So far today has been interesting. This post may not make much sense to my nonlegal friends. We had a court hearing on my motion for reconsideration, of an order I considered to be not just incorrect but a fundamental error. The issue was failure to dismiss an indispensable party because Plaintiff did not move to substitute within 90 days after the suggestion of death appeared on the record, as required under Rule 1.260(a). Moreover the Second Amended Complaint was filed by a nonparty. A new legal entity that had not been substituted by the method set forth in 1.260(c). After I filed a timely motion for reconsideration, the court set a hearing date more than 30 days from the order. This forced me to file an interlocutory appeal before the hearing date, because a motion for rehearing a non-final order does not tole the time for filing an appeal. In Appellate court, before I filed an Initial Brief, the Plaintiff, now the Appelle, filed a Motion to Dismiss with Prejudice. (I dont believe this is authorized under the FL Rules of Appellate Procedure) In response I argued the court had jurisdiction under Appellate rule 9.130(a)(3)(C)(i) regarding determination of jurisdiction over a party. Unfortunately the appellate court, before being briefed, and without making any finding of fact, without issuing a show cause order or requesting jurisdictional briefs, granted the motion to dismiss. I believe this was legally and procedurally incorrect. The correct place for Appeelle to raise jurisdictional argument which is not shown on the Appellate court record, i.e. an untimely appeal, is in the Answer Brief, not in a preemptive Motion to Dismiss with Prejudice with a whole bunch of filings attached as an unofficial appendix. Moreover I dont think Appellate rules permit summary dismissal before any briefing without a specific finding of fact on jurisdiction. Summary affiance is only authorized after an initial brief has been filed. The correct way to have a district court of appeal re-instate an appeal that was incorrectly dismissed, before a ruling on the merits, is by a Writ of Mandamus in the FL Supreme Court. I have filed one before, pro se, and prevailed. The Supreme Court ordered the 1st DCA to reinstate, to allow proper briefing prior to ruling on the merits. But the premature dismissal in this case meant we were back in trial court today, for my pending motion for reconsideration, heard and denied today. So my next step is going to be another Writ of Mandamus in the FL Supreme Court, this time directed at the 5th DCA. What fun, not. Interesting battle, but I wish this was over a significant amount of money, then I would be rich ! I just dont like to be bullied by Plaintiffs lawyers who feel no compunction about deliberately lying to the court, and flaunting the procedural rules. Oh, and one last laugh, the body of the Second Amended Complaint filed this year, after 5 years of litigation, now runs convoluted 9 pages to set forth two simple counts. A complaint for foreclosure needs three signatures: The attorney filing the complaint, the verification by Plaintiff, a certificate of service. Which one do you think is missing? They have a signed certificate of service, check. They have the verification, check. They are missing a signature for the attorney filing the complaint, as required under Rule 2.515. A rule requiring the signature to attest The attorney has read the document and to the best of the attorneys knowledge, information and belief there is good grounds to support the document. I think the argument by Plaintiffs counsel is that because a lawyer from there firm signed the certificate of service saying copies had been served on all parties, they did not need a lawyer to sign the complaint as the attorney of record filing the complaint, under Rule 2.515. IF we ever get to the stage of filling briefs in the appellate court it is going to be interesting how the 5th DCA reacts to these errors. Some are fundamental and jurisdictional, like the failure to bring a motion to substitute the deceased, but indispensable, party. Others of technical rule violations, that are still viable reasons to strike the pleading entirely. 5 years of lethargic litigation on their part, for we are still in opening rounds. They have finally got an amended complaint past my motions to dismiss, BUT in such a way that it is open to attack from an interlocutory appeal. I have 30 days to file an answer, but I think that will be preempted by a Petition for a Writ of Mandamus, to restore the incorrectly dismissed appeal.
Posted on: Thu, 11 Sep 2014 16:39:24 +0000