citizens & Southern Mortg. Co., App.

1 Dist., 334 So.2d 144 (1976), the appellant court recognizes the

constitutional mandate. Thus, Petitioner did not have a change to

bring back the cause with the proper remedy. In Mayberry v

Pennsylvania (1971) 400 US 455, 27 L Ed 2d 532, 91 S Ct 499.

whether trial is federal or state, concern of due process is with fair

administration of justice. The State of Florida did not use the

procedure to amend fairly. All causes were dismissed with prejudice

for Wachovia Bank, N.A. Thus, the Petitioner was not afforded the

opportunity to amend a complaint after only one attempt for the

dismissed with prejudice Wachovia causes. The courts just ignored

the Florida Constitution. In Carey v Piphus (1978) 435 US 247, 55

L Ed 2d 252, 98 S Ct 1042, the right to procedural due process is

absolute. The State of Florida did not use the procedure of issuing

a subpoena fairly. Under Florida Rules of Court 1.41Q(a), a

subpoena may be issued by clerk of court or by any attorney of

record in an action. The courts labels a license attorney and a pro si

person “the attorney of record.” The Petitioner is labeled the

attorney of record. The usage of the phrase “attorney of record”

opposed to “licensed attorney” meant intended for both a licensed

attorney and the pro si person could issue a subpoena. By ignoring

the subpoena, the court breached its own Florida court rules. The

State of Florida states the Petitioner must follow the Florida Court

13

rules. If the State of Florida does not let Petitioner follow the court

rules then, the Petitioner does not have access to the court on the

same terms as a licensed attorney. The Petitioner is at a

disadvantage representing himself. Thereby, the Petitioner has no

remedy in Florida court. Due process is the use of procedures

fairly. Thus, if there is no fair procedure due process then, there is

no lawsuit and no justice.

Under the “equal protection clause” of the Fourteenth Amendment,

is the concept that laws are applied evenhandedly. First, The State

of Florida did not use equal protection evenhandedly. Filing this

action in circuit court- civil division instead of probate division,

Petitioner used the wrong jurisdiction of the circuit court. Petitioner

should have brought the action in probate division of circuit court.

Petitioner seeks to have this case transferred to the proper court. In

State v. Johnson, 306 So.2d 102 (1974), the State of Florida filed an

action in the wrong court and was dismissed and affirmed by the

appeals court. On appeal, the Supreme Court recognizing the

constitutional mandate and allowed the State of Florida to file in

the proper court. If the State of Florida is allowed to correct the

wrong remedy, then Petitioner should also be allowed. Second, the

State of Florida did not use the equal protection clause

evenhandedly. It is not the fact that all causes were dismissed. It is

how the causes were dismissed. Petitioner had all causes dismissed

with prejudice for Wachovia and without ,..ejudice for Schwartz. All

the causes were alike in that they all had the wrong remedy.

However, the lower court did not treat them the same. Under the

equal protection clause, all causes having the wrong remedy should

have been dismissed the same. In State v Johnson, 306 So.2d 102

(1974), the Florida Supreme Court recognizes the constitutional

mandate. In Symon-Ryals Group, Inc. v Citizens & Southern Mortg.

Co., App. 1 Dist., 334 So.2d 144 (1976), the appellant court

recognizes the constitutional mandate. In Vacco v Quill (1997) 521

US 793, 138 L Ed 2d 834, 117 S Ct 2293, 97 CDOS 5027, 97 Daily

Journal DAR 8122, 11 FL W Fed S 174, the equal protection clause

14

is that states must treat like cases alike but may treat unlike cases

accordingly. If the rule of law, the Florida Constitution, is not

followed, then Florida is susceptible to anarchy without a

constitution. The State of Florida should abide by its constitution or

change the constitution with ratification by the people. Therefore, the

State of Florida has effectively stopped a United States Citizen living

in the state of Florida “due process” and “equal protection” under the

Fourteenth Amendment.

The Second reason to grant the case is the Eighth Amendment when

combined with the Fourteenth Amendment. It maybe a little further

out than the current normal use but it is valid, nevertheless. The

Florida Constitution is the law in the ste. It is a cruel and unusual

punishment for a United States citizen under the jurisdiction of the

State of Florida to have the Florida Constitution ignored by the courts

for civil action. In Cooper Indus. V Leatherman Tool Group, Inc

(2001, US) 149, the due process clause of the Federal Constitution’s

Fourteenth Amendment makes cruel and unusual punishment to the

states. This was referring to criminal but it should also apply civil. It

is not “due process” for a wrong procedure nor “equal protection”

when others accorded the law but for the state not “abide” is

punishment and it is “cruel” to be on the receiving end. The State of

Florida will not abide by or be limited by its law, the constitution.

