Supreme Court of floríbaROBERT CRAIG MACLEOD SC13-0175

Appellant Lower Tribunal:5th DCA: 5D12 CA 000413

v. 7* Circuit: 2011 CA 000458

PUBLIX SUPERMARKETS, INC.,

Appellee

February 22"d, 2013

APPEAL BRIEF

DIRECT CONFLICT OF DECISIONS

ROBERT CRAIG MACLEOD34 Russman LanePalm Coast, FL 32164(386) 334-0864

Forma Pauperis Pro Se

L TABLE OF CONTENTSII. TableofCitations ................................................ ii

III. SUMMARY..................................................... A

IV. APPEAL-CONFLICT OFDECISIONS ............................ 1V. BASISFORINVOKINGJURISDICTION........................... 2

• CAUSEOFACTIONAGAINSTPUBLIX ........................... 3

• EVIDENCEOFRECORDBEFORETHECOURT ................... 3

• DAMAGES..................................................... 3

VI. DIRECTCONFLICTWITHDECISIONS .......................... 4

I. DISMISSAL WITHPREJUDICE ................................ 42. INFLAMMATORYPERSONAL ATTACKS ...................... 73. DELETIONSFROMTHERECORD ............................. 114. VIOLATION OF DUE PROCESS "REAL" OPPORTUNITY TO BE

HEARD..................................................... 13

5. UNREASONABLE JUDICIAL ACTION . . . . . . . . . . . . . . . . . . . . . . . . . 16

VII. STATEMENT OF FACTS FROM THE RECORD . . . . . . . . . . . . . . . . . . . . . 18

VIII. REQUESTED RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 20

IX. ARGUMENT vis-à-vis THE ORDER SUB JUDICE . . . . . . . . . . . . . . . . . . . . 21X. CONCLUSION.................................................. 25

XI. CONFLICTOFINTEREST........................................ 25

XII. DISMISSAL WITH PREJUDICE WAS UNAUTHORIZED . . . . . . . . . . . . . 28XIII. BASED ON DECISION CONFLICT THE ORDER SHOULD BE VOIDED 29Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Certificate of Compliance with Font Requirement . . . . . . . . . . . . . . . . . . . . . . . . 31

APPENDIX 1: "ORDER GRANTING DEFENDANT'S MOTION TO DISMISS"["With Prejudice" Improperly Omitted from Title]

APPENDIX 2: On Improper Judicial AssignmentsAPPENDIX 3: Publix Retail Notice of DischargeAPPENDIX 4: CASE 2011 CA 000458 Docket - PublixAPPENDIX 5: EEOC Authorization to Sue

Table of Contents Page: i

Cases II. CASE CITATIONS PageAdams v. Knabb Turpentine Co.435 So.2d 944, 946 (Fla. 1" DCA 1983) 7, 29

Ansin v. Thurston101 So.2d 808 (Fla. 1958) 14

Babb v. Edwards412 So.2d 859 (Fla. 1982) 27, 28

Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Cooperative Bank592 So.2d 302, 305 (Fla. 1* DCA 1991) 7, 29

Board ofEducation v. Farmingdale Classroom Teachers Assoc38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975) 15

Brown v. Rowe96 Fla. 289, 118 So. 9 (Fla.1928) 26, 27

Bundv v. Rudd366 So.2d 440, 442 (Fla.1978) 26, 27

Cale(fe v. Vitale488 So.2d 627 (Fla. 4th DCA 1986) 27, 28

Canakaris v. Canakaris382 So.2d 1197, 1203 (Fla.1980) B, 16, 17, 24

Castro v. Luce650 So.2d 1067 (Fla. 2"4 DCA 1995) 1, 2, 21, 31, App. 2 p. 1

Cedars Med. Ctr., Inc. v. Ravelo738 So.2d 362 (Fla. 3'd DCA 1999) 8

City of Winter Park v. Jones392 So.2d 568 (Fla. 5* DCA 1980) 14

Cook v. City of Winter Haven Police Dep't837 So.2d 494 (Fla. 21'd DCA 2003) 12

Corie v. Citv ofRiviera Beach954 So. 2d 68 (Fla. 4th DCA 2007) 27, 28

Case Citations Page: ii

Countryside Christian Center, Inc. v. City ofClearwater542 So.2d 1037 (Fla. 2''d DCA 1989) 6

Crews v. Ellis531 So.2d 1372 (Fla. 1"* DCA 1988) A, 3, 6

Crosbv v. State97 So.2d 181 (Fla. 1957) 28

Curbelo v. Ullman571 So.2d 443, 445 (Fla.1990) 14

DSA Marine Sales & Serv., Inc. v. Countv ofManatee661 So. 2d 907 (Fla. 2''d DCA 1995) 12

Delia & Wilson, Inc. v. Wilson448 So.2d 621 (Fla. 4* DCA 1984) 6

Dep't ofLaw Enforcement v. Real Prop.588 So.2d 957, 960 (Fla. 1991) 14

Department ofRevenue v. Golder322 So. 2d 1 (Fla. 1975) 26, 28

Dickenson v. Parks104 Fla. 577, 140 So. 459 (1932) 28

Dingess v. Fla. Aircraft Sales & Leasing, Inc.442 So.2d 431 (Fla. 5* DCA 1983 6

Downtown Investments, Ltd. v. Segal551 So.2d 561 (Fla. 3'd DCA 1989) 6

First Union Nat. Bank v. Turnev824 So.2d 172, 189 (Fla. 1** DCA 2001) 13

Folev v. Weaver Drugs, Inc177 So.2d 221 (Fla. 1965) 2

FordMotor Credit Co. v. Sheehan373 So. 2d 956 (Fla. l®l DCA 1979) 6

Case Citations Page: iii

Gerentine v. Coastal Securitv Svstems529 So.2d 1191 (Fla. 5* DCA 1988) 6

Hamide v. State Dep't ofCorrections548 So.2d 877 (Fla. 1" DCA 1989) 6

Horn v. Marine Hospitality Corp745 So 2d 329, 330 (Fla. 4* DCA 1998) 3

Huff v. State569 So. 2d 1247 (Fla. 1990) A, 5, 11, 12, 15, 17, 24

In re Eriksson36 So. 3d 580, 596 (Fla. 2010) 16

In re Inquirv Concerning a Judge(2012) 16

J.B. v. Fla. Dep't ofChildren & Familv Servs768 So.2d 1060, 1063 (Fla. 2000) 14

Jackson v. State421 So. 2d 15 (Fla. 3'd DCA 1982) 7, 9

Jenkins v. State385 So.2d 1356 (Fla. 1980) 2

Kovach v. McLellan564 So. 2d 274, 276 (Fla. 5* DCA 1990) A, 4, 5, 6, 17, 23, 24

Kozel v. Ostendorf629 So.2d 817 (Fla. 1993) 28, 29

Lake v. Lake103 So.2d 639 (Fla. 1958) 14

Liggett Group, Inc. v. Engle853 So.2d 434 (Fla. 3'd DCA 2003) 8

Lowe Inv. Corp. v. Clemente685 So. 2d 84, 85 (Fla. 2''d DCA 1996) 3

Case Citations Page: iv

McLaughlin v. Department ofHighway Safety & Motor Vehicles2 So. 3d 988, 989 (Fla. 2"d DCA 2008), mandate recalled, 4 So. 3d 676 (Fla. 2009) 1

Moore v. Tavlor Concrete & Supply Companv, Inc.553 So.2d 787, 792 (Fla. 1" DCA 1989) 8

Morris N. Am., Inc. v. King430 So. 2d 592, 592, 594 (Fla. 4* DCA 1983) 12

National Football League Players Assoc. v. Office and Prof. Employees Intern. Union, Local2947 F. Supp. 540, 545 (D.D.C.1996) 15

Niki Unlimited, Inc. v. Legal Servs. ofGreater Miami483 So.2d 46, 48 (Fla. 3rd DCA 1986) 14

Noack v. B.L. Watters, Inc410 So.2d 1375 (Fla. 5* DCA 1982) 10

Peterson v. State376 So.2d 1230 (Fla. 4* DCA 1979) 9

Roger Rankin Enterprises v. Green433 So.2d 1248 (Fla. 3'd DCA 1983) A, 4, 6, 24

Rose v. State601 So. 2d 1181 (Fla. 1992) 14

Russ v. State95 So.2d 594 (Fla. 1957) 30

Rudolph v. State832 So. 2d 826 (Fla. 3'd DCA 2002) 8

Ryan v. State457 So.2d 1084, 1092 (Fla. 4* DCA 1984) 9

Rvan's Furniture Exch., Inc. v. McNair120 Fla. 109, 162 So. 483, 487 (1935) 14

Case Citations Page: v

Scull v. State569 So.2d 1251, 1252 (Fla. 1990) 15

Shields v. Flinn528 So.2d 967, 968 (Fla. 3'd DCA 1988) 14

Silva v. Nightingale619 So.2d 4, 5 (Fla. 5* DCA 1993) 8

Solorzano v. First Union MORTG Corp896 So.2d 847, 849 (Fla. 4* DCA 2005) 13

State v. Gillespie227 So.2d 550 (Fla. 2"4 DCA 1969) 12

State ex rel. Davis v. Parks141 Fla. 516, 194 So. 613 (1939) 28

State ex rel. Mickle v. Rowe100 Fla. 1382, 131 So. 3331 (1930) 28

THI Holdings, LLC v. Shattuck93 So. 3d 419 (Fla. 2"4 DCA 2012) 5, 11, 12

Thompson v. Inv. Mgmt. & Research745 So. 2d 475, 476-477 (Fla. 5* DCA 1999) 6, 29

Tvus v. Apalachicola Northern R.R. Co.130 So.2d 580, 587 (Fla.1961) 8

University ofFlorida v. McLarthy483 So. 2d 723 (Fla. 1" DCA 1985) 1

Viets v. Am. Recruiters Enters, Inc.922 So. 2d 1090 (Fla. 4* DCA 2006) A, 13, 14, 16, 24

Walt Disnev World Co. v. Blalock640 So.2d 1156, 1159 (Fla. 5* DCA 1994) A, 7, 24

Ward v. Atlantic Security Bank777 So.2d 1144, 1146 (Fla. 3'd DCA 2001) 13

Case Citations Page: vi

Statutes and Other Legal Authorities: P_age

§ 1.19(a)§ 1.540(b)(3)§ 1.540(b)(4)§ 9.03 (a)(2)(iv)§ 9.100§ 9.340§ Section 3(b)(3)§ 1, 2A, 2B, 5A(6), 3C(1), 3E(1)(c)

Fla. R. Civ. P. 3, 29Fla. R. Civ. P. 1, 11, 20, 30, App. 4, 2Fla. R. Civ. P. 1, 13, 20, 24, 30Fla. R. App. P. 1, 2, 20, 30Fla. R. App. P. 1, 2, 20, 30Fla. R. App. P. 1, 20, 30Florida Constitution Article V 1, 2, 20, 30Code of Judicial Conduct 28

§ 1, 2A, 2B, 3B(1), (2), (5), (7), (8), 3E Code of Judicial Conduct 16§ 3 A(4) Code of Judicial Conduct 14§ 4-8.4(d) Florida Bar Rules 1, 7, 8, 20, 30§ 4-3.4(e) Florida Bar Rules 1, 7, 8, 20, 30Florida Bar Journal May, 2004 Volume LXXVIII, No. 5, Betsy E. Gallagher in "Ten SignsThat You Need an Appellate Lawyer" 11Florida Bar Journal April, 2011 Volume 85, No. 4, "The Conflict PCA: When an AffirmanceWithout Opinion Conflicts with a Written Opinion" by Ezequiel Lugo 1, 3

Case Citations Page: vii

III. SUMMARYThere is no legal rational for the order subjudice which directly conflicts with too many

fundamental principles of law and procedure.

