IN THE COUNTY COURT IN AND FOR HIGHLANDS COUNTY, FLORIDA CAPITAL ONE BANK (USA), N.A., Plaintiff, v. JAMES A.

MOTIL, Defendant. _____________________________/ DEFENDANT’S MOTION TO RE-CONSIDER AND VACATE THE COURT'S "ORDER ON PENDING MOTION" Comes now the Defendant-IN-ERROR, James A. Motil, Jr., (hereafter "Defendant") to move the Court to re-consider its "Order on Pending Motion" filed on 4 January 2012 (hereafter the "Order"), to vacate the Order and to issue a new order based upon this paper, the facts of the case and relevant law, for the following reasons: ATTORNEY FLEISHER FAILED TO APPEAR AS ORDERED 1. Plaintiff's only attorney-of-record, Andrew D. Fleisher ("Mr. Fleisher") was ordered to appear by telephone at the hearing on 29 November 2011 (hereafter the "Hearing"). A copy of said order is attached hereto as "Exhibit A." 2. A non-compliant attorney, Stanley B. Erskine ("Mr. Erskine"), appeared by telephone at the Hearing, purportedly on behalf of Plaintiff. Defendant objected to Mr. Erskine's appearance,1 and his objection was overruled.2 This decision is contrary to established rules. 3. At the Hearing, Mr. Erskine made some unfounded accusations against Defendant regarding the issue of "notice of appearance of counsel": 1) he accused Defendant of "misreading the law"3; and 2) he claimed Defendant "misrepresented the law."
1 2 3

CASE NO. 11 000 301 - SPS

Transcript of the 29 November 2011 Hearing (hereafter "T.") at page 4, lines 10-16. T. at page 7, lines 21-22. T. at page 6, lines 13-14.

4. Mr. Erskine's ignorance is astounding. What's worse is that the Court bought Mr. Erskine's bag of baloney. Mr. Erskine quoted no law, no rule, and no case law to support his position that because he and Mr. Fleisher are "affiliated, we can both come into the case at will."4 5. Only Mr. Fleisher signed Plaintiff's "Statement of Claim" and, thereby became the Plaintiff's attorney of record. The record shows no motion to substitute counsel and no notice of appearance of any co-counsel. 6. The Florida Rules of Judicial Administration, Rule 2.505(e) declares how an attorney "may appear in a proceeding": Appearance of Attorney. An attorney may appear in a proceeding in any of the following ways: (1) By serving and filing, on behalf of a party, the party’s first pleading or paper in the proceeding. (2) By substitution of counsel, but only by order of court and with written consent of the client, filed with the court. The court may condition substitution upon payment of, or security for, the substituted attorney’s fees and expenses, or upon such other terms as may be just. (3) By filing with the court and serving upon all parties a notice of appearance as counsel for a party that has already appeared in a proceeding pro se or as cocounsel for a party that has already appeared in a proceeding by non-withdrawing counsel. 7. Apparently, it is Mr. Erskine who has "misread" and "misrepresented" this rule, because

it does not say anything close to his contention that "affiliated" attorneys may appear "at will." "Law firms" do not have Florida Bar Numbers and can not practice law. 8. The Florida Supreme Court said this: "A party cannot change his attorney without

leave of court...." Diem v. Diem, 187 So. 569 (Fla. 1939) at headnote 1. 9. Florida's First District Court of Appeal said this: "Motion ... filed by attorney who

intended to substitute for party's present counsel was nullity, where no motion was ever filed requesting leave by second attorney to substitute for party's first attorney...." Bortz v. Bortz, 675 So.2d 622 (Fla. App. 1 Dist. 1996) at headnote 1.
4

