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My case was remanded back from the appellate court for an evidentiary

hearing as to whether my...
My case was remanded back from the appellate court for an evidentiary hearing as to whether my discovery failure amounted to misconduct that would sanction striking my pleadings. Obviously, that was a very important hearing. It was set ex parte by my husband who failed to serve me (although he claimed he did in his certificate of service). I live in another state and only learned of the hearing right beforehand and I could not get a flight (I don't drive). I filed an objection and motion for continuance, but the judge (who is very very unreasonable) refused to hear them and ordered the hearing to go forward while I stood on the street on the phone unable to put on evidence. The judge then set a trial date which will occur next week. Since then, she (the judge) also set mediation although I'm unaware of the date for that yet as I haven't received the order -- but it could be tomorrow, for all I know. I'm pro se as I cannot afford an attorney and there are no attorneys that will take the case pro bono nor do I qualify for Legal Aid.

1. Can a judge just insist that dates go forward as she pleases even though a party lives in another state and must travel by plane to get to court? Is there no requirement that a party has the right to be heard and therefore, must receive sufficient notice?

2. No order was entered regarding the evidentiary hearing other than a standard form order setting the case for trial but stating nothing about the striking of my pleadings. Is this abnormal? I always thought there would have to be an order regarding the substance of a hearing.

3. Subsequent to the hearing, the judge entered an order that requires conformance with pretrial procedures one of which is that all witnesses be declared 45 days before trial. The problem is that on the date that trial was set, there weren't 45 days to trial. There were only 28 days. Worse, on the date this order was entered, there were only 13 days to trial. That forecloses me from putting on witnesses. Isn't that a violation of due process? (By the time I learned of this order, it was less only 8 days to trial, so pleadings were also closed by the order and I can't file anything.)

4. The case involves domestic violence which the same court previously found when it entered an injunction for protection. I have previously motioned the court to dispense with mediation. Florida Statute Section 44.1028(c) states that "upon motion or request of a party, a court shall not refer any case to mediation if it finds there has been a history of domestic violence that would compromise the mediation process." That doesn't sound discretionary to me. Am I wrong?

5. I filed a motion for disqualification of the trial judge. Long story, but she's done and said so many things that indicate her incredible bias against me and a couple of the lawyers here recommended I try it. According to FL Rules of Judicial Administration, she was supposed to only consider whether or not my motion was legally sufficient, NOT the merits of my motion itself. (I've seen several other orders in FL on these types of motions and they always state that the motion was legally insufficient.) Her order states nothing about the sufficiency of my motion, but merely states that "upon consideration, the motion is hereby denied." What exactly what does "upon consideration" actually mean? Does it mean that she considered the legal sufficiency or the merits? Or is there no way to tell?

Thank you very much.
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Answered in 28 minutes by:
11/4/2013
socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 39,498
Experience: Retired
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Hello again...you asked:

1. Can a judge just insist that dates go forward as she pleases even though a party lives in another state and must travel by plane to get to court? Is there no requirement that a party has the right to be heard and therefore, must receive sufficient notice?

A: The judge's orders re trial are considered fundamental to the court's inherent authority to manage its affairs. You can always claim that you are being denied due process of law. But, the judge must consider due process for each party in the case, and as much as you may be looking for latitude from the court, the other party may be looking to "get the case over with as quickly as possible." Consequently, the judge generally has the authority to set dates on the calender, and only upon a showing of "good cause" (clear justification), is the court obliged to change the calendar.

I'm sounding all "legalistic" here -- the botXXXXX XXXXXne is that challenging the court's calendaring of events is sort of like challenging an umpire in baseball who yells "play ball." The umpire's announcement is first and final, and if either team fails to take the field, they will immediately forfeit the entire game.

2. No order was entered regarding the evidentiary hearing other than a standard form order setting the case for trial but stating nothing about the striking of my pleadings. Is this abnormal? I always thought there would have to be an order regarding the substance of a hearing.

A: The trial court, according to your comments about the appellate court remand, must hold a hearing to determine whether or not to strike your pleadings. Your opponent must set forth evidence to show that you willfully violated the discovery rules, and you must show that you either did not violate the rules, or that the violation was sufficient to warrant striking your pleadings. Here's the law:

The striking of a party's pleadings as a sanction for discovery misconduct is authorized pursuant to Florida Rule of Civil Procedure 1.380. The striking of pleadings, though, is "the most severe of penalties and must be employed only in extreme circumstances." Poling v. Palm Coast Abstract & Title, Inc., 882 So.2d 483, 486 (Fla. 5th DCA 2004) (citing Mercer v. Raine, 443 So.2d 944 (Fla.1983)). The striking of a party's pleadings is justified only where there is "`a deliberate and contumacious disregard of the court's authority.'" Barnett v. Barnett, 718 So.2d 302, 304 (Fla. 2d DCA 1998) (quoting Mercer, 443 So.2d at 946). In assessing whether the striking of a party's pleadings is warranted, courts are to look to the following factors:
80*80 1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993). The emphasis should be on the prejudice suffered by the opposing party. See Ham v. Dunmire, 891 So.2d 492, 502 (Fla.2004); Owens v. Howard, 662 So.2d 1325, 1327 (Fla. 2d DCA 1995) (stating that "[t]his court has refused to approve of the dismissal of a cause of action as a sanction for discovery violations when the appellee had not shown prejudice"). After considering these factors, if a sanction less severe than the striking of a party's pleadings is "a viable alternative," then the trial court should utilize such alternatives. Kozel, 629 So.2d at 818. "The purpose of the Florida Rules of Civil Procedure is to encourage the orderly movement of litigation" and "[t]his purpose usually can be accomplished by the imposition of a sanction that is less harsh than dismissal" or the striking of a party's pleadings. Id.


3. Subsequent to the hearing, the judge entered an order that requires conformance with pretrial procedures one of which is that all witnesses be declared 45 days before trial. The problem is that on the date that trial was set, there weren't 45 days to trial. There were only 28 days. Worse, on the date this order was entered, there were only 13 days to trial. That forecloses me from putting on witnesses. Isn't that a violation of due process? (By the time I learned of this order, it was less only 8 days to trial, so pleadings were also closed by the order and I can't file anything.)

A: What you describe seems to be a pretty clear violation of due process. I'd say you have, the right to move for a continuance of the trial date to permit you to provide the requisite witness list, or that the court must modify the prior order to permit you to provide a witness list within the remaining time available. Were I in your situation, I would offer the witness list, and let your opponent object. Then, you would make your argument, and if the judge refuses to accept the witness list, then you have grounds to appeal for a new trial -- because your due process rights were violated.

4. The case involves domestic violence which the same court previously found when it entered an injunction for protection. I have previously motioned the court to dispense with mediation. Florida Statute Section 44.1028(c) states that "upon motion or request of a party, a court shall not refer any case to mediation if it finds there has been a history of domestic violence that would compromise the mediation process." That doesn't sound discretionary to me. Am I wrong?

A: Everything provides some level of discretion to the court (except, perhaps, for informing a defendant of his or her rights in a criminal case -- which is inapplicable to your circumstances). I think you have a valid ground for asking the judge to waive mediation, again. You have to realize that the judge is busy, and probably won't remember from hearing to hearing that there is a domestic violence issue involved. If the judge makes a mistake, you must get it into the record and request the waiver -- again. Without the record of your objection, you can't appeal.

5. I filed a motion for disqualification of the trial judge. Long story, but she's done and said so many things that indicate her incredible bias against me and a couple of the lawyers here recommended I try it. According to FL Rules of Judicial Administration, she was supposed to only consider whether or not my motion was legally sufficient, NOT the merits of my motion itself. (I've seen several other orders in FL on these types of motions and they always state that the motion was legally insufficient.) Her order states nothing about the sufficiency of my motion, but merely states that "upon consideration, the motion is hereby denied." What exactly what does "upon consideration" actually mean? Does it mean that she considered the legal sufficiency or the merits? Or is there no way to tell?

A: It means that the judge is doing what family court judges are famous for doing: ignoring the law and challenging parties to appeal. The failure to state any findings about the legal sufficiency of the motion is harmful error, if the merits of the motion would have been sufficient to disqualify the judge. So, here again, you'll have to appeal, if you want to disqualify the judge.

Thank you very much.

A: You're very welcome. And, thanks for using justanwer.com!
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Customer reply replied 4 years ago

Wow, you always give such incredible answers. Thank you so very much. And yeah, I'm in the process of finishing a Petition for Writ Prohibition and/or Mandamus because there's so much more (For example, he hasn't complied with mandatory disclosure although he was ordered to do so (my motion to compel) and I filed a motion for contempt but I can't get a hearing date set because the judicial assistant refuses to give me one -- even before my pleadings were stricken. Quite ironic given that my pleadings were stricken for not disclosing my home and work addresses. I filed a motion for continuance, but can't get that heard either and also can't get a motion for temporary relief for attorney's fees heard.)


 


I just have a couple of points of clarification, if you don't mind. My response to the motion to strike my pleadings very clearly shows that I *was* in compliance (other than disclosing my home and work addresses). The judge heard my testimony, and determined that I wasn't required to disclose my home address anymore (even though she had previously ruled before the appeal that I was required to -- ugh!) But she entered NO order in regards XXXXX XXXXX my pleadings. What I mean is, she didn't enter an order stating "Respondent's pleadings are not stricken." I guess it can be assumed since she set the case for trial that my pleadings were NOT stricken but shouldn't there be some order to that effect?