1) Kovach v. McLellan 564 So. 2d 274, 276 (Fla. 5* DCA 1990); et al., requires remand

squarely stating, "Therefore, where a party may be able to allege additional facts, as in

Crews v. Ellis. 531 So.2d 1372 (Fla. 1* DCA 1988), or where the ultimate facts alleged

may support relief based upon another theory, such as in Roger Rankin Enterprises v.

Green, 433 So.2d 1248 (Fla. 3'd DCA 1983), dismissal with prejudice is an abuse of

discretion.

2) Walt Disney World Co. v. Blalock, 640 So.2d 1156, 1159 (Fla. 5* DCA 1994); et al.,

requires remand squarely stating that inflammatory personal attacks and opinion directed

toward the Appellant from the Appellee are fundamental error.

3) Huff v. State, 569 So. 2d 1247 (Fla. 1990); et al., requires remand squarely stating that

failure for a trial court to base its ruling on the motions and pleadings of record before the

court is reversible error. That is, a judgment cannot be determined by deliberately adding

to or deleting matters of record; which, is likened (in Huff id.) to denial of discovery; i.e.,

due process.

4) Viets v. Am. Recruiters Enters, Inc., 922 So. 2d 1090 (Fla. 4* DCA 2006); et al.,

requires remand squarely stating that denying a real opportunity to be fairly heard is in

direct conflict with and contrary to rule of law; i.e., due process; and, pursuant to Fla. R.

Summary Page: A

Civ. P. 1.540(b)(4) voids the judgment of the trial court and thus the 5* DCA PCA

decision.

5) Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) squarely requires remand

where a decision is permeated with excessive decision conflict beyond all reasonable

discretion. The trial court, and thus the 5* DCA PCA, decision is in unreasonable

excessive direct conflict with prior decisions and therefore improper, requiring remand.

A trial court is not allowed to dismiss an action with prejudice pursuant to an outdated

motion to dismiss while ignoring the immediate matters of record. Simply, a trial court is

not allowed to disregard the record to sign an order. The complaint subjudice would have

been easily amended.

Consequently the 5* DCA is not allowed to PCA vis-à-vis Mandate which conflicts with

the record proper directly contradicting the aforementioned fundamental principles of law.

Summary Page: B

IV. APPEAL - CONFLICT OF DECISIONS

COMES NOW, Appellant, Robert Craig MacLeod, pursuant to Article V, Section

3(b)(3) of the Florida Constitution and Fla. R. App. P. 9.03 (a)(2)(iv), Discretionary

Jurisdiction; Fla. R. App. P. Rule 9.340), Recall Mandate; Fla. R. App. P. 9.100; Fla. R.

Civ. P. 1.190(a), Liberality in Amendment of Pleadings; Florida Bar Rules 4-3.4(e) & 4-

8.4(d), Personal Attacks and Opinion are Prohibited; Fla. R. Civ. P. 1.540(b)(3), Relief

from an Order based on Opposing Party Fraud (i.e., Deletions from Record); Fla. R. Civ. P.

1.540(b)(4) Judgment Void if no Opportunity to be fairly Heard; and respectfully moves

this Court to grant his Appeal and that this Court enter an order to show cause addressing

why the order of the 5* DCA, FL, denial of Recall of Mandate, January 3'd, 2013,

(Affirming trial court order granting dismissal with prejudice filed January 19th, 2012 (R

II/190-191)) is not improper and ultimately (1) set aside said order, and (2) directing the 51'

DCA to remand the matter to a neutral trial court (without a conflict of interest) pursuant to

the conflict of decisions enumerated below, or, (3) the Court should assign a neutral Judge

to the 7th CirCuit to "hear, conduct, try and determine" Appellant's cause according to

i A timely motion to recall and modify a mandate may be an appropriate response to aconflict PCA [McLaughlin v. Department ofHighway Safety & Motor Vehicles, 2 So. 3d988, 989 (Fla. 2'1d DCA 2008), mandate recalled, 4 So. 3d 676 (Fla. 2009); University ofFlorida v. McLarthy, 483 So. 2d 723 (Fla. 1* DCA 1985), mandate recalled; Seediscussion from: The Florida Bar Journal April, 2011 Volume 85, No. 4, The ConflictPCA: When an Affirmance Without Opinion Conflicts with a Written Opinion byEzequiel Lugo]

1

procedure with cold neutrality and without prejudice;-2 And, any other relief the court

deems requisite and proper in the furtherance ofjustice; and, states as follows:

V. BASIS FOR INVOKING JURISDICTION

This Court has jurisdiction over this matter pursuant to Article V, Section 3(b)(3) of the

Florida Constitution and Fla. R. App. P. 9.03 (a)(2)(iv), Discretionary Jurisdiction,

expressly and directly conflicting with a decision of another district court of appeal or of

the supreme court on the same question of law; and 9.100(a), Applicability.

"A majority of the [Supreme] Court determined that there was jurisdictionalpower under section 3(b)(3) [Constitution s. V] to review district court decisionsrendered "per curiam" without opinion if from the "record proper" conflict withanother decision could be discerned." [Jenkins v. State, 385 So.2d 1356 (Fla. 1980)citing Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla. 1965)]

This appeal is based upon the "record proper" conflict with other fundamental court

decisions provoking the proposition that a perversion ofjustice or fraud based upon the

Appellee's pleadings belies the trial court January 19*, 2012 "Order Granting Defendant's

Motion to Dismiss with Prejudice" subjudice (R II/190-191), improperly titled "Order

Granting Defendant's Motion to Dismiss". [Appendix 1 ]

This appeal is based entirely on direct conflict of decisions; misapprehending or

misrepresenting the fundamental principles of law, case authority and proceedings

demonstrated by the Order subjudice (R II/190-191) [Appendix 1]; enabling jurisdiction

of the Supreme Court

2 Castro v. Luce, 650 So.2d 1067 (Fla. 2"4 DCA 1995); Appellant was entitled to havethe successor judge designated by the Chief Justice of The Supreme Court because theproceeding involved allegations of disrespect/criticism by the judge. Amidst allegations ofdisrespect and conflict of interest Judge Zambrano was unlawfully assigned. [Appendix 2]

2

A transcript is unnecessary as trial court and 5* DCA conflicts are deduced from the

Order subjudice (R II/190-191) [Appendix 1] conflicting with the Record Proper and

governing case authority. If the error is preserved in the record, pleadings and orders; a

PCA may NOT be issued. -3

• CA USE OFACTION AGAINST PUBLIX: Appellant filed a lawsuit for defamationalleging discrimination against his religion. Appellee notified the Appellant, in writing,that the Appellant was discharged for filing a lawsuit. After a lengthy reinstatementreview process, Appellee refused to reinstate Appellant. Therefore, the Appellantamended his lawsuit to include causes of action pursuant to violations of the (1) FloridaCivil Rights Act Fla. Stat. §760.10 (1)(a) It is unlawful employment practice todiscriminate against the Plaintiffwith respect to his religion; and, (2) Private EmployeeWhistleblower Statute Fla. Stat. §448.102 (1) Retaliatory Action against an employee fordisclosing an unlawful employment practice is prohibited.

• EVIDENCE OF RECORD BEFORE THE COURT: The conduct of Appellees'wrongful behavior was documented by the Appellee's own documents to includeAppellee's "Retail Notice of Discharge" [Appendix 3] dated June 28th, 2011 amongstother documents illustrating Appellee's ever changing story line to include plagiarizingAppellant's testimony to the EEÒC presented as exhibits in Appellant's AmendedComplaint II dated September 20, 2011 (R I/048-130) pursuant to Fla. R. Civ. P. 1.19(a)& (b) wherein leave to amend is givenfreely based upon evolving evidence.

• DAMAGES: Appellant wrongfully experienced compensatory damages for loss ofemployment and pursuant to FordMotor Credit Co. v. Sheehan, 373 So. 2d 956 (Fla. 1*DCA 1979), in today's dollars, a minimum punitive award of $50,000 is justified for theAppellant, against the Appellee.

Lowe Inv. Corp. v. Clemente, 685 So. 2d 84, 85 (Fla. 2"4 DCA 1996) If the standard ofreview, abuse of discretion, is found, a PCA may NOT be issued; [Horn v. MarineHospitality Corp., 745 So 2d 329, 330 (Fla. 4'h DCA 1998) If the eiTor is preserved in therecord, pleadings and orders; a PCA may NOT be issued.

If the record proper preserves conflict with written opinion, the appellate and Supremecourts have jurisdiction; fi·om the Florida Bar Journal April, 2011 Volume 85, No. 4 TheConflict PCA: When an Affirmance Without Opinion Conflicts with a Written Opinionby Ezequiel Lugo Page 46.

3

VI. DIRECT CONFLICT WITH OTHER COURT RULINGS EVINCING 5th DCA& TRIAL COURT ERROR:

1) DIRECT CONFLICT Xovach v. McLellan 564 So. 2d 274, 276 (Fla. 5*h DCA

1990), et al; - DISMISSAL WITH PREJUDICE - Fla. R. Civ. P. 1.190(a), Liberality

in Amendment of Pleadings:

The instant order directly conflicts with Kovach, id.; which, squarely states; "...where

a party may be able to allege additional facts, as in Crews v. Ellis, 531 So.2d 1372 (Fla.

1"' DCA 1988), or where the ultimate facts alleged may support relief based upon another

theory, such as in Roger Rankin Enterprises v. Green, 433 So.2d 1248 (Fla. 3rd DCA

1983), dismissal with prejudice is an abuse of discretion." [Remanded]

After Appellant (employee) completed a reinstatement review process, the Appellee

(employer) refused to reinstate the Appellant. Pursuant to the substantive allegations of

the initial Complaint (religious discrimination, a violation of statute) (R I/001-005),

evidence of record and refusal of Appellant to make amends, Appellant motioned to

amend his complaint [September 20, 2011 (R I/046-047)] with Complaint II [September

20, 2011 (R I/048-130)].

This second amendment included causes of action pursuant to violations of the (1)

Florida Civil Rights Act Fla. Stat. §760.10 (1)(a) It is unlawful employment practice to

discriminate against the Plaintiff with respect to his religion; and, (2) Private Employee

Whistleblower Statute Fla. Stat. §448.102 (1) Retaliatory Action against an employee for

disclosing an unlawful employment practice is prohibited.

