Petition for Writ of Certiorari — Bothe v. Hansen (No. 08-1504)

rer? Court, U.S.

me FILED

081504 JUN 1 - 2009

No.

QOESICS OF RHE Cy BRK

IN THE

Supreme Court of the United States

ANNEMARIE BOTHE, PETITIONER

PAMELA JEAN HANSEN

PETITION FOR A WRIT OF CERTIORAR!

TO THE SECOND DISTRICT COURT OF APPEAL

FOR THE STATE OF FLORIDA

PETITION FOR A WRIT OF CERTIORARI

DENNIS P. DERRICK CARLJ. ROBIE, IJ

Counsel of leecord

Winthrop Strect LOel YU Ore

Mssex MA 01929 2525 Sunnybrook Dr

(YTS) 768-6610 Sarasota, BL 34239

(94 1) 855-2828

?

QUESTIONS PRESENTED

1. Florida’s intermediate appellate courts decide

over 80% of the appeals they hear with per cwrtam orders

issued without opinions and the losing party has no right

to seek further review of these summary dispositions by

the “lorida Supreme Court. Does this procedure deny the

losing party due process or the equal protection of the

laws?

2. Is an appellant denied procedural due process

when Florida’s Second District Court of Appeal, a court of

last resort, refuses to include in the record and consider

evidence relevant to the her claim of error by the lower

court?

‘.

TABLE OF CONTENTS

Page

COU ESTIOMG PRISE re rete ee area ica ecesa cece sssccsvescececs.

TABLE OF ACTER meee eee ar tanavtsecesvscesivesscose.0. ill

OPINIONS BEL ri aie icceesnyexessssesorceeees ]

JURISDICTION .occccocsncactecie meet Sea oscar cases al 2

RELEVANT PROVISIONS Bert Mth cosiscccceserscseccescccrseecsoeseoesee: 3

STATEMENT cécccscccoscnseee eT eco vnceccecnonsee a

REASONS FOR GRANTING THE PETITION ....0.....0..:cccesseseeseeeees 13

CONCLUSION .sco-soschcaenee en... 28

APPENDIX

Marital Settlement Agreement far Simplified

Dissoleteors Of GE Cr TRI ce eile ietetctteccescesssovesesccceeses la

Final Judgment of Simplified Dissolution of

NM PAG xicssicscesiasas er cavecacecevisaeseceeee 7a

JE 1s ene en Oa 9a

Appellate Court Opinion .occccccccccceccscerseecssceaeees DT cc snaiies 19a

Corcuit Court Final Summary Judgment .....ccccccc cee eee fy

Appellate Court Rehearing Denial .....0.cccccccccccccscscesseseeeees 24a

Lui

TABLE OF AUTHORITIES

Page

CASES

AMTRAK V. MORGAN, 536 U.S. 101, 116(2002)..... ERE,

ARMSTRONG V. MANZO, 380 U.S. 545, 551- 552(1965).... Rides 18, 25

BODDIE V. CONNECTICUT, 401 U.S. 371, 374-375(1971) ou...

sistas anamcpuacueh tele aacecueizeecibiceouaalamieanaa tea detaaaa lone 17, 24, 25, 26

BOUNDS V. SMITH, 480 U.S. 817, 828(1977) ............0....csecceseeeee 26

CAREY V. PIPHUS. 435 ES Bos Ge Fo IE OP Pi ch sxsevesiacscnastssesousancs 2)

CHRISTOPHER V. HARBURY, 536 U.S. 408, 414-415 &

i, Teo ee BO URN So ee 26

CLEVELAND BOARD OF EDUCATION V.

LOUDERMILL, 470 U.S. 5382, 538 (1885)..................... 17, 18, 21

COLLINS V. HARKER HEIGHTS, 503 U.S. 115,

£2 G5. 3 Seen Eiri ee OL ST Hie lata Rec FEA Ce a oR eS ST

DANIELS V. WILLIAMS, 474 U.S. 327, 331(1986).................00.. 27

DENT V. WEST VIRGINIA, 129 U.S. 114, 12301889)... 27

EVITTS V. LUCEY, 469 U.S. 387, 393(1985)..........cscccccsssscossseeee 19

FIDELITY & DEPOSIT Co. V. ARENZ, 290 U.S. 66, 68

CUR ai iiva secsencicccsnccecsnccemdeacauan ree pee ee 17

FLORIDA STAR V. B.J.I 30.2D 286, 288 N.3(F

BINT iss svasaiedsovciclanuacdna eae ae ean eaerieaes ee 21

“ORD MOTOR Co. V. KIKIS, 401 S0.2p 1341. 1342(F LA

|b | 3 SS NUMA nea CeO ENP LS .etems adel Pat nee ae

GIBBES V. ZIMMERMAN, 290 U.S. 326, 332(1933)........0......... re

GOLDBERG V. KELLY, 397 U.S. 254, 262-263( 1970) .....17, 20, 24

GRANNIS V. ORDEAN, 234 U.S. 885, 394(1914) wo. ls

GREENE V. MCELROY, 360 U.S. 474, 496-497(1959).00 we. 17

GREGORY V. GREGORY, 289 So. 2D 468, 469(1974)..........00000. 19

GRIFFIN V. ILLINOIS, 391 U.S. 12, 18-14(1956)...................0.0 19

HAMDI V. RUMSFELD, 642 U .S. 507, 528-529(2004)............000. 1s

HELIS V. WARD, 308 U.S. 365, 369-370(1939) ooo eee 20

HILL V. HILL, 778 So. 2D 967, 96BCFLA 2001) oo... eee 19

ICC v. LOUISVILLE & N. R. Co., 227 U.S. 88,93

Pe Ee ovine inisnisecss esuarenta ee 29

INTERSTATE CIRCUIT, INC. V. UNITED STATES, 304

APO Sy ac: . | en nere nie AES een 19

Ww

JENKINS V. FLORIDA, 385 SO.2D 1356 (FLA 1980).........3, 21, 23

JOINT ANTI-FASCIST REFUGEE COMMITTEE V.

MCGRATH, 341 U.S. 128,168 (1951)....0.000.......... cesses thas 17

LOGAN V. ZIMMERMAN BRUSH Co., 455 U.S. 422,

I iar to ol scenes eancaeanceoa naib iceotnieacn 25, 26

MATHEWS V. ELDRIDGE, 424 U.S. 319, 334-335(1976) ........... 18

MISSOURI V. JENKINS, 515 U.S. 70, 121(1995)... eee a

ar

MORRISSEY V. BREWER, 408 U.S. 471, 481(1972)............. 17, 18

MURRAY'S LESSEE V. HOBOKEN LAND &

IMPROVEMENT Co., 18 HOW. 272, 277 (1856) ...........ceceeeees 28

ORTWEIN V. SCHWAB, 410 U.S. 656, 660(1978) 0. eee 19

PALMORE V. SIDOT!, 466 U.S. 429, 481(1984) ow, 3, 18,23

RAILROAD COMMISSION V. MAXCY, 281 U.S. 8&2,

ORE Ae a eee NE ROR te prea dl nee Fy Ten RE aS 24

REAVES V. STATE, 485 S0.2D 829, 830 & N.3(FLA

FRE re eet fo Ma adn ESSA Paced Re CO EEO 22

REPUBLICAN PARTY: V. WHITE, 536 U.S. 765, 790

ys ENRON OPO ea se a ETAL ARC, CES e ISRO i ee en ee 24

SAUNDERS V. SHAW, 244 U.S. 317, 319-320(1917) oo... 20

SCHOOL BD. V. DISTRICT COURT-OF APPEAL, 467

Pe cei ss aso wiksnbandisnecnes 22

SCOTT V. MCNEAL, 154 US. 34, 45-46( 1894) ..00.0................00... 26

SHELLEY V. KRAEMER, 834 U.S.1,16-17(1948)......0.000000..0... 18

WIGGINS PERRY Co. V.0 & M RAILWAY, 142 US.

re ey as eke tac nadinbdachetainisvs 19

WILLIAMS V. FLORIDA, 399 U.S. 78, 80 N. 5(1970) .............3, 23

WILLNER V. COMMITTEES ON CHARACTER AND

FITNESS, 873 U.S. 96, 108-104( 1968) ..............scocsecessessereeseses 20

WOLFF V. MCDONNELL, 418 U.S. 539, 579(1974) 000. 26

RELEVANT PROVISIONS

ee i oe at eS a 3, 4, 13

ey MN ee ea ae Aer oe ee ae 5. Fi

RPMI SAARI ING Bs ics dasa cats inshionivanves soc plencactanidpccniooan 3

l

OPINIONS BELOW

The marriage settlement agreement between

respondent and the decedent in the divorce case of

Andreas Daaid Bothe v. Pamela Jean Bothe (Docket

No. 2006-DR-1548 SC), dated February 21, 2006, is set

forth in the Appendix hereto(App. 1-6).

