initial brief

In the District Court of Appeal Third District of Florida

_________________________

CASE NO. 3D13-2712

(Circuit Court Case No. 2012 39765 CA 01) _____________________

ANGELO FRAU and YAMILETH FRAU,

Appellants, v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

Appellees. _____________________________________

ON APPEAL FROM THE ELEVENTH JUDICIAL

CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA ___________________________________________________

INITIAL BRIEF OF APPELLANTS

____________________________________

Respectfully submitted, ICE APPELLATE Counsel for Appellants 1015 N. State Road 7, Suite C Royal Palm Beach, FL 33411 Telephone: (561) 729-0530 Designated Email for Service: [email protected] [email protected] [email protected]

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............................................................................. ii

STATEMENT OF THE CASE AND FACTS .................................................... 1

I. Introduction ............................................................................................ 1

II. Appellants’ Statement of the Facts ......................................................... 1

SUMMARY OF THE ARGUMENT .................................................................. 4

STANDARD OF REVIEW ................................................................................. 5

ARGUMENT ....................................................................................................... 6

The Trial Court Erred in Denying the Fraus’ Motion to Quash. .................. 6

A. Failure of the process server to note the statutorily mandated information on the documents delivered required dismissal for insufficiency of service of process. ......................................................... 6

B. A jurisdictional objection cannot be waived through inaction. .............. 8

C. Deeming motions “abandoned” contradicts existing Rules of Procedure. ..............................................................................................10

CONCLUSION ..................................................................................................26

CERTIFICATE OF SERVICE AND FILING ..................................................28

i

TABLE OF AUTHORITIES

Page Cases

1-888-Traffic Sch. v. Chief Circuit Judge, Fourth Judicial Circuit, 734 So. 2d 413, 415 (Fla. 1999) ............................................................................. 5

Alvarado v. Cisneros, 919 So. 2d 585 (Fla. 3d DCA 2006).............................................................. 5, 8, 9

Am. Exp. Ins. Services Europe Ltd. v. Duvall, 972 So. 2d 1035 (Fla. 3d DCA 2008)..................................................................... 8

Bathurst v. Turner, 533 So. 2d 939 (Fla. 3d DCA 1988).............................................................. 13, 14

Bennett v. Christiana Bank & Trust Co., 50 So. 3d 43 (Fla. 3d DCA 2010) ........................................................................... 6

Berkheimer v. Berkheimer, 466 So.2d 1219 (Fla. 4th DCA 1985) ..................................................................12

Berne v. Beznos, 819 So.2d 235 (Fla. 3d DCA 2002) ........................................................................ 8

Blackiston v. State, 772 So. 2d 554 (Fla. 5th DCA 2000) ...................................................................21

Broward County v. G.B.V. Intern., Ltd., 787 So. 2d 838 (Fla. 2001) ..................................................................................... 5

Brown v. U.S. Bank Nat. Ass’n, 117 So. 3d 823 (Fla. 4th DCA 2013) .................................................................7, 8

Combs v. State, 420 So. 2d 316 (Fla. 5th DCA 1982) approved, 436 So. 2d 93 (Fla. 1983) ....................................................................19

ii

Comcoa, Inc. v. Coe, 587 So. 2d 474 (Fla. 3d DCA 1991).....................................................................21

Dashew v. Marks, 352 So.2d 554 (Fla. 3d DCA 1977) ......................................................................15

Electro Eng’g Products Co., Inc. v. Lewis, 352 So. 2d 862 (Fla. 1977) ..................................................................................... 6

Hewlett v. State, 661 So. 2d 112 (Fla. 4th DCA 1995) ...................................................................20

Kwong v. Countrywide Home Loans Servicing, L.P., 54 So. 3d 1033 (Fla. 4th DCA 2011) ..................................................................... 7

Labbee v. Harrington, 913 So. 2d 679 (Fla. 3d DCA 2005)....................................................................... 5

McKelvey v. McKelvey, 323 So. 2d 651 (Fla. 3d DCA 1976)....................................................................... 6

Mecca Multimedia, Inc. v. Kurzbard, 954 So. 2d 1179 (Fla. 3d DCA 2007)..................................................................... 5

Melara v. Cicione, 712 So. 2d 429 (Fla. 3d DCA 1998).....................................................................19

Melkonian v. Goldman, 647 So. 2d 1008 (Fla. 3d DCA 1994)...................................................................12

Obando v. Bradshaw, 920 So. 2d 198 (Fla. 4th DCA 2006) ...................................................................12

Patton v. Kera Tech., Inc., 895 So. 2d 1175 (Fla. 5th DCA 2005) approved, 946 So. 2d 983 (Fla. 2006) ..................................................................15

Payret v. Adams, 471 So.2d 218 (Fla. 4th DCA 1985) ....................................................................12

iii

S. R. v. State, 346 So. 2d 1018 (Fla. 1977) .................................................................................17

