View
1.159
Download
2
Category
Preview:
DESCRIPTION
Florida Second District Court of Appeals Petition for Writ of Mandamus - IN THE SECOND DISTRICT COURT OF APEALS IN AND FOR THE STATE OF FLORIDA Larry R. BradshawPetitionervs.CASE NO._______________WASHINGTON MUTUAL BANK F/K/A WASHINGTON MUTUAL BANK, FA SUCCESSOR BY MERGER TO BANKUNITED, FSB F/K/A BANK UNITED OF TEXAS, FS, US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR GSMPS 2004-4Respondent _________________________________/______________________________________PETITION FOR WRIT OF MANDAMUS Petitioner, Larry R. Bradshaw, pro se, pursuant to Fla. App. Rule 9.03
Citation preview
IN THE SECOND DISTRICT COURT OF APEALS IN AND FOR THE STATE OF FLORIDA
Larry R. BradshawPetitioner
vs. CASE NO._______________
WASHINGTON MUTUAL BANK F/K/A WASHINGTON MUTUAL BANK, FA SUCCESSOR BY MERGER TO BANKUNITED, FSB F/K/A BANK UNITED OF TEXAS, FS, US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR GSMPS 2004-4
Respondent_________________________________/______________________________________
PETITION FOR WRIT OF MANDAMUS
Petitioner, Larry R. Bradshaw, pro se, pursuant to Fla. App. Rule
9.030(b)(3), and Rule 9.100(a), files this “Petition for Writ of Mandamus” to
direct Judge Joseph C. Fuller, and Michael McHugh, of the Twentieth
Judicial Circuit in and for Lee County Florida, Civil Division, to reinstate
case number 07-CA-011562 (Washington Mutual Bank F/K/A Washington
Mutual Bank FA, Successor by merger to BankUnited FSB F/K/A Bank
United of Texas FS), which was erroneously dismissed by Judge Elisabeth
Adams (substitute judge) without a written order on July 07, 2008, and order
Judge McHugh to dismiss case no. 08-CA-055974 (US Bank National
Association as Trustee for GSMPS 2004-4), under the doctrine of res
adjudicate and or collateral estoppel, and states:
1
I. BASIS FOR INVOKING JURISDICTION OF THE
COURT.
This Court has jurisdiction over this matter pursuant to Article
V. Section 4(b)(3) of the Florida Constitution and Fla. App. Rule[s] 9.030(b)
(3) and 9.100(a). The Petitioner (Larry R. Bradshaw) seeks the
extraordinary remedy of a writ of mandamus as relief in regards to the
summary dismissal of Case No. 07-CA-011562 by Judge Adams, (Exhibit P-
1), without a written order signed, filed or served. But where, attorney
Cindy Runyun, filed the Form 1.998 Final Disposition on 7/3/08, indicating
the case was dismissed before hearing and that Plaintiff was the prevailing
party (Exh. P-6). This document is in conflict with the online Docket (Exh.
P-11) which shows the case was voluntary dismissed after hearing on 7/9/08.
A similar Form was attached to Plaintiff’s Motion to Dismiss sent ex parte
to Judge Steinbeck (Exh. P-13) which resulted in a Judicial Memorandum
being issued by Judge Steinbeck (Exh P-14) where Judge Steinbeck
admonished attorney Cindy Runyun for asking her to sign an order in
chamber without a hearing (ex-parte) and advised attorney Runyun that
dismissal does not require an order of the court, it is done by filing a notice
pursuant to Rule 1.420(a). Petitioner would advise the court for clarity,
regarding the note at the bottom of the page, which mentions the return of
2
the original note. Plaintiff’s requested the return of the original note at 4. on
the ex parte Motion to Voluntarily Dismiss the case and cancel Lis Pendens
(Exh. P-13) which Judge Steinbeck filed in the court and served on the
Defendant, to which defendant filed his verified motion to strike the motion
to voluntarily dismiss the case and cancel lis pendens on 6/17/2008. Judge
Steinbeck apparently responding to defendant’s motion issued the judicial
memorandum dated 6/18/2008. The following Notice of Voluntary Case
Dismissal contains the same request, to which Defendant/Petitioner agrees
with Judge Steinbeck that the original documents were never filed because
they were an issue for discovery that was never satisfied. It must be noted
that, in the succeeding case no. 08-CA-055974, Plaintiff counsel argued in
case no. 08-CA-055974 in a Memorandum of law in opposition to
Defendant’s Motion for Evidentiary Hearing @ 7. that case no. 07-CA-
011562 had been voluntarily dismissed because it was brought in the name
of the wrong plaintiff. (Exh. P-15).