The final judgment of simplified dissolution of

marriage in the divorce case of Andreas David Bothe v.

Pamela Jean Bothe (Docket No. 2006-DR-1548 SC),

dated February March 15, 2006, is set forth in the

Appendix hereto(App. 7-8).

The decedent’s [RA Application and Adoption

Agreement, signed and dated October 5, 1998, is set

forth in the Appendix hereto(App. 9-12).

A letter dated September 2002 from Donaldson,

Lufkin & Jenrette (Harrisdirect) to the decedent

Andreas David Bothe, is set forth in the Appendix

hereto(App. 13-14).

The unwitnessed last will and testament of the

decedent Andreas David Bothe, dated March 21, 2006,

is set forth in the Appendix hereto(App. 15-16).

Letter of the decedent Andreas David Bothe,

dated Maren 21, 2006, is set forth in the Appendix

hereto(App. 17-18).

The unpublished per curiam Order of the

Fjorida District Court of Appeal for the Second District

in Annemanre Bothe v. Pamela Jean Hansen(Docket

No. 2D0&-557), filed on November 7, 2008, and reported

2

at 996 So.2d 860(Fla.2d DCA 2008), affirming the final

summary judgment in respondent’s favor and against

petitioner by the Circuit Court for Sarasota County, is

set forth in the Appendix hereto(App. 19).

The unpublished and unreported Order of the

Florida District Court of Appeal for the Second District

in Annemarie Bothe v. Pamela Jean Hansen(Docket

No. 2D08-557), filed on May 8, 2008, denying

petitioner’s motion to supplement the record , is set

forth in the Appendix hereto(App. 20).

The unpublished and unreported Final Summary

Judgment of the Circuit Court for Sarasota County in

Pamela Jean. Hansen v. E*Trade Financial Corp. and

Annemarie RBothe(Docket No. 2006 CA 4875 SC),

decided February 1, 2008, determining that respondent

is entitled to all the proceeds of the decedent’s IRA

account and that petitioner is entitled to nothing, is set

forth in the Appendix hereto(App. 21-23).

The unpublished and unreported Order of the

Florida District Court of Appeal for the Second District

in Annemarie Bothe v. Pamela Jean Hansen(Docket

No. 2108-557), filed on December 31, 2008, denying

petitioner’s motion for rehearing, for rehearing en banc

or for a written opinion, is set forth in the Appendix

hereto(App. 24).

JURISDICTION

The decision of the Florida District Court of

Appeal for the Second District was decided and filed on

November 7, 2008(App. 1). Because the Florida District

Court of Appeal for the Second District elected not to

)

o

write an opinion, the Supreme Court of Florida was

without jurisdiction to review this case and the Florida

District Court of Appeal for the Second District is

therefore the highest State court in which a decision

could be had. Fla. Const. Art. V, § 3(b)(3). See Palmore

v. Sidoti, 466 U.S. 429, 43111984); Williams v. Florida,

399 U.S. 78, 80 n. 5(1970); Jenkins v. Florida, 385 So.2d

1356, 1359-1360(1" la.1980).

On December 31, 2008, the Florida District

Court of Appeal for the Second District denied

petitioner’s motion for rehearing, for rehearing en banc

Oo

or for a written opinion(App._).

Qn March 28, 2009, this Court, Thomas, J.,

granted petitioner’s application for an extension of

time to file their petition until May 30, 2009(Docket No.

O8A-835).

This petition for writ of certiorari is filed within

the time allowed by Justice Thomas’ order allowing

petitioners to file their petition by May 30, 2009.

Supreme Court Rule 30.1.

The jurisdiction of this Court is’ invoked

pursuant to the provisions of 28 U.S.C. § 1257(a).

RELEVANT PROVISIONS INVOLVED

l'nited States Constitution, Article IV. § 2:

The Citizens of each State shall be entitled to all

Privileges and Immunities of Citizens in the

several States.

4

United States Conslitution, Article VI, Paragraph 2:

This Constitution, and the laws of the United

States which shall be made in pursuance

thereof...shall be the supreme Law of the Land;

and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws

of any State to the Contrary notwithstanding.

United States Constitution. Amendment 1:

Congress shall make no law...abridging...the

right of the people...to petition the government

for the redress of grievances.

United States Constitution, Amendment X1V, § 1:

..No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws.

28 U.S.C. § 1257 (a):

Final judgments or decrees rendered by the

highest court of a State in which a decision could

be had, may be reviewed by the Supreme Court

by writ of certiorari where the validity of a

treaty or statute of the United States is drawn in

question or where the validity of a statute of any

State is drawn in question on the ground of its

being repugnant to the Constitution, treaties, or

~

J

laws of the United States, or where any title,

right, privilege, or immunity is specially set up

or claimed under the Constitution or the treaties

or statutes of, or any commission held or

authority exercised under, the United States.

Fla. Const. Art. V, § 8(b)(3):

The supreme court of Florida 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 constitution, or that expressly affects a

class of constitutional or state officers, or that

expressly and directly conflicts with a decision

of another district court of appeal or of the

supreme court on the same question of law.

Fla. App. Rule 9.200(f):

Correcting and Supplementing Record.

(1) [If there is an error or omission in the record,

the parties by stipulation, the lower tribunal

before the record is transmitted, or the court

may correct the record.

(2) If the court finds the record is incomplete, it

shall direct a party to supply the omitted parts of

the record.

No proceediny shall be delermined, because of

an incomplete record, until an opportunity to

supplement the record has been given.

6

STATEMENT

On October 5, 1998, while he was married to the

respondent Pamela Jena Hansen (“the respondent”),

the decedent Andreas David Bothe (“the decedent”) of

Nokomis, Florida, opened an IRA plan with Donaldson,

Lufkin & Jenrette Securities Corporation, called a

DLJdirect account (App. 9-12). He designated his wife,

the respondent Pamela Jean Hansen (“the respondent”)

who was then named Pamela Jean Rothe, as the

primary beneliciary of the plan to receive 100% of its

benefits; and he named his sister, the petitioner

Annemarie Bothe (“petitioner”) as the plan’s only

contingent beneficiary(App. 9-10).

In September of 2002, Donaldson, Lufkin &

Jenrette Securities Corporation wrote decedent to tell

him that on November 1, 2002, it would no longer be

the custodian of his IRA account and that Harris

Investor Services LLC (“Harrisdirect”) would take

over as custodian at that time(App. 13-14). In order to

complete this change, the Internal Revenue Service

required decedent to enter into a formal agreement

adopting Harrisd?rect as the plan’s new custodian(App.

13). As the letter explained, if he did not return signed

documents agreeing to the change, DLJdzrect could

close the account and distribute the assets, subjecting

him to income and penalty taxes arising from the

distribution; or he could roll the assets of the plan into

an entirely new IRA within sixty (60) days(App. 15-14).

There is nothing in this record to show that the

decedent ever complied with this request by

Donaldson, Lufkin & Jenrette Securities Corporation to

change custodial responsibility for his TRA plan from

-

i

DLJdirect to Harrisdirect. Harrisdirect eventually

merged with E*Trade in 2006 and there is nothing in

the record which reflects the terms and conditions of

these mergers from DLJdirect to Harrisdirect in 2002

and then from Harrisdirect to E*Trade in 2006 and

whether the terms of the decedent's original 1998 IRA

contract ever survived these two mergers. Nor was

there any evidence that the decedent received any

notice of E*Trade’s requirements for changing

beneficiaries of his TRA plan at any time.

In anticipation of divorce proceedings between

him and respondent, the decedent moved out of the

marital home in August of 2005. After divorce

proceedings ensued in 2006, he and respondent entered

into a marital settlement agreement (“the MSA”) dated

February 21, 2006, and signed by both parties(App. 1-

6). The MSA gave each party equal shares of the

marital estate(App. 3-5). In order to equalize the

proportions, respondent was awarded certain

certificates of deposit while the decedent was given

$1,089,546.00 of his IRA as his own(App. 2-4).

Furthermore, it was provided in the MSA —

signed and sworn by respondent Wife as well as by the

decedent---that she “shall have no further rights or

responsibilities regarding these assets” of the decedent

which were awarded him under the MSA, thereby

Walving any expectancy on her part to receive the IRA

benefits or anything else belonging to the decedent in

the wake of the MSA and their divorce (App. 3;6).The

MSA was incorporated by reference within a final

judgment of the dissolution of the parties’ marriage

which entered in the Circuit Court for Sarasota County

—

on March 15, 2006( App. 7-8).

