Florida Second District Court of Appeals Respondent's Response to Mandamus

8/7/2019 Florida Second District Court of Appeals Respondent's Response to Mandamus

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IN THE DISTRICT COURT OF APPEAL OF FLORIDASECOND DISTRICT

LARRY R. BRADSHAW.,Petitioner, Appeal No. 2DIO-5604

v .Lower Tribunal Case No.

2009CA-001575WASHINGTON MUTUAL BANK FIKfAWASIDNGTON MUTUAL BANK, FASUCCESSOR BY MERGER TO BANKUNITEDFSB FIKfA BANK UNITED OF TEXAS, FS,US BANK NATIONAL ASSOCIATION AS- -TRUST~E !?Q~G~MPS 2004-4,

Respondent.I-------------------------------

RESPONDENT'S RESPONSE TO PETITION FOR WRIT OF,MANllAMUS.On or about November 29, 2010, Petitioner, Larry R. Bradshaw

("Petitioner") filed a Petition for Writ of Mandamus ("Petition") requesting thatthis Court direct the lower tribunal to reinstate a foreclosure action that has beenvoluntarily dismissed and to dismiss a pending foreclosure action against him.Because Petitioner does not have a clear legal right to the relief requested, the trialcourt does not have a duty to grant the relief requested, and he had an adequateremedy at law, the Petition should be denied. Respondent, US Bank NationalAssociation As Trustee for GSMPS ("Bank"), should be permitted to continue its


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pending foreclosure action against Petitioner.I. Statement of Facts

This action arises from mortgage foreclosure actions filed against Petitioner,Larry R. Bradshaw ("Petitioner"), in the Circuit Court of the Twentieth JudicialCircuit in and for Lee County, Florida.l On or about October 2, 2006, a mortgageforeclosure complaint was filed against Petitioner in Washington Mutual BankF/KIA Washington Mutual Bank FA ("Washington Mutual") v. Larry R.Bradshaw, Case No. 06-CA-004271 ("2006 Case"). See Mortgage ForeclosureComplaint Case No. 06-CA-004271, attached hereto as Respondent's Appendix 1.Washington Mutual voluntarily dismissed the 2006-Case when Petitioner.reinstated ~'-. _;.:~d'_the loan. See Memorandum of Law in Opposition to Defendant's Motion forEvidentiary Hearing, attached to Petition as Exhibit P-15.

On or about September 27, 2007, a mortgage foreclosure complaint wasfiled against Petitioner in Washington Mutual Bank F/KIA/ Washington MutualBank, FA Successor by Merger to BankUnited, FSB F/KIA Bank United of Texas,FSB v. Larry R. Bradshaw Case No. 07-CA-011562 ("2007 Case"). See MortgageForeclosure Complaint Case No. 07-CA-001562, attached hereto as Respondent'sAppendix 2. Washington Mutual's allegations were essentially the same, withexception of a different default date than was alleged in the 2006 Case. During the1 The Florida Supreme Court has stated that the "doctrine of res judicata does not necessarily barsuccessive foreclosure suits, regardless of whether or not the mortgagee sought to accelerate paymentson the note in the first suit." See Singleton v. Greymar Associates, 882 So. 2d 1004, 1008 (Fla. 2004).


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pendency of the 2007 Case, documents were filed on behalf of Washington Mutualby attorneys from Florida Default Law Group, P.L. ("FDLG") and Echevarria,Codilis & Stawiarski. According to the Florida Department of State Division ofCorporations website, FDLG is a registered business with a registered fictitiousname of Echevarria, Codilis & Stawiarski. See Florida Department of StateDivision of Corporations website printout and Application for Registration ofFictitious Name, attached hereto as composite Appendix 3.