Notwithstanding, that the only motions set for hearing on 7/7/08 was
defendant’s motions to strike and summary judgment, Judge Adams,
(relying on statements of stand-in attorney Brian Hummel, that a notice of
voluntary dismissal had been filed, but had not been put into the docket),
summarily dismissed the case on July 07, 2008. Florida Default Law Group,
3
counsel for Washington Mutual Bank FKA et al, filed a notice of voluntary
dismissal on July 9, 2008 (Exhibit P-2) signed by attorney Cindy Runyun.
Defendant/Petitioner in response filed, Defendant’s Motion to
Disregard Judge Adams order dismissing the case without prejudice and
motion to strike Plaintiff’s notice of voluntary case dismissal and reinstate
case no. 07-CA-011562 and enter default on Defendant’s motion for
summary judgment (Exh. P-3), and Defendant’s motion to strike Plaintiff’s
notice of voluntary case dismissal for fraud (Exh. P-4). To which Judge
Fuller refused to hear the motions on jurisdictional grounds (Exh. P-5)
where he assumed without reading defense motion, that the case had been
legally dismissed by a valid notice of voluntary dismissal. It must be noted
that the record contains Court Minutes dated 9/29/08 which indicate another
hearing was held (Exh. P-7), where no one appeared and no action was
taken.
This case is rich with discrimination against the pro se litigant who
has diligently followed the rules of court, only to be blindsided time and
again by unscrupulous attorneys and wayward judges who embellished the
occasion to violate the rules of court and this litigants rights to due process
of law. Acts including placing a microphone in the gallery and restricting
the pro se litigants access to the hallowed bar to present his case. And the
4
acts of Judge McHugh and Judge Richards, both claiming to have heard
defendants arguments at hearing on plaintiff’s Motion to Compel (Exh. P-
18) that was set for hearing in Judge McHugh’s Court on February 22, 2010
at 11:00 A.m. EST, but was not heard by Judge McHugh, evidenced by
Defendant personally being in McHugh’s court room, where upon checking
in with McHugh’s judicial assistant discovered the case was not on
McHugh’s docket. At that discovery McHugh’s assistant directed defendant
to go to Judge Richards Court on a lower floor where the case had been
transferred. Defendant and his father hurried to Judge Richards Court room
only to find the door was locked, but there were two attorneys in the court
room alone. Defendant recognized one attorney as being Gregg Goetz.
Defendant immediately returned to Judge McHugh’s court where his
assistant personally escorted defendant to Judge Richards Court Room to
find the door locked. She asked defendant and his father to wait as she
searched for someone with a key to get into the court room. Upon returning
the door was unlocked by a bailiff and all went inside where the assistant
checked the computer in Judge Richards Court. The assistant after observing
the computer told defendant that Judge Richards had heard the case and
denied plaintiff’s motion to compel, which is consistent with the minutes
from Judge Richards Court dated 2/22/10 (Exh. P-19). However, on 3/15/10
5
Judge McHugh issued a “corrected Order on Plaintiff’s Motion to Compel in
which he stated, “ This cause having come before the Court on February 22.
2010, on Plaintiff’s Motion to Compel and having reviewed the
aforementioned documents and having heard the arguments of Plaintiff
counsel and the Defendant, and being otherwise fully advised in the
premises, it is ordered and adjudged as follows: 1. Plaintiff Motion to
Compel is hereby granted. 2 Defendant has twenty (20) days to respond to
discovery”. (Exh. P-20). There are no minutes recorded in Judge McHugh’s
case.