8

On March 21, 2006, the decedent executed an

unwitnessed holographic will which, among other

bequests, gave all of his IRA benefits to one Margaret

Lindsay (whom he intended to marry) and to petitioner

he gifted the proeceds from his stock account and “all

other items owned by [him] individually’(App. 15-16).

On March 22, 2006, suffering from chronic depression,

the decedent took his own life(App. 17-18;21). In a final

letter to Ms. Lindsay, he again indicated that he

wanted her to receive the money from his retirement

plan(App. 17-18).

Upon the parties’ divorce, respondent changed

her name from Pamela Jean Bothe to Pamela Jean

Hansen(App. 8). Following the decedent’s death one

week later, she was appotnted the decedent's personal

representative and demanded payment from E*Trade

of the proceeds of the decedent’s IRA plan

($1,089,546.00) claiming that she was entitled to same as

the primary beneficiary under the 1998 contract which

the decedent entered into when he set up the IRA with

Donaldson, Lufkin & Jenrette Securities Corporation,

the DLJdirect account, and named her primary

beneficiary thereunder(App. 21-22).

E*Trade refused to pay respondent the proceeds

of decedent’s IRA. In addition, petitioner contended

that the MSA executed by the decedent and

respondent as part of their divorce controlled the

disposition of the decedent’s IRA proceeds and under

its plain terms, respondent had no claim to the IRA,

had already received everything she was entitled to

from the decedent as part of their divorce and, in any

event, she had expressly waived any expectancy on her

part to receive these IRA benefits or anything else

)

belonging to the decedent in the wake of the MSA and

the divorcee.

Respondent then brought this civil action in the

Circuit Court for Sarasota County against petitioner

and E*Trade seeking declaratory relief that as the

named primary beneficiary of the decedent’s IRA, she

was entitled to its proceeds(App. 21-22). Petitioner

counterclaimed by seeking a declaration that the MSA

controlled the disposition of the decedent’s IRA

proceeds and under its plain terms respondent had no

claim to the IRA, had already received everything she

was entitled to from the decedent as part of their

divorce and, in any event, she had expressly waived

any expectancy on her part to receive the IRA benefits

or anything else belonging to the decedent in the

aftermath of their divorce(App. 21-22). Petitioner

sought an order awarding the [RA proceeds either to

her or to Margaret Lindsay whom the decedent

intended to marry and to whom he attempted to give

his TRA proceeds just before his death.

Respondent’s) motion for summary judgment

and petitioner’s opposition thereto was argued before

the Circuit Judge on January 29, 2008(App. 21-22). At

the hearing, respondent adduced »o evidence to show

the terms of the two mergers of decedent’s [RA plan

from DLJdirect to Harrisdirect in 2002 and then from

Harrisdirect to E*Trade in 2006 and whether the terms

of the decedent’s original 1998 TRA centract survived

these two mergers. Nor did respondent show that the

decedent received any notice of E*Trade’s

requirements for changing beneficiaries of his IRA plan

at any time before signing the MSA in February of

2006, or obtaining their divorce on Mareh 15, 2006. All

10

that was shown was that in anticipation of divorce

proceedings between him and respondent, the decedent

in August of 2005 moved out of the marital home, the

address to which E*Trade would have sent any of its

requirements for changing the _ beneficiaries of

decedent’s IRA plan.

Petitioner argued that these facts----and

respondent’s notable absence of proof on these crucial

issues----showed that genuine triable fact issues existed

about whether decedent’s IRA plan together with its

beneficiary designation survived the 2002 and 2006

mergers intact; whether decedent’s failure to comply

with Harrisdzrect letter of 2002 requesting his express

agreement to the merger with Harrisdirect revoked his

IRA plan and its beneficiary designation or caused it to

lapse or to be revoked; whether the decedent intended

that respondent be the primary beneficiary of his IRA

plan after their execution of the MSA and their

ensuing divorce; and whether the express terms of the

MSA giving decedent unfettered ownership over the

proceeds of his IRA and containing respondent’s

express waiver of any claim to these proceeds overrode

the obsolete beneficiary designation of the [RA itself.

Immediately after oral argument on her motion

for summary judgment, respondent introduced into the

record a reference as a trial exhibit to the Harrisdzrect

letter of 2002 to decedent requesting his express assent

to a “new adoption agreement;” but she failed to

produce any evidence that decedent ever executed the

paperwork agreeing to this new merger with

Harrisdirect such as by signing a new adoption

agreement.

11

On February 1, 2008, the Circuit Judge issued

his decision granting respondent’s motion for summary

judgment, ruling that she was “entitled to all proceeds

of the decedent’s E*Trade IRA account...;” he denied

petitioner any relief on her counterclaim(App. 21-23).

In his decision, the trial judge erroneously

characterized petitioner as decedent’s “personal

representative” which she was not(App. 23). Moreover,

without any basis in fact and contrary to the plain

terms of the MSA itself, it found that the MSA

identified the decedent’s IRA plan as an account with

E*Trade and “|t]herefore, it is clear that the decedent

was aware that his IRA accoun’ was held by E*Trade

at the time the decedent and [respondent] were

divorced”’{App. 21-22). The MSA made no reference to

any such E*Trade account and there was no evidence

that decedent knew that his 1998 adoption agreement

was accepted by E*Trade or that he knew of E*Trade’s

regulations for IRAs at the time of the divorce.

In addition, the Circuit Judge built upon this

erroneous finding of fact about the decedent’s

knowledge of E*Trade as the custodian of his IRA plan

by ruling that since the decedent failed to comply with

E*Trade’s strict requirements for — changing

beneficiaries during his lifetime. he must have intended

for respondent to remain the primary beneficiary under

the plan and she was therefore entitled to its

proceeds(App. 22).

On March 27, 2008, E*Trade was dismissed as a

party by stipulation. Petitioner then appealed the

Circuit Judge’s ruling to the Dist ict Court of Appeal

for the Second District (App. 19). Incident thereto,

petitioner moved in the appellate court to supplement

12

the record to include the September 2002 letter from

Harrisdirect to the decedent(App. 20). Petitioner

claimed that the appellate court needed to consider

whether this document, introduced into the record by

respondent after oral argument on her summary

judgment motion, raised genuine issues of material fact

for trial, i.e., whether decedent’s failure to comply with

Harrisdirect letter of 2002 requesting his express

agreement to the merger with Harrisd?rect revoked his

IRA plan and its beneficiary designation altogether or

caused it to lapse or to become otherwise adeemed; and

whether combined with the MSA and the decedent’s

other written expressions of intent about his IRA

proceeds before he died, this letter undermines any

argument that the decedent intended for respondent to

have any of his LRA proceeds(App. 20).

On May 8, 2008, the District Court of Appeal for

the Second District denied petitioner’s motion to

supplement the record on appeal(App. 20). On

November 7, 2008, the same court issued a one-page per

curiam affirmance of the judgment below without

issuing any opinion explaining its rationale(App. 19).

Petitioner moved for rehearing, rehearing en

banc and requested a written opinion(App. 24). She

argued inter alia that the appellate court should have

allowed her to supplement the record on appeal with

the September 2002 letter from Harrisdirect to the

decedent because respondent never proved that

decedent complied with any new IRA requirements in

2002 after the first merger or in 2006, after the second

merger. As she contended, “no ‘new adoption

agreement’ was produced by [respondent] establishing

that her claim to the LRA was legally enforceable in the

13

chain of events from 1998 to [the] date of decedent’s

death;...[{and}] “[w]ithout a Harrisdirect ‘new adoption

agreement’ in 2002, there is no evidence linking the

enforceability of the DLJdirect document on its face

against E*Trade as custodian.”

On December 31, 2008, the Florida District

Court of Appeal for the Second District denied

petitioner’s motion for rehearing, for rehearing en bane

or for a written opinion(App. 24). Because the Florida

District Court of Appeal for the Second District elected

not to write an opinion, the Supreme Court of Florida

was without jurisdiction to review this case (Fla. Const.

Art. V, § 3(b)(3)), leaving the decision of the Florida

District Court of Appeal for the Second District as one

made by the highest State court in which a decision

could be had. See 28 U.S.C. § 1257(a).

On March 23, 2009, this Court, Thomas, J.,

granted petilioner’s application for an extension of

time to file their petition until May 30, 2009( Docket No.

OSA-835),

REASONS FOR GRANTING THE PETITION

l. Florida’s Second District Court of Appeal Denied

Petitioner Procedural Due Process When As a Court of

Last Resort It Refused to Include in the Appellate

Record and Consider Evidence Relevant to Her Claim

of Error

The thrust of petitioner’s argument in the

Circuit Court for Sarasota County betore Judge

Bennett was that respondent's proot in support of

summary judgment was insufficient as a matter of law

14

to establish her right to the decedent’s IRA proceeds.