 


Also, I like your response regarding witnesses. How do I declare them? Is that just an exchange with his attorney or is there something I have to file with the court?


 


And one other thing, I can't afford to pay for mediation and I would be responsible for half of it ($500 minimum). Also, I have no idea when it is. It could be tomorrow for all I know as I haven't received the order yet. (This judge seems to think I own a plane or can fly my broomstick on demand.) I assume it must be this week since the trial is on the 12th. I can't e-file and the court won't accept anything by fax. Pleadings are closed. So the soonest I could get an overnight package to the court would be Tuesday morning. Assuming the worst and it is set for tomorrow, will the court accept it since (a) pleadings are closed and (b) it would be "after the fact"?

Wow, you always give such incredible answers. Thank you so very much.


A: You're welcome, and thank you for your kind words. It's my observation that most of the contributors here pretty much uniformly believe that providing case law research is unreasonable, in view of the amount of money being paid by the customer. Whereas, I believe that case law research is required, because it's the only thing that distinguishes the paid answers in this forum from the free answers that can be obtained anywhere on the internet. How is a customer supposed to know whether or not an answer is accurate, if the answer doesn't provide any supporting case law authority?

 

To me, it's self evident that anything other than an answer supported by competent legal authority is just an educated guess.

I just have a couple of points of clarification, if you don't mind. My response to the motion to strike my pleadings very clearly shows that I *was* in compliance (other than disclosing my home and work addresses). The judge heard my testimony, and determined that I wasn't required to disclose my home address anymore (even though she had previously ruled before the appeal that I was required to -- ugh!) But she entered NO order in regards XXXXX XXXXX my pleadings. What I mean is, she didn't enter an order stating "Respondent's pleadings are not stricken." I guess it can be assumed since she set the case for trial that my pleadings were NOT stricken but shouldn't there be some order to that effect?

 

A: Yes, there should be an order denying the motion of the moving party. The judge may be unwilling to enter that order, because the other party is represented by a member of the Florida Bar, and it would be quite embarrassing to tell the lawyer that the motion defeats itself on its face. If I were the client reading that order, I would be asking for my money back, because it would be pretty obvious that my attorney doesn't know his/her a** from a hole in the ground.

 

Of course, I'm just making an "educated guess" here. But, I think it's a pretty good one.

 

Also, I like your response regarding witnesses. How do I declare them? Is that just an exchange with his attorney or is there something I have to file with the court?

A: Fl R. Fam. Ct. 12.440(a). If the court finds the action ready to be set for trial, it shall enter an order setting the action for trial, fixing a date for trial, and setting a pretrial conference, if necessary. In the event a default has been entered, reasonable notice of not less than 10 days shall be given unless otherwise required by law. In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with Florida Rule of Judicial Administration 2.516. Trial shall be set within a reasonable time from the service of the notice for trial. At the pretrial conference, the parties should be prepared, consistent with Florida Family Law Rule of Procedure 12.200, to present any matter that will prepare the parties for trial and that can expedite the resolution of the case. The trial court may also direct the parties to reciprocally exchange and file with the court all documents relative to the outcome of the case; a list of all witnesses, all issues to be tried, and all undisposed motions; an estimate of the time needed to try t he case [emphasis added]; and any other information the court deems appropriate. Any court filings shall be in conformity with Florida Rule of Judicial Administration 2.425. This information should be served and filed no later than 72 hours before the pretrial conference o r 30 days before the trial.

 

 

 

And one other thing, I can't afford to pay for mediation and I would be responsible for half of it ($500 minimum). Also, I have no idea when it is. It could be tomorrow for all I know as I haven't received the order yet. (This judge seems to think I own a plane or can fly my broomstick on demand.) I assume it must be this week since the trial is on the 12th. I can't e-file and the court won't accept anything by fax. Pleadings are closed. So the soonest I could get an overnight package to the court would be Tuesday morning. Assuming the worst and it is set for tomorrow, will the court accept it since (a) pleadings are closed and (b) it would be "after the fact"?

 

A: I'm not sure why you cannot get the court clerk to read you the order. Assuming mediation is set for tomorrow, you can't very well move for a waiver. You would simply be set up for a contempt hearing. Your defense would be that you had no notice of the mediation date, so you could not possibly comply. Inability to comply with a court order is an absolute defense to a contempt order (except, of course, in family court, where the judges frequently dispense with things like the "law," in favor of doing whatever they want). But, that's the legal requirement.

 

Hope this helps.