Defendant filed an objection to the corrected order (Exhibit 22) and a
Motion to Disqualify Judge McHugh with affidavit which he denied as
legally insufficient, but the docket only shows the objection being filed on
3/25/10. Defendant amended his Motion to disqualify Judge McHugh and
refilled it on 4/5/10, with a similar denial on 4/14/10. The pro se Petitioner
is confused as to how two different judges heard the same arguments at the
same time on the same day when they were on two different floors of the
Court House. Defendant’s verified Motion to Disqualify Judge McHugh in
case no. 08-CA-055974 explains in painful detail, the fraud on the court by
deceitful actions on the part of Judge McHugh. (Exh. P-16 and affidavit Exh.
6
P-17, incorporate herein as though fully set forth in this Petition), which
Judge McHugh denied as legally insufficient.
The Courts failure, for whatever reason, (See Exhibit P-21 for a
possible reason), to follow the Rules of Court and prevailing case law, is a
departure from the requirements of due process of law and has cause
Petitioner (Larry R. Bradshaw) irreparable financial and emotional distress,
in which there are no other adequate remedies.
II. STATEMENT OF FACTS
(a) This Petition for Writ of Mandamus is filed as a result of the same
case having been filed three times, against the Petitioner by two different
plaintiffs, retaining the same law firm, each claiming to be the holder in due
course of the original note, from which all three actions arose. Case No. 06-
CA-004271 was filed on 10/2/2006, by Washington Mutual Bank FKA, et
al, and voluntarily dismissed on 1/11/2007. Case No. 07-CA-011562,at
issue in this Petition, was filed on 9/27/2007 and recorded as voluntary
dismissal after hearing on 7/9/2008 pursuant to the online docket,
notwithstanding there was no hearing on 7/9/08, and the case was dismissed
without cause by the Court on 7/7/08 as recorded in the court minutes by
Judge Adams at defendant’s motion for summary judgment hearing, but no
written order was ever signed, filed or served. The Third filing by plaintiff
7
US Bank National Association ATF GSMPS, on 6/26/2010 is also at issue,
and presently ongoing as a result of the McHugh Court’s refusal to Stay the
case under Rule 1.420(d) pending Defendant’s Motion for Costs, which
must be filed within 30 days of a final order. Leaving Petitioner (Larry R.
Bradshaw) without a remedy, wherein Judge Adams never signed an
appealable order, the Notice of voluntary dismissal is a legal nullity, as it
was signed by an attorney not of record, who had not complied with Judge
Steinbeck’s order dated April 18, 2008 (Exh. P-8), to rectify the issue of
attorney of record, after being alerted to the fact, that the Attorney of record
Kiersten Jensen, had abandoned the case soon after filing the original
complaint. Neither plaintiff nor plaintiff counsel made any attempt to
comply with substitute judge, Judge Steinbeck’s order, leaving the case
without counsel, and every document, pleading and Notice of Voluntary
Dismissal a legal nullity. However, Florida Default Law Group, Inc., re-
filed the same action the third time on 12/23/2008 under the name of US
Bank National Association AFT GSMPS. The present case while filed by
attorney William Malone, who has apparently abandoned the case as
attorney of record, because all other documents filed in that case were signed
by other attorneys who have not made the required notice of appearance.
III NATURE OF RELIEF SOUGHT
8
The Petitioner is requesting that his Writ of Mandamus be
granted and that this Court direct Judge Fuller to reinstate case no. 07-CA-
011562 and grant defendant’s Motion for Summary Judgment on the basis
of a egregious default by plaintiff and plaintiff counsel, and order Judge
McHugh to dismiss case no. 08-CA-055974. Petitioner request that the
records of both cases referenced be called up and considered by this
honorable court, and order the judges and or Clerk of Courts to remove the
gallery microphones, and reinstate the pro se dignity and deserved respect to
the court rooms, and order restitution as allowed by law in both cases.