Sewell Masonry Co. v. DCC Const. Inc., 862 So.2d 893 (Fla. 5th DCA 2003) ....................................................................15

Subirats v. Fid. Nat. Prop., 106 So. 3d 997 (Fla. 3d DCA 2013).....................................................................14

Tallahassee Democrat, Inc. v. Willis, 370 So. 2d 867 (Fla. 1st DCA 1979) ....................................................................18

United Services Auto. Ass’n v. Goodman, 826 So. 2d 914 (Fla. 2002) ...................................................................................12

Valdez v. Chief Judge of Eleventh Judicial Circuit of Florida, 640 So. 2d 1164 (Fla. 3d DCA 1994)...................................................................20

Vidal v. SunTrust Bank, 41 So. 3d 401 (Fla. 4th DCA 2010) ....................................................................... 6

Walker v. Fifth Third Mortg. Co., 100 So. 3d 267 (Fla. 5th DCA 2012) ..................................................................... 7

Statutes

§48.031(5), Fla. Stat. ......................................................................................... 1, 6, 7

Rules

Fla. R. Civ. P. 1.070(e) ..........................................................................................6, 7

Fla. R. Civ. P. 1.090(d) ............................................................................................18

Fla. R. Civ. P. 1.140(a) ............................................................................................14

Fla. R. Civ. P. 1.140(b) ............................................................................................13

iv

Fla. R. Civ. P. 1.140(d) ............................................................................................17

Fla. R. Civ. P. 1.140(h) ............................................................................................13

Fla. R. Civ. P. 1.200(a) ............................................................................................18

Fla. R. Civ. P. 1.420(e) Fla. R. Civ. P. ....................................................................15

Fla. R. Civ. P. 1.440(a) ............................................................................................14

Fla. R. Jud. Admin. 2.120(c) ....................................................................................12

Fla. R. Jud. Admin. 2.215(b)(2) ...............................................................................12

R. Regulating Fla. Bar 4-3.2. ...................................................................................16

Other Authorities

Art. I, § 21, Fla. Const. ............................................................................................19

Art. I, § 9, Fla. Const................................................................................................19

Art. V, § 4, Fla. Const. .............................................................................................19

v

STATEMENT OF THE CASE AND FACTS

I. Introduction

This appeal arises from a foreclosure action filed by JPMorgan Chase Bank,

National Association (“the Bank”) against Angelo and Yamileth Frau (“the

Fraus”). It presents a single question:

II. Appellants’ Statement of the Facts

Approximately a year and a half ago, the Bank filed a foreclosure action to

collect a debt originally owed to Chase Manhattan Mortgage Corporation.1 The

Fraus’ first appearance in the case was a Motion to Quash Service of Process2 in

which they contended that service was defective because none of the information

required by§48.031(5), Fla. Stat. had been written on the summons:

A person serving process shall place, on the first page of at least one of the processes served, the date and time of service and his or her identification number and initials for all service of process.

1 Verified Mortgage Foreclosure Complaint, filed October 4, 2012 (App. 6). 2 Defendants, Angelo Frau and Yamileth Frau’s Motion to Quash Service of Process, served November 13, 2012 (App. 38).

Is a timely challenge to the court’s personal jurisdiction waivable

through inaction?

1

§48.031(5), Fla. Stat. The Fraus attached a copy of the first page of each summons

given to them as evidence that the process server had not provided any of the four

necessary items of information: the date, the time of service, his or her

identification number or his or her initials.

The Bank did nothing to challenge the Fraus’ motion or to prosecute its case.

The only activity in the case during the next seven months was a Notice of

Unavailability filed by the Fraus’ attorneys.3 The trial court then (in July of 2013)

sua sponte, set the matter for trial to take place October 18, 2013 even though the

case was not at issue because the Fraus had neither answered nor been defaulted.4

The court, however, did not serve the Fraus with the trial order, relying instead on

the Bank to do so. The Bank, however, did not serve the order until more than

three months had passed—a mere fifteen days before the scheduled trial.5

The Fraus moved to vacate the trial order because it was served late and was,

in any event, a legal nullity because the case was not at issue.6 On the day

3 Notice of Unavailability, served February 1, 2013 (App. 48). 4 Uniform Order Setting Cause for Non-Jury Trial and Trial Instructions, dated June 25, 2013. 5 Plaintiff’s Notice of Service of Uniform Order Setting Cause for Non-Jury Trial and Trial Instructions, served October 3, 2013 (App. 63). 6 Defendants, Angelo Frau and Yamileth Frau’s Motion to Strike Trial Order and in the Alternative Motion to Vacate Trial Order, served October 4, 2013 (App. 77).