4

Background: Appellee made racial/religious slurs (unsupported & anonymous), in

the workplace, directed toward the Appellant. Appellant's initial complaint [June 3'd,

2011 (R I/001-005)] raised only defamation as the initial cause of action (while asserting

the substantive allegation of religious discrimination) giving opportunity for Appellee to

retract said slurs and make amends. Appellant was unlawfully terminated on June 28*,

2011 for filing the lawsuit. Appellant lawfully first amended the lawsuit to include the

illegal dismissal on July 5* (R I/009-017). Appellant reserved filing violations of Fla.

Stat. §760.10 (1)(a), Religious Discrimination; and, Fla. Stat. §448.102 (1), Retaliatory

Action; believing he would be reinstated which would obviate the need for such causes.

The Order Ignores the Second Amendment: Kovach, id., expressly and directly

permits the second amendment. The record indicates a hearing was held on November

9*, 2011 [September 14th, 2011, Notice of Hearing, Clerk's Docket, Appendix 4]. The

record (R II/190-191), notes the "Order Granting Defendant 's Motion to Dismiss w@

Prejudice" was recorded on the 19* of January, 2011.

The Order, improperly omits ruling on Appellant's outstanding September 20*, 2012

"Plaintifp motion for Leave tofile Amended Complaint II" and September 20'h, 2012

"Amended Complaint II". [See Huff id, and THI Holdings, id, discussed below,where a

ruling is erroneous if not "based on matters that appear of record before the court "]

In direct conflict with Kovach, id., the court has ignored, omitted ruling on, and

suppressed the second amendment.

5

Thompson v. Inv. Mgmt. & Research, [745 So. 2d 475, 476-477 (Fla. 5* DCA 1999)]

agrees with Kovach, id., informing that to dismiss with prejudice is an abuse of discretion

if the court offered no opportunity to amend an amendable complaint.

From Kovach, id., continues:

"Unless it appears that the privilege to amend has been abused or that thecomplaint is clearly untenable, it is an abuse of discretion to dismiss acomplaint with prejudice. [See generally Hamide v. State Dep't ofCorrections,548 So.2d 877 (Fla. 1" DCA 1989); Countryside Christian Center, Inc. v. CityofClearwater, 542 So.2d 1037 (Fla. 2"4 DCA 1989); Crews v. Ellis, 531 So.2d1372 (Fla. 1" DCA 1988); Delia & Wilson, Inc. v. Wilson, 448 So.2d 621 (Fla.4th DCA 1984)]

Again from Kovach, id.:

"This rule continues even where an opportunity to amend was previouslygranted." [See, e.g., Crews, supra; Gerentine v. Coastal Security Systems, 529So.2d 1191 (Fla. 5'h DCA 1988)]

The privilege to amend was never abused as an opportunity to amend was NEVER

granted. A first amendment, before a responsive pleading, is perrnitted with court

permission. [RULE 1.190(a)] Additional facts and causes are allowed:

Kovach, id.: "Therefore, where a party may be able to allege additional facts,as in Crews, or where the ultimate facts alleged may support relief based uponanother theory, such as in Roger Rankin Enterprises v. Green, 433 So.2d 1248(Fla. 3'd DCA 1983), dismissal with prejudice is an abuse of discretion."

Kovach, id.: reminds of liberality in pleadings (direct conflict with order):

"Additionally, dismissal with prejudice is contrary to the rule of liberality inthe amending of pleadings so as to reach the merits of the case. [Fla. R. Civ. P.1.190; and see, e.g., Downtown Investments, Ltd. v. Segall, 551 So.2d 561 (Fla.3rd DCA 1989); Dingess v. Fla. Aircraft Sales & Leasing, Inc., 442 So.2d 431(Fla. 5* DCA 1983)]"

6

Similarly, from Adams v. Knabb Turpentine Co., 435 So.2d 944, 946 (Fla. 14 DCA

1983) sustaining direct conflict with order:

"However, "all doubts should be resolved in favor of allowingamendment. It is the public policy of this state to freely allow amendmentsto pleadings so that cases may be resolved upon their merits.""; also see BillWilliams Air Conditioning & Heating, Inc. v. Haymarket Cooperative Bank,592 So.2d 302, 305 (Fla. 1* DCA 1991)]

There is no case in Floridian case law of a case, based on matters of fact and law,

ordered dismissed with prejudice making no mention of an outstanding lawful motion

to amend with attendant amendment.

The docket indicates the Appellant has NEVER been afforded the opportunity to

make a court directed amendment.

Summary: As liberality in amendment is required by procedure Fla. R. Civ. P.

1.190, cemented in case law, the trial court, and thus the 5* DCA PCA, decision is in

direct conflict with and contrary to all rule of law allowing amendment prior to

dismissal with prejudice.

2) DIRECT CONFLICT with Walt Disney World Co. v. Blalock, 640 So.2d 1156,

1159 (Fla. 5*h DCA 1994); et al, - INFLAMMATORY PERSONAL ATTACKS &

OPINION ARE FORBIDDEN; A VIOLATION OF FLORIDA BAR RULES 4-

3.4(e) 4-8.4(d); et al:

See also: Fla. R. App. Pro. 9.110, 9.210(a)(5), (c), Pro Se App. Handbook§5(A), (D)(2); Fla. Bar Integr. Rule, Art XI, Rule 11.14(9); ABA DR 7-106(C)(1), (3), (4), (6), [Code of Professional Responsibility]; and, Jacksonv. State, 421 So. 2d 15 (Fla. 3'd DCA 1982); et. al]

7

The instant order directly conflicts with Disney, id.; which, squarely states that

inflammatory personal attacks and opinion directed toward the Appellant from the

Appellee are fundamental error requiring remand:

"...misconduct of counsel for the plaintiffs which culminated in a closingargument pervaded with inflammatory comments and the personal opinion ofcounsel" REVERSED AND REMANDED FOR NEW TRIAL. [Disney, id.]

Confirming is Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5* DCA 1993), et al;

judgment is vacated, closing argument included improper comments; writing:

"Rule 4-3.4(e) of the Rules Regulating the Florida Bar provides that alawyer shall not,'in trial... state a personal opinion as to the justness ofacause, the credibility of a witness, the culpability of a civil litigant, or theguilt or innocence of an accused." [Quoting Tyus v. Apalachicola NorthernR.R. Co., 130 So.2d 580, 587 (Fla.1961)] [See also Cedars Med. Ctr., Inc. v.Ravelo, 738 So.2d 362 (Fla. 3'd DCA 1999)]

Confirming is Rudolph v. State, 832 So. 2d 826 (Fla. 3'd DCA 2002), et al, an

attorney appealing sanctions for disparaging conduct is denied; writing:

"Florida Bar Rules 4-8.4(d) provides: a lawyer shall not... 'engage in conductin connection with the practice of law that is prejudicial to the administration ofjustice, including to knowingly, or through callous indifference, disparage,humiliate, or discriminate against litigants... on any basis,"

Moore v. Taylor Concrete & Supply Company, Inc., 553 So.2d 787, 792 (Fla. l' DCA

1989) confirms:

"It is axiomatic that a lawyer's expression of his personal opinion as tothe credibility of a witness, or of his personal knowledge of facts in the case,is fundamentally improper."

Liggett Group, Inc. v. Engle, 853 So.2d 434 (Fla. 3d DCA 2003) confirms:

8

"The misconduct continued, as plaintiffs'' counsel referred to mattersoutside the evidence, made derogatorv personal remarks about opposingcounsel, and expressed his personal opinion to the jurv..." the "role ofcounsel in closing argument is to assist the jury in analyzing the evidence,not to obscure the jurv's view with personal opinion, emotion and nonrecord evidence."

Ryan v. State, 457 So.2d 1084, 1092 (Fla. 4* DCA 1984); citing, Peterson v. State,

376 So.2d 1230 (Fla. 4* DCA 1979); et al; confirms:

"Resorting to personal attacks on counsel is an improper trial tacticwhich can poison the minds...,"

Jackson v. State, 421 So. 2d 15 (Fla. 3 4 DCA 1982); confirms:

A new trial was ordered because a State Attorney asked the jurors only,"Whether they would buy a used car from defense counsel".

"The improprieties may be deliberately calculated to accomplish justwhat representatives of the state cannot be permitted - inducing a jury toconvict by unfairly prejudicing it against the defendant. It is obvious that thispattern of conduct cannot be tolerated."

Appellee Attacks to Prejudice Trial Court Against Pro Se Appellant - Ignoring

the Evidence of Record: On November 8*, 2011 (R I/166-180), Appellee filed a 11+

page castigation [opposing Appellant's second amendment (R I/048-130)] dedicating

over 70% of his verbiage to vague unsupported [without specific citation to the

Complaint (R I/001-005)] inflammatory personal attacks and opinion denunciating the

Appellant; i.e., pages 1-5, 9-12 purporting: "professional litigant", "questionable cases",

"wasteful litigation antics", "serial filings", "vexatious litigation", "prolix, impermissible

shotgun pleading", "abusive litigation tactics", "multiplied and complicated the

proceeding", "a history of filing frivolous claims", "harassment-by-litigation tactics",

9

"fanciful theory", "unlawfully burdened the Appellee and the court system", on and on

and on, et al.

Appellee's inflammatory personal attacks (too voluminous to reprint) have no bearing

on the matters of fact and causes of action presented in the amended Complaint II (R

I/048-130).

Only pages 6-8 of the Appellee's opposing response (R I/166-180) are devoted to an

argument on law; however, inexplicably unrelated to the Fla. Stat. sustaining the

amended Complaint II (R I/048-130); ignoring the evidence of record condemning the

Appellee. Though the Appellee asserts the Appellant's claims are "frivolous, vexatious

and without merit", citing many such cases, Appellee does not link these claims to

Appellant's complaint and makes no evidentiary citation to this effect. Appellee's

opposition condemns itself of the very conduct leveled at the Appellant. Mere

unsupported assertions are insufficient. [Noack v. B.L. Watters, Inc., 410 So.2d 1375

(Fla. 5* DCA 1982); et al (available); mere assertion is insufficient)

Relying on personal attacks, Appellee ignores the evidence of record (i.e., 60+ pages

of exhibits documenting and specifically targeting Appellee's statutory violations)

writing, there is too much evidence to consider, page 1, which is prejudicial. Any

pleading deficiency is easily corrected.

The Damage Done by Poison: Having no defense against the evidence of record, the

Appellee resorted to inflammatory personal attacks and opinion of the Appellant. The

irreparable damage done is evinced by the order itself and the trial Judge inexplicably

10

(over a year later with no change of litigation status) signing Appellee's petition for an

unsupported "order to show cause " why the Appellant is not a vexatious litigant, January

2"d, 2013. Appellant renounces (and did not participate in) name calling.

Appellee Credibility: Judge Morris Silberrnan of the 2''d DCA confirms, "These

tactics suggest that the author must be resorting to name calling because his or her

argument on the merits is weak". [Florida Bar Journal May, 2004 Volume LXXVIII, No.