IV ARGUMENT IN SUPPORT OF PETITIONER’S REQUEST FOR
WRIT OF MANDAMUS
Petitioner is between the proverbial “rock and a hard place” where
case No. 07-CA-011562 was dismissed without cause by Judge Adams, or a
written appealable order, and the legally deficient, Notice of Voluntary
Dismissal, filed by an attorney not of record, who at the time of filing the
notice was in contempt of Judge Steinbeck’s order, to rectify the issue of
attorney of record, and Judge Fuller’s refusal to consider defendant’s Motion
to disregard Judge Adams order dismissing the case without prejudice and
Motion to Strike Plaintiff’s notice of voluntary case dismissal and reinstate
9
case number 07-CA-011562 and enter default on the defendant’s motion for
summary judgment.
The instant case is the third action filed by Florida Default Law
Group Inc., purportedly representing Washington Mutual Bank FKA
Washington Mutual Bank FA in cases’ 06-CA-004271, 08-CA-011562, and
US Bank National Association as Trustee for GSMPS 2004-4 case no. 08-
CA-055974. The instant action was filed after case number 07-CA-011562,
was wrongfully dismissed by Judge Adams without cause and without the
signed, written, (appealable) order required for a final judgment, which
clears the way for the prevailing party to file his motion for costs. See State
v Siegel, 662 So. 2d 1013 (Fla. App. 5th Dist. 1995) where the Court
dismissed the appeal for lack of jurisdiction because the record on appeal did
not contain a signed, written order of the trial court, citing Fla. R. App. P.
9.020(g), and 9.140(c)(2); State v. Smith, 557 So. 2d 904 (Fla. 1st. DCA
1990). Where the Defendant has 30 days to file his motion for costs
pursuant to Rule 1.525 “Motion for Costs and Attorneys’ Fees” absent a
final order of the court the time has not begin to run (Rule 1.525- Any party
seeking a judgment taxing costs, attorneys; fees, or both shall serve a motion
no later that 30 days after the filing of the judgment, including a judgment of
dismissal, or the service of a notice of voluntary dismissal). In the instant
10
case, the record is void of any final order, signed, written or judgment
entered. And the notice of voluntary dismissal filed by Cindy Runyun was
moot, because it was filed two days after the case was dismissed without
cause by Judge Adams. Notwithstanding the Notice being moot when filed,
the Notice of voluntary dismissal was a legal nullity, because the attorney of
record in the case as of the hearing dated 7/7/08, on Defendant’s Motion for
Summary Judgment, had abandoned the case, and no substitute counsel had
been legally admitted, and no additional attorneys could be legally added
where there was no supervision of an attorney of record. See Pasco County
v. Quail Hollow Prop., 693 So. 2d 82 (Fla. App. 2 Dist 1997). Nor did any
additional attorneys’ file any notice of appearance in that case. The Notice
of Voluntary dismissal was not served on defendant prior to the hearing.
The record shows substitute judge, Judge Adams, presided over the
hearing set by defendant on his motion to Dismiss with prejudice or Motion
for Summary Judgment on 07/07/2008, where plaintiff nor plaintiff counsel
was not in appearance. Notwithstanding, Judge Adams, dismissed the action
without cause, (did not grant or deny any motions set for hearing that day)
and retained jurisdiction to consider defendant’s oral motion for costs, in the
event the case was refilled. The record shows that both attorneys’ of record,
Kiersten Jensen, and Barbara Leon, abandoned the case, See Order setting
11
case management conference dated March 18, 2008 (Exh. P-9), an order
dated 4/25/08 (Exh. P-8), and Court minutes dated 4/25/2008 (Exh. P-10).