2

scheduled for trial, the trial court granted the Fraus’ motion and set a status

conference to take place within two weeks. The court, however, also ordered the

Fraus to file an answer in five days, stating “[the] Court finds Defendant’s Motion

to Quash Service abandoned.”7

From this non-final order determining jurisdiction without a hearing, the

Fraus bring this appeal. 8

7 Order on Defendants, Angelo Frau and Yamileth Frau’s Motion to Strike Trial Order and in the Alternative Motion to Vacate Trial Order, dated October 18, 2013 (App. 120). 8 A nearly identical appeal involving the purported “abandonment” of a motion to quash is pending before this court. Barnsdale Holdings, LLC v. Deutsche Bank National Trust Company, Case No. 3D14-656.

3

SUMMARY OF THE ARGUMENT

The trial court erred when it refused to address the merits of the Fraus’

motion to quash, and instead, deemed it “abandoned” merely because neither party

had set the motion for hearing. Because the Fraus challenged the court’s

jurisdiction at the first opportunity, that challenge could not be waived through the

Fraus’ actions in defending the case (short of asking for affirmative relief) or their

inaction.

The trial court’s “abandonment” concept was apparently derived from an

Eleventh Circuit Administrative Order which advances this new method for

disposing of pre-answer motions in foreclosure cases so that they may be set for

trial. When coupled with forcible emails from the author of the Administrative

Order, use of the “abandonment” shortcut was effectively mandated for the

Eleventh Circuit judges.

The Administrative Order, however, exceeds the authority of the

Administrative Judge because it contradicts specific Rules of Civil Procedure, as

well as their overall procedural scheme. Moreover, it unnecessarily impinges upon

the due process rights of the litigants, and unfairly prejudices Florida homeowners.

Accordingly the order denying the Fraus’ motion to quash should be

reversed and the case sent back for further proceedings.

4

STANDARD OF REVIEW

“The determination of whether the trial court properly ruled on a motion to

quash service of process for lack of personal jurisdiction is a question of law” that

the court reviews de novo. Mecca Multimedia, Inc. v. Kurzbard, 954 So. 2d 1179,

1181 (Fla. 3d DCA 2007), citing Alvarado v. Cisneros, 919 So. 2d 585, 587 (Fla.

3d DCA 2006); Labbee v. Harrington, 913 So. 2d 679, 681 (Fla. 3d DCA 2005).

To the extent that this appeal involves a challenge to an administrative order,

it partakes of a writ of certiorari—the normal remedy for such challenges. 1-888-

Traffic Sch. v. Chief Circuit Judge, Fourth Judicial Circuit, 734 So. 2d 413, 415

(Fla. 1999). If this Court should decide to treat this appeal as a writ of certiorari in

order to directly address the administrative order, the standard of review is whether

that order departed from the essential requirements of the law. Broward County v.

G.B.V. Intern., Ltd., 787 So. 2d 838, 844 (Fla. 2001).

5

ARGUMENT

The Trial Court Erred in Denying the Fraus’ Motion to Quash.

A. Failure of the process server to note the statutorily mandated information on the documents delivered required dismissal for insufficiency of service of process.

Service of process is the cornerstone of a trial court’s jurisdiction over

defendants in a court action. McKelvey v. McKelvey, 323 So. 2d 651, 653 (Fla. 3d

DCA 1976). Strict compliance with service of process procedures is required.

Electro Eng’g Products Co., Inc. v. Lewis, 352 So. 2d 862, 865 (Fla. 1977); see

also Bennett v. Christiana Bank & Trust Co., 50 So. 3d 43, 45 (Fla. 3d DCA 2010)

(reversing denial of motion to quash).

Where the process server has not complied with the statutory requirements

of service—such as those contained in § 48.031(5), Fla. Stat.9 (and echoed in Fla.

R. Civ. P. 1.070(e)10)—service is defective and must be quashed. Vidal v. SunTrust

Bank, 41 So. 3d 401, 402 (Fla. 4th DCA 2010) (reversing an order denying a

9 “A person serving process shall place, on the first page of at least one of the processes served, the date and time of service and his or her identification number and initials for all service of process.” § 48.031(5), Fla. Stat. 10 “Copies of Initial Pleading for Persons Served. At the time of personal service of process a copy of the initial pleading shall be delivered to the party upon whom service is made. The date and hour of service shall be endorsed on the original process and all copies of it by the person making the service. …” Fla. R. Civ. P. 1.070(e).

6

motion to quash where the process server failed to note the time of service on the

copy of the summons served); Kwong v. Countrywide Home Loans Servicing, L.P.,

54 So. 3d 1033 (Fla. 4th DCA 2011) (reversing an order denying a motion to quash

where the process servicer failed to note, among other things, the time of service

on the process served); Walker v. Fifth Third Mortg. Co., 100 So. 3d 267 (Fla. 5th

DCA 2012) (service of process was required to be quashed due to process server's

failure to include time and date of service or his identification number on served

documents).