On or about June 11,~2008, Washington Mutual filed a Motion toVoluntarily.Dismiss Case and Cancel Notice of Lis Pendens. See Exhibit P--l3 of ~. --.-~ ..

would be required on any such motion, however, a voluntary dismissal "pursuantto Rule 1.420(a) [Florida Rules of Civil Procedure ("Rule(s)")] does not require acourt order-plaintiff may dismiss 'without order of the court' by filing a notice orthe parties may stipulate." See Exhibit P-14 of Petition. Soon thereafter, on orabout July 3, 2008, Washington Mutual served a Notice of Voluntary CaseDismissal ("Notice") pursuant to Rule 1.420(a). See Exhibit P-2 of Petition. TheNotice of Voluntary Case Dismissal was served prior to the date of a hearing set onPetitioner's Motion to Dismiss. The Notice did not make the docket until July 9,2008.

Thereafter, on or about July 14,2008, Petitioner filed Defendant's Motion to


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Disregard Judge Adams Order Dismissing the Case Without Prejudice and Motionto Strike Plaintiffs Notice of Voluntary Case Dismissal and Reinstate Case No:07-CA-11562 and Enter Default on Defendant's Motion for Summary Judgment("Defendant's Motion") and a Brief in Support of Defendant's Motion. SeeExhibit P-3 to Petition. At a hearing on Defendant's Motion, the trial courtdetermined that it did not have jurisdiction to hear Defendant's Motion since thecase had been voluntarily dismissed. See Exhibit P-5 of Petition.

Subsequently, on or about December 23, -2008, Respondent Bank initiated a_.~.new .foreclosure action.against ..Petitioner in US Bank National -:Association, as_.__..- - - - c - < _

("Pending Foreclosure"). See Mortgage Foreclosure Complaint Case No. 08-CA-055974, attached hereto as Respondent's. Appendix 4. The complaint alleges the

.- - -same default date as was alleged in the 2007- Case, which was dismissed withoutprejudice. This matter is currently pending, but has been stayed pending theoutcome of this Petition.

In the Petition, Petitioner requests that this Court reinstate the 2007 Case anddismiss the Pending Foreclosure.2 Petitioner complains that Washington Mutual'sNotice is a legal nullity since it was filed by an attorney not of record and claims

2 Petitioner also requests that the Court "order the judges or Clerk of Courts to remove the gallerymicrophones, and reinstate the pro se dignity and deserved respect to the court rooms, and orderrestitution as allowed by law in both cases." Petitioner does not support these claims for relief with anyauthority, and Respondent is unaware of any authority for such relief.


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that he has not been afforded the opportunity to file a motion for costs in the 2007Case because there has been no final order entered upon which to make suchmotion. See Petition at 9, 10. Washington Mutual in the 2007 Case was properlyrepresented by attorneys from the same law firm, and thus, the Notice served toproperly dismiss the action pursuant to Rule 1.420. Thus, if Petitioner wereentitled to recover costs, which Respondent does not concede, he had thirty (30)days from the service of the Notice, pursuant to Rule 1.525, to do so. Petitionerfailed to avail himself ofthis procedural remedy, nor did he seek a timely appeal of

. "-:- .~- -- __ -~_ -. '-_. ~- - .__ ".- .,. - .-:":;:'. --:--_._,!';'.;-~-';:'..-=:. - ," __ w -_ " '~ ~ ; - " " 'a v a l t a O F e J t o " " '1 i i l 1 1 - a t S < t h eln'fe :orfm-'2(}()'i""~ase-wadlsiriissed;"'slioU1(i"'n.oeDe~~well~-:taken. Therefore, the Petition should be denied.II. Argument

It is well settled in Florida that "a party petitioning for a writ of mandamusmust establish a clear legal right to performance of the act requested, anindisputable legal duty, and no adequate remedy at law." See Smith v. State, 696So. 2d 814, 815 (Fla. 2d DCA 1997); see also City of Bradenton v. Johnson, 989So. 2d 25, 26 (Fla. 2d DCA 2008) ("[MJandamus is a common law remedy toenforce an established legal right by compelling a public officer or agency toperform a legally required ministerial duty."). Thus, Petitioner, to obtain the reliefsought here, must establish that he has a legal right to have the 2007 Case


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reinstated and the Pending Forec1osure dismissed, that the lower court has a duty todo so, and that he had no adequate remedy at law. The Petition fails on allelements.