Judge Margret Steinbeck, after being made aware of the improper status of
counsel, issued an order on April 18, 2008 directing Plaintiff and Plaintiff
counsel to resolve the issue of who represents Plaintiff, by means of a
Motion or Stipulation of Counsel, prior to the Final Summary Judgment
hearing on May 9, 2008. Judge Steinbeck amended her 4/01/08 order on
4/25/08 to allow 30 days from the amended order, after Plaintiff noticed the
court to cancel the hearing on summary judgment set for 5/9/08. (The court
will notice a conflict between the Court minutes, orders and the online
docket) (Exhibit P-11) The record is void of any, “motion to withdraw from
attorney Kiersten Jensen, or entry of appearance by Hollan Fintell as ordered
by the Court. Notwithstanding, that attorney Kiersten Jensen and Barbara
Leon, had abandoned the case, and Plaintiff nor Florida Default Law Group
inc., the firm claiming to represent plaintiff, had not complied with the court
order. Substitute judge, Judge Adams (another substitute judge), being
unfamiliar with the history of the case, was reminded by of Judge
Steinbeck’s order, however, defendant’s noticing the new judge, of the status
of the case, fell on deaf ears. Evidenced by Judge Adams allowing (over
defendant’s objection), attorney Brian Hummel a “passer-by” in the court on
12
another case, to come forward to represent plaintiff in defiance and or
disregard of Judge Steinbeck’s order for plaintiff and plaintiff counsel to
rectify the issue of who represents the plaintiff. Judge Adams also
disregarded, Rule 2.060(j), which requires additional attorneys to file a
notice of appearance with the court and serve a copy of the notice of
appearance on all parties in the proceeding. Judge Adams not only allowed
attorney Brian Hummel to stand-in for plaintiff without the required notice
of appearance, but also granted him a 15 minute recess, so that he could
contact attorney, Cindy Runyun, regarding her absence. Although the record
does not contain evidence of compliance with the Court order, Cindy
Runyun had purportedly been assigned the case by the Firm (Florida Default
Law Group Inc.), who was aware of Judge Steinbeck’s Order to rectify the
issue of attorney of record, but who had not complied with the order.
Attorney Cindy Runyun, had not made an appearance in the case, nor had
attorney Jensen filed her motion to withdraw. At that time attorneys’
Jensen, Runyun, Leon and Fintell were in violation of both the rules of court
and a court order, which has not been rectified to this day.
Upon re-convening, the hearing set by defendant on his motion for
summary judgment on 7/7/08, attorney Hummel, told Judge Adams, that
Cindy Runyun had filed a notice of voluntary dismissal on Friday the 4th but
13
it had not been placed in the docket as of the time of hearing.
Notwithstanding, that there was no notice of voluntary dismissal in the
record, or that Rule 1.420(a) does not allow the Notice of Voluntary
Dismissal to be served at the hearing on summary judgment, or that attorney
Cindy Runyun had not complied with Judge Steinbeck’s order to resolve the
issue of counsel of record, nor had attorney Kiersten Jensen or Barbara Leon
complied with Rule 2.060(i). (See Pasco County v Quail Hollow Prop., 693
So. 2d 82 (Fla. App. 2 Dist. 1997)), or that attorney Hummel had no
standing to speak on behalf of plaintiff, Judge Adams dismiss the case
without prejudice, and reserving jurisdiction to hear defendant’s oral motion
for costs. Judge Adams also ordered Brian Hummel to prepare the order.
Notwithstanding that not one attorney could legally represent plaintiff, Judge
Adams refused to perform her ministerial duty to grant defendant’s motion
to dismiss with prejudice or in the alternative Motion for Summary
judgment, and that record is void of any such order having been entered
on the record or served on the defendant.
On 7/9/2008, two days after the hearing, a notice of voluntary
dismissal was filed and served, signed by attorney Cindy Runyun, with the
certification of service dated July 3, 2008. Defendant filed a Motion to
Disregard Judge Adams Order Dismissing the case without prejudice and
14
motion to strike plaintiff’s notice of voluntary case dismissal and reinstate
case No: 07-CA-011562 and enter default on defendants Motion for
summary judgment, and Defendant’s Motion to Strike Plaintiff’s Notice of
voluntary case dismissal for fraud. Judge Fuller the originally assigned
judge, declined to rule stating in court minutes dated 9/15/08 ( “This case
was previously voluntarily dismissed. The court does not have jurisdiction to
address the motions.”). Judge Fuller did note there plaintiff attorney was
Mitchell Rothman, who was also in violation of the rules before stated.
