IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA EVERHOME MORTGAGE COMPANY,

Plaintiff, vs. RONALD J. POWNALL, et al. Defendants. / EMERGENCY MOTION TO STAY PENDING APPEAL OR TO STRIKE ORDER SETTING TRIAL Defendant, RONALD J. POWNALL, by and through undersigned counsel, moves this Court for entry of an Order staying this case pending appeal or striking its sua sponte Order Setting Trial, and would show: 1. On January 30, 2012, at a hearing on Plaintiffs Motion for Rehearing, this Court Case No.: 09-4672-CI-19

vacated its prior Order dismissing this case. Additionally, acting sua sponte, this Court set this case for trial, over Defendants objections that the Court had not complied with Fla.R.Civ.P. 1.440. 2. Defendant has filed a Notice of Appeal of this Courts Order granting rehearing

and vacating its Order dismissing the case. That appeal is pending. 3. or stricken. I. THIS COURT LACKS JURISDICTION TO ENTER FINAL JUDGMENT. 4. After this Court announced its oral ruling on January 30, 2012 that it was granting There are two problems, each of which requires that the scheduled trial be stayed

rehearing and vacating its prior Order dismissing this case, Defendants undersigned counsel made an ore tenus motion to stay pending appeal. In support, the undersigned asserted this Court

could not proceed with trial while Defendants appeal was pending. In response, this Court indicated it had recently been taken to the Second District on this issue and that it issued a PCA. 5. Respectfully, the law on this issue is clear:

In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review. Fla.R.App.Pro. 9.130(f). 6. This Rule sets forth a clear distinction on what this Court can and cannot do while

Defendants appeal is pending. 1 As the Second District has explained: Pursuant to Florida Rule of Appellate Procedure 9.130(f), a nonfinal appeal does not act as an automatic stay of proceedings in the trial court, but it divests the trial court of the power to render a final order disposing of the cause pending such review. Here, this court never authorized the trial court to enter a final order disposing of the Wifes petition while the Husbands nonfinal appeal was pending. Thus, while the trial court had jurisdiction to proceed with pending matters pertaining to the Wifes petition for support while the Husbands appeal was pending, the trial court had no authority to enter a final order disposing of the case until the Husbands appeal of the prior nonfinal order was no longer pending. Cooper v. Cooper, 69 So. 3d 977 (Fla. 2d DCA 2011). 7. Notwithstanding this principle of law, this Court has set trial in April.

Respectfully, if a Final Judgment cannot be entered, trial should be cancelled. To rule otherwise would be reversible error. See Cooper and Fla.R.App.Pro. 9.130(f).

Undoubtedly, the PCA to which this Court referred entailed a situation where the appealing party was seeking a stay of interlocutory proceedings, which Rule 9.130(f) does not prohibit. Clearly, however, the Rule prohibits this Court from entering a Final Judgment while an appeal is pending.

II.

THIS COURTS ORDER SETTING TRIAL WAS ENTERED PREMATURELY AND SHOULD BE STRICKEN. 8. The undersigned understands this Courts desire to set foreclosure cases for trial.

Respectfully, however, any Order which sets a case for trial prematurely will result in a reversal on appeal after the conclusion of the trial. See Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1986) (en banc); Precision Constructors, Inc. v. Valtec Constr. Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002) (Failure to strictly adhere to the mandates of Rule 1.440 is reversible error. Accordingly, the judgment is vacated and the cause is remanded for a new trial.). 9. The procedure for setting a case for trial is set forth in Fla.R.Civ.P. 1.440:

(a) When at Issue. An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading. (b) Notice for Trial. Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial. (c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. 10. The Rule contemplates a three-step process, each step corresponding with a

subsection of the Rule, i.e. step one is in subsection (a), step two is in subsection (b), and step three is in subsection (c). In other words, once a case is at issue, then it may be noticed for trial, and then the court may set it for trial. 11. Significantly, strict compliance with all three steps is required. See Bennett,

supra (Strict compliance with Rule 1.440 is mandatory.). 12. Here, this Court strayed from the mandates of Rule 1.440. Respectfully, if this

error is not cured, then any judgment will be reversed on appeal regardless of the outcome at trial. 13. Tthis Court set the case for trial even though no party had filed a Notice for Trial.

Respectfully, the Rule is clear the case must be at issue, then noticed for trial, and only then can the Court can set it for trial. In other words, this Court erred by setting this case for trial, sua sponte, when it had not been noticed for trial. See Genuine Parts Co. v. Parsons, 917 So. 2d 419 (Fla. 4th DCA 2006) (reversing final judgment where the court set the case for trial without a notice for trial having been filed); Garcia v. Lincare, Inc., 906 So. 2d 1268 (Fla. 5th DCA 2005) (Procedural readiness for trial differs from actual readiness for trial. It is the former, coupled with a properly filed Notice for Trial, that imposes on the court the obligation to set a trial date.); Hartford Fire Ins. Co. v. Controltec, Inc., 561 So. 2d 1334 (Fla. 5th DCA 1990) (The rule requires the filing of a notice of trial for review by the court in order to determine whether the cause is ready for trial); Balboa Ins. Co. v. Shores of Madeira, Inc., 457 So. 2d 596 (Fla. 2d DCA 1984) (Once a proper notice of trial has been filed, the duty is on the court to set the cause for trial.). 14. These cases all uniformly hold that once a Notice for Trial is filed, only then can

this Court (and the opposing party) review the file and determine if the case is ready for trial under 1.440(c). 15. In light of the foregoing, this Courts Order setting trial should be vacated.

WHEREFORE Defendant respectfully requests relief in accordance with the foregoing.

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail to Shapiro & Fishman, LLP, 4630 Woodland Corporate Boulevard, Suite 100, Tampa, FL 33614 on this 1st day of March, 2012.

Mark P. Stopa, Esquire FBN: 550507 STOPA LAW FIRM 2202 N. Westshore Blvd. Suite 200 Tampa, FL 33607 Telephone: (727) 851-9551 ATTORNEY FOR DEFENDANT