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Customer reply replied 4 years ago

Well, I can't say how much I appreciate the work you do. I couldn't tell you the amount of WRONG answers I've received here. Like the lawyer who told me that I was required to provide my husband's counsel with a copy of the record on appeal just because he (husband's counsel) asked for it (when I asked for help interpreting the rule).


 


And just to amuse you about this judge, out of 184 times that she's been up on appeal, she's been reversed 177 times, at least in part. One local attorney I spoke with told me she'd reversed her 5 times in 3 years herself.

Indeed, I think it's pretty funny that me, a little pro se litigant, won an appeal against Mr. Big Time Lawyer who likes to harass me all the time and threaten me that if I move forward on setting a motion for contempt, he'll "unwaive" his right to depose me, force me to come to FL for the deposition and sit in front of my abusive husband while he makes threatening gestures towards me. He was writing me 30-35 emails per day full of anger and threats. He must not have any other clients. His appellate brief was full of invective and just about the worst brief I've ever read (and I read many). Most pro se prisoners have written something more cohesive. But he carbon copied his client on an email to me that my briefs were junk and the appellate court simply thought the judge made a mistake. Right. That's why the appellate court used MY statement of facts verbatim and completely ignored his.


 


Unfortunately, because I have this judge and this lawyer, no local attorney wants anything to do with my case. As they say, it's just not worth it. No one wants to voluntarily deal with a judge who makes irrational decisions and obnoxious opposing counsel who sends 30-35 emails per day, even at 3 a.m. I now really understand why my attorney withdrew when I couldn't pay her any more. As she said, it was taking up all her time and affecting her family life because she was so irritated.


 


But I digress. So is there anything I can do about an order regarding striking my pleadings? Since one has never been entered, can I submit one?


 


And I possibly could get a clerk to read me the order *if* I could get a live person to answer the phone at that court, but it's next to impossible. I've sat on the phone for literally 5 hours at a stretch. If the phone is actually answered, you're transferred around to 20 minutes and then disconnected.


 


 

Unfortunately, because I have this judge and this lawyer, no local attorney wants anything to do with my case. As they say, it's just not worth it. No one wants to voluntarily deal with a judge who makes irrational decisions and obnoxious opposing counsel who sends 30-35 emails per day, even at 3 a.m. I now really understand why my attorney withdrew when I couldn't pay her any more. As she said, it was taking up all her time and affecting her family life because she was so irritated.

A: Been there -- done that.

But I digress. So is there anything I can do about an order regarding striking my pleadings? Since one has never been entered, can I submit one?


A: No digressing allowed. You have a hearing on the original motion set. At that hearing, the judge must make an order one way or the other -- unless opposing counsel asks the court to dismiss the motion. If that happens, then you object and ask for sanctions for opposing counsel's frivolous motion.

 

And I possibly could get a clerk to read me the order *if* I could get a live person to answer the phone at that court, but it's next to impossible. I've sat on the phone for literally 5 hours at a stretch. If the phone is actually answered, you're transferred around to 20 minutes and then disconnected.

A: I understand. Unfortunately, that's what happens in family court, located in a high population metro area. I've worked in such jurisdictions, and in rural ones where the clerk answers the phone in about 30 seconds and says, "Oh sure, what's your fax number." And, then the order appears on my fax machine in about 2 minutes.

I don't have a solution for you -- other than to move back to the area until your case is over ($$$). Obviously, this is not a good solution. You might be able to hire an attorney's service to go to the courthouse for you. But, that's expensive, too (assuming you can find a service willing to deal with a pro se -- most services won't).

Hope this helps.
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Customer reply replied 4 years ago

One final thing, I promise. You said: "You have a hearing on the original motion set. At that hearing, the judge must make an order one way or the other -- unless opposing counsel asks the court to dismiss the motion. If that happens, then you object and ask for sanctions for opposing counsel's frivolous motion."

So, the hearing occurred. The judge didn't make an order (other than setting trial) and he didn't dismiss the motion. What do I do?

Please remember that this was dragged through the appellate court and they remanded it based on the fact that my pleadings should NOT have been stricken without an evidentiary hearing (and they advised that my address should be kept confidential). So, I think it's important to get SOMETHING on the record regarding the fact that there is STILL no order in case I have to appeal this again.

When you get to the trial, the first thing that you do before anything else is you ask something like, "Your honor -- at the hearing on the motion for [whatever it was called], on [date], you never entered an order. I assume that since you did not strike my pleadings that [petitioner's/respondent's] motion is denied. I respectfully XXXXX XXXXX you state that order on the record, now, so that we have closure on this matter, before proceeding to trial."

Hope this helps.
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Customer reply replied 4 years ago

You are just fabulous. I can't thank you enough.

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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