Judge Adams and Judge Fuller seem to be unaware that Florida appellant
courts are unanimous that such actions, by an attorney not of record, are a
legal nullity. See Pasco County v. Quail Hollow Prop., cited above and Boca
Burger, Inc., v Forum, SC01-1830 (Fla. 2005) with regard to compliance
with the judicial administration rules which multiple other courts have found
to operate to render noncompliant pleadings a nullity. And Hicks v. Hicks,
715 So. 2d 304 (Fla. 5th DCA 1998); and Bortz v. Bortz, 675 So. 2d 622-624
(Fla. 1st DCA 1996), “We regard the Department of Corrections’ motion for
rehearing or certification, which was filed by an attorney who is not of
record in this case, because it is a legal nullity.” The last document in the
docket of case number 07-CA-011562 is the court minutes dated 9/29/2008
(Exh. P-7) of a hearing that was not set or noticed by either plaintiff or
15
defendant, and no motion had been noticed for hearing, but Judge Fuller
noted the Plaintiff attorney to be, Kiersten E. Jensen.
Florida’s’ 2nd District Court of Appeals in Service Experts v.
Northside A/C. 2D09-5416 (Fla. App. 2 Dist. 9-22-2010) addressed the issue
of limited exceptions to a plaintiff’s “absolute” right to take a voluntary
dismissal as a matter of right: (1) if there is fraud on the court, (2) if the
defendant can establish the common law exception to the right of voluntary
dismissal, or (3) if the plaintiff dismisses the case at a stage which is deemed
the equivalent of a summary judgment. Id. The common law exception to a
voluntary dismissal was articulated by the Fifth District in Ormond Beach.
In that case, the parties were embroiled in litigation for ten years. 835 So.2d
at 194. Defendant Ormond Beach filed a summary judgment motion and the
matter was set for hearing. Id. Three days before the scheduled summary
judgment hearing, the plaintiff served a notice of voluntary dismissal
without prejudice. Id. The trial court recognized the voluntary dismissal and
found the pending summary judgment motion moot. However, the Court
recognized that; “Other courts have interpreted the fraud exception to apply
where the notice of dismissal itself is considered an attempt to commit fraud
on the court. See, e.g., Fitzgerald v. Fitzgerald, 790 So.2d 1216, 1217 (Fla.
2d DCA 2001) (concluding that trial court was required to accept notice of
16
voluntary dismissal where “the court made no finding of fraud, and there is
no basis in the record to find that the notice constituted a fraud on the court”)
(emphasis added); Romar Int’l Inc., v. Jim Rathman Chevorlet/Cadillac,
Inc., 420 So.2d 346, 347 (Fla. 5th DCA 1982) ( “A narrow exception [to the
plaintiff’s right to voluntary dismiss his lawsuit] exist where a fraud on the
court is attempted by the filing of a voluntary dismissal….”) (emphasis
added). Defendant asserts that, in case 07-CA-011562 the notice of
dismissal was not filed or served until after the summary judgment hearing,
by an attorney not of record, who was in violation of a court order, as well as
numerous rules of court stated above. Defendant asserts that plaintiff and
plaintiff’s counsel’s, refusal to comply with the rules of court or the order of
Judge Steinbeck to rectify the issue of counsel of record ,combined with
attorney Brian Hummel misleading Judge Adams regarding when the Notice
of Voluntary Dismissal was filed constitutes a fraud on the court.