In Brown v. U.S. Bank Nat. Ass’n, 117 So. 3d 823 (Fla. 4th DCA 2013), the

process server provided the wrong date on the defendant’s summons. The trial

court denied a motion to quash service of process and the appellate court reversed

after a confession of error by the plaintiff bank. Citing to §48.031(5) Fla. Stat., as

well as Fla. R. Civ. P. 1.070(e) (requiring that the “date and hour of service shall

be endorsed on the original process and all copies of it by the person making the

service”), the court reiterated that “[w]hen a process server fails to strictly comply

with these rules, service must be quashed.” Id. at 824.

Here, the copies of the summonses produced by the Fraus demonstrated that

the required information was missing. Nothing in the record suggests that the

7

Bank contested this key fact. Thus, had the trial court considered the merits of the

Fraus’ motion, it would have had no choice but to quash service of process.

B. A jurisdictional objection cannot be waived through inaction.

The trial court did not, however, reach the merits of the Fraus’ motion to

quash. Instead, it effectively struck the motion believing that the Fraus were

required to obtain a ruling on their motion before some indeterminate deadline had

passed. In essence, the trial court ruled that, after the passage of some time, its

jurisdictional powers could indiscriminately extend over those who have contested

it—whether they have ever been served or not.

Of course, jurisdictional objections, once made, can only be waived by

seeking affirmative relief. See Brown v. U.S. Bank Nat. Ass’n, 117 So. 3d at 824

(making discovery requests and moving for sanctions were not requests for

affirmative relief that would waive service); Am. Exp. Ins. Services Europe Ltd. v.

Duvall, 972 So. 2d 1035, 1040 (Fla. 3d DCA 2008) (attendance at deposition did

not waive challenge to personal jurisdiction); Alvarado v. Cisneros, 919 So. 2d

585, 588 (Fla. 3d DCA 2006) (“[I]f a defending party timely raises an objection to

personal jurisdiction or service of process, then that defendant may plea to the

merits and actively defend the lawsuit without waiving the objection.”), quoting,

Berne v. Beznos, 819 So.2d 235, 238 (Fla. 3d DCA 2002).

8

If actively participating in the litigation does not waive a jurisdictional

objection, then certainly inaction—i.e. choosing to rely on an absence of

jurisdiction—cannot do so. Indeed, the Fraus could have chosen the ultimate

inaction—filing no motion at all—because it is well-settled that “[a] judgment

entered without valid service is void for lack of personal jurisdiction and may be

collaterally attacked at any time.” Alvarado v. Cisneros, 919 So. 2d at 587 (internal

quotation omitted). Instead, the Fraus chose to put the Bank on notice of the

service problem early in the litigation. This provided the Bank the opportunity to

remedy the problem and avoid the complications of vacating a default judgment

(particularly difficult if the collateral were sold to a third party). But by sua sponte

converting the motion to quash into a general appearance, the court has, ironically,

penalized the Fraus for choosing to react more promptly than required.

9

C. Deeming motions “abandoned” contradicts existing Rules of Procedure.

The trial court’s use of the word “abandoned” suggests that its ruling relied

on Administrative Orders issued by the Eleventh Circuit Civil Division

Administrative Judge, Jennifer Bailey, regarding foreclosure cases.11 The current

Order provides:

c. Motions The Eleventh Circuit Civil Division continues to hold separate foreclosure motion calendars. For each judge’s procedure, please consult the circuit website at: http://www.judll.flcourts.org All Motions must be promptly set for hearing upon filing. Failure to set motions for hearing may result in these motions being deemed abandoned or denied without hearing by the Presiding Judge.12

* * * 4. Motion Calendar. Any motion filed should generally be set for a

hearing date within 30 days of filing.

a. Motions which are filed and which have not been set for hearing within 30 days may be deemed abandoned or withdrawn and, thus, denied without hearing.13

11 Administrative Memorandum No. 13-C, dated August 2, 2013, 2013-2014, Case Management Plan for Foreclosure Cases and Use of Case Managers Funded in 2013 Trial Court Budget (“Administrative Order,” App. 270). This order was preceded by Administrative Memorandum Civ 12-E 24 CA 01, In re: Residential Mortgage Foreclosure Cases, dated September 10, 2012 (App. 262). 12Administrative Order, p. 5 (emphasis added). 13 Administrative Order, p. 17.

10

The stated intent of the Administrative Order is to help reduce the “backlog”

of foreclosure cases by making the court’s case management more proactive. And

while its language is broad enough to cover any motion filed by any party, its

intent14—and its application in practice—is to dispose of motions directed to the

pleadings (usually defense motions) so that the cases could be set for trial.

This plan to deem motions “abandoned” significantly exceeds the authority

of the administrative judge, unnecessarily impinges upon the due process rights of

the litigants, and unfairly prejudices Florida homeowners.

