Vexatious Litigant – Case Dismissed with Prejudice

In this tort case, the appellate court affirmed a dismissal order finding a pro se plaintiff to be a “vexatious litigant,” which according to Florida Statute § 68.093, includes a pro se litigant “who, in the immediately preceding 5-year period, has commenced, prosecuted, or maintained, pro se, five or more civil actions in any court in this state, except an action governed by the Florida Small Claims Rules, which actions have been finally and adversely determined against such person or entity.” The appellate court found specifically that the provision is not unconstitutional, citing Smith v. Hernandez, 20 So. 3d 905 (Fla. 2d DCA 2009).

Smith v. Hatcher, 38 Fla. L. Weekly D1522b (Fla. 1st DCA July 11, 2013.)

Matter Not At Issue – Reversible Error

In this mortgage foreclosure case, the trial court set the matter for trial within twenty days of the date on which the defendant answered the Complaint.  Defense counsel objected to the trial proceeding as scheduled.  For a matter to be at issue, and thus ready for trial, Rule 1.440 requires that at least twenty days must pass from the date of service of the last pleading.  The Third DCA found that the ‘too fast’ trial date was reversible error.

LOPEZ v. U.S. BANK, 38 Fla. L. Weekly D1471a (Case No. 3D13-458 July 3, 2013)

Plaintiff estopped from denying liability for attorneys’ fees

The Plaintiff in this Homeowner’s Association case lived and owned a home within a multi-association community.  His neighborhood was governed by a Homeowners Association and the collection of neighborhoods in his community, each consisting of an individual Homeowners Association, were collectively governed by a Master Association. Plaintiff filed suit alleging that the Master Association had failed to comply with certain provisions of Chapter 720, Florida Statutes.

more Chicago suburbs from the air
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After a hearing, the trial court entered final summary judgment in favor of the Master Association. The Master Association thereafter moved for and was awarded prevailing-party attorney’s fees pursuant to section 720.305(1), Florida Statutes.

Plaintiff argued on appeal that he was not liable for attorneys’ fees because he was not actually a member of the Master Association, and, therefore, the applicable fee shifting language within section 720.305(1) did not apply.

The 5th DCA found, as a matter of statutory interpretation, that he was a member, but, more interestingly, also found that Plaintiff was “estopped from denying liability” for attorneys’ fees.

By filing suit, Plaintiff “held himself out to be a member of the Master Association with standing to sue under section 720.305(1).”  The Plaintiff could not claim he was a member with standing to file suit, then deny that he was a member in an attempt to avoid fee liability.

ROSENBERG v.  METROWEST MASTER ASS’N, INC., et al., 38 Fla. L. Weekly D1476a, (Case No. 5D12-4062 July 5, 2013).

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Error to Dismiss for Lack of Prosecution at Case Management Conference

After Plaintiff failed to attend a case management conference, the trial court issued an order which stated in its entirety:

Neither plaintiff nor defendant appeared at duly set status conference. Whereas this court hereby dismisses without prejudice the above styled case for lack of prosecution.

Florida Rule of Civil Procedure 1.420(e) allows the court to dismiss a suit for lack of prosecution, but the required procedures for dismissal for lack of prosecution were not met, i.e.: “no record activity for ten months followed by a notice to the parties and a sixty-day opportunity to take action.”

The 4th DCA noted that the trial court could have dismissed the suit under Florida Rule of Civil Procedure 1.200(c), which provides that the court may “dismiss the action” if a party fails to attend a case management or pretrial conference. However, the court would have had to made a finding of fact that the failure to attend the case management hearing was “willful and contumacious.”

Since the court’s order merely stated that Appellant failed to attend the conference and did not set forth any findings establishing that Appellant engaged in “willful and contumacious” behavior, the 4th DCA overturned the trial court’s dismissal.

PETERSEN & HAWTHORNE, P.A. v. EMI ENTERPRISES, INC., et. al.,  Case No. 4D11-3609 (4th DCA June 12, 2013).