THE TWENTIETH CIRCUIT’S RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION

8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION

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IN THE DISTRICT COURT OF APPEALOF THE SECOND DISTRICT OF FLORIDA

Case No. 2D11-01728

THE TWENTIETH CIRCUITS RESPONSETO THE PETITION FOR WRIT OF PROHIBITION

The Additional Respondent, G. KEITH CARY, Chief Judge of the Twentieth

Judicial Circuit of the State of Florida, respectfully submits this Response to the

Petition filed in this case in accordance with this Courts Order of April 18, 2011.

Introduction

In this special-writ proceeding the American Civil Liberties Union of Florida,

through the named Petitioner, GEORGI E. MERRIGAN, challenges the method of

GEORGI E. MERRIGAN,

Petitioner,

v.

BANK OF NEW YORK MELLON, f/k/aBANK OF NEW YORK,

Respondent,

and

G. KEITH CARY, Chief Judge of theTwentieth Judicial Circuit of the State of Florida,

Additional Respondent.


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adjudication purportedly utilized in mortgage-foreclosure proceedings within the

Twentieth Judicial Circuit. The Petition seeks relief on alternative bases, but this

Courts Order of April 18 specifies that this case shall proceed in prohibition.

Accordingly, this Response will assume that this is a prohibition case, and a

prohibition case only, within the meaning of Florida Rule of Appellate Procedure

9.100(e).

This Response is submitted on behalf of G. KEITH CARY, the Chief Judge of

the Twentieth Judicial Circuit of the State of Florida, who is authorized to speak on

behalf of the judges of the Twentieth Circuit by Florida Rule of Judicial Administra-

tion 2.215(b). In this Response the circuit judges will be addressed collectively as

the Twentieth Circuit or the Circuit, and individually by name. The Petitioner,

GEORGI E. MERRIGAN, will be addressed by surname or as the Defendant. The

American Civil Liberties Union of Florida will be addressed as the ACLU.

An extensive Appendix was submitted by the ACLU with the Petition, and

reference to it will be indicated by ACLU/APP followed by the pertinent page

number(s). A small Appendix accompanies this Response, and reference to it will be

indicated by 20 /APP followed by the pertinent page number(s).th

The Court should assume that all emphasis found in the quotations included in

this Response has been added by undersigned counsel, unless otherwise specifically

noted.

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DISCUSSION

The Twentieth Circuit appreciates the opportunity to comment upon the issue

specified in this Courts Order of April 18, 2011. No effort will be made to comment

upon each and every contention made in the Petition, since the Twentieth Circuit is

not an official party, and this Courts Order narrowly prescribes the scope of this

Response. The Circuit conceives of its role as similar to that of an amicus curiae, and

has used this model in framing this Response.

A. The ACLUs Appendices

The Twentieth Circuit must first take serious exception to the Appendix and

Supplemental Appendix submitted by the ACLU. These two compendiums contain

almost 500 pages of material, but only 43 of these pages are documents that are found

in the record of the trial-court proceedings. This means that more than nine-tenths

of the material submitted by the ACLU was not before the trial court in the

proceedings below. Such material is improperly included in filings with this Court,

it is respectfully submitted, and is therefore improper for consideration by this Court.

Review of several decisions will illustrate the point.

In M.R. v. DCF, 985 S O.2D 1178 (Fla.3d DCA 2008) the mother sought

certiorari review of an order removing her child from her care. In support of the trial

courts ruling DCF submitted documents in its appendix that were generated during

its subsequent investigation of the childs living arrangements. The third district

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quoted a Supreme Court case for the proposition that there is a well-established rule

applicable to this certiorari proceeding that the reviewing courts consideration shall

be confined strictly and solely to the record of proceedings. 985 S O .2D at 1179.

Accordingly, [W]e are compelled to disregard the evidence uncovered in the

Departments subsequent investigation. Id.; see also Keller Ind. V. Yoder, 625 S O.2D

82 (Fla.3d DCA 1993)(striking appendix in cert. case because not in trial file).

In Willis v. Romano, 972 S O.2D 294 (Fla.5th DCA 2008) the appellant, just as

ACLU does here, included affidavits and other documents in his appendix that were

not before the trial court. The fifth district said it would not consider this material,

and cited a number of decisions for the proposition that such extra-record evidence

is improper and cannot be considered by a reviewing court. In In re Poteat, 771

SO.2D 569,572 (Fla.4th DCA 2000) the court said that it was a flagrant violation

of the Rules of Appellate Procedure for the appellant to refer to materials that were

not in the trial-court file. In Ullah v. State, 679 S O .2D 1242, 1244 (Fla.1st DCA

1996) the court said, It is elemental that an appellate court may not consider matters

outside the record, and when a party refers to such matters in its brief, it is proper for

the court to strike same. In Altchiler v. DPR, 442 So.2d 349,350 (Fla.1st DCA

1983) the court said: That an appellate court may not consider matters outside the

record is so elemental that there is no excuse for any attorney to attempt to bring

such matters before the court .