5, Betsy E. Gallagher in "Ten Signs That You Need an Appellate Lawyer"]

Summary: Inflammatory personal attacks and opinion are barred by the

aforementioned rules and canon, cemented in case law. The trial court, and thus the 5*

DCA PCA, decision is in direct conflict with and contrary to all rule of law barring

inflammatory personal attacks and opinion which damaged the Appellant.

3) DIRECT CONFLICT with Huffv. State, 569 So. 2d 1247 (Fla. 1990); and, THI

Holdings, LLC v. Shattuck, 93 So. 3d 419 (Fla. 2"' DCA 2012); et al, - DELETIONS

FROM THE RECORD (i.e., Fla. R. Civ. P. 1.540(b)(3)):

The instant order directly conflicts with Huff id., and, THI Holdings, LLC, id., which

purport

"...the ruling should be based on matters that appear of record before thecourt." "...violates his due process rights" [Remanding where the trial courtignored matters of record]

Pursuant to Huff, id., failure for a trial court to base its ruling on the motions and

pleadings of record before the court is reversible error. Hundreds of cases sustain this

fundamental concept. A judgment cannot be determined by deliberately adding to or

11

deleting matters of record which is likened to denial of discovery, due process. [Huff id.;

State v. Gille.spie, 227 So.2d 550 (Fla. 2"4 DCA 1969)]

From DSA Marine Sales & Serv., Inc. v. County ofManatee, 661 So. 2d 907 (Fla. 2"4

DCA 1995):

"...finding that the circuit court violated petitioner's due process rightsby denying its petition and failing to rule on its motion to supplement thepetition with documents from the proceedings below."[Cited by Cook v.City of Winter Haven Police Dep't, 837 So.2d 494 (Fla. 2"d DCA 2003))

The record in this matter is plain and simple. The record indicates Appellant's

"Plaintiffs motion for Leave to file Amended Complaint II" September 20, 2011 (R I/046-

047), and, "Amended Complaint 11" September 20, 2011 (R I/048-130) (which introduced

additional independent statutory causes ofaction Religious Discrimination & Whistle

Blowing) were before the court prior to the November 9th, 2011 hearing and the January

19, 2012 order dismissing with prejudice (R II/190-191).

The Record and Order evince no ruling has ever been made on these pleadings. The

order was based solely upon the Appellee's July 5*, 2011 (R I/018-036) and July 19,

2012 (R I/037-045) motions to dismiss; which, targeted only the defamation cause of

action of the initial Complaint (R I/001-005). A ruling is e1Toneous if not "based on

matters that appear of record before the court " [Huff id, and THI Holdings, id,]

To delete pleadings from the record before adjudication would take specific court

action. [Morris N. Am., Inc. v. King, 430 So. 2d 592, 592, 594 (Fla. 4* DCA 1983)]

There was no motion or adjudication to remove Appellant's pleadings from the record.

12

The trial court order (R II/190-191) subject to Appellee's inflammatory personal

attacks and opinion omitted-4 to base its ruling on the record before the court. The order

did not consider Appellant's pleadings of record "Plaintiffs motionfor Leave tofile

Amended Complaint I1" September 20, 2011 (R I/046-047), and, "Amended Complaint

11" September 20, 2011 (R I/048-130)] submitted after Appellee's motions to dismiss.

The order omits these pleadings, a violation of due process, effectively ignoring the case

presented by the Appellant.

Summary: Adjudicating by deleting pleadings from the record is a violation of

due process and is ba1Ted by the aforementioned case law. The trial court, and thus the

5* DCA PCA, decision is in direct conflict with and contrary to all rule of law barring

indiscriminate deletions from the court record.

4) DIRECT CONFLICT with Viets v. Am. Recruiters Enters, Inc., 922 So. 2d 1090

(Fla. 4*h DCA 2006) - VIOLATION OF DUE PROCESS "REAL" OPPORTUNITY

TO BE HEARD - Fla. R. Civ. P. 1.540(b)(4) Judgment Void:

Denying a real opportunity to be heard before dismissal with prejudice is in direct

conflict with and contrary to rule of law; and, pursuant to Fla. R. Civ. P. 1.540(b)(4)

voids the judgment of the trial court and thus the 5* DCA PCA decision.

OMISSION: Fraud also includes the intentional omission of a material fact. Ward v.Atlantic Security Bank, 777 So.2d 1144, 1146 (Fla. 3'd DCA 2001). See also Solorzano v.First Union MORTG Corp., 896 So.2d 847, 849 (Fla. 4* DCA 2005); First Union Nat.Bank v. Turney, 824 So.2d 172, 189 (Fla. 1" DCA 2001), Cited by "Florida Causes ofAction", Marc A. Wites

13

Summarizing the case law on "opportunity to be heard" is Viets v. Am. Recruiters

Enters. Inc., 922 So. 2d 1090 (Fla. 4* DCA 2006) establishing if a real opportunity to be

heard has been denied then the judgment is rendered void:

"A violation of the due process guarantee of notice and an opportunity tobe heard renders a judgment void." [See Curbelo v. Ullman, 571 So.2d 443,445 (Fla.1990); Ryan's Furniture Exch., Inc. v. McNair, 120 Fla. 109, 162So. 483, 487 (1935); Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3'd DCA1988); Niki Unlimited, Inc. v. Legal Servs. ofGreater Miami, 483 So.2d 46,48 (Fla. 3'd DCA 1986)]

"Generally, due process requires fair notice and a real opportunity to beheard and defend in an orderly procedure before judgment is rendered. [SeeJ.B. v. Fla. Dep't ofChildren & Family Servs, 768 So.2d 1060, 1063 (Fla.2000) quoting Dep't ofLaw Enforcement v. Real Prop., 588 So.2d 957, 960(Fla. 1991); Ryan's Furniture, 162 So. at 487]

"It is well settled that where a court is legally organized and hasjurisdiction of the subject matter and the adverse parties are given anopportunity to be heard, then errors, irregularities or wrongdoing inproceedings, short of illegal deprivation ofopportunity to be heard, will notrender the judgment void." [Curbelo, 571 So. 2d at 445]

Rose v. State, 601 So. 2d 1181 (Fla. 1992) affirms:

"Canon 3 A(4) of Florida's Code of Judicial Conduct states clearlythat, 'A judge should accord to every person who is legally interestedin a proceeding, or his lawyer, full right to be heard according tolaw..."

Lake v. Lake, 103 So.2d 639 (Fla. 1958) and Ansin v. Thurston, 101 So.2d 808 (Fla.

1958) affirm:

"It can be stated without hesitancy, qualification, or reservation,that every man is entitled to his day in court. He is vouchsafed afa.irtrial and he is secured afair hearing on an appeal which he may takeas a matter of right."[Cited by City of Winter Park v. Jones, 392So.2d 568 (Fla. 5* DCA 1980)]

14

Scull v. State, 569 So.2d 1251, 1252 (Fla. 1990) affirms:

"Due process envisions a law that hears before it condemns, proceedsupon inquiry, and renders judgment only after proper consideration ofissues advanced by adversarial parties. In this respect, the term 'dueprocess' embodies a fundamental conception offairness that derivesultimately from the natural rights of all individuals." [Cited by Huff v.State, 569 So.2d 1247, 1250 (Fla.1990)]

A reasonable person would concur that a real andfair opportunity to be heard is NOT

a shotgun hearing °. In the case subjudice, the Appellant's initial Complaint (R I/001-

005) was dismissed with prejudice heard only in a shotgun hearing, a denial fairness

guaranteed by due process.

The 7th Circuit trial court utilized a shotgun hearing at 1:30 PM on November 9†h,

2011; and, the 5th DCA scheduled a shotgun hearing at 9:00 AM on October 16th, 2012.

A shotgun hearing was unauthorized as it unfairly prejudiced the Appellant's matters.

Refusal to grant staggered hearings ' "has been found sufficient to support an inference

that the process was being perverted to inflict economic harm on a party"; i.e., trial court

reversible error.

The lower tribunal reversibly erred to the detriment of the Appellant using an

unauthorized shotgun hearing, ruling carte blanche against the Appellant's actions based

A shotgun hearing is where the court demands a party appear to face all opposingparties, all proceedings, at the same instance giving preferential advantage to opposingcounsel; rather than staggering hearings as required in National Football League PlayersAssoc. v. Office and Prof Employees Intern. Union, Local 2, 947 F. Supp. 540, 545(D.D.C.1996); citing, Board ofEducation v. Farmingdale Classroom Teachers Assoc., 38N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975); refusal to grant staggeredhearings was sufficient to support an inference that the process was being perverted toinflict economic harm on the school district.

Id.

15

upon the adverse parties' misrepresentations, improper pleadings, additions and

deletions, et al.

The 5* DCA cancelled its shotgun hearing when Appellant motioned the court [citing

case authority] of the impropriety of shotgun hearings. The 5* DCA retaliated by issuing

PCAs on all Appellant's appeals. Retaliation is forbidden by the finding in Case In re

Eriksson, 36 So. 3d 580, 596 (Fla. 2010) wherein it was found that a judge be publicly

reprimanded and charged the cost of the proceedings for retaliation against a litigant.

[See also In re Inquiry Concerning a Judge, (2012); affirming; and Fla. C. Jud. C. Canon

1, 2A & B, 3B(1), (2), (5), (7), (8) & 3E]

Based upon the aforementioned, Appellant's action was dismissed pursuant to

Appellee's motions to dismiss without an oppoitunity for Appellant to amend and subject

to personal attacks, and, deletions from the record (denial of due process).

Summary: Denying a real opportunity to be heard (before dismissal with

prejudice) is in direct conflict with and contrary to rule of law, is a violation of due

process; and, is barred by the aforementioned case law. The trial court, and thus the 5*

DCA PCA, decision is in direct conflict with Appellee's right to due process and

pursuant to Viets id., the 7th cirCuit trial Court and 5th DCA orders are void.

5) DIRECT CONFLICT with Canakaris v. Canakaris, 382 So.2d 1197, 1203

(Fla.1980)- UNREASONABLE JUDICIAL ACTION, TOO MANY CONFLICTS:

The instant order directly conflicts with Canakaris v. Canakaris, id., which purports:

Judicial discretion is def'med as:

16

"The power exercised by courts to determine questions to which no strictrule of law is applicable but which, from their nature, and the circumstancesof the case, are controlled by the personal judgment of the court.."[Canakaris, id., 382 So. 2d at 1202; Citing Bouvier's Law Dictionary andConcise Encyclopedia 804 (8th ed. 1914)]

"Our trial judges are granted this discretionary power because it isimpossible to establish strict rules of law for every conceivable situationwhich could arise in the course of a domestic relation proceeding. The trialjudge can ordinarily best determine what is appropriate and just becauseonly he can personally observe the participants and events of the trial."[Canakaris, id., 382 So. 2d at 1202]

However, "Discretion is abused when the judicial action is arbitrary,fanciful, or unreasonable, which is another way of saying that discretion isabused only where no reasonable man would take the view adopted by thetrial court."[ Canakaris, id., 382 So.2d at 1203; Quoting, Delno v. MarketStreet Ry. Co., 124 F.2d 965, 967 (Fla. 9* Cir.1942)]

"Discretionary power that is exercised by a trial judge is not, however,without limitation.... The trial court's discretionary power is subject only tothe test of reasonableness, but that test requires a determination ofwhetherthere is logic and justification for the result. The trial courts' discretionarypower was never intended to be exercised in accordance with whim orcaprice of the judge nor in an inconsistent manner." [Canakaris, id., 382 So.2d at 1203] (Emphasis added)

A reasonable person would conclude that a decision based upon excessive decision

conflict is beyond discretion and improper. A decision directly conflicting with four

fundamental principles of law sustained by case authority ofKovach, id.; Disney, id.:

Huff id.; and, Viets, id.; et al., is excessively inconsistent and therefore, unreasonable.