At the very least and construed in the light most

favorable to petitioner, the opposing party,

respondent’s meager proof about her entitlement to

these monies showed that triable fact issues existed

whether decedent’s IRA plan together with its

beneficiary designation survived the merger of

DLJdirect with Harrisdirect in 2002 and Harrisdirect’s

later merger with E*Trade in 2006. The record also

raised the crucial fact question whether the decedent

had effectively maintained his IRA plan and its

beneficiary designation in consonance with the

changing requirements which these new custodians

(and the IRS) would have imposed upon him in order to

avoid a distribution.

The other material fact questions left unresolved

by respondent’s proof below were whether the

decedent intended that respondent be the primary

beneficiary of his IRA plan after their execution of the

MSA and their divorce; and whether the express terms

of the MSA giving decedent unfettered ownership over

the proceeds of his IRA and containing respondent’s

express waiver of any claim to these proceeds overrode

the obsolete beneficiary designation of the IRA itself.

When respondent immediately after oral

argument on the summary judgment motion in circuit

court introduced into the record a reference as a trial

exhibit to the Harrisdirect letter of September 2002 to

decedent requesting his express assent to a “new

adoption agreement without any proof that the

decedent kad actually complied urth its requirements,

another genuine issue of material fact emerged for

+

resolution, 1.e., whether the decedent’s failure to

15

comply with Harrisdirect letter of 2002 requesting his

express assent to the merger with Harrisdirect revoked

his LRA plan and its beneficiary designation or caused

it to lapse or to be revoked. In this regard as well,

respondent failed to adduce any proof in the circuit

court that decedent had ever executed the necessary

paperwork for agreeing to this new merger with

Harrisd?rect.

In the wake of the circuit court’s decision

yranting summary judgment to the respondent, a

decision founded on its fandamental misconception that

the decedent “was aware that his FRA account was held

by Ii*Trade at the time the decedent and [respondent]

were divorced’(App. 21-22), when there was x0

evidence to show that decedent knew that his IRA plan

had been accepted by E*T'rade or that he knew of

E*Trade’s regulations for [RAs at the time of the

divorce, petitioner sought to supplement the record on

appeal to include Harrisdirect’s letter of September

2002 (App.13-14;20).

This letter of September 2002 raised genuine

issues of material fact whether the decedent had

assented to the successive mergers of his JRA plan to

the one administered by E*Trade, so that it and its

beneficiary designation survived these mergers;

Whether the decedent’s failure to comply with

Harrisdzrect letter of 2002 requesting his written

to the merger with Harrisdrrect revoked his

IRA plan and its beneficiary designation altogether or

caused it to lapse; and whether combined with the MSA

and the decedent’s other written expressions of intent

about his TRA proceeds before he died, this letter

undermines respondent’s argument that the decedent

assent

16

intended for her to receive his IRA proceeds(App. 20).

After the District Court of Appeal for the

Second District denied petitioner’s motion to

supplement the record on appeal and then issued its

one-page per curiam affirmance of the judgment

without issuing any opinion’ explaining its

rationale(App. 19;20), petitioner moved for rehearing,

rehearing en banc and _ requested a_ written

opinion(App. 24). She argued once again that the

appellate court should have allowed her to supplement

the record on appeal with the September 2002 letter

from Harrisdirect to the decedent because respondent

never proved that decedent complied with any new

IRA requirements in 2002 after the first merger or in

2006, after the second merger. The District Court of

Appeal denied petitioner’s motion without opinion(App.

24).

This refusal by the District Court of Appeal for

the Second District, a court of last resort, to include in

the appellate record and accommodate in its decision

this letter by WHarrisdirect to the decedent of

September 2002, a letter respondent herself introduced

into the record below, denied petitioner procedural due

process, It unfairly constricted crucial evidence helpful

to petitioner's cause and irremediably prejudiced her in

the marshaling of further evidence and in obtaining a

fair, meaningful hearing on appeal. Without this

evidence in the record, respondent was never put to the

burden of showing how the decedent had actually

assented to DLJdirect’s merger with Harrisd?rect in

2002 and then with Harrisd?rect’s merger with E*Trade

in 2006 so as to entitle her to the IRA’s proceeds as its

primary beneficiary. This letter was critical to

17

petitioner’s argument that respondent had proved xo

chain of events entitling her to the decedent’s IRA

proceeds and the refusal of the appellate court to

supplement the record to include this document denied

petitioner the fair process due her on this appeal.

Under the fourteenth amendment, petitioner is

entitled to procedural due process if the

property/liberty interest at stake is deemed to be of

such magnitude that its loss can fairly be characterized

as important; and it depends upon the extent to which

the individual will be “condemned to suffer grievous

loss.” Morrissey v. Brewer, 408 U.S. 471, 481(1972)

quoting Joint Anti-Fascist Refugee Committee v

McGrath, 341 U.S. 123,168 (1951)(Frankfurter, J.,

eter Goldberg v. Kelly, 397 U.S. 254, 262-

63(1970). Petitioner has a cognizable property right or

et interest in her right to seek both in the circuit

court and on appeal declaratory relief consistent with

her counterclaim. gy 397 U.S. at 267-271. Greene

McElroy, 360 U.S . 496-497(1959). See Cleveland

Board of E wotreesaly v. Loudermill, 470 U.S. 5382,

538;541(1885) (“The point is straightforward: the Due

Process Clause provides that certain substantive

rights—life, liberty, and property—cannot be deprived

except pursuant to constitutionally adequate

beacon Gibbes v. Zimmerman, 290 U.S. 326,

332(1 . Fidelity & Deposit Co. v. Arenz, 290 U.S. 66,

6% pf See also Boddie v. Connecticut, 401 U.S. Stk;

374-375(1971).

Nor can it be doubted that the actions of the

Klorida courts including its judicial officers Prey In

their official capacities is state action governed by the

fourteenth amendment. Palmore v. Sidoti, 466 US 129,

18

434(1984). Shelley ». Kraemer, 884 U.S.1,16-17(1948).

Once the Due Process Clause applies to the

proceedings below, “the question remains what process

is due.” Loudermill, 470 U.S. at 541 quoting Morrissey

v. Brewer, 408 U.S. at 481. This Court’s decision in

Mathews v. Kldridge, 424 U.S. 319, 334-335(1976)

provides that the process due is determined by

weighing “the private interest that will be affected by

the official action” against the government's asserted

interest,“including the function involved” and the

burdens the government would face in providing

greater safeguards. Jd. at 335. The Mathews calculus

contemplates a balancing of these concerns through an

analysis of “the risk of an erroneous deprivation” of the

private interest if the process were recluced and the

“probable value, if any, of additional or substitute

procedural safeguards.” Jd. See Hamdi v. Rumsfeld,

542 U.S. 507, 528-529(2004).

Employing Mathews’ calculus in order to balance

petitioner’s legitimate private interest in achieving a

fair result upon appeal consistent with the relevant

evidence which should have been considered incident to

respondent’s summary judgment motion ayainst the

respondent’s corresponding need for a fair adjudication,

petitioner submits that the process due her consists at a

minimum of a reasonable opportunity to be heard on

appeal, to marshal the relevant evidence in support of

her cause and to have a fair hearing on the proof

adduced. Armstrong v. Manzo, 380 U.S. 545, 551-

952(1965).Grannis v. Ordean, 254 U.S. 385, 394(1914).

The refusal by the District Court of Appeal to

supplement the record on appeal with the Harrisdireet

letter of September 2002 pursuant to its own Rule

19

9.200(f) for doing so was a denial of the process due

petitioner in these circumstances.

After all, once a State provides a procedural

framework for disposing of appeals within its system,

those appellate remedies must comport with the

demands of the due process and equal protection

clauses of the federal constitution. Mvilts v. Lacey, 469

U.S. 387, 393(1985). Griffin v. Illinois, 851 U.S. 12, 15-

14(1956). See Ortwein v. Schwab, 410 U.S. 656,

66011973). Even Florida’s own law supports the

proposition that when documents omitted from the

record on appeal are necessary for inclusion in the

appellate record so that “the ends of justice are best

served,” the appellant’s constitutional right to effective

appellate review are “best preserved” when those

documents are included in the appellate record. Hill v.

Hill, 778 So. 2d 967, 968(F la. 2001).Gregory v. Gregory,

289 So, 2d 468, 469(1974), See Fla. App. Rule 9.200(f).

This Court’s deeisions have established — that

where evidence referred to in the proceedings below

and necessary to a fair determination of the cause of

action on appeal is not included in the record on appeal,

or where its non-production has not been otherwise

accounted for, its omission in this Court warrants an

order remanding the matter to the lower court tor

reconsideration based upon the omitted evidence. See,

wl ee ford Motor Co. ?). National Labor feelations

Board, 305 U.S. 864, 373(1939); Interstate Circuit, Inc

uv. United States, 304 U.S. 55, 56-57(1938), Wiggins

Perry Co. v. O & M Railway, 142 U.S. 896, 413

114(1892): Levy v. Arredondo. 37012 Pet.) U.S. 218, 219

(1838).