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Not only is this non-record material improper as a general proposition, but it

becomes even less acceptable in this particular case. The ACLU includes selected

portions of ten transcripts in its appendices. Only one of these transcripts is signed

and notarized by the court reporter. Most importantly, none of these transcripts

concern the case that is the subject of this prohibition proceeding.

The ACLU includes six newspaper articles in its appendices, none of which

concern the particular case that is the subject of this prohibition proceeding.

Newspaper articles are the epitome of hearsay. In In re Allen, 998 S O.2D 557 (Fla.

2008) Judge Allen was actually disciplined by the Supreme Court of Florida for, inter

alia, making reference in an opinion to newspaper articles that were not before the

trial court.

The ACLU also includes 13 Affidavits in its appendices signed by individuals,

attorneys, and one of the parties. Not one of these Affidavits was filed in the trial-

court proceedings, and all of them were executed after the trial court entered the

Order that is under review. 1

In summation, the appendices submitted by the ACLU are irrelevant, improper,

and inappropriate for consideration by this Court. The ACLU compounds the offense

by referring to this improper material throughout the Petition. This approach, it is

The Petition is vague as to the trial-court order that is the subject of this1

proceeding. On p. 3 the ACLU states that [t]he order to be reviewed in this case wasrendered March 9, 2011, see Order Setting Case for Docket Sounding. It willtherefore be assumed that this is the Order in question.

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respectfully submitted, is fundamentally flawed and cannot form the basis for any

appropriate review by this Court.

B. Mortgage foreclosures in the Twentieth Circuit

This Courts Order of April 18 asks the Twentieth Circuit to respond to the

ACLUs allegation that this particular action was set for trial before it was at issue.

It will be seen below that this two-year-old case has never been set for trial, and is not

presently set for trial at any point in the future. But prefatory to the discussion of this

specific case, the Twentieth Circuit would like to give a brief overview of mortgage-

foreclosure proceedings as they have been conducted in the Circuit in the last two

years while the Merrigan case has been pending.

The foreclosure crisis affecting Florida in general and the Twentieth Circuit in

particular has been frequently acknowledged in the case law and elsewhere. For

example, in In re Certification of Need for Additional Judges, 29 S O.3D 1110, 1111

(Fla. 2010) the Supreme Court said, [T]he mortgage foreclosure crisis continues

unabated . . . These foreclosures have implications for homeowners, lending

institutions, neighborhoods, the courts, and Floridas economy. See also In re

Certification of Need for Additional Judges, 2011 WL 536433 (Fla. op. filed Feb. 17,

2011)([T]he mortgage foreclosure crisis continues to challenge every judicial circuit

in Florida.); In re Final Report & Recommendations on Residential Mortgage

Foreclosure Cases, 2009 WL 5227471 (Fla. op. filed Dec. 28, 2009); Pino v. Bank of

New York, 2011 WL 1135541 (Fla.4th DCA op. filed March 30, 2011).

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The Twentieth Circuit has, over the life of this crisis, formulated various means

of dealing with the huge influx of foreclosure cases, while at the same time allowing

its judges to give due attention to the non-foreclosure cases that are also of critical

importance. In In re Final Report & Recommendations the Supreme Court discussed

the foreclosure crisis, as well as the report that had been submitted by the committee

the Court had appointed to make recommendations. As a result of that report the

Court directed that the circuits implement a model administrative order setting up

special rules and a managed mediation program for foreclosure cases involving

homestead property. In June of 2010 the Twentieth Circuit enacted the model order

as 20 Cir. Administrative Order 1.12.th 2

There was another area of concern expressed by the Supreme Court that

paralleled the foreclosure crisis, and in some instances, intersected it. Florida Rule

of Judicial Administration 2.545 is entitled Case Management. Subsection (b) of

the Rule states:

The trial judge shall take charge of all cases at an earlystage in the litigation and shall control the progress of thecase thereafter until the case is determined. The trial judgeshall take specific steps to monitor and control the pace of litigation . . . .

