Date post: | 08-Apr-2018 |
Category: |
Documents |
Upload: | foreclosure-fraud |
View: | 221 times |
Download: | 0 times |
of 26
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
1/26
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.
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
2/26
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.
2
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
3/26
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
3
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
4/26
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 .
4
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
5/26
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.
5
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
6/26
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).
6
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
7/26
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.
7
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
8/26
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.
8
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
9/26
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
9
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
10/26
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
10
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
11/26
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).
11
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
12/26
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.
12
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
13/26
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
13
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
14/26
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)
14
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
15/26
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
15
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
16/26
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
16
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
17/26
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.
17
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
18/26
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
18
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
19/26
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
19
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
20/26
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
20
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
21/26
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
21
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
22/26
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.
22
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
23/26
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.,
23
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
24/26
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.
24
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
25/26
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
25
8/6/2019 THE TWENTIETH CIRCUITS RESPONSE TO THE ACLU PETITION FOR WRIT OF PROHIBITION
26/26
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