1. The Administrative Order exceeds the authority of the administrative judge.

The Rules of Judicial Administration provide a chief judge (who may

delegate his or her authority to another judge) with the power to issue

administrative orders for the purpose of managing the affairs of the court. Fla. R.

14 Judge Bailey’s Interim Report—Foreclosure Backlog Reduction Initiative, p. 4 states that she implemented the order “which allows division judges to deem a motion to dismiss abandoned” as the solution for the problem of cases being continued because they are not at issue (App. 293). See also, the recent “copycat” Administrative Order from the 15th Circuit which adopts the “abandonment” concept specifically for “Motions to Dismiss, Motions for Extension of Time which seek additional time to respond to a complaint, counterclaim, cross-claim or third party claim, Motions to Quash, and other motions which prevent a matter from being at issue…” Administrative Order: 3.314-3/14, In re: Timely Resolutions of Motions in Foreclosure Division “AW,” dated March 13, 2014 (App. 288).

11

Jud. Admin. 2.215(b)(2). But such orders cannot be inconsistent with court rules

already approved by the Florida Supreme Court. Fla. R. Jud. Admin. 2.120(c).

Administrative orders that attempt to amend the rules, or undercut the overall

scheme or design of the rules are invalid because they exceed the authority granted

under the Florida Rules of Judicial Administration. Payret v. Adams, 471 So.2d

218, 220 (Fla. 4th DCA 1985) (“[C]ourts of this state are not empowered to

develop local rules which contravene those promulgated by the Supreme Court.

Nor may courts devise practices which skirt the requirements of duly promulgated

rules.”) (quoting Berkheimer v. Berkheimer, 466 So.2d 1219, 1221 (Fla. 4th DCA

1985)); Obando v. Bradshaw, 920 So. 2d 198, 200 (Fla. 4th DCA 2006) (same);

see also Melkonian v. Goldman, 647 So. 2d 1008, 1009 (Fla. 3d DCA 1994)

(administrative judge’s memorandum order may not be inconsistent with local

rules approved by the Florida Supreme Court); United Services Auto. Ass'n v.

Goodman, 826 So. 2d 914, 915 (Fla. 2002) (order prohibiting defense counsel

employed as full-time insurance company staff from using individual firm names

in pleadings improperly encroached upon the Supreme Court’s jurisdiction to

adopt rules for the courts).

Invalid administrative orders include those that create time limits for a party

to exercise a right where the rules of civil procedure have no such limits. In

12

Bathurst v. Turner, 533 So. 2d 939, 941 (Fla. 3d DCA 1988), this Court granted a

writ of mandamus which challenged an order which created a five-day time limit

for objecting to a referral to a magistrate. Because the rule of civil procedure

required a party’s “consent”—an affirmative, voluntary action—mere

acquiescence through inaction during the five-day period was insufficient. While

the opinion in this case addressed a trial court’s order, this Court noted that the

result would be the same if an existing administrative order were interpreted the

same way. Id. at 941, n. 4.

Here, the Administrative Order creates a time limit for obtaining a ruling on

motions that are timely under the rules, by instructing judges that the motions can

be deemed “abandoned” or waived. This newly minted waiver through inaction

undercuts the Rules of Civil Procedure in several ways.

Impermissible creation of a new waiver rule.

First, the Rules themselves provide what constitutes a waiver of matters that

can be raised in preliminary, pre-answer motions, such as that filed in this case.

Rules 1.140(b) and (h) of the Florida Rules of Civil Procedure specify that a party

waives defenses and objections (such as insufficiency of service) if they are not

raised in the answer or a pre-answer motion. The Rules provide time limits for

13

raising these defenses—twenty days from service for the typical defendant, or ten

days from the denial of a pre-answer motion. Fla. R. Civ. P. 1.140(a). The rules

also provide a method for waiving the right to file motions directed to the

pleadings by way of an affirmative, voluntary action (reminiscent of the “consent”

rule discussed in Bathurst)—the filing of a notice for trial. Fla. R. Civ. P. 1.440(a).

The Administrative Order now adds another method of waiver never

approved by the Florida Supreme Court and establishes a new time limit (for

obtaining a hearing on preliminary motions) not found in the Rules. However, the

Florida Supreme Court’s express declaration describing the manner in which

defenses may be waived through inaction implies the exclusion of other methods.

See Subirats v. Fid. Nat. Prop., 106 So. 3d 997, 999 (Fla. 3d DCA 2013) (applying

the “expressio unius est exclusio alterius” rule of construction to conclude that the

Florida Department of Financial Services exceeded its rulemaking authority when

it created a five-day waiver rule). Accordingly, a chief judge (or appointed

administrative judge) has no authority to invent new rules which can operate to

waive a party’s rights.

14

Impermissible shifting of burden to prosecute.