T. at page 7, lines

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10. Florida's Second District Court of Appeal said this: "We find persuasive the reasoning employed by the First District Court of Appeal in Bortz v. Bortz, ... that the ... motion ... filed by an attorney ... who had not appeared in the cause theretofore, was a nullity...." Pasco County v. Quail Hollow Properties, 693 So.2d 82 (Fla.App. 2 Dist. 1997) at 83 paragraph b2. 11. The Florida Rules of Judicial Administration says, in pertinent part: RULE 2.515. SIGNATURE OF ATTORNEYS AND PARTIES (a) Attorney Signature. Every ... paper of a party represented by an attorney shall be signed by at least 1 attorney of record in that attorney’s individual name ... and Florida Bar number shall be stated.... ... The signature of an attorney shall constitute a certificate by the attorney that the attorney has read the ... paper; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the pleading or other paper had not been served. 12. None of the papers (filed in this action and signed by Mr. Erskine) comply with Rule 2.515 and, a paper that is "not signed" by an "attorney of record ... may be stricken." 13. Even worse than Mr. Erskine's misrepresenting the law to the Court, was his misrepresentation of the truth (in other words, he lied) when he told the Court: Judge, I did file another notice of appearance to satisfy Mr. Motil and Mr. Fleisher signed it, as I, which has been filed in the court record....5 14. After the Hearing, Defendant reviewed the court file and saw no "notice of appearance" as described by Mr. Erskine and, to date, the online docket shows no such notice. 15. Florida Small Claims Rule 7.110(b) says: Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court. ... Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits. 16. The Court ordered for Mr. Fleisher to appear at the Hearing and he failed to do so.
5

T. at page 7, lines 14-17. Fortunately for Mr. Erskine, he was not under oath.

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17. The denial of Defendant's motions based upon Mr. Erskine's non-compliant papers and unsupported oral arguments was not only error, but it was prejudicial to Defendant because he had legitimate argument and authority for his motions which were not sufficiently countered by Plaintiff. Worse, Plaintiff's attorney of record disobeyed this Court's order to appear. 18. Defendant requested "findings of fact and conclusions of law," and, because Mr. Erskine offered no authority to support his argument, and because the Court had no supporting authority (other than Mr. Erskine's misrepresentations) for its decision to overrule Defendant's objection, Mr. Erskine should not have been allowed to speak at the Hearing and the Plaintiff's Claim should have been dismissed for failure to state a cause of action, for lack of prosecution and for not obeying this Court's order. THERE IS NO "BOND" IN THE RECORD AND MR. ERSKINE APPEARS TO HAVE MADE AN ETHICAL VIOLATION 19. Plaintiff's "Statement of Claim" filed on 23 August 2011 states that Plaintiff's principal place of business is "located outside the State of Florida," but Plaintiff failed to file a nonresident bond approved by the Clerk of Courts pursuant to Florida Statute § 57.011. 20. Defendant filed a "Notice of Plaintiff's Failure to Post Non-Resident Bond" on 28 September 2011. He then filed a "Motion to Dismiss for Plaintiff's Failure to Post Non-Resident Bond" on 28 October 2011. 21. The record shows Plaintiff filed a "Notice of Filing Non-Resident Cost Cash Bond Pursuant to Florida Statute 57.011." A copy of said "Notice" is attached hereto as "Exhibit B." 22. At the Hearing, Defendant pointed out that: On the purported bond it does not say who is the principal or who is the surety. Can either of you tell me who those are? According to Form 1.960, it lists a surety and a principal and that's not in his notice of filing. There's a notice of filing. There's no bond attached.6 [See a copy of Form 1.960 attached hereto as "Exhibit C."
6

T. at page 15, lines 11-17.

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23. Although no "bond" was attached to the "Notice of Filing..." and the Court could not find a "bond" in the court's file7, the Court replied: "If he has filed a proper bond, then that [motion] would be denied. If he hasn't then --"8 24. Mr. Erskine's immediate response to the Court was: "I didn't file a cash bond, Judge."9 25. The Court should have dismissed the case right then, but instead the Court says: [I]f he has done it, he's okay. If he hasn't done it, he's not. And it looks -- I'm going to have to check with the clerk and see whether or not he has filed the appropriate bond. He has in here a reply that he has since filed a cost bond in order to address the issue at hand. Okay?10 26. The Defendant replied to the Court's question by saying: "Well, he didn't."11 Defendant told the Court "I'm saying that just putting a hundred bucks in the court's coffers is not a bond."12 Then Defendant showed the Court a copy of Form 1.960. After looking at the form, the Court spoke to Mr. Erskine: "And your response was you have already done this, correct?"13 To which, Mr. Erskine said: "Correct, Judge." So, now Mr. Erskine contradicts himself. 27. Unable to find an actual "bond," the Court was made "aware" of the "docket from the web" by Mr. Erskine.14 Evidently, the Court was able to see the online docket from the Court's computer. Defendant, however, could not see the computer screen. 28. The Court informed Defendant, "I show a registry deposit and that the clerk has actually approved the bond."15 To which, Defendant responded: On that reported [sic, purported] bond, who is the principal and who is the surety? ... according to Florida Jurisprudence ... "A good and sufficient bond is one with a principal and a surety company."16
7 8 9 10 11 12 13 14 15 16