The Eighth Amendment should be applied to the State of Florida

when it won’t abide or be limited by the rule of law both criminal

and civil. There isa difference of interpreting a law than to abide

by or be limited by the law. Through the Florida Constitution, the

citizens of Florida put limits on the State of Florida but, the State

of Florida wants not to be limited. Judges are ignoring or making up

there own laws and rules in Florida. The cruel and unusual

punishment is that the State of Florida through it’s courts will not

abide by Florida’s constitution and then, impose costs. The

opportunity for a remedy for Florida citizens is punishment if the

State of Florida will not abide by its constitution. In Ford v

Wainwright (1986) 477 US 399, 91 L Ed 2d 335, 106 S Ct 2595,

15

2595, Supreme Court takes into account objective evidence of

contemporary values before determining whether particular

punishment comports with fundamental juman dignity that Eighth

Amendment protects. The eighth Amendment should prevent this

type of judicial abuse and punishment. Therefore, the State of

Florida has effectively imposed a cruel and unusual punishment on

a United States citizen living in the State of Florida by not adhering

to the Florida Constitution in dismissing the causes with prejudice

against Wachovia and allowing costs.

The third reason to grant the case is the fifth Amendment when

combined with the Fourteenth Amendment. For a court to ignore the

Florida Constitution is discrimination against Petitioner. In Johnson

v Robinson (1974) 415 US 361, 39 L Ed 2d 389, 94 S Ct 1160

(criticized in Hall v United States Dep't Veterans’ Affairs (1996,

CA 11 Fla) 85 F 3d 532, 9 Fl W Fed C 1171) forbid discrimination

that is so unjustifiable as to be violative of due process. Therefore,

the State of Florida has effectively stopped a United States citizen

living in the State of Florida from due process using the practice and

procedures in the Florida Constitution.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

eT es

APPENDICES

APPENDIX A

IN THE DISTRICT COURT

OF APPEALS OF THE STATE

OF FLORIDA

FOURTH DISTRICT

JULY TERM 2004

RICHARD KERSH,

APPELLANT

V

MARILYN SCHWARTZ

and WACHOVIA BANK, N.A.

Appellees.

CASE NO. 4D03-3540

Appeal of a non-final order

from the Circuit Court Judicial

Circuit, Palm Beach County;

Diana Lewis, Judge; L.T. Case

No.CA 03-2924 AF.

Richard Kersh, Boca Raton, pro se.

Al

John H. Pelzer, Dale W. Cravey,

and David A. Green of Ruden,

McClosky, Smith, Swchuster &

Russell, P>A> Fort Lauderdale, for

appellee Wachocia Bank, N.A.

DATE: OAW in lieu of OA

December 3, 2004.

PANEL: (Polen), Stevenson, Gross

Pending Motions: A/MFees

Rehearing Deadline:

Q Standard 15 days per rule 9.330

Directory: Polem

DISPOSITION

) 1. Affirmed

O PCA

Endoremements Date Circulate

S 12-3-04 NO

-§ 12-3-04 No

-S 12-3-04 No

APPENDIX B

IN THE DISTRICT COURT OF

APPEALS OF THE STATE OF

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FLORIDA FOURTH DISTRICT,

P.O. BOX 3315, WEST PALM

BEACH, FL 33402

March 17, 17, 2005

Case No.: 4D03-3540

L.T. No.: CA 03-2924 AF

RICHARD KERSH

V

ESTATE OF MARILYN

SCHWARTZ & WACHOVIA

BANK

BY ORDER OF THE COURT:

ORDERED that appellant’s motion filed

February 28, 2005, for rehearing is hereby

denied.

I HEREBY CERTIFY that the foregoing

is a true copy of the original court order.

-S

MARILYN BEUTTENMULLER, clerk

Fourth District Court of Appeal

APPENDIX C

IN THE CIRCUIT COURT OF THE 15™

JUDICIAL CIRCUIT IN AND FOR PALM

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BEACH COUNTY, FLORIDA

Case No. 03-002924 AF

RICHARD KERSH

Plaintiff

V

MARILYN SCHWARTZ AND

WACHOVIA BANK, N.A.

Defendants

/

ORDER GRANTING WACHOVIA

BANK, N.A.’S MOTION TO DISMISS

SECOND AMENDED COMPLAINT

AND

MARILYN SCHWARTZ’S MOTION TO

DISMISS SECOND AMENDED COMPLAINT

This Cause came on to be heard by the court

August 8, 2003, upon Wachovia Bank, N.A.’s

(“Wachovia”) Motion to Dismiss Second Amended

Complaint and Marilyn Schwartz's (“Schwartz”)

Motion to Dismiss Second Amended Complaint,

and the Court having reviewed the Motions, having

considered argument of Plaintiff and counsel for

Defendants, and being otherwise fully advised,

makes the following

FINDINGS and CONCLUSIONS:

A. While Plaintiff is a pro se litigant, he is not

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immune from the Rules of Civil procedure. Barrett v.