Second, an underlying theme in the design of the Rules of Civil Procedure is

that the plaintiff bears the burden of prosecuting the case. Rule 1.420(e) provides

that an action may be dismissed after a period of inactivity of one year. A

defendant, therefore, is entitled to a dismissal if a plaintiff does not set a pending

pre-answer motion for hearing for a year (provided the parties or the court take no

other action in the interim). Patton v. Kera Tech., Inc., 895 So. 2d 1175, 1178 (Fla.

5th DCA 2005) approved, 946 So. 2d 983 (Fla. 2006) (“The plaintiff bears

responsibility to expedite litigation and Plaintiff’s failure to take steps within

Plaintiff’s control to resolve the case or to ensure prompt dispatch of court orders

warrants dismissal.”); see Dashew v. Marks, 352 So.2d 554 (Fla. 3d DCA 1977)

(court’s failure to enter a written order on an oral decision did not relieve plaintiff

of the duty to proceed and did not affect the defendant’s right to dismiss the case

for lack of prosecution); Sewell Masonry Co. v. DCC Const. Inc., 862 So.2d 893

(Fla. 5th DCA 2003) (“it is not the duty of the trial judge to schedule hearings on

motions for parties who do not themselves seek rulings on their pleadings”).

The Administrative Order, however, impermissibly shifts the burden to the

defendant to prosecute the plaintiff’s action against him or her. Because the

candidly stated purpose of the new “abandonment” rule is to force cases to be at

15

issue so they may be immediately tried, it eviscerates the existing lack of

prosecution rule, ensuring that no foreclosure plaintiff can suffer dismissal for

failure to prosecute. Given the Administrative Judge’s stated purpose of clearing

its dockets of a backlog of stagnant foreclosure cases, stripping away the potential

to dismiss cases for lack of prosecution is seemingly self-defeating.15

This is not to say that attorneys do not have a professional responsibility to

“make reasonable efforts to expedite litigation consistent with the interests of the

client.” R. Regulating Fla. Bar 4-3.2. But the Comment to the Rule, and the cases

applying it, make clear that it applies when an attorney neglects the client,

routinely delays proceedings for personal reasons, or files frivolous motions that

do not have “some substantial purpose other than delay. Comment to R. Regulating

Fla. Bar 4-3.2. It would not apply to require an attorney to expedite litigation

inconsistent with the interests of the client, such as helping an opponent prosecute

its case against the client or taking unnecessary action that extinguishes the

opportunity for the case to be dismissed for lack of prosecution. The

Administrative Order, therefore, cannot be supported by reference to the Rules of

Professional Conduct.

15 Notably, the only record activity in this case for seven months was the trial court’s own order setting trial—a sua sponte (and invalid) order that reset the clock for the plaintiff.

16

Impermissible deviation from the requirement that pre-answer motions be determined by hearing.

Third, the Rules of Civil Procedure already specify the manner in which

preliminary motions must be determined. Rule 1.140(d) Fla. R. Civ. P.

unequivocally states that pre-answer motions “shall be heard and determined

before trial on application of any party unless the court orders that the hearing and

determination shall be deferred until the trial.” (emphasis added). The directive

that the courts “shall” hear and determine such motions leaves no room for a new

rule that allows the court to dispose of them without a hearing by deeming them

abandoned. See S. R. v. State, 346 So. 2d 1018, 1019 (Fla. 1977) (in statutory

interpretation, “shall,” is normally meant to be mandatory).

Impermissible deviation from the established method by which the courts manage their cases.

Fourth, while the plaintiff bears the burden of prosecuting its case, the trial

court has the concomitant responsibility to prevent cases from languishing on its

docket. As Justice Harding, in a special concurring opinion in Fuster-Escalona v.

Wisotsky, 781 So. 2d 1063, 1066 (Fla. 2000), explained:

17

Trial judges have a duty to periodically review their dockets and bring up matters which the attorneys have not set for hearing. …[I]t is the judge’s, not the attorneys’, responsibility to ensure that cases move through the system appropriately.

To that end, the Rules of Civil Procedure already provide a mechanism for

the courts to manage their cases—a method that does not involve deeming that

litigants have abandoned their motions. Rule 1.200(a) Fla. R. Civ. P. provides that

the court may order a status conference so that it may “determine…matters that

may aid in the disposition of the action.” The court, therefore, may call a status

conference and, with notice to the parties (and coordination with their schedules),

rule upon any pending motions directed to the pleadings. See also, Fla. R. Civ. P.

1.090(d) (Notice of hearing for motions which may not be heard ex parte must “be

served a reasonable time before the time specified for the hearing.”).

The Administrative Order, however, creates a new shortcut to the

established rules, inviting judges to dispose of pre-answer motions without

spending the time to read them, hear argument on them, rule upon them, and enter

orders on them. Such automated resolution of disputed issues, where the rules

contemplate case-by-case decision-making by judges, is itself a basis for declaring

an administrative order null and void. Tallahassee Democrat, Inc. v. Willis, 370

So. 2d 867 (Fla. 1st DCA 1979) (Blanket administrative order requiring all

18

deposition transcripts in all cases to be sealed quashed as in conflict with the Rules

of Civil Procedure which contemplate case-by-case consideration.)

