This question pertains to our objection to a hearing that has been scheduled untimely and improperly by the opposing counsel in a Florida civil matter. Briefly -- a court Order granted 90 days for us to obtain new counsel. The Plaintiff has ignored the Order and jumped the gun by noticing a hearing on his motion before our time period for procuring new counel has expired. Therefore we Object to the hearing and want to request that the Court cancel the hearing. Below is a draft for filing an Objection. Does this language look in accord with Florida procedure/law, and do any other points need to be inserted (or deleted)?
Defendant Case No
Defendant’s Objection to Hearing Or: Defendant’s Objection to Plaintiff’s Notice of Hearing (?)
COMES NOW the Defendant ABC, Inc., and hereby objects to the hearing scheduled by the Plaintiff XZY, Inc. for the time of xxxPM date of xxx on the Plaintiff’s Motion for XXXX as being untimely and improper, and respectfully XXXXX XXXXX the hearing be canceled to comply with this Court’s previous Order on xxx date granting the Defendant 90 days to obtain new counsel, as follows:
1. On XXX day a Motion by the Defendant’s prior counsel for Leave to Withdraw came on for hearing before this Court, and the Defendant was present in Court.
2. Having heard argument of those present and being fully advised in the premises, the Court granted the Leave to Withdraw and in so doing granted the Defendant 90 days to obtain new counsel. A copy of the Court's signed and initialed Order is attached herein as Exhibit A.
3. The Defendant is in the process of securing new counsel and the amount of time the Court granted for obtaining new counsel has not yet expired. Therefore, a hearing on the Plaintiff’s Motion would not only be premature, but improper since the Defendant, a Florida corporation, is currently without counsel and would be left unrepresented at the hearing.
WHEREFORE, the Defendant respectfully XXXXX XXXXX the Court order the Plaintiff’s hearing canceled in compliance with this Court’s prior Order allowing the Defendant the full measure of time to obtain new counsel in this matter.
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While your motion appears to be proper, I would make two suggestions, the first would be that this motion should be filed "ex parte" meaning that you should give the other party 24 hours notice before your own hearing and appear before the court with your motion and ask them to move the other motion. Otherwise you will need to draft and file a defense to the other motion as well as file this objection (you never want to allow a motion to go unopposed even if you have a valid objection to it being filed). Second, given the fact that you are a corporation defendant and have the standing issue, you should be able to quickly insert some language supported by clear and established case law in your favor (this should already be before the Court in the earlier motion/order, but you can find it again in language such as the following:
While an individual may represent her or his interest in court without an attorney, a corporation is not permitted to do so through non-lawyer employees, officers, or shareholders. SeeRichter v. Higdon Homes, Inc., 544 So.2d 300 (Fla. 1st DCA 1989); Nicholson Supply Co. vs. First Federal Savings & Loan Assoc. of Hardee County, 184 So. 2d 438 (Fla. 2d DCA 1966). (source: http://www.floridasupremecourt.org/clerk/faq.shtml#k)
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(I should note, if you do decide to appear "ex parte" you will need to draft several documents: (1) a notice of motion, telling the court and the other party of your proposed motion to the court objecting to the hearing; (2) the motion, a short document saying you object to the motion because it violates the court order; (3) the "points and authorities", this is the document you have drafted; and (4) a declaration in support of the motion, a statement by you signed under penalty of perjury, stating the facts that are necessary to support your motion (every fact you cite in your points and authorities.)
Thank you. I don't know if I was fully clear. More details: A while back, the opposing counsel had filed a Motion and set a hearing. Our counsel filed a memo in opposition to her Motion. The opposing counsel then cancelled her hearing on the motion.
Later on, we decided to change our counsel. The court order granted 90 days for our corporation to obtain new counsel. The Order was sent to the opp. counsel.
However, the opp counsel ignored the timeframe of the Order and set a hearing on this same motion she filed earlier -- even though our timeframe for obtaining new counsel as so Ordered has not expired.
I was advised that, due to the Order, and due to being without counsel and due to FL law requiring corporations to be represented, that all that was needed at this moment was for us to file an Objection to the Hearing stating the court Order for obtaining new counsel granted us 90 days (which has not expired) and attach a copy of the signed Order to the Objection -- certify mailing it to the opp counsel and file our Objection before the opp counsel's Hearing date.
We were not advised of any other documents needing to be filed in order for us to file our Objection in this interim period, and we were not advised that we would need to schedule a hearing on our Objection to opp. counsel's hearing on her motion. And actually I am not clear on how we could have a hearing or be expected to have a hearing while we are currently without counsel in this interim timeframe. There would be no counsel to represent us at any such hearing.
So I guess I am asking: (1.) Under Florida law, in our corporation's current situation of being without counsel in the allowed timeframe, can it be legally sufficient for us to simply file one document (send it to opp. counsel) which is simply an Objection to the opp. counsel's hearing, based on the fact of the previous Court Order, and attach a copy of the Order (which is already in the Docket, too), and (2.) Is my draft language legally sufficient for accomplishing the purpose of having opp. counsel's premature hearing canceled?
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