T. at page 16, lines1-2. T. at page 15, lines 121-23. T. at page 15, line 25. T. at page 16, line 25 - page 17, line 6. T. at page 17, line 7. T. at page 17, lines 12-16. T. at page 17, lines 23-24 and line 25 T. at page 18, lines 5-8. T. at page 18, lines 17-18. The Clerk only approved a "Notice" of filing. There, still, is no "bond." T. at page 18, lines 19-24; and page 19, lines 1-3. Fla. Juris., Guaranty and Suretyship § 6 at pages 290-291.

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[A]lso ... no attorney is allowed to become a surety on any bond of a client in judicial proceedings. 29. Mr. Erskine appears to have violated the Florida Bar's Code of Ethics when he said: Judge, you can also enter an order finding me to be responsible for the amount of money in any event and I can be held responsible, which is fine with my firm.17 This Court can hold me responsible for all costs up to the amount of the statutory requirement." It says so right in the -- it's in the cost bond statute you can hold me responsible. 30. Mr. Erskine argues that the Court can hold him responsible, as if that decision was, totally, up to the the Court and the attorney. The Court and Mr. Erskine have tried to put the decision in their hands, however, according to the "bond statute" that decision belongs to the Defendant: On failure to file such bond ... the defendant may ... move to dismiss the action or may hold the attorney ... liable for said costs .... (Emphasis added.) 31. In this case, the Defendant chose to "move to dismiss the action." 32. By the Order, this Court appears to agree with Mr. Erskine that the Court has the power to hold him responsible. However, there is--still--no bond, no principal, and the Court has not issued an order holding Mr. Erskine responsible. If the Court decides to allow the Order to remain in force, then there would be an apparent conflict of laws between F.S. 57.011 and F.S. 454.20, and, ultimately, a higher court would have to resolve the that conflict. 33. Plaintiff has failed to file a sufficient bond with a principal and a surety in accordance with F.S. 57.011 and with Fla. R. Civ. Proc., Form 1.960. When the Court was unable to find an actual "bond" signed by Plaintiff as principal and signed by another person as surety (someone other than Plaintiff's attorney) this action should have been dismissed as requested by Defendant.

17

T. at page 16, lines 18-21; page 19 lines 11-13; and page19, line 25 - page 20, line 2.

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34. A bond is supposed to "bind" someone. The Plaintiff's "Notice of Filing ..." does not say that anyone "binds" themselves to "pay all costs and charges that are adjudged against plaintiff in this action." The mere fact that Mr. Erskine deposited money with the Clerk, does not create a "bond" as required by the statute.18 35. As Defendant pointed out at the Hearing, an attorney is not allowed to be a surety for a client in a legal proceeding in Florida. Florida Statute 454.20 (2011) says: Attorneys not to be sureties.--No attorney shall become surety on ... any bond of a client in judicial proceedings. 36. See a copy of F.S. 454.20 attached hereto as "Exhibit D." 37. This is not new. In 1936, the Florida Supreme Court said: Although defendant's attorney as signer of bond was described as principal, he was, in fact, no more than surety for defendant, and as such was precluded by statute from executing bond.19 38. Today, the Florida Rules of Judicial Administration, Rule 2.505(c) says: Attorney Not to Be Surety. No attorneys ... shall enter themselves or be taken as bail or surety in any proceeding in court. 39. According to its "Opinion 70-8," revised 24 August 2011, the Florida Bar says: Under Florida law an attorney cannot become a surety on any bond of his client in any judicial proceeding. Section 454.20, Florida Statutes ... [T]he Committee is of the opinion that there is no ethical distinction between an attorney's becoming surety on his client's possible obligation to an opposing litigant and his becoming surety on the same possible obligation to a surety company which has become surety on the client's cost bond. In either case, the attorney is acting as surety for his client. The proposed scheme would, it seems, constitute an attempt to do indirectly that which the attorney is prohibited from doing directly. (See a copy of Opinion 70-8 attached hereto as "Exhibit E.") 40. Mr. Erskine's offer to be "surety" for Plaintiff (either directly or indirectly) appears to be unethical. However, Neither Mr. Erskine, nor his "firm" can be a "surety" if there is no "principal," and if there is no principal then there is no bond.
18 19