Summary: A decision permeated with excessive decision conflict is doubtless a

priori arbitrary and is exorcised by Canakaris, id. The trial court, and thus the 5* DCA

PCA, decision is in unreasonable excessive direct conflict with prior decisions and

therefore improper requiring remand.

17

VII. STATEMENT OF FACTS FROM THE RECORD:

1. The Action: Pursuant to Appellant's September 20, 2011 amended Complaint II (R

I/048-130), Robert Craig MacLeod v. Publix is a legitimate action to recover damages for

the Appellee's violations of (1) Florida Civil Rights Act Fla. Stat. §760.10 (1)(a) It is

unlawful employment practice to discriminate against the Plaintiffwith respect to his

religion; (2) Private Employee Whistleblower Statute Fla. Stat. §448.102 (1) Retaliatory

Action against an employee for disclosing an unlawful employment practice is

prohibited; (3) Fraud; and, (4) Defamation.

On May 18, 2010, Appellant notified his employer, Publix, (in writing) of his intent to

file a lawsuit pursuant to the defamation cause of action while alleging violations of the

Florida Civil Rights Act, religious discrimination, and forwarding a draft of the Lawsuit.

At this juncture, Appellant was looking for a retraction of unsupported racial slurs

made by the Appellee against Appellant's character. The Appellee did not know of the

veracity (or source) of these anonymous aspersions (found in an unsolicited eMail) yet

embellished and widely distributed these aspersions to characterize the Appellant as

racially profiling customers as afunction ofhis religion. This characterization was

highly offensive to the Appellant.

2. The Docket: Upon failure of the Appellee to take corrective action, the Appellant

filed his lawsuit on June 3'd, 2011 (R I/001-005). On June 22, 2011 (R I/007-008) Judge

Craig recused himself for work related bias and Judge Zambrano was assigned. Unknown

to Appellant, Judge Zambrano had the same bias as Judge Craig, but in violation of case

18

law and the Florida Judicial Code of Conduct intentionally concealed this bias. [See

Section: Conflict of Interest]

On June 28, 2011 (Appendix 3), inexplicably, the Appellee notified the Appellant in

writing that he was terminated specifically in retaliation for filing Appellant's lawsuit with

the 7* Judicial District. On June 30, 2011 Appellant filed a complaint with the EEOC and

received confirmation of Appellant's right to sue the Appellee from the EEOC on February

28*, 2012 (Appendix 5). On July 5*, 2011 (R I/009-017) Appellant amended his

complaint to include Appellee's "Retail Notice of Discharge" (Appendix 3) and Appellee

cross-noticed his motion to dismiss (R I/018-036).

During the summer months, the Appellant worked with the Appellee to be reinstated (a

fair remedy allowed in both Fla. Stat. §760.11; and Fla. Stat. §448.103. After several

reviews [lasting almost three months] the Appellee notified the Appellant (September 9,

2011) that he would not be reinstated.

Therefore, having exhausted all his employee reviews, on September 20, 2011,

Appellant filed a motion for leave to amend his complaint (R I/046-047)] and amended his

Complaint II (R I/048-130) based on religious discrimination, retaliatory discharge, and,

the fraudulent review process which cost Appellant much wasted time and effort.

During a November 9, 2011 shotgun hearing of all Appellants' cases (being sued by a

number of parties for loss of Appellant's business due to the financial crash of 2008), the

instant matter was tersely addressed. The Appellee inexplicably informed it was

unprepared to address Appellant's September 20, 2011 amended complaint [though

19

Appellee had his opposition, replete with inflammatory personal attacks and opinion, to the

amended Complaint II docketed on November 8, 2011 (R I/166-180). Appellee only spoke

to the defamation claim of the original complaint.

While waiting for a follow-on hearing on Appellant's amended Complaint II (R I/048-

130), having phoned and motioned the court; on January 18, 2012, the court inexplicably

issued the order subjudice dismissing Appellant's action with prejudice in complete

disregard of the additional causes contained in Appellant's amended Complaint II.

Subsequently, on January 31", 2012, Appellant motioned for a rehearing and hearing

time (R II/193-196) to further address Appellant's additional causes of action; but, was

denied (199-200).

VIII. REQUESTED RELIEF

Appellant, Robert Craig MacLeod, based upon the aforementioned express and direct

conflict with court decisions and, pursuant to Article V, Section 3(b)(3) of the Florida

Constitution and Fla. R. App. P. 9.03 (a)(2)(iv), Discretionary Jurisdiction; Fla. R. App. P.

Rule 9.340, Recall Mandate; Fla. R. App. P. 9.100; Fla. R. Civ. P. 1.190(a), Liberality in

Amendment of Pleadings; Florida Bar Rules 4-3.4(e) & 4-8.4(d), Personal Attacks and

Opinion are Prohibited; Fla. R. Civ. P. 1.540(b)(3), Relief from an Order based on

Opposing Party Fraud (i.e., Deletions from Record); Fla. R. Civ. P. 1.540(b)(4) Judgment

Void if no Opportunity to be fairly Heard; and respectfully moves this Court to grant

Appellant's Appeal and that this Court enter an order to show cause addressing why the

order of the 5* DCA, FL, denial of Recall of Mandate, January 3'd, 2013, (Affirming trial

20

court order granting dismissal with prejudice filed January 19th, 2012 (R II/190-191)) is not

improper and ultimately (1) set aside said order, and (2) directing the 5th DCA to remand

the matter to a neutral trial court (without a conflict of interest) pursuant to the conflict of

decisions enumerated above, or, (3) the Court should assign a neutral Judge to the 7*

Circuit to "hear, conduct, try and determine" Appellant's cause according to procedure

with cold neutrality and without prejudice;-7 And, any other relief the court deems requisite

and proper in the furtherance ofjustice.

XI. ARGUMENT vis-à-vis THE ORDER SUB JUDICE

Lower Tribunal 7'' Circuit Case 2011 CA 000458 Court Order Dismissing Complaint

(R I/001-005) as Initially Amended July 5'' (R I/009-017) with Prejudice [Sustained by

5'' DCA PCA Mandate Case 5D12-0413]:

6) The argument is simple, made by the order itself when compared to the Record

which expressly conflicts with governing case authority; i.e., there is simply no legal

rationale for the order.

7) The order, the product of an unfair shotgun hearing and subject to the inflammatory

personal attacks and opinion of the adverse party omits the motions and pleadings before

the court.

8) A transcript is unnecessary as the direct conflict (omission) is deduced by comparing

the order to the Record.

7 CCStVO v. Luce, 650 So.2d 1067 (Fla. 2"4 DCA 1995); Appellant was entitled to havethe successor judge designated by the Chief Justice of The Supreme Court because theproceeding involved allegations of disrespect/criticism by the judge. Amidst allegations ofdisrespect and conflict of interest Judge Zambrano was unlawfully assigned. [Appendix 2]

21

9) The 7* Circuit order, pursuant to deletions from the Record, was written by the

Appellees' counsel to mislead the court.

10) Though, the order of dismissal did not issue until January 18*, 2012 (R II/190-191),

the Order is based on Appellee's omission from the record of any pleadings or motions

submitted after "Publix's Motion to Dismiss Plaintiff's amended Complaint and

IncorporatedMemorandum ofLaw " of July 19*, 2011 (R I/037-045); omitting any ruling

on Appellant's September 20*, 2011 motionfor leave to amend (R I/048-130) and

amended Complaint II (R I/046-047).

11) The order (subject to the aforementioned decision conflict is based upon Appellee's

omission of matters of record omitting the pleadings and motions of the Appellant) solely

considers the defamation cause of action of the original Complaint (R I/001-005) stating:

"Defendant, Publix seeks to have the action dismissed for failure to statea cause of action for which relief can be granted. The elements ofdefamation are: (1) publication; (2) falsity; (3) actor must act withknowledge or reckless disregard as to the falsity on a matter concerning apublic official, or at least negligently on a matter concerning a privateperson; (4) actual damages; and, (5) statement must be defamatory. [JewsforJesus v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008)] The communicationwhich Plaintiff claims is defamatory involves an anonymous customercomplaint. An allegation of publication is necessary to withstand a motion todismiss. Mr. MacLeod alleges that publication occurred by way of an e-mailcontaining the customer complaint which was sent to executive andmanagerial employees. However, communication between employer'sexecutive and managerial employees cannot form the basis for defamationaction because it lacks publication to a third party. [American Airlines v.Geddes, 960 So.2d 830, 833 (Fla. 3'd DCA 2007)] The actions taken byPublix and their employees were in the natural course of business, were notpublished and therefore cannot be considered defamatory. Because thisCourt finds there was no publication, it is unnecessary to address the otherelements.

22

ORDERED and ADJUDGED the Defendants' Motion to Dismiss isgranted with prejudice." [See Appendix 1]

12) Clearly, the Order, based on Appellee's omissions, did not consider and made no

ruling on Appellant's additional causes ofaction [Fla. Stat. §760.10 (1)(a) religious

discrimination, and, Fla. Stat. §448.102 (1) Retaliatory Action against an employee for

disclosing an unlawful employment practice, religious discrimination is prohibited] based

upon evolving matters of fact (supplied with evidence to be considered by jury)

submitted September 20*, 2011 in Appellant's motion for leave to amend (R I/048-130)

and amended Complaint11(R I/046-047).

The Record evinces the Appellee has presented no evidence at all to dispute

Appellant's evidence of the additional violations and additional causes ofaction.

The order of dismissal did not issue until January 18*, 2012. [Recorded January 19*,

2012]

The Appellees' omission of matters of the record is the basis of the trial court order of

dismissal with prejudice (R II/190-191) which was a product of the inflammatory

personal attacks and opinion of the Appellee.

There is no legal rational for the order subjudice which directly conflicts with too

many fundamental principles of law and procedure.

13) Kovach v. McLellan 564 So. 2d 274, 276 (Fla. 5* DCA 1990); et al., requires

remand squarely stating, "Therefore, where a party may be able to allege additional facts,

as in Crews, or where the ultimate facts alleged may support relief based upon another

23

theory, such as in Roger Rankin Enterprises v. Green, 433 So.2d 1248 (Fla. 3'd DCA

1983), dismissal with prejudice is an abuse of discretion.

14) Walt Disney World Co. v. Blalock, 640 So.2d 1156, 1159 (Fla. 5* DCA 1994); et al.,

requires remand squarely stating that inflammatory personal attacks and opinion directed

toward the Appellant from the Appellee are fundamental error.