Subsection (b) goes on to list a number of things that trial courts should do to control

their dockets, such as assuming early and continuous control of the court calendar,

The lengthy Administrative Order can be found on the Circuits website:2

www.ca.cjis20.org.

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identifying priority cases, identifying cases appropriate for alternative dispute

resolution, and developing rational and effective trial setting policies. The Rule in

essence requires trial courts to be proactive in controlling their dockets in order to

create some realistic chance of meeting the time standards set forth in Rule 2.250. 3

In 2006, before the commencement of the foreclosure crisis, the Supreme Court

appointed a task force to study and examine the efficient and effective management

of complex litigation, and the resolution of discovery and other pre-trial matters in

litigation. Several years later, in the midst of the foreclosure crisis, the Supreme

Court acted upon the recommendations of the task force. In In re Amendments to the

Florida Rules of Civil Procedure, 15 S O.3D 558 (Fla. 2009) Justice Pariente stressed

the importance of docket control:

We take this opportunity to reemphasize the importanceof judicial case management of all cases and the chargeof Florida Rule of Judicial Administration 2.545, entitledCase Management, that the trial judge shall takecharge of all cases at an early stage in the litigation andshall control the progress of the case until its conclu-sion. We encourage the use of differentiated casemanagement , a term that refers to an approach where thecourt conducts early case screening and assigns certaincases to processing tracks based on that assessment.

(Emphasis in the original.)

Fla.R.Jud.Admin. 2.250(a)(1)(B) establishes 12 months from filing to final3

disposition as being appropriate for foreclosure cases. The Merrigan case has now been pending more than twice that long.

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The Court recognized the importance of identifying the type of case when it is filed,

and therefore amended the form civil cover sheet to add many more specific case

categories and case subcategories to more specifically identify the types of civil cases

being filed. 15 S O.3D at 563.

In In re Final Report & Recommendations on Residential Mortgage Foreclos-

ure Cases the Supreme Court referred to case management under Rule 2.545 as being

an important tool for helping trial courts deal with the foreclosure crisis. Thus case

management and the foreclosure crisis were predictably linked.

The Twentieth Circuit, in response to the Supreme Courts directive to be more

active in case management, enacted 20 Cir. Administrative Order 1.13. It detailsth 4

case-management procedures to be used in various kinds of cases. It also refers to the

foreclosure crisis, and commands the administrative judge for each county within the

Circuit to develop a foreclosure backlog reduction plan in consultation with the

other circuit judges in the particular county and the local bar association. The

Administrative Order sets as a goal a 62% reduction in pending foreclosure cases by

the summer of 2011. It states that foreclosure actions that have been pending for 6-5

This lengthy Order is also found on the Circuits website: www.ca.cjis20.org4

This goal was required by the Trial Court Budget Commission, which5

administers the Foreclosure & Economic Recovery program under the aegis of thestate court system. See Commission Minutes 20 May 2010, p. 5; CommissionMinutes 4 June 2010, p. 11. These Minutes can be found on the Commissionswebsite, accessible through this portal: www.flcourts.org

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12 months with no activity should be referred to a magistrate and set for trial as soon

as possible. It sets up a default foreclosure docket to be managed by senior judges.

A proactive case-management system requires funding for the administrative

personnel and the senior judges needed to effectuate such a system. In 2010 the

Legislature provided this money by distributing federal funds from the American

Recovery & Reinvestment Act of 2009 (the stimulus bill). Ch. 10-0152, 3241A,

Laws of Fla. This funding was for one year only, and will expire at the end of this

fiscal year, i.e., June 30, 2011. It is not expected that this funding will be renewed.

Putting these funding and policy issues in context, a foreclosure docket is a

good candidate for case management. The defendants in the vast majority of

foreclosure cases do not respond, resulting in defaults being entered against them.

The defendants that do appear often represent themselves pro se. Even represented

defendants have little inducement to move their cases through the judicial system.

The foreclosing banks are often represented by out-of-town law firms with large case

loads and a correspondingly diminished attention to individual cases. The unexpected

volume and unanticipated permutations of the foreclosure crisis have caught the

banks unaware, often resulting in litigation paralysis. Case management is a means

of bringing some order to this chaotic scenario.

The legal nature of foreclosure also makes it appropriate for case management.