2U

Moreover, the failure of a State appellate court

to :upplement the record before it when relevant

evidence has been omitted is a matter of due process

and a fair hearing under the fourteenth amendment. As

this Court observed speaking through Justice Holmes

in Saunders v. Shaw, 244 U.S. 317, 319-820(1917),

viving a litigant “a chance Lo put his evidence in” even

at the appellate level] in not a mere concession to

technicality:

[When the act complained of is the act of the

{State] Supreme Court, done unexpectedly at

the end of the proceeding, when the plaintiff in

error no longer had any right to add to the

record, it would leave a serious gap in the

remedy for infraction of constitutional rights if

the party aggrieved in such a way could not

come here.

id. Having by motion sought supplementation of the

record both before and after the decision by the District

Court of Appeal, contrast Helis v. Ward, 308 U.S. 365,

369-370(1989), there was no “more [petitioner] could

have done” to assert her due process rights to have this

erucial evidence considered by the court of last resort in

Florida Sarnade rs, 244 U.S. at 320.

In the final analysis, due process requires a

meaningful hearing where the participants are fully

armed with the relevant facts so that the decisionmaker

is fully informed. Goldberg v. Kelly, 897 U.S. at 269-270

citing /CC v. Lowsville & N. R. Co., 227 U.S. 88,93

94(1913) and Willner v. Committee on Character and

Fitness, 373 U.S. 96, 103-104(1963). The right to this

fair leaAring does not lepend ona demonstration ot

21

certain success, only that it take place. Loudermall, 470

US. at 544 citing Carey v. Piphus, 435 U.S. 247,

266(1978). The District Court of Appeal’s refusal to

supplement the record prevented a fair hearing from

taking place and denied petitioner the process due her

under the fourteenth amendment.

2. The District Courts of Appeals’ Use of Per Curiam

Decisions Without Opinion Denies Petitioner Due

Process and Equal Protection of the Laws Because It

Fails to Inform Petitioner of the Reasons for the

Disposition of Her Appeal And Prevents Review by the

Florida Supreme Court.

Under Fla. Const. Art. V, § 3(b)(8), the Florida

Supreme Court in its discretion 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

constitution, or that expressly affects a class of

constitutional or state officers, or that expressly and

directly conflicts with a decision of another district

court of appeal or of the supreme court on the same

question of law. The term “expressly” is part of the

constitutional language, see Jenkins v. State, 385 So.2d

1356, 1357-1359(Fla. 1980), and for the Florida

Supreme Court to exercise its discretion to grant

review of a decision of any of the district courts of

appeal, the decision must fit within one of these four

constitutional categories and that fact must appear

“expressly” on the face of a written opinion issued by

the district court of appeal. /d. See also Florida Star ».

BIE. 530 So.2d 286, 288 n.3(k la. 1988).

99

No particular form of written opinion is

required; it need not specifically refer to any of the

constitutional criteria as long as it can be determined

from the opinion that one or more of the criteria is

satisfied. Ford Motor Co. wv. Kikis, 401 So.2d 1341,

1342(Fla. 1981). Moreover, for the purposes of

determining its jurisdiction in this regard, the Florida

Supreme Court only considers opinions joined in by a

majority of the panel of the district court of appeal; it

does not consider a concurring or dissenting opinion

standing alone in order to anchor its jurisdiction.

Reaves v. State, 485 So.2d 829, 830 & n.3(F la. 1986).

Under the supreme court’s internal operating

procedures, when notice of a _ party’ seeking

discretionary review is filed, the clerk’s office first

determines whether a district court of appeal has

written an opinion in the case and, if there is no opinion,

the case is automatically dismissed. Although the

absence of a written opinion will preclude review by the

Fiorida Supreme Court in almost every case (with the

exception of some requests for extraordinary writs),

parties before the district courts of appeals are nol

entitled to demand written opinions which would

qualify them for review by the Florida Supreme Court

School Bd. v. District Court of Appeal, 467 So.2d 985,

YS86(F'la. 1986).

hus there is no pathway Lo the Supreme Court

for a litigant who has requested but failed to obtain an

opinion discussing a point on which the litigant desires

supreme court review. See Cope, Gerald B., Jr.,

lhscret COL HY Re em Of the Decisions ays Lite rmned cule

Annellate Courts: A Comparison of Florida's Susten

It

With 1 hose f t thi ()thag { State sand bhig Peds ral Nysten

23

45 Fla. L. Rev. 21(1993), passim. In 2008, of the 25,419

cases on appeal by notice or petition in the five district

courts of appeal in Florida, 10,520 were decided by per

curiam decisions of a panel affirming the lower court

without opinion. Another 9,682 were disposed of by an

order of a clerk or a judge without opinion, meaning

that the case did not deserve appellate review. Only

4,652 were decided by a written opinion which

reference some authority for its result. Thus Florida’s

intermediate appellate courts decide over 80% of the

appeals they hear with per curiam orders issued

without opinions and the losing party has no right to

seek further review of these summary dispositions by

the Florida Supreme Court

Because the Florida District Court of Appeal for

the Second District elected not to write an opinion on

this appeal by petitioner, the Supreme Court of Florida

was without jurisdiction to review this case and the

Florida District Court of Appeal for the Second District

was therefore the highest State court in which a

decision could be had. Fla. Const. Art. V, § 3(b)(3). See

Palmore v. Sidoti, 466 U.S. 429, 431(1984);Willzams v.

Florida, 399 U.S. 78, 80 n. 5(1970), Jenkins v. Florida,

385 So.2d 1356, 1359-1360(F la.1980).

Given the finality of the district court of appeals’

per curiam decision affirming the circuit court without

a written opinion explaining its rationale and the fact

that petitioner is now denied the right to have the

propriety of this summary affirmance reviewed by the

Florida Supreme Court, petitioner submits that this

systemic official action by the State of Florida.

expressed through its constitutional scheme defining

the jurisdiction of the Florida Supreme Court, denies

24

her the constitutional right to effective appellate

review, denies her fair access to the courts, denies her

equal protection of the laws and denies her substantive

due process. This Court should therefore grant the

petition and declare that the Florida courts’ use of per

curiam decisions without written opinion denies the

affected appellants due process of law and the equal

protection of the laws.

In the first place, the abbreviated procedure for

affirming decisions of the trial court with per curiam

decisions absent any explanation or rationale for the

benefit of the parties does not comport with due

process because it is incompatible with the concept of a

fair hearing. The articulation of reasons for a decision

by an appellate court is crucial to the parties affected

because its rationality legitimizes the process,

justifying the result by reference to prior authority and

fostering predictability and normalcy in outcomes.

Moreover, reasoned results—anchored by reference to

precedent----bolsters the public’s confidence in the

judiciary and infuses society with a code of behavior

founded on rules which allow disputes to be settled in

an orderly, predictable manner. See Boddie v.

Connecticut, 401 U.S. 371, 374-375(1971). See also

Republican Party v. White, 586 U.S. 765, 790

(2002)(O’Connor, J., concurring).

A rationally explained result will identify the

factual predicates for the decisionmaking process on

each crucial fact issuc while at the same time giving a

higher appellate court, either the Florida Supreme

Court or this Court, a sufficient record upon vvhich to

review the decision. See failroad Commission v.

Maxcy, 281 U.S. 82, 83(1930); Goldberg v. Kelly, supra.

25

None of these salutary purposes is served by per

curiam. affirmances issued without written opinions.

At a bare minimum, due process should require

that with fully briefed appeals and a fortior: with fully

argued appeals, the Florida intermediate appellate

courts issue opinions or the citation of authorities

which it believes justifies the result; and if either of the

parties has marshaled alternate arguments, it should

identify which arguments prevailed. Accord, ABA

Standards Relating to Appellate Courts § 3.36(b) &

commentary at 67(2000)(“Litigants are entitled to

assurance that their cases have been thoroughly

considered. The public, also, is entitled to assurance

that the court is thus performing its duty. Providing

that assurance requires that the decision of every case

be supnorted at least by reference to the authorities or

grounds upon which it is based.”).Anything less

deprives parties before the Florida distriet courts of

appeals of a meaningful hearing with a fair opportunity

to present their claims. Armstrong v. Manzo, 380 U.S.

at 552. Logan v. Zimmerman Brush Co., 455 U.S. 422,

437(1982).