A. Petitioner is not entitled to have the 2007 Case reinstated as it wasproperly dismissed pursuant to Rule 1.420(a).

Rule 1.420(a), provides, in relevant part, "an action may be dismissed byplaintiff without order of court ... by serving, ...a notice of dismissal at any timebefore a hearing on motion for summary judgment." The Rule also states thatunless otherwise provided in the notice, the dismissal will be without.prejudicec., -v , , :

. .. . . . .o _ " . _ ,-~.. - . 'The service and filing of a notice of voluntary dismissal generally: .."deprivesthe.i.; .,-. '.~'.~ ... ..,,:.~--..!..- .::.;.,:... -"~ . _ .- . ., -"- .--- ""- ~1 ." - ._:.i"'::: : .. __ ...... _" -

:-.:_~~~.:.:,.-=:::~.~.::'''j:.~~''-,.: ..~~'::'' ~~;,.,.,:--~-'-- .~- .,:;: -~':~ ,,-:.'.::.~,~~:.~~~!...=!~~~~....:::-:_...:-~~ _.- 4-:' .-. _ '" -c..~'--.a....;~J~ .....;.:::.~_~..',,;::-~~~ -~-.:..:::-- - - ''''-:-'0trial court of jurisdiction over the case." See Ambory v. Ambory, 442 So. 2d 1087,1088 (Fla. 2d DCA 1983).

This Court has held pursuant to Rule 1.420(a), parties have an "absolute .._right to take a voluntary dismissal as a matter of right," with limited exception,See Service Experts, LLC v. Northside Air Conditioning & Electrical Service, Inc.,-- So. 3d --,35 Fla. L. Weekly D2512 (Fla. 2d DCA November 17,2010); see alsoFears v. Lunsford, 314 So. 2d 578, 579 (Fla. 1975)("We hold that the plaintiffsright to take a nonsuit or voluntary dismissal is absolute"). The exceptions to theabsolute right are "( 1) if there is fraud on the court, (2) if the defendant canestablish the common law exception to the right of voluntary dismissal, or (3) if theplaintiff dismisses the case at a state which is deemed the equivalent of a summary


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judgment." See Service Experts, 35 Fla. L. Weekly D25l2 at *3. Petitioner doesnot argue that the second or third exceptions apply, rather posits that since theNotice was not filed until after the time scheduled for the trial court to hearPetitioner's Motion to Dismiss, and was filed by an attorney "not of record," thatthe Notice constitutes a fraud on the court. See Petition at 17. The Service Expertsdecision states "only under the right circumstances can fraud allegations support atrial court's decision to strike a plaintiffs notice of voluntary dismissal." See 35Fla. L. Weekly D25l2 at *5. Such circumstances include situations in which a:

1089, 1090 (Fla. 3d DCA 1979) .. Petitioner has not put forth sufficient allegations of fraudulent.conduct . b y . . - - - _

any party to warrant vacating the Notice. Plaintiff in the 2007 Case had notreceived any affirmative relief which is sought to prevent the court from reversing.Indeed, the plaintiff had attempted to dismiss the action weeks before, but by thewrong method, according to the Judge's Memorandum. Pursuant to the Judge'sMemorandum, and Rule 1.420(a), the plaintiff served its Notice before the hearingon Petitioner's Motion to Dismiss.

Petitioner argues that the Notice was a legal nullity because it was signed bya different attorney than the attorney who had signed the original complaint. As


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stated above, FDLG and Echevarria, Codilis, and Stawiarski are one in the same,entity, having properly registered the fictitious name with the Florida Departmentof State Division of Corporations. Thus, there can be no dispute that the plaintiffwas appropriately represented and the Notice a valid exercise of the plaintiffsrights under Rule 1.420. As such, Petitioner's arguments are without merit, and thePetition should be denied.

B. Petitioner is not entitled to recover costs from the dismissal of the2007 Case .

.Petitioner asserts that he has .been unable to seek his costs in the..2007.'-case.,....c......:.d~l',..".:--~.~:::~:l.~;,r~....:.b~_~"':~~~-!:-:~...1:.~~.~- '_ '"'t~ -:. _:.. :..:::- '"' i'-~~~~'.l.!'~~:~:'!~.':.~~.;-;.._..:...:.::_~ .:..__~-"'''~X~,"",_:-,,-..a:.'''~.~......~.,;;~._ ."....;'"._..;:~"'"~4.'"-_ -- ,,"'-*~ ~D>""~s,_" , ' -\' .~-.;.,',. . ___ ;:,,1-- -'.-.,...::"...\ .~-~ ._J .,. w ._ .- .