In the default cases the defendants have admitted that they have failed to pay on the

loan, and typically the only remaining issue is the amount of the judgment. In cases

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where the defendants do appear and defend, the liability issue is usually straightfor-

ward and summary judgment is often appropriate to determine if the mortgage has

been paid. And the amount of the judgment in a foreclosure action is a liquidated

sum, making it appropriate for disposition on summary judgment without the absolute

necessity of a trial (as would be the case if the amount were unliquidated). Zumpf

v. Countrywide, 43 S O.3D 764,766 (Fla.2d DCA 2010); Asian Imports v. Pepe, 633

SO.2D 551,553 (Fla.1st DCA 1994). So the great majority of mortgage foreclosure

cases will be resolved on preliminary motions without the necessity of a full trial on

the merits.

In 20 Cir. Administrative Order 1.13 the judges for the various counties wereth

encouraged to devise a foreclosure backlog reduction plan, and they have done so.

A component of the plan is the form Order Setting Case for Docket Sounding and

Order of Referral to General Magistrate. (ACLU/APP 148-50) This form Order sets6

the case for hearing, and requires the parties or their representatives with decisional

authority to appear at the hearing. The form Order does not set a trial date. Rather,

it states that a trial date may be set at a later time, with the parties receiving at least

30 days notice. The form Order does state that either party may schedule a motion

for summary judgment to be set for the same hearing. (ACLU/APP 148)

Miami-Dade County apparently has a similar program, as can be seen from the6

recent case of Jade Winds v. Citibank, Case No. 3D11-275 (Fla.3d DCA op. filedMay 4, 2011)(not yet available on WestLaw).

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It is perhaps unfortunate that the form Order uses the term docket sounding,

since the term has little legal meaning. The term is not used anywhere in the Rules7

of Civil Procedure, so there is no definition of it. The term commonly refers to a8

status conference immediately before the commencement of a scheduled trial date to

work out the particulars of the impending trial. A synonym is a calendar call. See,

e.g., Udell v. Udell, 998 S O.2D 1168,1170 (Fla.2d DCA 2008). Neither a calendar call

nor a docket sounding is an adjudicatory hearing. C.R.K. v. DCF, 826 S O.2D

1053,1055 (Fla.4th DCA 2002); C.R. v. DCF, 806 S O.2D 646 (Fla.2d DCA 2002).

The hearing envisioned by the form Order is really more akin to a case

management conference under Florida Rule of Civil Procedure 1.200(a), since the

hearing is not conducted in association with a trial date. Rule 1.200(a) allows the

court or any of the parties to schedule a case management conference at any time 20

days after the complaint is filed. The purpose of the hearing set by the form Order is

to give an opportunity for adjudication by summary judgment, or if the case is not

appropriate for summary judgment, to clean it up and get it ready to proceed to trial.

The salutary effect of using the term is that it does have some alarm value,7

thereby impressing upon the parties and their counsel the importance of the scheduledhearing and moving the case forward. Recall that the form Order issues only if theforeclosure case has been languishing without any activity for at least 6 months.

One of the Affidavits improperly included in the ACLUs appendices also8

makes the same point that the term is meaningless under the Rules of Civil Procedure.(ACLU/APP 195) The Committee Notes to Fla.R.Civ.P. 1.460 state that a docketsounding was required by a statute that was eliminated some time before 1980. So

perhaps in the past the term had a recognized legal meaning.

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If the case is not resolved as a result of this first hearing, a second hearing is

scheduled for a later time, with a list of actions that must be completed by the parties

before the next hearing. The form Order for this second hearing does permit the trial

court to set the case for a later trial if it is appropriate to do so. (ACLU/APP 1)

In summation, the procedure used in relation to foreclosure cases in the

Twentieth Circuit is consistent with the pronouncements of the Supreme Court of

Florida in its decisions discussed above. It is a utilization of the case-management

system of Florida Rule of Civil Procedure 1.200, and it is consonant with Florida

Rule of Judicial Administration 2.545. Lets now turn to the facts and procedure of

the instant case to determine how the system worked in this application.

C. The procedural events of the Merrigan case

The Bank of New York filed the foreclosure action in March of 2009.

(ACLU/APP 22) Named as Defendants were both Mr. and Mrs. Merrigan, as

husband and wife, as well as any unknown persons who might have an interest in the

property. (Id.) The Complaint stated that Mrs. Merrigans given name was George,

rather than Georgi as stated on the loan documents. (ACLU/APP 22,25,39,40)

Mr. and Mrs. Merrigan, through counsel, responded with a Motion to Dismiss

in May of 2009. (ACLU/APP 17) The Motion stated a single reason for dismissal,9

to wit: The summons served upon Mrs. Merrigan stated that her given name was

The Merrigans have been represented by counsel throughout this proceeding.9

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Georgi, while the caption of the case stated that her given name was George.