Impermissible attempt to shield rulings from appellate review.

Fifth, the Rules of Civil Procedure and the Rules of Appellate Procedure, as

well as the Florida Constitution were specifically and carefully designed to provide

litigants with a fundamental right of due process—appellate review. Art. I, §§ 9,

21, Fla. Const. ; Art. V, § 4, Fla. Const. The entire edifice of the judicial system

presumes that the trial courts will determine motions on their merits and erroneous

decisions can be rectified by the appellate court. See Combs v. State, 420 So. 2d

316, 317 (Fla. 5th DCA 1982) approved, 436 So. 2d 93 (Fla. 1983) (equating

rulings that effectively deny appellate review with violations of due process

rights).

The Administrative Order, however, constructs a method by which the trial

court can dispose of motions without deciding them upon their merits. Deeming

them “abandoned” when there was no such intent, falsely clothes these decisions

with the appearance of a waiver, which could prevent appellate review. See e.g.

Melara v. Cicione, 712 So. 2d 429, 430 (Fla. 3d DCA 1998) (issue not preserved

for appellate review where there was a “clear waiver or abandonment”).

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Given that the trial courts could use case management conferences to call up

and rule on the merits of the motions (or even request that the parties brief the

issues so that the judges could rule upon them from the bench), the Administrative

Order’s suggestion that that the judges instead deny them as abandoned suggests a

predisposition against any such motions. This implication of pre-determination,

even though unintended, runs afoul of the judiciary’s obligation to avoid even the

appearance of impropriety. That these pre-determined rulings should also be

immune from appellate review presents an even greater danger of eroding the

public’s confidence in the integrity of the judiciary. See, Commentary to Canon 2A

of the Code of Judicial Conduct.

2. The Administrative Order usurps the discretionary decision-making power of the circuit judges.

Administrative Orders that attempt to limit judicial discretion exceed the

authority granted under the Florida Rules of Judicial Administration. Valdez v.

Chief Judge of Eleventh Judicial Circuit of Florida, 640 So. 2d 1164, 1165 (Fla. 3d

DCA 1994) (“A judge … cannot direct a colleague of that court or of an inferior

court how to rule upon a matter except through an established writ or appellate

process.”); Hewlett v. State, 661 So. 2d 112, 115 (Fla. 4th DCA 1995)

(administrative order unlawfully extinguished judicial discretion by creating an

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automatic expulsion from a drug pretrial intervention program); Blackiston v.

State, 772 So. 2d 554, 555 (Fla. 5th DCA 2000) (“the administrative order

improperly limits the discretionary authority vested in the trial judges to utilize the

program when they deem it appropriate”).

Here, the Administrative Order is designed to dissuade judges from using

their own discretion when ruling upon pre-answer motions. While the directive to

deem motions abandoned is not stated in mandatory terms such as “will” or

“shall,”16 there is evidence that considerable pressure was brought to bear to cajole

the Eleventh Circuit judges to abdicate their own discretion in ruling upon the

motions.

For example, Jennifer Bailey—the author of the Administrative Order—

emailed the Circuit Civil Division judges proposing that they “take advantage of

the new administrative order that advises that we may treat any motion to dismiss

which has never been set for hearing as abandoned.” She also stated that she

would be preparing proposed orders on motions to dismiss for the judges to review

16 Sometimes, however, the term “may” can be interpreted to be mandatory, particularly where the action permitted is intended for the public benefit. See Comcoa, Inc. v. Coe, 587 So. 2d 474 (Fla. 3d DCA 1991).

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and execute in an effort “to save [the judges] the effort of having to look at these

messes.”17

The pressure to conform to the Administrative Order is also evident with

respect to its other provisions. For example, in a July 20th, 2012 email from Judge

Bailey to the Circuit Civil Division judges, she urged judges not to grant

continuances in foreclosure cases, stating “please DO NOT CONTINUE CASES

THAT YOU DID NOT SET” (emphasis original) and “[p]lease oh please” do not

continue these cases.18 She couples this entreaty with a warning that “[t]his is the

standard by which the bench will be judged by the governor and the legislature.”19

Judge Cynamon responds to this email stating that she has already denied motions

for continuance because of a conversation she had with Judge Bailey.20

Additionally, in an email entitled “DANGER! DANGER!,” Judge Bailey

tells the judges to send all requests for continuance to her—even if the parties are

17 Email from Jennifer Bailey to the Circuit Civil Division judges, dated October 17, 2012 (App. 298). The emails and Interim Report are the subject of a simultaneously filed Motion for Approval to Include Public Records in Appendix. 18 Email from Jennifer Bailey to the Circuit Civil Division judges, dated July 20, 2012 (App. 299-300). 19 Id. 20 Id.

