Foreclosure Defense Florida

A Gut Wrenching Appellate Loss- Please Share Your Opinions With Me.

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……








  • fldirtlawyer says:

    Matt – I understand your frustration with the decision, but my personal opinion is that the 2d DCA got it right. You’re absolutely right that there is an ambiguity in Rule 1.020(j). The rule would be clarified if it read ” [o]r shall dismiss the action against that defendant without prejudice . . .” or if it referred to the ” entire action” being dismissed. However, reading the entire rule in its entirety, I have always understood it to refer to the dismissal of the action only against the unserved defendant even if not crystal clear on that issue. Probably not what you want to hear, but it’s my honest opinion after years of litigating for plaintiffs and defendants.

    The ambiguity in the rule is one thing, but it’s made worse by the Court’s documents. The ” Notice of Intent to Dismiss for Failure to Obtain Services” talks about dismissal ” of the above styled case. . .” This was made worse by the wording of the master dismissal which provides ” that the cases, as indicated on the attached listing, are hereby dismissed. . .” (emphasis added). I certainly see your argument based on the ambiguity in the rule coupled with the failure to mention the particular defendants in the Notice and Order. That was sloppy on the court’s part, and the DCA basically told them in the last full paragraph.

    I suspect that the DCA was slightly more receptive to the other side’s arguments since they came from the Chief Judge instead of the plaintiff. I don’t think it was the sole factor, but it didn’t help your position.

    Your client had a good faith basis for the appeal, and you did a nice job with the briefs. It’s just one of those close calls that didn’t go your way. Keep up the great work, and don’t let it get you down.


  • Geoff says:

    “If service of the initial process and initial pleading is not made on a defendant within 120 days …” It says, “A DEFENDANT” — NOT ALL DEFENDANTS, OR SOME DEFENDANTS…

    And the court shall dismiss or give the Plaintiff time to effectuate service.

    So, the 2nd DCA was probably right….

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