City of Margate, 743 So2d 1160, 1162(Fla 4" DCA

1999).

B. Despite prior repeated attempts, Plaintiff's

Second Amended Complaint (the “Complaint”)

is not a simply and succinctly started short and

plain statement of ultimate facts purportedly

entitling Plaintiff to relief, as required by Fla. R.

Civ. P.1.110(b), and does not set out the elements

of Plaintiff's claims or facts that support them, but

it does contain improper opinions, theories, legal

conclusions and argument. See Barretti, 743 So.2d

at 1162. Plaintiff's Second Amended Complaint is

a disorganized assortment of allegations and

argument that clearly fails to comply with even the

most minimal standards of pleading as required by

the Florida Rules of Civil Procedure. Id.

C. Each count of the Complaint improperly

incorporates each count of the Complaint. Gerentine

v. Coastal Security Systems, 529 So.2d 1191, 1194

(Fla. 5" DCA 1988); Frugoli v. Winn-Dixie Stores.,

464 So.2d 1292, 1293 (Fla. 1* DCA 1985).

D. Plaintiff improperly and without authorization

attempted to assert a claim for punitive damages.

F. S.§768.72. Kraft General Foods, Inc. V. Rosenblum.

635 So.2d 106, 110 (Fla. 4" DCA 1994). E. Plaintiff

failed to give the notice required by F. S.§772.11 prior

to attempting to assert a claim for civil theft.

F. Wachovia did not and does not owe any duty to

Plaintiff to F. S.§655.78 or 655.79.

G. Each and every count of the Complaint fails to

properly allege a cause of action.

ORDERED and ADJUDGED as follows:

1. Wachovia Bank, N. A.’s Motion to Dismiss Second Amended

Complaint and Marilyn Schwartz’s Motion to Dismiss Second

Amended Complaint are hereby

GRANTED AS FOLLOWS:

a. Count I of the Complaint is hereby dismissed with Prejudice

as to Wachovia and without prejudice as to Schwartz. —_b. Count

Il of the Complaint is hereby dismissed

with prejudice as to Wachovia and without as to Schwartz.

c. Count II of the compla at is hereby dismissed with

prejudice as to Wachovia and without prejudice as to Schwartz.

d. Count IV of the complaint is hereby dismissed without

prejudice.

e. Count V of the complaint is hereby dismissed without

prejudice.

f. Count VI of the complaint is hereby dismissed without

prejudice.

g. Count VII of the complaint is hereby dismissed without

prejudice.

h. Count VIII of the complaint is hereby dismissed without

prejudice.

i. Count LX of the complaint is hereby dismissed without

prejudice.

j. Count X of the complaint is hereby dismissed without

prejudice.

k. Count XI of the complaint is hereby dismissed without

prejudice.

1. Count XII of the complaint is hereby dismissed without

prejudice.

m. Count XIII of the complaint is hereby dismissed without

prejudice.

n. To the extent Plaintiff seeks to file a Third Amended

Complaint, he must allege the appropriate elements of each

cause of action that he claims and provide sufficient factual

allegations to adequately notify the Defendants of the nature of

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each claim. Further, Plaintiffis admonished not to attempt to

plead any cause of action that is not supported by the law of

Florida. If Plaintiff attempts to re-plead any of the causes of

action addressed in the prior Motions or at the hearing

thereon and he fails to state a cause of actionin accordance with

relevant case law and statutory authority, the Defendants may

move for entry of an award of sanctions. The Court will consider

awarding Defendants their attorney's fees if they are required to

argue the same issues addressed at the hearing one Motions.

o. Plaintiff shall not include a claim for civil theft in his

Third Amended Complaint unless he complies with the

requirements of F. S. §772.11.

p. Plaintiff shall not include a claim for punitive damages in

nis Third Amended Complaint unless and untill he receives

authorization to do so in compliance with the requirements of F.

S. §768.72.

q. If at all possible and subject to Defendant Schwartz's

medical availability, Plaintiff and Schwartz shall schedule and

intend mediation at the Palm Beach County Courthouse (205

N. Dixie Highway, West Palm Beach, Florida) within forty-

five (45) days of the date of this order. Wachovia is

specifically excluded from this requirement andis not required

to attend mediation in this case at this time.

Plaintiff shall have 20 days to file a Third Amended Complaint.

DONE AND ORDERED AT West Palm Beach, Palm Beach

County, Florida on this 21" day of August, 2003.

-S

DIANA LEWIS

Circuit Court Judge