See T. at page 17, lines 12-16 and page 21, lines 7-9. Craig v. Wilder, 169 So. 847, Headnote 2.

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41. At the Hearing, the Court asked Defendant: "What cost do you have that his $100 doesn't cover so far?"20 The 57.011 statute is not based upon a defendant's expenses, it is based upon the Plaintiff's state of residency not being Florida. At the time, Defendant had spent about $25.00 on certified mail, postage and copying costs. However, Defendant paid the court reporter $60.00 to record the Hearing and the transcript cost $265.75 for a total which is more than three times the amount of the bond. 42. Because there is no bond, the Plaintiff's action should have been dismissed and it should be dismissed, now, "with prejudice."21 "DEFENDANT'S MOTION TO DISMISS" WAS NOT BASED UPON DEFENDANT'S IDENTITY 43. The Court appeared to be confused when Judge Ritenour said this to Defendant: "[W]e'll deny your motion ... to dismiss based on you saying you're not the person he's looking for."22 44. Whether or not Defendant is "the person he's looking for," Plaintiff must sue him in his full, legal name and must, also, serve him in his full, legal name. Defendant said that the "Service of Process" was defective because it did not state Defendant's full, legal name. 45. Defendant filed a "Motion to Quash Defective Service of Process" which said that Plaintiff did not serve Defendant under his full, legal name and that the service had other defects. Contrary to the Court's statement quoted above, "Defendant's Motion to Dismiss" was based upon Plaintiff's "failure to establish jurisdiction" and its "failure to state a cause of action." 46. Defendant, hereby, incorporates his "Motion to Dismiss" served and filed on 28 September 2011 into this Motion to Re-Consider, by this reference, and requests the Court to take judicial notice of the arguments and authorities therein which show why Plaintiff failed to establish jurisdiction and why Plaintiff's Claim fails to state a cause of action.
20 21 22

T. at page 20, lines 8-9. See Trawick, Fla. Prac. and Proc. § 1:11 Nonresident costs bond (2010 ed.) at page 13 T. at page 31, lines 7-11.

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47. In addition to the arguments in "Defendant's Motion to Dismiss," Defendant cites Fla. R. Civ. P., Rule 1.110(b) which requires that a claim for relief "must state a cause of action and shall contain ... a short and plain statement of the grounds upon which the court’s jurisdiction depends...." 48. Pursuant to Fla. R. Civ. P., Rule 1.130(a): ATTACHING COPY OF CAUSE OF ACTION AND EXHIBITS (a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments. 49. Although Plaintiff alleged a "contract" in its Claim, no contract was attached to, or incorporated in, the Claim. At the Hearing, Defendant mentioned two prior cases23 heard and dismissed by Judge Ritenour, in which the Court ordered the plaintiff to produce a written agreement signed by the defendant: 1) Capital One Bank USA NA v. Ronald Beal, Jr., Case No. 08-564 SPS, dated 30 June 2008 (see copy attached hereto as "Exhibit F"); and 2) FIA Card Services NA v. Karen Tifft, Case No. 10-219 SPS, dated 27 May 2010 (see copy attached hereto as "Exhibit G"). In both of these cases, plaintiffs failed to produce a written agreement signed by defendants, and both cases were dismissed by Judge Ritenour. According to his own precedent, Judge Ritenour should have dismissed this case. 50. Interestingly, Mr. Erskine said: "If the Court wants me to file an amended statement of claim, I will."24 The Court erred by not dismissing the Claim, or at the very least, ordering Plaintiff to amend its Claim. In any case, an amended claim will not fix Plaintiff's failure to file a nonresident bond.

