IN THE CIRCUIT COURT IN AND FOR THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA APPELLATE DIVISION

Transcription

1 IN THE CIRCUIT COURT IN AND FOR THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA APPELLATE DIVISION Ref. No.: AP-88B FRANCES MANN and PETER STACK, UCN: AP000065XXXXCI Appellants, vs. UNITED STATES SECRETARY OF HOUSING AND URBAN DEVELOPMENT Appellee. / Appeal of an Order of the County Court in and for Pinellas County, Florida THIRD MOTION TO DISMISS AND MOTION FOR EXTENSION OF TIME TO FILE ANSWER BRIEF PENDING RULING ON SECOND MOTION TO DISMISS Michael J Posner, Esq. Florida Bar No Ward, Damon, Posner, Pheterson & Bleau Attorneys for Appellee 4420 Beacon Circle West Palm Beach, Florida (561)

2 Page 2 Comes Now, the Appellee, UNITED STATES SECRETARY OF HOUSING AND URBAN DEVELOPMENT (the Appellee ), by and through its undersigned counsel, and files this, its third motion to dismiss and for an extension of time to file its Answer Brief to Appellants Initial Brief, filed February 25, 2014, pending ruling on Appellee s second motion to dismiss, and states as grounds the following: 1. On March 21, 2014, this Court ordered Appellants to pay the statutory service charge within twenty (20) days of the Court s Order, to-wit on or before April 10, Appellee has reviewed the Clerk of the Circuit Court s docket, as well as contacted the Clerk of the Court telephonically on April 14, 2014, and in both cases it has been confirmed that no timely payment of the statutory service charge had been made by Appellants. 3. That this Court stated in its March 21, 2014 order that the failure to pay the statutory service charge may result in the dismissal of the above-styled appeal. 4. That thereafter, an untimely payment was made by Appellants in violation of this Court s Order (which Appellants dispute, seeking to assert mailing time when all documents are actually delivered via electronic mail). 5. That despite the untimely payment and failure to comply with this Court s Order, Appellee s Motion to Dismiss was denied.

3 Page 3 6. Appellee has reviewed the Clerk of the Circuit Court s docket, as well as contacted the Clerk of the Court telephonically on May 19, 2014, and in both cases it has been confirmed that the payment required by this Court s March 21, 2014 order requiring Appellants to pay the statutory service charge, has been dishonored, and it appears on the Clerk s docket as follows: 7. That Appellee has waited to expend the legal cost of an answer brief pending payment of the statutory service charge and possible dismissal of this Appeal. 8. That Appellee filed a Second Motion to Dismiss and despite the dishonored payment, Appellee s Second Motion to Dismiss was denied. 9. In the Order denying Appellee s Second Motion to Dismiss, dated May 23, 2014, this Court stated, Appellants shall pay the statutory service charge and record preparation fees of $ as described above within ten (10) days of the date of this signed Order or the above-styled appeal will be DISMISSED. 10. That Appellee has reviewed the Clerk of the Circuit Court s docket, as well as contacted the Clerk of the Court telephonically on June 3, 2014 and in both

4 Page 4 cases it has been confirmed that the payment required by this Court s May 23, 2014 order requiring Appellants to pay the statutory service charge, had not been made. 11. That thereafter, in flagrant violation of the Court s order, Appellants untimely paid the required fee. 12. That Appellee has been prejudiced by the actions of Appellants in not timely paying the statutory service charge in that Appellee is uncertain whether the appeal shall continue or be dismissed. 13. That the crux of this action relates to claims regarding ownership and possession of a property encumbered by a mortgage (since foreclosed) in favor of Appellee. However, Appellants continue to reside at the subject property without paying on the mortgage, the taxes, the Association assessments or rent, and therefore a delay has only a beneficial effect for Appellants. 14. That Appellants actions have cost the public (Appellee is a governmental agency) thousands in legal fees in addressing the pleadings and actions of Appellant Peter Stack, and the unsubstantiated and libelous statements made against Appellee and the undersigned attorney, throughout this action, none of which are true. WHEREFORE the Appellee requests that this Court (i) dismiss the appeal for Appellants continued failure to comply with this Court s Order dated May 23, 2014,

5 Page 5 or; (ii) award Appellee legal fees and costs for bringing three Motions to Dismiss, all due to Appellants failure to pay required fees and the Appellants failure to comply with two Court Order; and (iii) if the Court will not dismiss the action, to grant Appellee a thirty (30) day extension in which to complete and file the Appellee s Answer Brief from the date Appellants actually paid the statutory service charge; to wit; on or before July 7, Respectfully Submitted, Ward Damon Attorneys for Appellee 4420 Beacon Circle West Palm Beach, Florida Phone: Fax: mjposner@warddamon.com By: Michael J Posner Florida Bar No

6 Page 6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. Mail upon Appellants FRANCES MANN and PETER STACK at 3017 Landmark Boulevard, Apt. 501, Palm Harbor, Florida this 5th day of June, 2014 and by electronic mail. Ward Damon Attorneys for Appellee 4420 Beacon Circle West Palm Beach, Florida Phone: / Fax: mjposner@warddamon.com By: Michael J Posner Florida Bar No \\wd-fp01\user_shared\mjp\hud\mann,frances( )\appellete-pinellas co\third motion dismiss mann.docx