2007 Case by the trial court. As discussed above, the 2007 Case was properlyvoluntarily dismissed by service of the Notice prior to trial or hearing on a motionfor summary judgment. Upon voluntary dismissal of an action; -the Rules provide .for methods by which an adverse party may recover its costs. Rule 1.420( d)provides: "Costs in any action dismissed under this rule shall be assessed andjudgment for costs entered in that action, once the action is concluded as to theparty seeking taxation of costs." Rule 1.525 provides the time frame in which amotion for costs must be filed:

Any party seeking a judgment taxing costs, attorneys' fees, or bothshall serve a motion no later than 30 days after filing of the judgment,including a judgment of dismissal, or the service of a notice ofvoluntary dismissal, which judgment or notice concludes the action asto that party.


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Thus, a party seeking to recover costs pursuant to Rule 1.420(d), must file a motionfor such costs within 30 days of service of a notice of voluntary dismissal. See

Melton Mgmt, Inc. v. Krott-Shaughnessy, 872 So. 2d 320, 321 (Fla. 4th DCA2004); Ramos v. Orthodontic Centers of Fla., Inc., 893 So. 2d 663, 664 (Fla. 4thDCA 2005). Although, as stated above, a voluntary dismissal generally divest acourt of jurisdiction, "a voluntary dismissal does not divest the court of jurisdictionto conclude ancillary matters involved in the case such as outstanding and

:;~~,_ .,,_.t.a1~,7 11-_S"Q ;.,~2~dlj-"- 7_- = - = -~ , : :; :~ : .. :: , ' . : . ", ~ ' r . ~ - ~ - : : . . : . i = -. . : . . ; . . .i _ _~ __ ,. .. _:.

. __ - __ __ - - _0 _ __ .-_ ._Motion for Costs in the 2007 Case within 30 days of the service of the Notice, andthus cannot now recover any costs.

- - "-~-~_-_- Respondent recognizes that Rule 1.420(cl) provides a meG:llanism-by"which-a' -=:': -,,--party may seek costs from a previously dismissed action in a subsequently filedaction and that the subsequent action may be stayed until such costs are paid. Thisprovision of Rule 1.420(d) does not apply under these circumstances as there is noidentity of the parties. This Court, in Deluca v. Harriman, 402 So. 2d 1205, 1207(Fla. 2nd DCA 1981) found that Rule 1.420(d) "requires identify of adverseparties," and where the parties in the second suit are not identical to those in thefirst suit, the trial court errs in staying the second action. The plaintiff in the 2007Case is not the same as in the Pending Foreclosure. Thus, there is no identity of


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parties, and Petitioner is not entitled to invoke the final provision of Rule 1.420( d)to stay the Pending Foreclosure.

As Petitioner is not entitled to recover costs in the 2007 Case for his failureto timely file a motion for costs after service of the Notice, Petitioner is unable toestablish a clear legal right required for a writ of mandamus.

c. The trial court has no duty to reinstate the 2007 Case or dismissthe Pending Foreclosure.

As stated above, a writ of mandamus is only appropriate to force a tribunal

.;_,"_, ""allthqrity=t~_sJ,l, gge s1 .rhat th~~~W~f_ GJl l)j j,.~ ha s ..aduty.toreinstate-the; 2QO_7_,ase; _': .c~:~",~E- -- -

7i":-. - -: . _ ';0 -".:..:..:-_~ ~ F.- ~. __", J:.- 0. = :: . .. : :: : . .. _ : . : -; : - - : . _ - ,-- - -- ".subsequent to a valid notice of voluntary dismissal or to dismiss the PendingForeclosure as between a different plaintiff and Petitioner. Rather, the-trial-court's

Although pro se litigants are given, "procedural latitude, a practice effected toensure access to the courts for all citizens, pro se litigants are not immune from therules of procedure." See Barrett v. City of Margate, 743 So. 2d 1160, 1162 (Fla.4th DCA 1999). Petitioner did not avail himself of the procedural remedyavailable to him, and cannot now complain that his failure to do so is the fault ofthe trial court, counsel for Washington Mutual, or Respondent.