23 24

T. at page 44, line 19 to page 45, line 1. T. at page 46, lines 19-20.

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51. Defendant's Motion to Dismiss was not about his own identity. It was about Plaintiff's identity. Plaintiff failed to identify itself, failed to state a cause of action and failed to state the grounds for this court's jurisdiction. Thus, this Court has no jurisdiction to hear Plaintiff's Claim and the Claim should be dismissed with prejudice. COURT ABUSED ITS POWER BY ALLOWING ATTORNEY TO INTERROGATE DEFENDANT AND BY DENYING DEFENDANT'S "MOTION TO DISMISS" MERELY BECAUSE HE OBJECTED TO THE QUESTIONNING 52. Mr. Erskine asked: "Judge, may I voir dire the Defendant...."25 and started to ask questions of the Defendant before he was placed under oath.26 Voir dire is a phrase which: refers to the examination of prospective jurors under oath to determine bias or preconceived notions of guilt or innocence. In the voir dire process, attorneys, the court and the parties pose a series of questions to prospective jurors to determine their suitability to sit on the jury. A written questionnaire often precedes this oral questioning and aids counsel in selecting an impartial jury panel. The questioning lawyers may dismiss a juror for cause, such as when bias exists. The attorneys also have a limited number of peremptory challenges that they can use to dismiss a juror for any or no reason. Also Known As: Jury Questions, Jury Selection.27 [Emphasis added.] 53. Since Defendant was not a "prospective juror," it appears that the Mr. Erskine's "voir dire" was an inappropriate harassment of Defendant by Mr. Erskine and the Court. With or without any "notice," the Court should not have allowed discovery at the non-evidentiary Hearing. 54. Defendant objected and said: "I wasn't given notice in time to prepare for anything like this."28 "The court cannot determine a matter at a hearing that is not noticed for the hearing...."29 55. Florida Small Claims Rule 7.020(b) says: "When a party is unrepresented and has not initiated discovery pursuant to Florida Rules of Civil Procedure 1.280–1.380, the opposing party shall not be entitled to initiate such discovery without leave of court."
25 26 27 28 29

T. at page 29, lines 24-25. T. at page 30, lines 2-7. http://legalcareers.about.com/od/glossary/g/voirdire.htm T. at page 30, lines 8-11. Trawick, Fla. Prac. and Proc., § 15:5 Hearings (2010 ed.), at page 262.

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56. Defendant agreed to be sworn in, but still objected to it. Then the Court told him, "If you're going to object I won't swear you in." To which Defendant replied, "Well, I'm going to object." The Court announced, "Then your motion is denied."30 57. The Court declared: "[H]e's allowed to voir dire you as to whether or not you're the person you're claiming."31 Please note: 1) Defendant is not a prospective juror; and 2) the issue is only that Defendant was NOT named in the Claim nor served a copy of the Claim under his FULL, LEGAL NAME. Mr. Erskine's questions did nothing to resolve the issue of Defendant's full, legal name being used in the Claim. Mr. Erskine's questions did not seek to discover whether or not Defendant is "James Angelo Motil, Junior." 58. The Court said: "If you want to object I will allow you to object as this was not set for a hearing for a trial, then we'll deny your motion."32 As Defendant understands it, the Court's job was to sustain or overrule the objection. So, the Court "allowed" Defendant to object, and then punished him for making an allowable objection by denying his motion. This is not reasonable. 59. Mr. Erskine misrepresented the rules to the Court by stating: [I]n small claims proceedings there's no need to give notice with respect to any type of motion whatsoever, summary claims motions, anything, so therefore it would be in the Court's clear right to seek an evidentiary hearing on short notice.33 60. Mr. Erskine failed to quote any rule, law or case to support his absolute statement that "there's no need to give notice with respect to any type of motion whatsoever." This is wrong. 61. Small Claims Rule 7.080(a) says, in pertinent part: "Copies of all ... papers subsequent to the notice to appear ... shall be served on each party." Rule 7.090(c) says: Unless required by order of court, written pretrial motions and defensive pleadings are not necessary. If filed, copies of such pleadings shall be served on all other parties...." So, while a pretrial motion (such as Mr.
30 31 32 33