In the second place, the provision in the Florida

constitution which deprive further appellate review by

the Florida Supreme Court where the intermediate

courts fail to issue an opinion is an unconstitutional

denial of access to the courts. As the Boddie Court

explained, the State’s monopoly over the dispute

resolution machinery with its judicial and court

personnel means that it must exercise this power

evenhandedly so that every litigant is provided due

process. 40] U.S. at 374-377. Given that most litigants

in the Florida court system do not have any other

26

choice for resolving disputes, the machinery offered by

the State must provide a realistic remedy for all those

who enter its system. Logan v. Zimmerman Brush Co.,

supra. Wolff v. McDonnell, 418 U.S. 5389, 579(1974).

Boddie, supra. Bounds v. Smith, 480 US. 817,

828(1977).

Thus where the State provides a means of

appeal, it cannot then turn this opportunity into one

which is discriminatory, arbitrary and totally unrelated

to any state purpose. /d. See also Scott v. McNeal, 154

U.S. 34, 45-46(1894). The practice of issuing per curiam

decisions without opinions does jus® that; it penalizes

litigants for the dramatic increase in appeals which

have beset the court system since 1956. This systemic

official action, Christopher v. Harbury, 536 U.S. 403,

414-415 & n.12(2002), has deprived appellants in the

district courts of appeals of a meaningful hearing on

their claims and then deprived them of obtaining

further appellate review except by this Court via a

petition for certiorari, a less than 1% chance of

obtaining any relief. This inadequate judicial

machinery frustrates effective appellate review and

denies litigants meaningful access to the courts.

Third, this system of per curiam decisionmaking

without written opinion denies equal protection of the

laws to the.affected litigants. Two disparate classes are

created by this practice absent any legitimate reason

for doing so: those litigants who receive written

opinions disposing of their claims on appeal thereby

entitling them to seek further appellate review by the

Florida Supreme Court if they disagree with the court’s

reasoning and those litigants who receive no

explanation for the denial of their appellate claims and

at

are also deprived of further appellate review of those

claims except by this Court via a petition for certiorari.

Similarly situated people are thereby treated

differently and this intentional disparate treatment

without reason is the hallmark of invidious

discrimination. AMTRAK wv. Morgan, 536 U.S. 101,

116(2002). Missouri v. Jenkins, 515 U.S. 70, 121(19985).

This disparate treatment of Florida litigants is

further highlighted by the fact that Florida is one of

only two States which relegate its citizens to a one-tier-

only appeal through its issuance of per curiam

decisions without written opinions. All the other States

require the issuance of some kind of memorandum

decision by the intermediate appellate court and permit

another tier of discretionary further appellate review

by the State’s highest court in order to provide litigants

on appeal with due process and an effective appellate

remedy. The disparate treatment of Florida litigants

therefore is measured not only by reference to those in-

state litigants who receive written opinions but also by

those out-of-state litigants who enjoy another tier of

appellate remedies unavailable in Florida.

Finally, Florida’s appellate machinery denies

litigants substantive due process. The essence of

substantive due process is an individual’s right to be

free from the arbitrary action of government,

regardless of the fairness of the procedures employed

to implement that action. Collins v. Harker Hetghis,

503 U.S. 115, 125(1992). Daniels v. Williams, 474 U.S.

$27, 331(1986) citing Dent v. West Virginia, 129 US.

114, 1281889). It thus serves to prevent governmental

power from being “used for purposes of oppression.”

Dantels, 474 U.S. at 331-232(1986) quoting Murray's

28

Lessee v. Hoboken Land & Improvement Co., 18 How.

272, 277 (1856). The systemic official action by the State

of Florida, expressed through its constitutional scheme

defining the jurisdiction of the Florida Supreme Court

and permitting its intermediate appellate courts to

decide appeals through the use of per curiam decisions

without opinions is oppressive, arbitrary and unfair,

denying litigants who must resort to this system to

resolve disputes their substantive due process rights.

CONCLUSION

For the reasons identified herein, a writ of

certiorari should issue to the Second District Court of

Appeals in erder to review and reverse its per curiam

decision without opinion affirming the final summary

judgment in respondent’s tavor and against petitioner

by the Circuit Court for Sarasota County and to

supplement the record on appeal so that the

Harrisdirect letter of September 2002 to the decedent is

included therein; and the matter should be remanded to

the Circuit Court for Sarasota County for a trial of the

factual issues necessary to determine the decedent’s

intentions abcut the disposition of his IRA proceeds in

the wake of his divorce. This Court should also enter a

new judgment declaring that the use of per curiam

decisions without opinion by Florida’s intermediate

appellate courts denies affected appellants due process

or the equal protection of the laws; or provide

petitioner with such other relief as is fair and just in the

circumstances of this case.

29

Respectfully submitted,

DENNIS P. DERRICK CARLJ. ROBIE, IIT

7 Winthrop Street Counsel of Record

Essex, MA 01929-1203 2525 Sunnybrook Drive

(978) 768-6610 Sarasota, FL 34239

(941)865-2828

la

IN THE CIRCUIT COURT OF THE 127 JUDICIAL

CIRCUIT, IN AND FOR Sarasota COUNTY,

FLORIDA

Case No.:

Division:

Andreas David Bothe

Petitioner,

And

Pamela Jean Bothe

Respondent.

MARITAL SETTLEMENT AGREEMENT FOR

SIMPLIFIED DISSOLUTION OF MARRIAGE

We, (Husband’s full legal name) Andreas David Bothe

and (Wife’s full legal name) Pamela Jean Bothe, being

sworn, certify that the following statement are true:

1. We were married to each other on (date) August 12,

1967.

2. Because of irreconcilable differences in our marriage

(no chance of staying toget‘er), we have made this

agreement to settle once anc for all what we owe to

each other and what we can expect to receive from each

other. Each of us states that nothing has been held

back, that we have honestly included everything we

could think of in listing our assets (everything we own

and that is owed to us) and our debts (everything we

own), and that we believe the other has been open and

honest in writing this agreement.

2a

3. We have both filed a Financial Affidavit, Florida

Family Law Rules of Procedure Form 12.902(b) or (c).

Because we have voluntarily made full and fair

disclosure to each other of all our assets and debts, we

waive any further disclosure under rule 12.285, Florida

Family Law Rules of Procedure.

4, Each of us agrees to execute and exchange any

papers that might be needed to complete this

agreement, including deeds, title certificates, ete.

SECTION I. MARITAL ASSETS AND

LIABILITIES

A. Division of Assets. We divide our assets (everything

we own and that is owed to us) as follows; Any personal

item(s) not listed helow is the property of the party

currently in possession of the item(s).

1. Wife shall receive as her own and Husband shall have

no further rights or responsibilities regarding these

assets:

| ASSETS: DESCRIPTION OF ITEM(S) __| Current

| WIFE SHALL RECEIVE (To avoid Fair

confusion at a later date, described each Market

item as clearly as possible. You do not Value

need to list account numbers. Where

applicable, include whether the name on

any title/deed/account described below is

wife’s, husband’s, or both.)

Cash (on hand) | ____| $20950 |

Cash (in banks/credit unions) Certificates 700,000

»

oa

| of Deposit

Stocks/Bonds ETrade Acct - Pamela J. 253,198

Bothe

Real estate: (Home) 463 Piasso Drive _ 1,550,000

Nokomis FL

Automobiles: Lincoin 22,4(0()

Retirement plans (Profit Sharing, Pension, | 777,782

| IRA, 401(k)s, ete.) Pamela J. Bothe

Furniture & furnishings in home — | 10,000 an

Life insurance (cash surrender value) 32,480

First Colony — Pamela J. Bothe

Total Assets to Wife 3,366,755

2. Husband shall receive as his own and Wife shall have

no further rights or responsibilities regarding these

assets:

husband’s, or both.)

| ASSETS: DESCRIPTION OF ITEM(S) Current

| WIFE SHALL RECEIVE (To avoid Fair

_ confusion at a later date, described each Market

item as clearly as possible. You do not need | Value

_to list account numbers. Where applicable,

include whether the name on any

title/deed/account described below is wife’s,

$79,050

| Cash (on hand)

Cash (in banks/credit unions) Certificates of

1,000,000

da

| Deposit _

USAA account Andreas David Bothe

|

Stocks/Bonds ETrade Acct -

Rev Trust

30the Family

9800 |

203,193

|

|

Notes (money owed to you in writing)

| Hullinger

25,000

Real estate: (Rental) 11558 Aquamari ine

Circle, Fountain Valley, CA

740,000

Automobiles: 2000 Mercedes ST, 600

35,400

| 1998 Dodge Pickup

Boats: 9’ Suncoaster Sail Boat

SeaDoo & Trailer

| 8055

200

| Y500

_2002 Harley Davidson moroteycle & trailer

13,000

| Retirement plans (Profit Sharing, Pension,

IRA, 401(k)s, etc.) Andreas David Bothe

Collectibles Silver Ingot

Furniture & fur nishings i in home

Life insurance (eash surrender value) Fi irst

Colony — Andreas David Bothe

1,089,546

—————

=

pi T

32,480

fetc.)equipment

Sporting and entertainment (T.V., stereo,

10.000

|

Other Assets: RV airplane kit

“Air plane Engine

Propeller (air rplane)

16.9 12

| 27,614

16, 355

Ja

Engine Block

ee - —

i

{

B. Division of Liabilities/Debts. We divide our liabilities

(everything we owe) as follows

1. Wife shall pay as her own the following and will not

at any time ask Husband to pay these debts/bills.

| Total Debts to he Paid by None

| W ife

2. Husabnd shall pay as his own the following and will

not at any time ask Wife to pay these debts:

Total Debts to be Paid by | None

Husband | !

l certify that I have been open and honest in entering

into this settlement agreement. I am satisfied with this

agreement and intend to be bound by it.