This variance as to Mrs. Merrigans given name, the Motion alleged, made service

of process upon her legally insufficient. This was the sole basis alleged for

dismissalno other grounds were stated as to Mrs. Merrigan, and no grounds at all

were stated as to Mr. Merrigan. No activity occurred in the case for the next 1110

months.

The Merrigans counsel then scheduled their Motion to Dismiss for a later

hearing in July of 2010. Before that hearing could occur, the action was abated. On

June 7, 2010, the Bank of New York served its Ex Parte Motion to Abate Proceed-

ings. (ACLU/APP 13) The Motion alleged that the Merrigans loan was part of a

multi-state initiative known as the Nationwide Home Retention Program, and that

time would be needed to determine if the Merrigans were eligible for loss mitiga-

tion under the Program. (Id.) The trial court, i.e., Hon. Michael McHugh, entered11

its Order to Abate Proceedings the next day without a hearing. (ACLU/APP 12)

The Merrigans did not ask Judge McHugh to reconsider his ex parte Order to

Abate Proceedings. There is no indication that the Merrigans preserved by any other

means a challenge to the ex parte nature of the Order. The recognized means of

Mr. Merrigan was a Defendant in the proceedings below along with his wife,10

but he does not appear as a Petitioner in this writ proceeding.

The Ex Parte Motion was served upon the Merrigans counsel, though it11

would have been received after the Order was entered. (ACLU/APP 12,13)

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expeditiously reviewing abatement orders is by petition for writ of certiorari. See,

e.g., Relinger v. Fox, 55 S O.3D 638 (Fla.2d DCA 2011). No such petition was filed

within the 30 days permitted for such review.

Six months later, in January of 2011, the trial court, i.e., Hon. John S. Carlin,

entered an Order Setting Case for Docket Sounding & Order of Referral to General

Magistrate. (ACLU/APP 7) By then the Merrigan case had been pending almost two

years. The Order did not set the case for trial. Rather, it referred the case to a

magistrate and directed the parties to appear before the magistrate in two months

time. The Merrigans did not object to the referral of the case to a magistrate, did not

object to appearing at the scheduled hearing in March, and did not object to any other

aspect of the Order.

At around this point in the Merrigans foreclosure action the Bank of New

York lost the representation of its counsel. The Bank had been represented by the

David Stern law firm. Mr. Stern is under investigation by the Florida Bar, and he has

ceased representing mortgagees in the Twentieth Circuit. In many cases his firm has

formally withdrawn. In other cases, such as the instant one, his firm has simply

ceased representing its client.

In any event, the March hearing did occur, though there is no transcript of the

hearing. But as a result of the hearing the magistrate entered an Order Setting

Trial/Docket Sounding. (ACLU/APP 1) It is this Order that is sought to be reviewed

in this proceeding. The magistrates Order said there would be another docket

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sounding on April 27. In the meantime, the Defendants were to schedule their

Motion to Dismiss for hearing on or before April 27. Importantly, the Order did not

set the case for trial; the form Order does have a section for setting a trial date, but

this section was not checked by the magistrate. (Id.)

The Merrigans did not submit any objection to the magistrates Order. Rather,

on April 7 the Petition for Writ of Certiorari or Writ of Prohibition was filed in this

Court. The Merrigans (through counsel) did not cease their operations in the trial

court after this special-writ action was filed. A week later they filed the following

documents in the trial court: 1) a Motion to Strike the Complaint, 2) a Request for

Production, 3) a Request for Judicial Notice, 4) Interrogatories, and 5) a Request for

Admissions. (20 Cir/APP 3) No attempt was made in these documents to preserve theth

Defendants lack-of-personal-jurisdiction argument. See Scott-Lubin v. Lubin, 49

SO.3D 838,840 (Fla.4th DCA 2010); Bush v. Schiavo, 871 S O.2D 1012,1014 (Fla.2d

DCA 2004).

The Merrigans also moved for a stay. The trial court, i.e., Hon. Hugh E.

Starnes, denied the Motion, but the Order canceled the hearing for April 27, noting

that there was no one representing the Bank at the time. (20 Cir/APP 4) So the onlyth

Motions pending in the trial court are those filed by the Defendants. No trial date has

been set, and there is no future case-management conference scheduled.

In the Order of April 18 this Court asked the Twentieth Circuit to respond to

the allegation that the court has set this matter for trial before it is at issue. This

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matter has never been set for trial. The foreclosure action has now been pending for

over two years, and during this period the Merrigans have retained possession of the

mortgaged premises, presumably without payment on the mortgage.12

D. Prohibition cannot be granted in this case, since the Petition alleges no jurisdictional defect and there is an adequate remedy by way of appeal forany contention of error made in the Petition.