The question for this court is: if case no. 07CA-011562 is still
open, due to fraud or gross incompetence by both the attorneys and the
rainbow of judges, does the trial court in case no. 08-CA-055974,
notwithstanding the mandatory stay of Rule 1.420(d), have jurisdiction
to proceed? Based on the foregoing facts contained in the court records
and the applicable rules, statutes and common law applied, there appears to
17
be two separate and distinct cases, (1) case number 07-CA-011562 listing
plaintiff as Washington Mutual Bank, FKA Washington Mutual Bank FA,
and (2) case no. 08-CA-055974 listing U.S. Bank National Association as
trustee for GSMPS 2004-4) (Exh. P-12), both suing as “owner and holder”
of the same note and mortgage, but absent an unbroken chain of
assignments, and both cases are plagued with the same defiant attorneys who
appear to scoff at the rules of court, evidenced by a multitude of different
attorneys who have appeared in the past and present action, without filing
any notice of appearance and especially the present Motion for Summary
Judgment filed in case no. 08-CA-055974, another legal nullity, having been
signed by attorney Frances Johnson, another attorney not or record, as
required by Rule 2.060(d) and common law authorities.
The records of case no. 07-CA-011562 and 08-CA-055974 contains
sufficient evidence of what appears to be collusion between the attorneys of
Florida Default Law Group and certain judges, who have seen fit to conduct
their courts in manner that defies the rule of law, and Petitioner’s
Constitutional rights to equal protection and due process of law. Judge
Fuller and Judge McHugh have neglected their duty of care, and allowed or
furthered an egregious discrimination against the pro se Petitioner to occur,
18
by commission or omission, resulting in a legal quandary resembling “Fraud
on the Court.”
This Court in 2007 addressed and clarified the issue of fraud on the
court which seems to fit here. In Miller v Nelms, 966 So. 2d 437 (Fla. App. 2
Dist 2007) this court acknowledged that fraud that warrants dismissal of a
complaint arises when it is clearly and convincingly demonstrated “that a
party has sentiently set in motion some unconscionable scheme calculated to
interfere with the judicial system’s ability impartially to adjudicate a matter
by improperly influencing the trier of facts or unfairly hampering the
presentation of the opposing party’s claim or defense. “ Howard, v Risch,
959 So. 2d 308, 310 (Fla. 2d DCA 2007). Where as here there is sufficient
evidence to suggest a high degree of collusion and partiality, where ex parte
communication was done on a regular basis, between the attorneys of
Florida Default Law Group, and certain judges in the Lee County Circuit
Court, Petitioner/defendants’ rights to due process of law has been trampled
on, pursuant to the explanation of the 5th District Court of Appeals in Luckey
v State, 5D06-3851 (Fla. App. 5 Dist. 4-11-2008 citing Scull v. State, 569
So. 2d 1251, 1252 (Fla. 1990).
Petitioner contends that the plaintiff, plaintiff counsel and members of
the court have abused judicial and professional discretion and in so doing
19
has constructed a fraud on the court, resulting in a constitutional (both State
and Federal) violation of due process of law. The 1st Circuit Court of
Appeals in Independent Oil & Chem., v. Procter & Gamble, 864 F. 2d 927
(1st Cir 1988) stated, “Judicial discretion is necessarily broad-but it is not
absolute. Abuse occurs when a material factor deserving significant weight
is ignored, when an improper factor is relied upon, or when all proper and no
improper factors are assessed but the court makes a serious mistake in
weighing them.
V. THE PETITIONER HAS NO OTHER ADEQUATE REMEDY
Petitioner, Larry r. Bradshaw, pro se has been denied his right to due
process of law by the both court’s, Fuller and McHugh, where the two cases
have seen at least five different judges and at least 10 different attorneys,
none of which are in compliance with the Rules of Court, even William
Malone attorney of record in 08-CA-055974, has signed only the original
petition, all other motions have been signed by other attorneys not of record,
raising the issue of abandonment by William Malone as Kiersten Jensen in
case no. 07-CA-011562.
Petitioner (Larry R. Bradshaw) has been dragged through the mire of
incompetence or knowing malfeasance, or just simply “Fraud on the Court”
20
by collusion between the wayward judges and the conspiring attorneys, who
have egregiously defiled the integrity and impartiality of the Judicial System
in Lee County. In so doing, has left this petitioner with a non-final, un-
appealable order of dismissal in case no. 07-CA-011562. To which Judge
Fuller chose to ignore by or otherwise refused to hear defendant’s (Larry R.
