This blog has been a great forum to discuss the occasional triumphs of justice and the victory of the rule of law over the fraud, the deceit and the abject criminality of the banks and their law firms. It has also been an open forum for me to discuss the frustrations over a legal system that is broken and a country that is in decline because we now routinely and systematically just ignore the Rule of Law. I enjoy sharing the victories, but today I share a devastating personal loss with an opinion that was just released in a case I filed in Florida’s Second District Court of Appeal.
The briefs and all of the attachments follow here in this post. I kept reading it and hoping for some glimmer, some bright spot in the middle of a drubbing, a bloody, awful loss, but I can find not a single redeeming element of this opinion….just a flat out shellacking. A gut punch. A sledge hammer to the forehead.
Despite the published opinion, this is not an appeal that I should have lost….from an academic, technical and legal standpoint. In a purely legal vacuum, relying solely upon the law, I think the law is totally on my side and I win. But the costs to the legal system had I prevailed were just too great…and so this tortured and tortuous opinion is now of record.
I desperately want feedback and very critical opinion on this appeal. I encourage every one of you to read each of the briefs, read the rule and share with me your opinions. Am I just so close to this issue that I am missing something or does an honest and objective reading of this case support the opinion that is published? Below is the Rule in question on appeal:
Fl.R.Civ.Pro. 1.020(j) Summons; Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice (emphasis added) or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period.
As briefed extensively, my reading of this rule leads me to the conclusion that the court has the authority to dismiss an action in it’s entirety. In this appeal, I argued that’s what the court did. But that’s not what the appellate court found. Reading the same rule, the court found as follows:
Clearly, the circuit court lacked authority under this rule to dismiss the action as to any defendant who had been properly and timely served.
To which I question, “Really? Where does the rule limit the court’s ability to dismiss the entire action? (without prejudice is the exact text of the rule)
I’m frankly just flabbergasted here. But I’m perfectly prepared to accept that I’m just too close to the action, and that maybe I’m just missing something. That’s why I want objective input. Please read the opinion…lay persons and lawyers alike. Print all the briefs out and study them. Become honorary appeals court justices for the day. You’re now officially appointed to The People’s Court Appellate Court Bench.
And there’s one HUGE issue here that is just totally not addressed at all. You see, the most profound issue….The issue of greatest Constitutional importance relates to the rights of third parties whose rights are completely ignored and violated by this opinion’s operation. I care desperately about people who have no attorney to stand up for them. But somehow that whole issue was totally lost. By this opinion’s operation, there is a poor, scared mother of four renting a home who is paying her bills, who has no notice that she is in danger but gets a knock at the door from the sheriff who tells her….”GET OUT NOW, LEAVE THIS HOME!”
That’s the most profound issue that seems to be lost in this opinion….but again, maybe I’m missing something here. I desperately want feedback and critical input here……