T. at page 30, lines 2-25. T. at page 31, lines 3-5. T. at page 31, lines 5-7. T. at page 31, lines 17-21.

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Erskine's request for "voir dire") is not "necessary," when it is, or is supposed to be, "filed," a copy of it must be served on the opposing party. 62. Small Claims Rule 7.020. APPLICABILITY OF RULES OF CIVIL PROCEDURE: (a) Generally. Florida Rules of Civil Procedure 1.090(a), (b), and (c); 1.190(e); 1.210(b); 1.260; 1.410; and 1.560 are applicable in all actions covered by these rules. [Emphasis added.] 63. Fla. R. Civ. P., Rule 1.410 - . SUBPOENA: (a) Subpoena Generally. Subpoenas for testimony before the court, subpoenas for production of tangible evidence, and subpoenas for taking depositions may be issued by the clerk of court or by any attorney of record in an action. (b) Subpoena for Testimony before the Court. (1) Every subpoena for testimony before the court shall be issued by an attorney of record in an action or by the clerk under the seal of the court and shall state the name of the court and the title of the action and shall command each person to whom it is directed to attend and give testimony at a time and place specified in it. (2) On oral request of an attorney or party and without praecipe, the clerk shall issue a subpoena for testimony before the court or a subpoena for the production of documentary evidence before the court signed and sealed but otherwise in blank, both as to the title of the action and the name of the person to whom it is directed, and the subpoena shall be filled in before service by the attorney or party. 64. For a second time the Court said: "If you don't want to give testimony in regards to that I'm not going to make you right now because it was not a testimonial set hearing, so we'll deny your motion."34 Defendant's Motion to Dismiss had nothing to do with his identity. 65. The point is this, the Court should not have allowed Mr. Erskine (even if he was a compliant attorney) to interrogate Defendant without first obtaining a subpoena or filing a notice of hearing on a motion for an evidentiary hearing. The Court said, twice, that it was not an evidentiary or testimonial hearing. By allowing Mr. Erskine to question Defendant without notice, the Court violated Defendant's due process rights.

34

T. at page 31, lines 11-15.

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66. When Mr. Erskine finished questioning the Defendant, Mr. Erskine moved the Court to "strike all the pleadings of the Defendant"35 Please note, although Defendant has filed many papers, Defendant has filed no "pleadings" in this case. Mr. Erskine made the same mistake when he filed a "Motion to Strike Defendant's Pleadings...." on 7 November 2011. 67. Because Defendant objected and pled the Fifth Amendment, Mr. Erskine lamented, "if it appears that this is going to continue, then obviously the Plaintiff's hands are going to be tied." In other words, Mr. Erskine admits that Plaintiff has no cause of action if he can not fish for one from Defendant. Defendant is not obligated to prove Plaintiff's case! 68. The Court said: "Mr. Motil, how do you expect this case to be resolved? When you say you plead the Fifth...?"36 Defendant expects the case to be dismissed with prejudice. However, Defendant believes the Court was really asking, "How do you expect the Plaintiff to win its case, if you do not answer Mr. Erskine's questions?" 69. In small claims cases with pro se defendants, discovery is the exception, not the rule. Mr. Erskine moved the Court for an "evidentiary hearing" in his "Motion to Strike Defendant's Pleadings...."at paragraph 8 b. At the Hearing, Mr. Erskine withdrew his "Motion to Strike Pleadings."37 70. Defendant's "Motion to Dismiss" had nothing to do with Defendant's identity. It had to do with Plaintiff's identity and the fact that Plaintiff's Claim failed to state a cause of action. Yet, the Court denied Defendant's "Motion to Dismiss" based upon the issue of Defendant's name. Thus, the Court's decision is unfounded, unjustified, arbitrary and prejudicial. 71. It should be noted that Defendant, repeatedly, asked the Court and Mr. Erskine to answer his question as to the identities of the "principal" and the "surety" on the purported bond, but no one answered this all-important question.
35 36 37