It appears that this Response will be the only response the Court will receive

in this matter. The Bank of New York has counsel of record, but that counsel has

apparently made the unilateral decision to effect a de facto withdrawal. The contact

person for the Bank of New York is unknown. Much of the Petition is aimed at the13

Twentieth Circuit anyway, so it is appropriate that the Circuit briefly discuss the

limits of prohibition relief.

The Petition submitted by the ACLU is more akin to a class-action lawsuit than

a legitimate request for prohibition relief. The seminal case on prohibition is English

v. McCrary, 348 So.2d 293,296 (Fla. 1977), where Justice Karl described the scope

of prohibition as follows:

The ACLUs appendices contain an Affidavit executed by Mrs. Merrigan just12

before the Petition was filed. (ACLU/APP 82-84) In the Affidavit she admits that sheexecuted the mortgage and note, and that she was delinquent in payment.(ACLU/APP 82,84)

The documents submitted by the Merrigans list MERS in the certificate of 13

service, and this Courts Order was served upon MERS. However, the documentssent by the undersigned to MERS at the given address have been returned asundeliverable.

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Prohibition is an extraordinary writ, a prerogative writ,extremely narrow in scope and operation , by which asuperior court, having appellate and supervisory juris-diction over an inferior court or tribunal possessing

judicial or quasi-judicial power, may prevent suchinferior court or tribunal from exceeding jurisdiction orusurping jurisdiction over matters not within its

jurisdiction .

A petition for writ of prohibition must therefore affirmatively show lack of

jurisdiction in the lower court. 348 S O.2D at 298. Similarly, in Blu-Med Response

Systems v. Dept of Health, 993 S O .2D 150,151-52 (Fla. 1 DCA 2008) the court heldst

that the petitioner does not present a colorable claim that the Department is

proceeding in excess of its subject-matter jurisdiction and therefore prohibition

will not lie . In the Petition the ACLU makes no such jurisdictional claim, nor could

it. As the Court said in English v. McCrary, the narrow remedy of prohibition will

rarely lie, since circuit courts are superior courts of general jurisdiction, and nothing

is intended to be outside their jurisdiction, except that which clearly and specially

appears to be. 348 S O.2D at 297. This means, it is respectfully submitted, that

prohibition relief cannot be granted in the instant case as a matter of law.

In English v. McCrary Justice Karl also discussed another fundamental

principle of prohibition, i.e., that [p]rohibition will be invoked only in emergency

cases to forestall an impending present injury where the person seeking the writ has

no other appropriate and adequate remedy . 348 So.2d at 297. In City of Ocala

v. Gard, 988 S O .2D 12811282-83 (Fla.5th DCA 2008) the court said, Prohibition is

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inappropriate if the parties have the right to remedy the wrong by direct appeal .

See also Southern Records v. Goldman, 502 So.2d 413,414 (Fla. 1987)(Prohibition

only prevents trial court from acting without jurisdiction and [i]t is not available to

prevent an erroneous exercise of jurisdiction or if another appropriate and adequate

legal remedy exists.). The named Petitioner in this case is one of two Defendants

in a mortgage-foreclosure action. She has already passed up an opportunity to seek

appellate review of one of the orders entered in this case. She has shown no reason

why any errors in that orderand any other errors she thinks have been or will be

committedcannot await resolution by appeal at the conclusion of this case. This is

a second reason that this case is fundamentally inappropriate for prohibition.

Another basic principle of prohibition is that it is not a means of correcting

judicial error. In English v. McCrary the Supreme Court said that a distinction must

be drawn between assumption of jurisdiction to which the court has no legal claim

and erroneous exercise of jurisdiction with which it is invested. 348 S O.2D at 298.

Prohibition does not lie to prevent a subordinate court from deciding erroneously,

or from enforcing an erroneous judgment, in a case in which it has a right to

adjudicate. Id. Accordingly, it matters not whether the court below has decided

correctly or erroneously; its jurisdiction of the matter in controversy being conceded,

prohibition will not lie to prevent an erroneous exercise of that jurisdiction. Id.; see

also Southern Records v. Goldman, 502 So.2d 413,414 (Fla. 1987)(prohibition only

prevents trial court from acting without jurisdiction and [i]t is not available to

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prevent an erroneous exercise of jurisdiction);Service Experts v. Northside Air

Conditioning, 56 S O.3D 26,29 (Fla.2d DCA 2010)(ditto); Miller v. Balikes, 166

SO.2D 610,611 (Fla.3d DCA 1964)([T]he correctness or incorrectness of its [trial

courts] rulings should not be made the basis of a proceeding in prohibition.).

