Archive for September 19th, 2011

Tampa Courts – Expediency Over Accuracy?

Ever since the senior judge system ended in Hillsborough County, I’ve had some frustrating experiences in Tampa courts.  It’s gotten so pervasive recently that I’ve wondered “what matters more, expediency or accuracy?” I hate to say that, and I hate feeling that way, but I know I’m not the only one with concerns about the system.

Today, for example, I received an Order denying a Motion to Dismiss and Motion to Quash Service without notice and without hearing.  Unfortunately, these types of Orders have become common in recent weeks, at least so far as Motions to Dismiss go.  What particularly frustrated me about this one, though, was the judge’s ruling that:

Defendant’s Motion to Quash is denied.  Defendant submitted himself to the jurisdiction of the Court by filing a Motion for Extension of Time, before filing the Motion to Quash. 

In layman’s terms, the Court denied my client’s Motion to Quash Service, not because it lacked merit, but because the Court thought my client waived that argument by first filing a Motion for Extension of Time.  This was hence a very narrow legal issue – does a Motion for Extension of Time waive a Motion to Quash Service? 

Notably, the Court cited no case citations in its Order for the proposition that a Motion for Extension of Time is a waiver of a Motion to Quash Service.  After some quick research, I confirmed what I already believed – a defendant does not waive a Motion to Quash Service by first filing a Motion for Extension of Time.  To illustrate, the Third District has ruled:

The single issue presented by this appeal is whether the filing by Barrios’ attorney of a Motion for Enlargement of Time constituted a general appearance and hence a waiver of Barrios defense of lack of personal jurisdiction and insufficiency of service of process.  It does not.

Barrios v. Sunshine State Bank, 456 So. 2d 590 (Fla. 3d DCA 1984). 

Unfortunately, the Court ruled against me on this issue without a hearing, without notice, and without asking or allowing the parties to provide case citations in written format before making a ruling.  In my opinion, this ruling was legal error, and I saw no alternative but to draft this Motion for Rehearing

I’m hopeful the Court will change its ruling.  However, even if it does, I have greater concerns. 

Most significantly, while I disagree with the process of denying motions to dismiss without hearings, it’s clear to me that this procedure should be employed, at worst, only to those motions that judges see on a regular basis.  In this case, this motion clearly wasn’t one of them. 

In a situation like this, where the Court had before it a motion that is not boilerplate and contained a relatively novel issue (i.e. whether challenges to service of process are waived by a motion for extension of time), the Court should conduct a hearing and give both sides a chance to be heard.  Otherwise, when the Court rules in the banks’ favor and its ruling appears to be erroneous, as here, it creates the strong impression, rightly or wrongly, that the Court cares more about expediency, not accuracy.  That impression, respectfully, is one which the Courts must strive to avoid. 

I’m not perfect, and I don’t expect the Courts to be, either.  However, I do expect that the Courts won’t have the attitude of “this is just another foreclosure case; I’m ruling against the defendant.”  I’m not saying that’s what happened here, but the dynamics create a reasonable fear among my clients that it could be.

Mark Stopa

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