15) Huffv. State, 569 So. 2d 1247 (Fla. 1990); et al., requires remand squarely stating

that failure for a trial court to base its ruling on the motions and pleadings of record

before the court is reversible error. That is, a judgment cannot be determined by

deliberately adding to or deleting matters of record; which, is likened (in Huff: id.) to

denial of discovery; i.e., due process.

16) Viets v. Am. Recruiters Enters, Inc., 922 So. 2d 1090 (Fla. 4* DCA 2006); et al.,

requires remand squarely stating that denying a real opportunity to befairly heard is in

direct conflict with and contrary to rule of law; i.e., due process; and, pursuant to Fla. R.

Civ. P. 1.540(b)(4) voids the judgment of the trial court and thus the 5* DCA PCA

decision.

17) Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) squarely requires remand

where a decision is permeated with excessive decision conflict beyond all reasonable

discretion. The trial court, and thus the 5* DCA PCA, decision is in unreasonable

excessive direct conflict with prior decisions and therefore improper, requiring remand.

[i.e., violations ofKovach, id.; Disney, id.: Huff: id.; and, Viets, id.; all in one decision]

24

A trial court is not allowed to reach a decision dismissing with prejudice (1) denying

amendment to evolving facts supporting new causes, (2) permitting inflammatory

personal attacks and opinion in pleadings, (3) disregarding the motions and pleadings of

record, and, (4) withoutfairly hearing the matter.

A trial court is not allowed to dismiss an action with prejudice pursuant to an outdated

motion to dismiss while ignoring the immediate matters of record. Simply, a trial court is

not allowed to disregard the record to sign an order. The complaint subjudice would

have been easily amended.

Consequently the 5* DCA is not allowed to PCA vis-à-vis Mandate which conflicts

with the record proper directly contradicting the fundamental principles of law.

X. CONCLUSION

The above analysis makes it unambiguously clear that the Order (R II/190-191) is not

representative of the Record Proper of the case subjudice and is in express and direct

conflict with the fundamental principles and matters of law determined by Floridian case

authority.

The omission ofpleadings and motions, of the Record before the court, from the

Order (R II/190-191), (dismissing with prejudice) subject to inflammatory personal

attacks and opinion of the opposing party, without a real opportunity to be heard;

excessively directly conflicts with fundamental law sustained by case authority.

XL "CONFLICT OF INTEREST"

25

Judges in good faith are required to reveal, in writing, potential conflicts of interest.

[Department ofRevenue v. Golder, 322 So. 2d 1 (Fla. 1975); Also, see generally, Bundy v.

Rudd, 366 So.2d 440, 442 (Fla.1978); citing Brown v. Rowe, 96 Fla. 289, 118 So. 9

(Fla.1928); et al]

The 7* Circuit judge has a long work history with the opposing parties in the case 2011

CA 000112, and related cases 2011 CA 00057 & 000129. Appellant believes conflict of

interest has inappropriately contributed to the decisions of the lower tribunal and will

continue to do so.

The trial judge has a long work history in the State Attorney Office where he developed

relationships with the actors who are Defendants in Case 2011 CA 000112 and is familiar

with the evidence.

The 7* Circuit Trial Judge, Honorable Raul A. Zambrano, was a Director in the Deland,

FL, State Attorney Office where he became familiar with the evidence and facts of the

underlying criminal Case 2004 CFFA 00397 [giving rise to Appellant's Civil Cases 2011

CA 000057, 000112 and 000129] through the involved personnel, Shannon Peters, Esq.,

State Attorney, Judge Zambrano's employee who worked the case in Flagler County. The

judge had a partiality toward his former employee, Shannon Peters, and through Ms.

Peters, a personal knowledge of disputed evidentiary facts.

The Judge did not notify the Appellant of his conflict of interest and adjudicated the

matter of his disqualification. This conduct demonstrates that the judicial process is

conflicted resulting in economic harm and injustice on the Appellant. "A judge presented

26

with a motion for his disqualification may not adjudicate the question of disqualification."

And, "once a basis for disqualification has been established, the writ of prohibition must

issue directing the trial judge Appellee to disqualify himself in all proceedings to which the

Appellant is a party." [Bundy v. Rudd, 366 So.2d 440, 442 (Fla.1978); Brown v. Rowe, 96

Fla. 289, 118 So. 9 (Fla.1928); et al]

The Judge's actions expressly and directly conflicts with the decision concerning

"conflict of interest" of Caleffe v. Vitale, 488 So.2d 627 (Fla. 4th DCA 1986); Babb v.

Edwards, 412 So.2d 859 (Fla. 1982); Corie v. City ofRiviera Beach, 954 So. 2d 68 (Fla. 4*

DCA 2007), et al.; wherein it was/is found that a conflict of interest is sufficient to invoke

a writ of prohibition.

Honorable 7* Circuit Judge Dennis Craig recused himself from all Appellants'

proceedings for the identical conflict ofwork history.

Anecdotally, despite Appellant's Petition for Writ ofProhibition against theaforementioned judge pursuant to conflict ofinterest [SC12-2141], 7* CircuitChief Judge William A. Parsons has, on January 30th 2013, inexplicably orderedassignment of the aforementioned conflicted Judge Zambrano to another case ofthe Appellant.

5th DCA Judges: Judge William D. Palmer worked from 1976 to 1997 [over 20

years] for Carlton Fields, Appellee's Attorney, in Appeal 5D12-0526, an abuse of

discretion. Judge Sawaya worked as a State Attorney, Appellee in Appeal 5D12-0666,

an abuse of discretion. Judge Cohen worked as a State Attorney, Appellee in Appeal

5D12-0666, an abuse of discretion. None of these Appellees notified the Appellant of

27

their conflict of interest. This behavior demonstrates that the judicial process is possibly

being perverted to inflict economic harm and injustice on the Appellant.

[Department ofRevenue v. Golder, 322 So. 2d 1 (Fla. 1975), A judge mustconvey a potential conflict of interest to all parties; Caleffe v. Vitale, 488 So.2d627 (Fla. 4th DCA 1986); Babb v. Edwards, 412 So.2d 859 (Fla. 1982); Corie v.City ofRiviera Beach, 954 So. 2d 68 (Fla. 4th DCA 2007), et al.; wherein it was/isfound that a "conflict of interest [bias]" is sufficient to invoke a writ ofprohibition; Canons 1, 2A, 2B, 5A(6), 3C(1), 3E(1)(c)]

"It is the established law of this State that everv litigant is entitled to nothingless than the cold neutrality ofan impartial judge. It is the duty of the court toscrupulously guard this right of the litigant and to refrain from attempting toexercise jurisdiction in any manner where his qualification to do so is seriouslybrought into question. The exercise ofany otherpolicy tends to discredit andplace the judiciary in a compromising attitude which is badfor theadministration ofjustice." [Crosby v. State, 97 So.2d 181 (Fla. 1957); State exrel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939); Dickenson v. Parks, 104Fla. 577, 140 So. 459 (1932); State ex rel. Mickle v. Rowe, 100 Fla. 1382, 131So. 3331 (1930)]

XII. DISMISSAL WITH PREJUDICE WAS UNAUTHORIZED

(See also Section V. 3. Direct Conflict: Dismissal with Prejudice)

Pursuant to Kozel v. Ostendorf: 629 So.2d 817 (Fla. 1993), since the Order (R II/190-

191) does not represent the facts and circumstances of the case subjudice, and the case

law cited in the order is entirely irrelevant to the actual facts and circumstances of the

case subjudice, dismissal with prejudice was inappropriate.

• Supreme Court Rules for dismissal with prejudice [Judge Altenbernd]:• 1) whether the attorney's disobedience was willful, deliberate, or contumacious,

rather than an act of neglect or inexperience;• 2) whether the attorney has been previously sanctioned;• 3) whether the client was personally involved in the act of disobedience;• 4) whether the delay prejudiced the opposing party through undue expense, lossof evidence, or in some other fashion;

• 5) whether the attorney offered reasonable justification for noncompliance; an• 6) whether the delay created significant problems ofjudicial administration

28

• Upon consideration of these factors, if a sanction less severe than dismissalwith prejudice appears to be a viable alternative, the trial court should employsuch an alternative. [Kozel v. Ostendorf 629 So. 2d 817 (Fla. 1993)]

• Kozel v. Ostendorf 629 So. 2d 817 (Fla. 1993); on abusive dismissal. "Becausedismissal is the ultimate sanction in the adversarial system, it should be reserved forthose aggravating circumstances in which a lesser sanction would fail to achieve ajust result."

• Thompson v. Inv. Mgmt. & Research, id; to dismiss with prejudice is a gross abuseof discretion if the court offered no opportunity to amend an amendable claim

1) FRCP 1.19(a) Leave of court [to amend] shall be given freely when justice so

requires.

2) "However, "all doubts should be resolved in favor of allowing amendment. It is the

public policy of this state to freely allow amendments to pleadings so that cases may be

resolved upon their merits."" [Adams v. Knabb Turpentine Co., 435 So.2d 944, 946 (Fla.1" DCA 1983); also see Bill Williams A ir Conditioning & Heating, Inc. v. HaymarketCooperative Bank, 592 So.2d 302, 305 (Fla. 1* DCA 1991)]

XHL BASED ON DECISION CONFLICT THE ORDER SHOULD BE VOIDED

1) Pursuant to decision conflict, the trial court inadvertently issued an order on January

18*, 2012 improperly titled "Order Granting Defendant 's Motion to Dismiss" (R II/190-

191) which in the body of the order declared with prejudice.

2) Based upon the aforementioned, the January 18th, 2012 improperly titled Order (R

II/190-191) should be annulled.

3) Pursuant to decision conflict based upon Appellee's misrepresentation, documented

herein and the aforementioned references, wherein the Appellee, who purportedly, as a

29

sworn officer of the Court, is "as much dedicated tofinding the truth as are the courts it

serves", the Order (R II/190-191) subjudice should be annulled.-*

WHEREFORE, Appellant, Robert Craig MacLeod, based upon the aforementioned

express and direct conflict with court decisions and, pursuant to Article V, Section

3(b)(3) of the Florida Constitution and Fla. R. App. P. 9.03 (a)(2)(iv), Discretionary

Jurisdiction; Fla. R. App. P. Rule 9.340, Recall Mandate; Fla. R. App. P. 9.100; Fla. R.

Civ. P. 1.190(a), Liberality in Amendment ofPleadings; Florida Bar Rules 4-3.4(e) & 4-

8.4(d), Personal Attacks and Opinion are Prohibited; Fla. R. Civ. P. 1.540(b)(3), Relief

from an Order based on Opposing Party Fraud (i.e., Deletions from Record); Fla. R. Civ.