Most of the supposed errors complained of by the ACLU did not originate from

judicial rulings in the instant case. But even if they did, this case would still not be

appropriate for prohibition relief.

Another impediment to prohibition relief is that the ACLU has not demon-

strated that it properly preserved the arguments below that it is making to this Court.

Prohibition, like any review proceeding, requires the petitioner to properly preserve

the arguments he or she intends to make to this Court, and to demonstrate that these

arguments have been preserved. In Physicians Health Care v. Pfeifler, 846 S O.2D

1129,1134 (Fla. 2003)(fn. 2) the Supreme Court refused to consider arguments in a

prohibition case because they were not raised below. A trial court is due the

respect of being informed of the issue that a litigant deems to be important in the case,

and being given the first opportunity to actually rule on the issue. This has not

occurred here. The ACLU has not and cannot show that it raised any of the

contentions it is making in the Petition in the proceedings below.

This observation of course applies to the supposed error in setting this case for

trial in violation of Florida Rule of Civil Procedure 1.440. This case has never been

set for trial. Even if it had been and even if the setting of the case for trial were in

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violation of Rule 1.440, this Court has held that such violations can be waived by a

litigant if not appropriately preserved in the trial-court proceedings. Zumpf v.

Countrywide, 43 S O.3D at 766; Allstate Insurance Co. v. Gillespie, 455 S O.2D

617,620 (Fla.2d DCA 1984). The ACLU has made no showing that this issue was

raised in the court below, or that the trial court in this particular case was given an

opportunity to rule on this issue.

The ACLU also speaks of the failure of mortgagees to produce the original

promissory notes. It is correct that before a judgment of foreclosure can be entered,

the mortgagee must produce the original note (or establish it as a lost instrument).

See, e.g., Servedio v. U.S. Bank, 46 S O.3D 1105,1107 (Fla.4th DCA 2010). The

purpose of this requirement is to ensure that the note does not remain in the stream

of commerce, potentially exposing the payor to double liability. Perry v. Fairbanks

Capital Corp., 888 S O .2D 725,727 (Fla.5th DCA 2004). In the two years this case has

been pending it has not progressed to the point that the entry of a judgment was an

actual possibility. There has been no trial, and no trial was ever set. There has not

even been a summary-judgment hearing. So requiring production of the note is not

yet on the agenda. Nor can the ACLU show that this issue was ever raised in the

court below.

In summation, the ACLUs request for relief violates most of the fundamental

principles of prohibition. It has not alleged and cannot show any jurisdictional

impediment to the trial courts adjudication of this case. It has not alleged and cannot

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show that it (or Mrs. Merrigan) does not have an adequate remedy by appeal at the

conclusion of this case. It has not alleged and cannot show that it preserved in the

trial court the amorphous arguments made in the Petition. As the Supreme Court

noted in English v. McCrary, if a reviewing court were to use prohibition as a means

of intruding into the trial-court proceedings before they are concluded without there

being a jurisdictional flaw in those proceedings, the reviewing court would be doing

just what prohibition is intended to preventa court acting in excess of its lawful

jurisdiction. 348 S O.2D at 297. It is therefore respectfully submitted that the Court

should deny the ACLUs Petition in deference to the rightful jurisdiction of the trial

court.

E. This Court cannot conduct a trial on the ACLUs claims against theTwentieth Circuit.

The inappropriateness of the ACLUs Petition is made manifest when it asks

on page 8 of the Petition that this Court conduct a trial, through an appointed

commissioner, of the ACLUs claims against the Twentieth Circuit. This is the

Merrigans case, and they have no standing to intrude into other litigants cases. A

prohibition case is not a class-action suit, or a declaratory-judgment action. It is a

stopgap measure to fix a jurisdictional emergency in a particular case; it cannot be

used for the sole purpose of establishing a principle to govern other cases .

English v. McCrary, 348 S O.2D at 297. Yet this is exactly what the ACLU attempts

to do in this proceeding.

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The ACLU contends that an appellate court has the inherent authority to

appoint a commissioner to take evidence on its behalf. This is correct. This is in

effect what the Court does when it awards appellate attorneys fees but instructs the

trial court to determine the amount of the appellate fees upon remand. But the power

of an appellate court to take evidence is rarely exercised, because an appellate court

is rarely a finder of fact. As has often been said, An appeal is not an evidentiary

proceeding. E.I. Du Pont de Nemours & Co. v. Native Hammock Nursery, 698

SO.2D 267,279 (Fla.3d DCA 1997); see also Bowers v. Dept. of Revenue, 6 S O.3D

79,80 (Fla.1st DCA 2009).