Dated: Feb 21, 2006

s/Andreas David Bothe

Signature of Husband

State of Florida

County of Sarasota

Sworn to or affirmed and signed before me on Feb 21,

2006 by Andreas David Bothe

s/Lisa R. Wheeler

Notary Public

Dated: 2/13/2006

s/Pamela Jean Bi the

signature of Wife

State of Florida

County of Sarasota

sworn to or affirmed and signed befc. e me on I'eb 21,

2006 by Pamela Jean Bothe

s/Thida Sariya

Notary Pubhe

ia

Recorded: Mar 15, 2006

IN THE CIRCUIT COURT OF THE 12°" JUDICIAL

CIRCUIT, INAND FOR SARASOTA COUNTY,

FLORIDA

Case No. 2006-dr-1548 se

Division:

Andreas David Rothe

Petitioner,

And

Pamela Jean Bothe

Respondent.

FINAL JUDGMENT OF SIMPLIFIED

DISSOLUTION OF MARRIAGE

This cause came before this Court for a hearing on the

parties’ Petition for Simplified Dissolution of marriage

The Court having reviewed the file and heard the

testimony, makes these findings of fact and reaches

these conclusions of law:

1. The Court has jurisdiction over the subject matter

and the parties.

2. At least one party has been a resident of the State of

Florida for more than 6 months immediately before

filings the Petition for Simplified Dissolution of

Marriage.

3. The parties have no minor or dependent children in

common, and the wife is not pregnant.

Sa

4. The marriage between the parties is irretrievably

broken. Therefore, the marriage between the parties is

dissolved, and the parties are restored to the status of

being single.

5. Marital Settlement Agreement

a. The parties have voluntarily entered into a Marital

Settlement Agreement, and each has filed the required

Financial Affidavit. Therefore, the Marital Settlement

Agreement is filed as “Exhibit A” in this case and is

ratified and made a part of this final judgment. The

parties are ordered to obey all of its provisions.

6. Yes. The wife’s former name of (full legal name)

PAMELA JEAN HANSEN is restored.

-

?7. The Gourt reserves jurisdiction to enforce the

marital settlement agreement.

ORDERED on 3/15/06

CIRCUIT JUDGE

DLJ direct

IRA APPLICATION & ADOPTION AGREEMENT

INVESTOR INFORMATION

Account Owner’s Name: Andreas David Bothe

Date of Birth: Oct. 20 1943

Married: Yes

Mailing Address: 463 Picasso Drive

City/State/Zip: Nokomis, F'L 34275

Citizenship: U.S.

TYPE OF IRA YOU ARE OPENING

Participant IRA

PLEASE DESIGNATE YOUR

BENEFICIARY(UES) BELOW

I designate the following person or persons below as

primary and contingent beneficiaries for my IRA Plan.

Please attach additional paper if needed.

A. PRIMARY BENEFICIARY(ES)

Name: Pamela Jean Bothe

DOR: 9-30-45

Mailing Address: 463 Picasso Drive

City/State/Zip: Nokomis, FL 34275

If you are married, is your primary beneficiary your

Relationship: Wite

% of Benefits: 100%

Sex: Female

spouse?: Yes

10a

B. CONTINGENT BENEFICIARY(IES) To receive

benefits if none of the Primary Beneficiaries survive

me.

Name: Annemarie Bother

DOB: March 31, 1947

Mailing Address: 4065 SW 51* B

City/State/Zip: Ft Lauderdale, FL 33314

Relationship: Sister

% Benefits: 100

Sex: Female

FINANCIAL INFORMATION

Aecyunt Owner’s Annual Income: $100,000-$250,000

Account Owner's Net Worth: Over $1 million

YOUR EMPLOYMENT INFORMATION

Account Owner’s Employer: Retired

a a

PLEASE READ AND SIGN BELOW

To: DLJdireet Ine.

I have received and read the Customer Agreement, the

Individual Retirement Account Disclosure Statement

and Account Plan, and the Pershing Government

Account Prospectus, set forth in the DLJdirect IRA

disclosure document.

I understand that DLJdirect will invest and reinvest

the assets in the account only on my direction and will

lla

not give me legal, investment or tax advice or offer any

opinion on the value of any investment for my account.

I understand and agree that DLJdirect may tape-

record my telephone conversations.

I understand and agree that I will earn income on funds

invested in the Pershing Government Account

designated on this application in accordance with the

terms of the Prospectus of said fund, a current copy of

which I have read and understood.

I understand the following fees may be paid separately

or collected from my account balance: (a) and annual

maintenance fee: (b) account termination fee. DLJSC

may change the fee schedule from time to time, as

provided in the Individual Retirement Account

Disciosure Statement and Account Plan, and certain

other charges may apply.

I understand the rollover rules and conditions and I

have met the requirements for making a rollover. Due

to the important tax consequences of rolling over funds

or property I have been advised to see a tax

professional. All information provided by me is sure

incorrect and may be relied on by DLJdirect. I assume

full responsibility for rollover transactions and will not

hold DLJdirect liable for any adverse consequences

that may result. If I choose to make a rollover

contribution, I hereby irrevocably designate this

contribution and funds or other property as a rollover

contribution.

I hereby adopt the Donaldson, Lufkin & Jenrette

Securities Corp. Individual Retirement Custodial

12a

Account Plan (the “Plan”) (or any successor pursuant to

the terms of the Plan which is made part of this

agreement, establish the Account described above,

name DLJSC as Custodian if executed in due course. I

have read and understand, and agree to be bound by

the conditions of the Plan, the DLJdirect Customer

Agreement, and the Pershing Government Account as

described in the DLJdirect IRA Customer Agreement

brochure containing the IRA Disclosure Statement and

Account Plan (REV. Oct. 1992) as amended from time

to time.

Please note that the DLJdirect Customer Agreement

contains a pre-dispute arbitration agreement, which is

set forth in paragraph 22 & 23 of the Customer

Agreement.

s/Andreas David Bothe

Date: Oct 5, 1998

13a

Harrisdirect

Harborside Financial Center

501 Plaza II

Jersey City, New Jersey 07311

September 2002

IRA FBO ANDREAS D. BOTHE

DLJSC AS CUSTODIAN

463 PICASSO DR

NOKOMIS, F'L 34275-1448

Dear Harrisdirect Customer,

We are writing to inform you of some administrative

changes to your retirement account. Effective

November 1, 2002, Donaldson, Lufkin & Jenrette

Securities Corporation will resign as Custodian of your

retirement account and appoint Harris Investor

Services LLC ("HIS") as the new custodian. You will

still have the same account number and continued

access to your account through the Harrisdirect

services you have come to enjoy.

While the change in custodianship of your retirement

account has little effect on your account, it does require

that you complete a new adoption agreement. To

complete this change, the IRS requires a formal

agreement between you and HIS to ensure that your

account continues its special tax advantages.

Accordingly, we ask that you review the new

retirement documents and return the completed

adoption agreement in the postage paid envelope

provided. If you do not return the completed form or

transfer your account by November |, 2002, we may

l4a

close your retirement account and distribute the assets

to you, at which point you may be subject to income and

penalty taxes arising from the distribution unless you

roll over the assets to a new retirement account within

60 days. If you would rather transfer your account to

another custodian, please do so within thirty (30) days

from the date of this letter. Please note that choosing

another custodian will terminate your account with

Harrisdirect and you will be charged a $75 termination

fee as well as the appropriate current year annual

maintenance fee.

If you wish to update the contact information for your

account, you may do so in the Account Settings section

of the Harrisdirect Web site. Additionally, you can

change the beneficiary designation for your account by

sending us a completed IRA Designation of Beneficiary

form that is available in the Customer service section of

our web site.

[f you have any questions, please contact a Harrisdirect

representative at 1.800.825.5723 or visit a Harrisdirect

Investment Center near you.