P. 1.540(b)(4) Judgment Void if no Opportunity to be fairly Heard; and respectfully

moves this Court to grant Appellant's Appeal and that this Court enter an order to show

cause addressing why the order of the 5th DCA, FL, denial of Recall of Mandate, January

3'd, 2013, (Affirming trial court order granting dismissal with prejudice filed January 19*,

2012 (R II/190-191)) is not improper and ultimately (1) set aside said order, and (2)

directing the 5* DCA to remand the matter to a neutral trial court (without a conflict of

interest) pursuant to the conflict of decisions enumerated above, or, (3) the Court should

"We have considered also that the affidavit before us is made by defendant's attorney.This attorney isfirst andforemost an officer ofthis Court and the trial court. His swornduty as an attorney requires that he be as much dedicated tofinding the truth as are thecourts he serves. Above all else he owes to the courts the duty ofgoodfaith andhonorable dealing. We must assume that the attorney for defendant made the affidavit inquestion in full view of his position as an officer of the court and his obligation not onlyto his client but to the court as well. Ifthe trial court finds that the affidavit filed by theattorney was filed in bad faith, for the purpose ofdelay, or that he swore falsely the trialcourt can and should discipline him." [Russ v. State 95 So.2d 594 (Fla. 1957)]

30

assign a neutral Judge to the 7* Circuit to "hear, conduct, try and determine" Appellant's

cause according to procedure with cold neutrality and without prejudice;-' And, any other

relief the court deems requisite and proper in the furtherance ofjustice.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by

USPS Mail to Christopher P. Hammon, Ogletree Deakins, P.C., 701 Brickell Ave., Suite

1600, Miami, FL 33131-2813; this 22"4 day of February, 2013.

Respectfully,

ROBERT CRAIG ACLEOD, Forma Pauperis Pro Se

34 Russman LanePalm Coast, FL 32164 (386) 334-0864

CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS

I hereby ify that this Petition complies with the font requirements of Rule 9.210.

ROBERT CR G MACLEOD

Castro v. Luce, 650 So.2d 1067 (Fla. 2"4 DCA 1995); Appellant was entitled to havethe successor judge designated by the Chief Justice of The Supreme Court because theproceeding involved allegations of disrespect/criticism by the judge. Amidst allegations ofdisrespect and conflict of interest Judge Zambrano was unlawfully assigned. [Appendix 2]

31

APPENDIX 1: "ORDER GRANTING DEFENDANT'S MOTION TO DISMISS"["With Prejudice" Improperly Omitted from Title]

[N ,lh CHa : 'l ( t n R1 l H .i Ud Y t W I 'I[N AND FOR f LA611R t Ut N1i.IDIRiDA

imBM F CF A IG M ACI FDD.p e ASE NO.: 20!!€A45R

P DL XDefen

THIS CAUSÉ cane to on Defendant State PubHx¼ \t. v.m te !> a Having

reviewed the seeord, considered the muumems of the parties and bemg otherwise 0Æy advised m

the premises he Cí5rt finds as foksws:

The Plaintiff, Robert MacleN has filed this action against }m former employerfubd¼

,iæ e um : v and common law defamabw

Defadant. Publix seeks to have the action dismissed for faïiure to state a cause of action

for which relief can be granted. The ekments of defamation arei (D pubbeatîorn (2) falsity©

actor must act with knowkdge or reckless disregard as to the falsity on a matter concemmg a

public òfficial or a: - a u. • 9 ,.· a matar memág a pdue pa%F M%

damages; an L 15) statement must be defmatory kw1ßr Aas v Ram %7 So 2d 1098, 1106

fFla 20081 The communicadon which Pbirrtiff claims is defamatory invoïves an anonymous

customer coniplaini An aHegation of pubHcation is necessary to wnhstand a moüen to dismiss

Mr- Maci-eod alkges that pubhcatïòn occurred by way of an e-nün! conuuning ±e eus uma

. ..r m: wh eb was sent v nes :w:v: C em : w Howner, communkwnm

Appendix 1: Page 1

APPENDIX 1: "ORDER GRANTING DEFENDANT'S MOTION TO DISMISS"["With Prejudice" Improperly Omitted from Title]

between employer's executive and managerial employees cannot forrn the basis for defamation

action because it lacks publication to a third party. Ameriedn Airlines n Geddes, 960 So.2d 830,

833 (Fla, 3'd DCA 2007). The actions taken by Publix and their employees were in the natural

course of business, were not published and therefore cannot be considered defamatory.

Because this Court finds there was no publication, it is urmecessary to address the other

elements.

ORDERED and ADJUDGED the Defendants' Motion to Dismiss is Granted with prejudice.

The Plainti ff, Robert Macleadishall take nothing by this action and that the Defendant, Publix go

hence without dav.

DONE and ORDERED in Chambers Kim C. llammond justice Center,Bunnelk Florida.

ms day of January, 2012.

The Plaintiff shall have 30 d s n h chpo appeal this order.

jlLL%LRAUL A. ZAMBRAyu, CIRCUIT JUDGE

Copies to:

Robert Craig Macleod34 Russman LanePaim Coast. Fixida 32464

Christopher P. Hammons, EsquireChristotiher C Wike, EsquireOgletree; Deakins, Nash, Smoak & Stewart P c701 Brickei! Avenue, Suite 1600Miami, FL 3313 b28]3

Appendix 1: Page 2

APPENDIX 2: On Improper Judicial Assignments

Castro v. Luce, 650 So.2d 1067 (Fla. 2"d DCA 1995): Appellant was entitled to havethe successor judge designated by the Chief Justice of The Supreme Couit because theproceeding involved allegations of disrespect/criticism by the judge.

Cited by Jimenez v. Rateni, 967 So. 2d 1075 (Fla. 2d DCA 2007): To obtain certiorarirelief from an "erroneous interlocutory order," a petitioner must initially establish as abasis for the exercise of certiorari jurisdiction that "[the] interlocutory order createsmaterial harm irreparable by postjudgment appeal." 1077*1077 [Parkway Bank v. FortMyers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995)] If that jurisdictionalthreshold is met, the petitioner must go on to show that the challenged order "departs fromthe essential requirements of the law." Id.

We have common law certiorari jurisdiction to review the circuit court's order herebecause the utilization of an improper process for the assignment of a judicial case causes"material injury . . . that cannot be corrected on postjudgment appeal." Id. at 648. Theasserted injury consists in the litigant being required to proceed with the adjudication of an

appeal before a judicial officer who has been assigned unlawfully. This is likened

to the injury of being required to try a case before a judgewho has improperly denied a motion for disqualificationof the judge, an injury for which interlocutory relief isavailable by way of prohibition. [Castro v. Luce, 650 So.2d 1067 (Fla.2d DCA 1995)] It is also likened to the injury of being required to try a case where thetrial court has erred in its disposition of a motion for disqualification of counsel, an injuryfor which certiorari relief is available. See Gonzalez ex rel. Colonial Bank v. Chillura, 892So.2d 1075 (Fla. 2d DCA 2004).

Appendix 2: Page 1

APPENDIX 3: Publix Retail Notice of Discharge

Page 1 ot'2

Publix Super Markets, Inc.P.O. Box 407 Laketand, Florida 33802

(863) 688 - 7407 ext. 52210

publix DOL Acct #: AL: 0029460360; FL 0027810: GA: 561172-08: SC: 280740- TN: 0532-044 6

Retail Notice of DiScharge

Date: Tuesday June 28 2011 6:01:43 PM

To Discharge Notices, Personnel Records

CC Tony.Zeaiter@PUBLIX COM; Alan Thomas@PUBL!X.COM;Carole.Sellers@PUBL!X COM

Frorrr Caryn S PRYOR

Subject Discharge for Robert C Macleod. Org Unit Name ( Store # 1138)

Associate Information

Name ersonnel Number Socia! SecuÑy Number

Robert C Macleod 00982781 097 - 38 - 7090

Position Name (Job Class) Org Unit Name ( Store # ) Hire Date

Part Time Cashier (JC203) 1138 04 / 02 / 2011

Notice of Discharge Date Reason for Discharge NamSupenm ediate

Z 06 / 28 / 2011 Other Caryn Pryor

Detailed Description of Circumstances Surrounding Discharge

Because you chose to bring a defamation claim against Publix that is without any substantial mer tand that appears not to have been filed in good faith and due to inappropnate conduct with co-workers and customers, Pubhx has decided to terrninate your employment

Associate Completing Form

Name Location

Caryn S PRYOR 1138

http://sharp;publix.com/SHARPForms/SHARP/print/noticeOíDischarge.asp 6 28/201 1

Appendix 3: Page 1

Appendix 4: CASE 2011 CA 000458 DOcket - Publix

Date Entry2/5/2013 PETITION FOR WRIT OF MANDAMUS; EMAILED2/1/2013 PETITION FOR WRIT OF PROHBITION; EMAILED1/24/2013 MOTION TO STRIKE SHAM PLEADING; EMAILED1/24/2013 NOTICE THAT ACTION IS AT ISSUE AND REQUEST FOR HEARING; EMAILED1/22/2013 EMAILED- SWORN AFFIDAVIT:RESPONSE TO SUA SPONTE ORDER TO SHOW

CAUSE AND INCORPORATED MOTION TO STRIKE SHAM PLEADING &DEMAND FOR JURY TRIAL

1/17/2013 EMAILED - NOTICE OF ACTION IS AT ISSUE AND REQUEST FOR HEARING1/14/2013 NOTICE OF APPEAL TO SUPREME COURT1/14/2013 AFFIDAVIT OF SERVICE-NONSERVED1/11/2013 ORDER OF THE COURT-SUPREME COURT1/4/2013 SUA SPONTE ORDER TO SHOW CAUSE12/31/2012 APPEAL FEE FROM CIRCUIT COURT TO EITHER DISTRICT COURT OF

APPEAL OR SUPREME COURT ASSESSED $100.0012/27/2012 EMAILED MOTION FOR RULE 1.540(B)(3) RELIEF FROM AN ORDER BASED

ON DEFENDANT'S FRAULD, IMPROPER PLEADING, AND, PROCESS12/27/2012 EMAILED CORRESPONDENCE FROM ROBERT MACLEOD12/27/2012 EMAILED MOTION TO RECALL MANDATE PURSUANT TO RULE 1.540(B)(3)

RELIEF BASED ON APPELLEES' FRAUD, IMPROPER PELADING, AND,PROCESS

10/3/2012 ORDER OF THE COURT -5THDCA - AFFIRMED10/3/2012 ORDER OF THE COURT -5THDCA10/3/2012 MANDATE9/12/2012 SUPREME COURT OF FLORIDA DECISION :MOTION TO STAY ALL

PETITIONER'S PROCEEDINGS IN THE 5TH DCA DENIED5/11/2012 MAILED RECORD TO STH DCA5/10/2012 CIRC CIV FEE FOR PREPARE DOCUMENT ASSESSED $28.005/10/2012 CIRC CIV FEE PREPARING, ETC (APPELLATE) ASSESSED $140.004/17/2012 ORDER OF THE COURT -5THDCA4/17/2012 MAILED INDEX TO PARTIES4/11/2012 MOTION FOR REHEARING3/20/2012 ACKNOWLEDGMENT OF NEW CASE - 5D12-9963/16/2012 CORRESPONDENCE TO 5TH DISTRICT COURT OF APPEAL/PETITION FOR