Bradshaw) Motion to disregard Judge Adams Order Dismissing the Case
without prejudice and Motion to Strike Plaintiff’s Notice of Voluntary Case
Dismissal and reinstate Case no. 07-CA-011562 and enter default on
defendant’s motion for summary judgment, based on a valid notice of
voluntary dismissal filed two day after defendant’s Summary Judgment
hearing was scuttled by Judge Adams without cause. Petitioner is prevented
from filing his motion for costs without a signed final order, and likewise
prevented from filing an appeal without a signed final order. Whereas the
notice of voluntary dismissal is not only a legal nullity it is moot because it
was filed after the case was dismissed by the Court, if that was legally
possible, has further boxed the Defendant/Petitioner into a legal corner
without remedy.. Petitioner cannot invoke the mandatory stay under Rule
1.420(d) in case no. 08-CA-055974 until he files his motion for Cost in 07-
CA-011562, which he cannot file without a final order. Petitioner asserts
that plaintiffs and plaintiff’s counsels have conspired with the Lee County
21
Court judges with intent to discriminate against a class of litigants called
“pro ses,” of which Larry R. Bradshaw is a member.
Petitioner contends that prohibiting a litigant from approaching
the bar or otherwise having the same rights and privileges as bar licensed
attorneys in prosecuting or defending their action, is a demeaning public act
of partiality and discrimination, wherein the court is conveying the message
that pro se litigants are an inferior class, that has now, been “outlawed” from
meaningful self-defense, or access to the Court, which speaks volumes about
the Courts impartiality, notwithstanding the court house, literally, belongs to
the people, and the Judges who sit in those court rooms are their servants,
not their masters. Petitioner further contends that to allow such
discrimination at the hands of bar licensed attorneys, would have the same
impact as allowing professional truck drivers to “outlaw” the private use of
our highways.
CONCLUSION
Petitioner asserts that the musical judges (different judge at every
hearing) has deprived petitioner/defendant of due process of law and has
prejudiced the pro se litigant who has diligently attempted to follow the rules
of court, but has found complacency or deliberate prejudicial behavior, in
the Lee County Judicial System. Petitioner asserts that the court order, by
22
Judge Adams in case no 07-CA-011562 is a non-final order, issued without
merit or basis in law, and that the Notice of Voluntary Dismissal is both a
legal nullity and moot, rendering the case still pending, having no final
appealable order. And that case no 08-CA-055974 should be dismissed as a
matter of law. Petitioner request this Court grant the petition for Writ of
Mandamus ordering the Fuller Court to reinstate case no. 07-CA-011562
and grant defendant’s motion for summary judgment, and order the Mc
Hugh Court in case no. 08-CA-055974 to dismiss that case under the
doctrine of res adjudicate or collateral estoppel. And order the judges and or
Clerk of Courts to remove the gallery microphones, and reinstate the pro se
dignity and deserved respect to the court rooms, and grant petitioner (Larry
R. Bradshaw) any other relief just due and owing.
Submitted by_______________Larry R. Bradshaw18291 Useppa Rd.Ft. Myers, Florida 33967Ph# 239-770-7393
CERTIFICATE OF SERVICE
23
I, Larry R. Bradshaw, hereby certify that a true and correct copy of the foregoing has been sent by U.S. Mail or hand delivered by private server to the following parties on the _______day of November, 2010:
Florida Default Law Group P.L at P.O. Box 25018 Tampa, Florida 33622-5018 Counsel for:
WASHINGTON MUTUAL BANK F/K/A WASHINGTON MUTUAL BANK, FA SUCCESSOR BY MERGER TO BANKUNITED, FSB F/K/A BANK UNITED OF TEXAS, FS,&US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR GSMPS 2004-4,
Judge Joseph Fuller,Judge Margret Steinbeck,Judge Elisabeth Adams,Judge Michael McHugh,Judge Hugh E. Starnes,Judge George C. Richards @The Twentieth Judicial Circuit Court,Justice Center, 2nd Floor1700 Monroe StreetFt. Myers, FL 33901.
24
Recommended