Sincerely,

Barry Mione

Managing Director of Investor Services Harris

Investor Services LLC

Member NASD, SIPC

Donaldson, Lufkin & Jenrettc Securities Corporation

15a

March 21, 2006

Last Will and Testament of Andreas David Bothe

I have various assets in my state. Because a recent

divorce, some are owned by me individually, and others

are ina Family Trust.

My former wife, Pamela Jean Bothe, who is now known

as Pamela Jean Hansen is one of the current trustees.

Because I have not removed her from that position I

believe that she may distribute those assets that are

currently in the Trust in accordance with its provisions.

Therefore, all assets owned by the Trust should stay

there for the benefit of the surviving trustee and

grantor, Pamela Jean Bothe, who is now known as

Pamela Jean Hansen.

I wish to leave my Individual Retirement account to

Margaret Lindsey. I don’t know the mechanics of this.

However, 't is with E Trade Financial, account number

5729-3255. it is my wish that she have this for her

retirement.

I have a Mercedes-Benz Automobile, a Harley-

Davidson Motoreycle, and a Sea Doo watercraft that

are owned by me individually. The titles are on the

dining room table at my residence, 5029 Hanging Moss

Lane.

I have a stock account with FE Trade 6087-2086 in my

individual name

! wish to leave the stock account and all other items

owned by me individually to my sister, Anne Marie

l6a

Bothe. I request that the trustee distributes the other

stock account with E Trade 5726-8590, which is in the

name of the trust, also to my sister,Ann Marie Bothe.

Because my E Trade account, 6087-2086 is an Option

account I asked that my friend Henry Whitmore advise

my sister, Ann Marie Bothe on its proper

administration.

I forgive the obligation my sister, Ann Marie Bothe,

owes me on a second mortgage on her home in

Hollywood, Florida. When the mortgages satisfied in

the title clear, I wish the proceeds to go to her, I don’t

know the mechanics of this. However, that is my wish.

I wish the benefit of my First Commie Life Insurance

policy go to my former wife, Pamela Jean Bothe, now

known as Pamela Jean Hansen. She is the beneficiary

on the policy now. Is my wish that any proceeds go to

her.

I have a partially completed airplane located in a

hangar, JI-113, at the Sarasota Brandenton Airport.

There are sufficient resources in my estate for the

disposal of the airplane and the return of the hangar to

the condition required by the airport authority. I asked

the trustee to coordinate the disposal and return of the

hangar to its original condition.

All the documents that I have are on the dining room

table at 5029 Hanging Moss Lane.

s/Andreas David Bothe

Andreas David Bothe

March 21, 2006

17a

A.David Bothe

5029 Hanging Moss Lane

Sarasota, Florida 34238

March 21, 2006

Hey,

I love you. This is really hard for me today. I so wanted

to start my life over again with you as my wife and

companion.

The last 20 years with Pam have been very tough. |

resented many of the things she did. I always felt she

had other priorities.

I so loved being with you.

But, this damn depression started working on me again.

I keep trying to fight it. It keeps coming back.

Somehow Pam found all my e-mails to you. I don't

understand how that happened. Most of them prior to

September were quite innocuous. But, it seems she

found a way to get to almost all of them.

Even though there was nothing between us until the

separation, I still feel a tremendous sense of betrayal

and guilt. That is not your fault. You have been

wonderful.

I'm just very mentally screwed up. I can't realty bring

you into a situation where you need to take care of me.

I don't want to be put in some institution. I have not

been able to sleep or relax since January 15. I truly

cannot cope.

18a

[ have enclosed my last will and testament. I'm sure

you will have to get a lawyer to receive the money from

the retirement plan. I don't know anything about the

legalities of a will. But since I have-written out my

wishes in some detail I would hope that a court would

grant them.

I know I am a coward. It seems as though | hurt others

very much without meaning to. I just wanted to be

happy. | am so sorry about all of this. I hope you can

forgive me.

Goodbye

s/Dave

19a

Case No. 2D08-557

IN THE DISTRICT COURT OF APPEAL OF

FLORIDA

SECOND DISTRICT

ANNEMARIE BOTHE Appellant,

v.

PAMELA JEAN HANSEN, Appellee.

Opinion filed November 7, 2008.

Appeal from the Circuit Court for Sarasota County;

Robert B. Bennett, Jr., Judge.

Carl J. Robie, If, Sarasota, for Appellant.

Susan J. Silverman, Sarasota, for Appellee.

PER CURIAM.

Affirmed.

FULMER, WALLACE, and LaROSE, JJ., Concur.

20a

May 8, 2008

CASE NO.: 211308-557

L.T. No.: 06-CA-4875 SC

IN THE DISTRICT COURT OF APPEAL OF

FLORIDA

SECOND DISTRICT

ANNEMARIE BOTHE Appellant,

-

PAMELA JEAN HANSEN, Appellee.

BY ORDER of THE COURT:

Appellant's motion to supplement the record is granted

as to the court order of March 27, 2008, dismissing

E*Trade, and is denied as to the September 2002 letter

from Harrisdirect to appellant. Appellant shall make:

arrangements within three days with the clerk of

circuit court for the supplementation of the record with

the items mentioned in the motion, with the

supplemental record to be filed in this court within

twenty-five days from the date of this order,

I HEREBY CERTIFY that the foregoing is a true

copy of the original court order.

James Birkhold Clerk

2la

CASE NO. 2006 CA 4875 SC

IN THE CIRCUIT COURT IN AND FOR

SARASOTA COUNTY, FLORIDA CIVIL DIVISION

H

PAMELA JEAN HANSEN, Plaintiff,

VS.

E*TRADE FINANCIAL CORP., a foreign

corporation, and ANNEMARIE BLITHE, Defendants.

FINAL SUMMARY JUDGMENT

This case was heard on plaintiff's motion for summary

judgment. The court having reviewed the pleadings,

including those filed in support of and in opposition to,

the motion, as well as the legal precedents argued by

the parties, and being otherwise fully advised in the

premises, finds as follows:

Plaintiff was previously married. Her marriage was

dissolved March 15, 2006. Her former husband is now

deceased.

Plaintiff and her former husband entered into a marital

settlement agreement which provided for equitable

distribution of certain assets. Among the assets

received by the deceased former husband was an IRA

account which the former husband had opened with a

company called DLJ Direct. The decedent, at the time

of opening the account, had designated his then (now

former) wife the primary beneficiary of the account. At

some point, the account was acquired by defendant,

E*TRADE. When the marital settlement agreement

was executed, the IRA account was identified as an

) )

ee

account with E*TRADE. Therefore, it is clear that the

decedent was aware that his IRA account was held by

E*TRADE at the time the decedent and plaintiff were

divorced.

The marital settlement contained no: provision

requiring decedent to designate a beneficiary.

Plaintiff, by executing the marital settlement

agreement, gave up any right she then had to claim an

interest in the IRA. account. At that point, plaintiff had

a mere expectancy which was subject to extinction had

decedent designated a different primary beneficiary.

E*TRADE has policies regarding the designation of,

and change of, beneficiaries for its IRA accounts. One of

those policies provides that changes of beneficiary “only

be made on a form provided by or acceptable to us..."

The E*TRADE policies further require that any

change of beneficiary be "filed with us during your

lifetime."

Decedent never filed a change of beneficiary with

E*TRADE on a form provided by or acceptable to

E*TRADE during decedent's lifetime.

Both the plaintiff and the defendant, Bothe, seek

declaration of their rights to the IRA account.

The holding in Luszcz v. Lavoie, 787 So.2d 245 (T'la. 2d

DCA 2001) is dispositive of the issues in this dispute

Based on the foregoing, it is ADJUDGED:

1. Plaintiff is entitled to al Iproceeds of the decedent's

23a

E*TRADE IRA account (Account No. 5739-3255), and

defendant, E*TRADE, shall pay those proceeds over to

plaintiff as she may direct.

2. Defendant, ANNEMARIE BOTHE, © both

iidividually and as personal representative of

decedent's estate shall take nothing by her

counterclaim.

5. The court reserves jurisdiction to enforce the

provisions of this judgment and to determine any issues

regarding attorney fees and costs.

ADJUDGED at Venice, Sarasota County, Florida this

Ist day of February, 2008.

Robert B. Bennett, Jr.

Circuit Judge

24a

December 31, 2008

CASE NO.: 211308-557

L.T. No.: 06-CA-4875 SC

IN THE DISTRICT COURT OF APPEAL OF

FLORIDA

SECOND DISTRICT

ANNEMARIE BOTHE Appellant,

V.

PAMELA JEAN HANSEN, Appellee.

BY ORDER of THE COURT:

Appellant's motion for rehearing, rehearing en banc

and or written opinion is denied.

I HEREBY CERTIFY that the foregoing is a true

copy of the original court order.

1 Ad

James Birkhold

Clerk

OURT

C O;

Fe att Ae