WRIT OF PROHIBITION3/2/2012 ORDER OF THE COURT - 5DCA - 5D12-413 REINSTATED2/29/2012 ORDER OF THE COURT - 5THDCA -5D12-413 APPEAL DISMISSED2/16/2012 MAILED C/C NTC OF APPEAL TO STHDCA2/15/2012 NOTICE OF APPEAL2/8/2012 ORDER DENYING MOTION FOR REHEARING2/7/2012 ACKNOWLEDGMENT OF NEW CASE- 5D12-4132/6/2012 EMAILED - APPELLANT'S MOTION FOR DISMISSAL OF APPEAL1/31/2012 CASE REOPENED FOR REOPEN1/31/2012 EMAILED - MOTION FOR REHEARING AND HEARING TIME1/25/2012 MAILED C/C NTC OF APPEAL TO STHDCA1/23/2012 DIRECTIONS TO CLERK

Appendix 4: Page2

Appendix 4: CASE 2011 CA 000458 DOcket - Publix

1/23/2012 NOTICE OF APPEAL1/19/2012 CASE CLOSED1/19/2012 ORDER GRANTING DEFENDANT'S MOTION TO DISMISS12/1/2011 SUMMARY OF 11/09/2011 IN COURT ARGUMENT11/8/2011 PLAINTIFF'S SECOND OPPOSITION TO DEFENDNAT'S OPPO9SITION TO

PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT11/8/2011 PUBLIX'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE

TO FILE SECOND AMENDED COMPLAINT11/8/2011 FAXED COPY - PLAINTIFF'S OPPOSITION TO DEFENDANT'S OPPOSITION TO

PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT11/4/2011 ORDER DENYING MOTION FOR ENLARGMENT OF TIME11/4/2011 FAXED COPY - MOTION INVOKING FLORIDA STATUTE 28.09 TO

IMMEDIATELY ENTER ORDER OF DISQUALIFICATION11/1/2011 FAXED COPY - MOTION TO WITHHOLD ADJUDICATION AND ENSURE

HEARING TIME11/1/2011 FAXED COPY- MOTION FOR HEARING TIME11/1/2011 FAXED COPY - MOTION TO BE HEARD ON JUDGE ZAMBRANO RECUSAL11/1/2011 FAXED COPY - MOTION FOR FLORIDA STATUTE 38.04 - "SWORN

STATEMENT BY JUDGE HOLDING HIMSELF QUALIFIED" (TO BE HEARD)10/31/2011 FAXED COPY - MOTION FOR ENLARGEMENT OF TIME - RESCHEDULE (TO

BE HEARD)10/28/2011 ORDER DENYING MOTION TO RECUSE10/28/2011 ORDER DENYING MOTION TO ABATE PROCEEDINGS10/26/2011 MOTION TO ABATE PROCEEDINGS9/30/2011 GOOD FAITH CERTIFICATE9/30/2011 MOTION OF PLAINTIFF ROBERT CRAIG MACLEOD TO RECUSE JUDGE

ZAMBRANO9/30/2011 FAXED COPY - GOOD FAITH CERTIFICATE9/30/2011 AFFIDAVIT OF ROBERT CRAIG MACLEOD9/30/2011 FAXED COPY - MOTION OF PLAINTIFF ROBERT CRAIG MACLEOD TO

RECUSE JDUGE ZAMBRANO9/20/2011 AMENDED CAMPLAINT II9/20/2011 PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED COMPLAINT II9/14/2011 HEARING SET FOR 11/09/2011 AT 1:30 PM IN 401/, JDG: ZAMBRANO, RAUL9/14/2011 NOTICE OF HEARING7/19/2011 PUBLIX'S MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT AND

INCORPORATED MEMORANDUM OF LAW7/12/2011 RETURN OF SERVICE SERVED - 6/14/117/12/2011 RETURN OF SERVICE SERVED - 6/14/11 - NO ATTACHMENT7/5/2011 PUBLIX'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT AND

INCORPORATED MEMORANDUM OF LAW7/5/2011 AMENDED COMPLAINT6/22/2011 JUDGE ZAMBRANO, RAUL: ASSIGNED6/22/2011 ORDER OF RECUSAL AND REASSIGNMENT/ORDER OF REASSIGNMENT6/3/2011 SUMMONS ISSUED

Appendix 4: Page3

Appendix 4: CASE 2011 CA 000458 Docket - Publix

6/3/2011 APPLICATION FOR DETERMINATION OF CIVIL INDIGENT STATUS -APPROVED

6/3/2011 CIVIL COVER SHEET OTHER CIRCUIT CIVIL6/3/2011 CIRCUIT CIVIL FILING FEE OTHER ASSESSED $400.006/3/2011 PAYMENT $17.00 RECEIPT #20110108636/3/2011 COMPLAINT6/3/2011 CIRC CIV FEE FOR PREPARE DOCUMENT ASSESSED $7.006/3/2011 JUDGE CRAIG, DENNIS: ASSIGNED6/3/2011 FLAGLER CASE#: 2011 CA 000458 M6/3/2011 CIRCUIT CIVIL FILING FEES (SUMMONS) ASSESSED $10.006/3/2011 CIRC CIV ADDITIONAL DEFENDANT > 5 FEE ASSESSED $0.00

Appendix 4: Page4

Appendix 5: EEOC Authorization to Sue

a omen m U.S. EauAL EMPLOYMENT OPPORTUNITY COMMISSION

DisassAL AND NOTICE OF RIGHTS

Robert C. MacLeod Ro* San Juan Local Office34 Russman Lane 525 F D Rooseve4 AvePalm Coast, FL 32%4 1202 Plaza Las Americas

San Juan, PR 00918

on behw & person(s) aggneveö wnose icenay iscoNRWMAQrt CM Q60%y

EFac Clmrpe No. EEOc Representswe Temphane No

Carlos Gonzalet51b2011-û2013 investigator (787) 771-1436

THE EEOC IS CLOSING iTS FILE ON TH1S CHARGE FOR THE FOLLOWiNG REASON:

The facts aKeged in the charge fad to state a claim under any of the statutes enforced by the EEOC.

Your aheganons á d not mvolve a disabdity as ddined by me AmericansÙh ÖsatMes Act

The Respondent employs less than the required number of employees or is not otherwise covered by the statutes

our charge was not Omely fáed wdh EEOC in other words. yev wa;ted too long aRer the date(s; of the asegeddisedminahon 10 Me your charge

Tne EEOC issues the ionowing determinatiort Based upon its investigabon, the EEOC is unaoke to conclude that theinformaüon obtained establishes doiations of the statutes This does not certify that the respondent is in compliance v&h!he statutes No finding is rnade as to any other issues that might be construed as having been raised by this charge

The %CC has adopted the findings of the state or !ccal fair employment practiàes agewy mat mvestigated tNs charge,

X l otherùne0y sfaw CP HLED A CWil ACTION. URWT CQ!R i OF THE SEVENMJLDK1ALCIRCUfT !N AND FOR FLAGLER COUNTY. FLORLDA, CASE NO: 2011 CA000458

- NOTICE OF SUlf RIGHTS -(See lhe echashntòrmaüan attachea to !M :ow )

Title VH the Americans with Disabilities Act, the Genetic information Nondiscrimination Act, or the AgeDiscrimination in Employment Act· This WW be the only notice of dismissal and of your nght to sue that we WHI send you.You may fRe a lawsuit against the respondent(s) under federat kw cased on this charge in federal or state court Yourlawsuu must be fHed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge wW œiost. Ghe bme iirnit for fihng suit based on a claim under state law may be dtherent.)

Equal Pay Act (EPAR EPA suits must be filed in federal or state court wHhin 2 years (3 years for willful violations) of theaneged EPA underoaymern Tbs masus that backp=y ±c f= any vio adohs that o^curred more than 2 vearg3 vears)before you file suit may not be collectible.

rw nebatf o' he ' mrr<s n

encomes* MALCOLM S. MEDLEY, Ma *MDistrict Director

PUBijX SUPER MARKETSSusan BroseHuman Resources .Store No. 1138800 Bette Terre ParkwayPMm Coast. FL 32164

Appendix 3: Page l

ROBERT CRAIG MACLEOD SC13-0175Appellant

v.

PUBLIX SUPERMARKETS, INC., 5* DCA: 5D12 CA 000413Appellee 7* CIRCUIT: 2011 CA 000458

February 22"d, 2013

Chief Justice Charles T. CanadyAttention: Hon. Clerk Thomas D. HallSupreme Court of the State of Florida500 South Duval StreetTallahassee FL 32399-1927

Sub.: Case SC13-0071 Appeal Submittal: Direct Conflict of Decisions

Dear Hon. Clerk Thomas D. Hall,

Please accept Appellant's Appeal as identified above.

There is no legal rational for the order subjudice which unreasonably andexcessively directly conflicts with the fundamental grinciples of law and procedure.

1) Kovach v. McLellan 564 So. 2d 274, 276 (Fla. 5 DCA 1990); et al., requiresremand squarely stating, "Therefore, where a party may be able to allege additionalfacts, as in Crews, or where the ultimate facts alleged may support relief based uponanother theory, such as in Roger Rankin Enterprises v. Green, 433 So.2d 1248 (Fla. 3'dDCA 1983), dismissal with prejudice is an abuse of discretion.

2) Walt Disney World Co. v. Blalock, 640 So.2d 1156, 1159 (Fla. 5* DCA 1994); et al.,requires remand squarely stating that inflammatory personal attacks and opiniondirected toward the Appellant from the Appellee are fundamental error.

3) Huff v. State, 569 So. 2d 1247 (Fla. 1990); et al., requires remand squarely statingthat failure of a trial court to base its ruling on the motions and pleadings of recordbefore the court is reversible error. That is, a judgment cannot be determined bydeliberately adding to or deleting matters of record; which, is likened (in Huff: id.) todenial of discovery; i.e., due process.

4) Viets v. Am. Recruiters Enters, Inc., 922 So. 2d 1090 (Fla. 4* DCA 2006); et al.,requires remand squarely stating that denying a real opportunity to befairly heardbefore dismissal with prejudice is in direct conflict with and contrary to rule of law, dueprocess; and, pursuant to Fla. R. Civ. P. 1.540(b)(4) voids the judgment of the trial courtand thus the 5* DCA PCA decision.

5) Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) squarely requiresremand where a decision is permeated with excessive decision conflict beyond allreasonable discretion. The trial court, and thus the 5* DCA PCA, decision is in

unreasonable excessive direct conflict with prior decisions and therefore improper,requiring remand.

A trial court is not allowed to reach a decision dismissing with prejudice (1) denyingamendment to evolving facts supporting new causes, (2) permitting inflammatorypersonal attacks and opinion in pleadings, (3) disregarding the motions and pleadings ofrecord, and, (4) withoutfairly hearing the matter.

A trial court is not allowed to dismiss an action pursuant to an outdated motion todismiss while ignoring the immediate matters of record. Simply, a trial court is notallowed to disregard the record to sign an order. The complaint subjudice would havebeen easily amended.

Consequently the 5* DCA is not allowed to PCA vis-à-vis Mandate which conflictswith the record proper directly contradicting the fundamental principles of law.

Respectfu

Robert Craig MacLeod34 Russman Lane, Palm Coast, FL 32164 (386) 334-0864