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agreed: “If it is an agreed order, don’t sign it if it continues the trial.”21 It instructs

judicial assistants, bailiffs and clerks to divert any agreed orders on continuance

and send them to her foreclosure team.

Accordingly, it is reasonable to conclude that the judges considered the

directive of the Administrative Order to deem motions abandoned as mandatory

and entered such orders, as in this case, without addressing the merits or consulting

their own judicial discretion.

3. In practice, the Administrative Order is more prejudicial to homeowner-defendants than bank-plaintiffs.

Judge Bailey has acknowledged that she implemented the rule “which

allows division judges to deem a motion to dismiss abandoned” as a solution to the

court being routinely “confronted with cases in which the Plaintiffs have failed to

get the case at issue.”22 She recognized that both parties to a foreclosure action

often seek to avoid trial and emphasized that [t]his avoidance includes Plaintiffs.”23

She stated that plaintiff banks even use “bogus motions to amend” to allege the

21 Email from Jennifer Bailey to the Circuit Civil Division, dated October 12, 2012 (App. 301). 22 Interim Report—Foreclosure Backlog Reduction Initiative, p. 4 (App. 293). 23 Interim Report, p. 4.

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case is not at issue.24 She has expressed the belief that “this entire [foreclosure]

legal industry seems to be built around the concept of an ‘end run.’”25

Despite this dissatisfaction with both parties—and in particular, banks’

lawyers—the remedy she devised is asymmetrically prejudicial to homeowners.

First, it elevates a plaintiff-oriented goal of obtaining a judgment of foreclosure

over the defense-oriented goal of dismissal for lack of prosecution—a remedy to

which homeowners are entitled under the rules. Indeed, it places an additional

economic burden on homeowners (the party who can least afford it) to coordinate,

notice and attend hearings that may never have been necessary. And by

eliminating hearings at which the banks must address the merits of their

opponents’ motions, the Administrative Order actually encourages the banks not to

set hearings—which promotes, rather than deters, delay.

Second, because the “abandonment” shortcut is only applied to motions

directed at the pleadings, the vast majority of which are defense motions,

homeowners take the brunt of these automated denials. Notably, homeowners

24 Interim Report, p. 5; see also, email from Jennifer Bailey to the Circuit Civil Division judges October 22, 2012, calling plaintiffs’ motions to amend “the latest trick” and “delay tactics.” 25 Email from Jennifer Bailey to the Circuit Civil Division judges, October 22, 2012 (App. 302).

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actively litigating their cases are often stymied by objections to discovery and

motions to extend the time for responding to discovery, which the banks generally

do not set for hearing, but which are not deemed abandoned. Thus, the cases are

rushed to trial, but pending discovery is not, leaving homeowners unarmed to

adequately defend themselves.

Third, it could be said with equal (or perhaps greater) logic that, because the

plaintiff is tasked by the rules to prosecute his or her case, failure to set a hearing

on a motion to dismiss indicates acquiescence to the motion. Thus, the Order

could have declared that the judges should deem the complaint abandoned or the

motion to dismiss granted—a resolution that would also help reduce the backlog.

That the Administrative Order chooses sides in the litigation, assisting one party to

the detriment of the other, casts a shadow of impropriety over the Order.

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CONCLUSION

Accordingly, the order appealed should be reversed and the case remanded

for further proceedings.

Dated: April 10, 2014

ICE APPELLATE Counsel for Appellants 1015 N. State Road 7, Suite C Royal Palm Beach, FL 33411 Telephone: (561) 729-0530 Designated Email for Service: [email protected] [email protected] [email protected] By: ___________________ THOMAS ERSKINE ICE Florida Bar No. 0521655

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CERTIFICATE OF COMPLIANCE WITH FONT STANDARD

Undersigned counsel hereby certifies that the foregoing Brief complies with

Fla. R. App. P. 9.210 and has been typed in Times New Roman, 14 Point.


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CERTIFICATE OF SERVICE AND FILING

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

served this April 10, 2014 to all parties on the attached service list. Service was by

email to all parties not exempt from Rule 2.516 Fla. R. Jud. Admin. at the

indicated email address on the service list, and by U.S. Mail to any other parties. I

also certify that this brief has been electronically filed this April 10, 2014.


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SERVICE LIST Vincent McManus, Esq. ALBERTELLI LAW P.O. Box 23028 Tampa, FL 33623 [email protected] Counsel for Appellee JPMorgan Chase Bank National Association

Elliot B. Kula, Esq. Daniel M. Samson, Esq. W. Aaron Daniel, Esq. Kula & Samson, LLP 11900 Biscayne Boulevard, Suite 310 Miami, Florida 33181 [email protected]; [email protected]; [email protected] Counsel for Appellee JPMorgan Chase Bank National Association

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initial brief

Documents