T. at page 41, line 22 to page 42, line 1. T. at page 42, lines 8-10. T. at page 50, lines 24-25.

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TARNETTA MAYFIELD'S AFFIDAVIT IS NOT VALID 72. Plaintiff's "Affidavit" is not worth the paper it's printed on and it should have been thrown out for the reasons stated in Defendant's Motion to Strike Affidavit of Tarnetta Mayfield, but to be thorough, Defendant adds the following rule: 73. Fla. R. Civ. P., Rule 1.510(e) says: [A]ffidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. ... copies of all papers ... referred to in an affidavit shall be attached thereto or served therewith. 74. The Affiant, Tarnetta Mayfield, refers to an "Agreement," but fails to attach a copy of said agreement. Again, there is no "cause of action" attached to the Claim. 75. Because the Court failed to make a proper decision regarding the Affidavit, this matter will have to be considered again at a later time. This is a waste of everyone's time and money. SOME ORAL CONTRACTS ARE BARRED IN FLORIDA 76. Defendant stated that "[O]ral and implied contracts are barred by two Florida statutes of fraud, Florida Statute 672.201 and Florida Statute 687.0304."38 The following discussion was had between the Court and Defendant:39 THE COURT: You're telling me that oral contracts are barred in Florida? Is that what you're saying? MR. MOTIL: Yes, I am. THE COURT: Okay. What is the next thing you said? You said oral contracts were barred and something else you just said. MR. MOTIL: Oral and implied contracts are barred by two Florida statutes of fraud, Florida Statute 672.201 and Florida Statute 687.0304. THE COURT: All right. At this point I'm going to deny your motion to dismiss. It is premature. A lot of it's affirmative defenses. A lot of it, to be honest with you, I don't -- I'm not really sure some of what you're getting at, but oral contracts are not barred in the State of Florida.
38 39

T. at page 48, lines 6-8. T. at page 48, lines 10-25.

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77. The Court, apparently, is not familiar with the statutes quoted by Defendant. Defendant did not say--and did not mean to imply--that ALL oral contracts are barred in Florida. All he was saying was that "Oral and implied contracts are barred by two Florida statutes of fraud, Florida Statute 672.201 and Florida Statute 687.0304." Had Defendant known that the Court was not familiar with those two statutes, he would have said that oral and implied contracts are barred when they deal with certain contracts for the "sale of goods" and "credit agreements." 78. Not "all" oral contracts are barred in Florida. However, the Claim alleges an "extension of credit" and an "agreement" for an amount over $500.00, but fails to attach a copy of the alleged agreement. If, as it appears on the face of the Claim, Plaintiff is attempting to enforce an "oral" or "implied" contract, then that contract is barred by the statutes quoted by the Defendant. 79. The Court denied Defendant's motion, because the Court wasn't sure what Defendant was "getting at." Hopefully, the Court is now better informed and will make a better decision. WHEREFORE, Defendant moves the Court to vacate the "Order on Pending Motion" filed on 4 January 2012, to reconsider all motions filed by Defendant and heard on 29 November 2011 along with this motion, to dismiss Plaintiff's Claim with prejudice, or in the alternative dismiss the Claim without prejudice, to deny Plaintiff any further discovery herein unless approved after a proper noticed-hearing, to strike the Affidavit of Tarnetta Mayfield, to make findings of fact and conclusions of law herein, and for such other, different and further relief as the Court deems appropriate. RESPECTFULLY SUBMITTED by: JAMES A. MOTIL, JR., Defendant-IN-ERROR, self-represented

________________________________ 113 S DELANEY AVE - AVON PARK FL 33825-3930 - (863) 443-1061 15

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was mailed to the person listed below on the 17th day of January 2012. ANDREW D FLEISHER ERSKINE & FLEISHER 55 WESTON RD - STE 300 FORT LAUDERDALE FL 33326-1170 Certified by: JAMES A. MOTIL, JR. andrew_fleisher@eflaw.net Toll-Free: (800) 397-9345 Telephone: (954) 384-1490 FAX: (954) 384-4088

___________________________________ 113 S DELANEY AVE AVON PARK FL 33825-3930 Telephone: (863) 443-1061

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