Petitioner has made no argument in support of his request that the PendingForeclosure action be dismissed, and cites no authority which would allow for the


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dismissal of the action. As such, the Petition should be denied.D. Petitioner had an adequate remedy at law to seek costsAs discussed above, Petitioner had an adequate remedy at law to seek to

recover any costs he may have incurred in the 2007 Case. Rules 1.420(d) and1.525 provide that Petitioner had thirty (30) days from the service of the Notice toseek recovery of his costs. Petitioner failed to do so, and his failure to do so shouldnot prevent Respondent from proceeding in the Pending Foreclosure.

Had Petitioner timely sought recovery of his costs in the 2007 Case, he_F ~ __ _- - - --- .-- '._", .--- .-~~ -. ~~

' .' - -- = - - - ~ -= .;. .. .. .-- _ : : : . ~ -:;::-~~"'1-~ ....:::"-: . __-'-_."r~"~_:' ~-< ~.,;.:_.-:;---=>~-... -ec->=". .:..~~.:''';'":._ -::_"_~"""r~ __ """"" '''' '~""---:--~""''. -' ... , ":;...,. ..~,""",,,,,,-::--, - -::"-.....- .._.' could have appealed an adverse decision on such motion to the district.court ..:._&e.e~_,_-,~-. ..,.------::=-:::::..-.~--.-- .-~

::- .-: :,::: ;,:~~ _ .~ ___]_ . ::.. :: - ;.. .!. ':"'"~~-"'''-'''''''_~-'''-''_,.:c...-.,....",,-.~,,,:--.,.-.-' _ or . . " , - ~ _ - - - ' " ~ ' '' .' '- : . .4 - . . ,- ~ " " : = , : :~


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that he is entitled to any of the relief requested in the Petition, and Respondentshould be able to proceed without further delay in prosecuting the PendingForeclosure.

CERTIFICATE OF COMPLIANCEI, the undersigned counsel for Respondent, hereby certify that this Response

complies with the font requirement of Fla. R. App. Pro. 9.100(1).CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been_~ _ _ .. 'W_"_, ,_, ~.__. ~ =~ ~ ~ f u ~ i s i ; ; , d b ~~:s; 'M;ii;~n'~iu~~1h~~19:.1S:~-d,!~~j-:CJ{~hUCirvf~-~2nlt 6 i a ~ ~ R ~ ~ - ~ '~ ~ ~'-~.- . -.-,-=.,.~.-- --- ..::::-: - -- -,w - __ ,_ __ .-_ ,_ c_- . _

~ , c ~ : ~ c c c J e \ r v ' \ ~ c ,Erin M.BergerFlorida Bar #014977Kass, Shuler, Solomon, Spector, Foyle &Singer, P.A., Attorneys for RespondentP.O. Box 800, 1505 N. Florida Ave.Tampa, FL 33601(813) [email protected]


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IN THE DISTRICT COURT OF APPEAL OF FLORIDASECOND DISTRICT

LARRY R. BRADSHAW.,Petitioner, Appeal No. 2DIO-5604

v .Lower Tribunal Case No.

2009CA-001575WASHINGTON MUTUAL BANK F/KiAWASIDNGTON MUTUAL BANK, FASUCCESSOR BY MERGER TO BANKUNITED-FSB FIKIA BANK UNITED OF TEXAS, FS,

___.USBANK NATIONAL ASSQCIATIQNAS-__~~:mU~E];:-l~:,-OR,.lY lR S . 2o.04~4.,";.,,,,_=_< ..,~~.' d --.-- , .--~ -. -. - .

- _. --"';';;: ''''''\o~eo:1::~~~ '>,~='llo::._~- f ...~ _?~~~- -_" "f.. ~ . ..--!f"'" " -,.-..":;O

Documents

Florida Second District Court of Appeals Respondent's Response to Mandamus