The few cases where appellate courts have appointed commissioners to take

evidence involved very unusual circumstances or remedies that put the appellate court

in the awkward position of being a finder of fact. For instance, State ex rel. Davis v.

Avon Park, 158 So. 159 (Fla. 1934) was a quo warranto proceeding that turned on the

provisions of a prior constitution of the state. And even in that case the Supreme

Court recognized that the inherent power of an appellate court to appoint a

commissioner to take evidence should be exercised rarely, and only to prevent harm

to the petitioner that would accrue if he were forced to initiate his action in the circuit

court in the first instance.

The few other cases on this issue are equally unusual. In Wessells v. State, 737

SO.2D 1103 (Fla.1st DCA 1998) the first district appointed a commissioner because

the particular court rule gave it sole responsibility to determine a factual issue, i.e.,

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whether a belated appeal should be allowed because a criminal defendant asked his

counsel to file the notice of appeal. In In re Amendments to Rules of Judicial

Administration, 915 S O .2D 157 (Fla. 2005) the Supreme Court dealt with a court rule

(now Fla.R.Jud.Admin. 2.420) that requires a court to conduct a hearing when a

public-records request is denied by the courts clerk. This means that only an

appellate court can conduct this hearing when the request is made to its own clerk,

so of necessity it must act as a fact finder.

A prohibition case arising from a circuit-court proceeding does not require or

allow an appellate court to act as a fact finder. Prohibition lies in this Court because

it is the reviewing court. See, e.g. Dept. of Health v. Barr, 882 S O.2D 501 (Fla.1st

DCA 2004); Eckert v. N. Broward Hosp. Dist., 720 S O.2D 1151 (Fla.4th DCA 1998).

The ACLU has cited no case holding directly or even indirectly that a district court

of appeal can take evidence or otherwise act as a finder of fact in a prohibition case

arising from a circuit-court proceeding. By asking this Court to become essentially

a trial court and try the amorphous issues that the ACLU asserts in the Petition, the

ACLU is demonstrating that this action is not appropriate for the narrow remedy of

prohibition relief. Such a procedure, besides being unmanageable in any practical

sense, would not comport with the due process that the ACLU says it is championing.

Prohibition, it is respectfully submitted, cannot be used to put the Twentieth Judicial

Circuit on trial before this Court.

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CONCLUSION

The Twentieth Circuit again thanks the Court for the opportunity to be heard

in this case. The Circuit believes that this case is not appropriate for prohibition

relief, and therefore respectfully asks the Court to deny the Petition in all respects.

Respectfully submitted,

/s/ G. Keith CaryG. Keith CaryChief Circuit JudgeTWENTIETH JUDICIAL CIRCUITOF THE STATE OF FLORIDALee County Justice Center 1700 Monroe StreetFort Myers, FL 33901

/s/ Robert L. Donald Robert L. DonaldFla. Bar No. 0218219Appellate Counsel for the Twentieth CircuitLAW OFFICE OF ROBERT L. DONALD2077 First Street, Suite 201Post Office Drawer 2424Fort Myers, FL [email protected](239) 337-1170 facsimile(239) 337-1999 voice

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Response,

together with the attached Appendix, have been furnished by regular United States

Mail to Randall C. Marshall & Maria Kayanan, co-counsel for the Petitioner, of THE

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF FLORIDA, INC.,

4500 Biscayne Blvd., Suite 340, Miami, FL 33137, and to Laurence M. Schwartztol

& Rachel E. Goodman, additional counsel for the Petitioner, of THE AMERICAN

CIVIL LIBERTIES UNION FOUNDATION, 125 Broad St., 18 Floor, New York,th

NY 10004, this 18 day of May, 2011.th

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this Response complies with the font requirements

of Florida Rule of Appellate Procedure 9.100(l).

Respectfully submitted,

/s/ Robert L. Donald Robert L. DonaldFla. Bar No. 0218219Appellate Counsel for the Twentieth Circuit

LAW OFFICE OF ROBERT L. DONALD2077 First Street, Suite 201

Post Office Drawer 2424Fort Myers, FL [email protected](239) 337-1170 facsimile(239) 337-1999 voice

Documents

THE TWENTIETH CIRCUIT’S RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION