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Lee County, Florida – Where Anarchy Reigns

Posted on January 26th, 2011 by Mark Stopa

Webster’s Dictionary defines anarchy as “absence or denial of any authority or established order.”  When I see the most recent Order out of Lee County, Florida, I can’t help but opine that’s what the courts in Lee County have become – anarchy.  Yes, there are rules in place, i.e. the Florida Rules of Civil Procedure, as promulgated by the Florida Supreme Court.  However, the Lee County judges have repeatedly denied such rules apply, at least to them, particularly in foreclosure cases. 

That may sound harsh, but look at this Order.  The judge acknowledges the case is not “at issue” under Rule 1.440; in fact a motion to dismiss was outstanding, so, by definition, the case could not have been “at issue.”  In fact, the bank’s lawyers had not prosecuted the case for 10 months (not uncommon for the Marshall Watson law firm), so clearly the plaintiff didn’t care.  Yet the judge was so intent on pushing the case towards trial, he ruled that the motion to dismiss was “waived,” ordered the Defendant to answer, and set trial for less than two months out. 

Trying to justify this ruling, the judge said the Motion to Dismiss was “waived” because it had not been set for hearing.  Respectfully, this is preposterous.  There is absolutely no legal authority for the proposition that a defendant “waives” a motion to dismiss by not setting it for hearing.  If a defendant files a motion to dismiss, and the plaintiff chooses not to prosecute its case by setting that motion for hearing, then the case languishes.  This may sound odd, but it’s actually quite common in litigation.  As I’ve said before, I represent plaintiffs in lawsuits against insurance companies, and when they file motions to dismiss, it’s my job, as plaintiff’s counsel, to set that motion for hearing.  It’s really not a big deal, actually.  I’m the plaintiff.  I’m the party seeking relief in the court system.  If I want relief, I need to set a hearing.  If I don’t set a hearing, my client gets no relief.  In any event, there is absolutely no legal authority for the proposition that a motion to dismiss is “waived” because it is not set for hearing.

The judge tried to justify setting the case for trial, even though it is not at issue, by saying “Lee County is not requiring compliance with Fla.R.Civ.P. 1.440″ and that controlling case law requiring a case be “at issue” before being set for trial is not “controlling in foreclosure cases.”  To illustrate the absurdity of this ruling, please look closely at two appellate court decisions on this issue. 

In Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986), an en banc First District (en banc means that every judge in the First District joined in the decision, instead of just a three-judge panel as usual) held:

A notice for trial is properly filed when the action is ready for trial.  Rule 1.440 is very clear as to when the action is ready for trial.  Leaving little room for improvisation, it provides: (a) An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading. … (b) Thereafter, any party may file and serve a notice that the action is at issue and ready to be set for trial. … [In this case,] at the time of the hearing, there were pending at least appellant’s motion to dissolve the temporary injunction, if not his original motion to dismiss the complaint, as well as appellee’s motion to dismiss the counterclaim.  With those motions pending, we hold that the action was not at issue as contemplated by rule 1.440(a). … [S]trict compliance with rule 1.440 is mandatory. … In our concluding that failure to conform with rule 1.440 is reversible error … we are adopting the bright line approach so as to avoid appeals, such as this, that would not or should not have materialized if the rule had been strictly observed.

See also Precision Constructors, Inc. v. Valtec Construction Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002) (“Failure to adhere strictly to the mandates of Rule 1.440 is reversible error.  Accordingly, the judgment is vacated and the cause is remanded for a new trial.”). 

In setting the case for trial even though it was not “at issue” under 1.440, the Lee County judge ruled that 1.440 is not “controlling” in foreclosure matters.  Of course, the judge cited no legal authority for such a proposition, as none exists.  Hence, as I see it, the judge was basically saying ”I know Rule 1.440 requires that a case be “at issue” before being set for trial, but this is a foreclosure case, so I don’t care – I’m setting trial anyway.”   

This is what the court system has become in Lee County.  There are rules of procedure in place, implemented by the highest court in the state.  Lee County judges know about these rules, as foreclosure defense attorneys regularly point to these rules in court hearings.  Yet judges ignore these rules, conclude they somehow don’t apply, and forge ahead anyway, even when the plaintiff has done nothing in the case for nearly a year. It really makes you wonder – who is prosecuting foreclosure cases?  Banks?  Or judges?  In this case, the plaintiff’s firm had done nothing in the case for nearly a year – nothing at all – yet the judge denied the defendant’s motion to dismiss (without a hearing, without reviewing the motion on the merits, and without argument from plaintiff) and set trial.  Does that seem reasonable to you? 

If this is how the courts are going to operate, why even have rules?  Let’s just let all of the judges on a particular file make up the law as he/she sees fit.  At least that way litigants and their attorneys won’t be constantly frustrated when judges refuse to apply the rules. 

Or we can all realize that judges are elected officials and it is our right, if we so choose, to elect not to retain those judges for another term in office.  I’m not recommending that anyone do that with the judges in Lee County.  However, I can’t help but wonder – if this isn’t a reason to decide not to retain a judge, then what is?

Mark Stopa

www.stayinmyhome.com

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