Preview
Filing # 113929753 E-Filed 09/24/2020 03:46:53 PM
IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR INDIAN RIVER COUNTY, FLORIDA
RICHARD O. SHIREY Case No.: 312019CA000251
Plaintiff, JUDGE JANET C. CROOM
Vv.
STACIE BROWNE SHIREY,
Defendant.
/
MOTION FOR RECONSIDERATION
COMES NOW, RICHARD O. SHIREY, Plaintiff, and by and through his undersigned
counsel, files this Motion for Reconsideration pursuant to Florida Rules of Civil Procedure 1.530,
and states in support thereof:
Procedural Background
1 On August 28, 2020, Counsel for Defendant filed a Motion for Summary Judgment and/or
Alternatively, Motion to Dismiss.
2 On September 10, 2020, Counsel for defendant emailed this Court’s Judicial Assistant
requesting 30-minute hearing time. See, Exhibit “A”.
3 On September 11, 2020, Counsel for Plaintiff requested a one-hour time-slot for the
hearing. See Exhibit “B”.
4 On September 10, 2020, Counsel for Defendant emailed this Court’s Judicial Assistant
with a proposed order on their motion. See, Exhibit “A”.
5 On September 11, 2020, this Court entered an Order Granting Summary Judgment to
Counts 1, 2, and 3, and entering a final judgment of Dismissal on Count 4 (with prejudice) without
a hearing.
6 Plaintiff's Motion for Reconsideration concerns this September 11, 2020 Order.
ARGUMENT
Florida Rule of Civil Procedure 1.530
Motion for reconsideration.
7 As it concerns a motion for reconsideration; Florida Rules of Civil Procedure 1.530(a) and
(b) provides guidance as to when a motion for consideration is appropriate, and when (time) it
should be filed:
(a) Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties
and on all or a part of the issues. On a motion for a rehearing of matters heard without a
jury, including summary judgments, the court may open the judgment if one has been
entered, take additional testimony, and enter a new judgment.
(b) Time for Motion. A motion for new trial or for rehearing shall be served not later
than 15 days after the return of the verdict in a jury action or the date of filing of the
judgment in a non-jury action. A timely motion may be amended to state new grounds in
the discretion of the court at any time before the motion is determined.
8 The date of the filing of this motion is within the allotted 15 days as provided for in
1.530(b).
Florida Rule of Civil Procedure 1.510
Motion for Summary Judgment
9 As it concerns summary judgment, Florida Civil Rule of Procedure 1.510 describes the
procedure and instructions for Motions for Summary Judgment.
10. Rule 1.510 Contemplates a hearing on Motions for Summary Judgment. See, FRCP
1.510(b).
Decisional Law
il. As to the requirements for hearings on motions for summary judgment, Florida decisional
law is conclusive, and there is no disagreement on the issue.
12. In State Farm Fire and Cas. Co. y. Lezcano, 22 So0.3d 632 (Fla 3d DCA 2009), the county
court granted Summary Judgment without a hearing in favor of the insureds based on allegations
that State Farm allegedly failed to pay medical payments under their policy. The ruling was
appealed to the Circuit Court which PCA’d the county court’s ruling, and a petition for certiorari
was filed with the Third District Court of Appeal.
13. As with the present case, in Lezcano, “...[B]oth parties agree that the county court never
conducted a hearing on Lezcano’s motion for summary judgment.” Jd. at 633.
14. In its analysis, the Third DCA wrote: “{h]ere, the county court granted Lezcano’s motion
for summary judgment without conducting a hearing on the motion. Florida Rule of Civil
Procedure 1.510(c) contemplates a hearing on a summary judgment motion. “The rule does not
provide the trial court with discretion to decide whether ‘a hearing is required.’ ” Kozich v.
Hartford Ins. Co. of Midwest, 609 So.2d 147, 148 (Fla. 4th DCA 1992). A trial court’s failure to
conduct a hearing prior to ruling on the motion for summary judgment constitutes a denial of the
due process guarantee of notice and an opportunity to be heard.”
15. In its ruling the Third DCA concluded that “[t]he county court deprived State Farm of due
process when it entered the final judgment as to Lezcano without conducting the required hearing.”
Id. at 633. They went on to rule that “[b]ecause State Farm was deprived of a hearing as required
under Rule 1.510(c), we conclude that the circuit court appellate division departed from the
essential requirements of the law and deprived State Farm of due process.” Jd. at 634.
16. In Chiu v. Wells Fargo Bank, N.A., 242 So.3d 461 (Fla. 3d DCA 2018), the trial court
granted summary judgment without hearing in favor of Wells Fargo bank against Chiu due to a
loan default.
17. The Chiu court cited the Lezcano case, with a similar analysis, “This Court has held that
Florida Rule of Civil Procedure 1.510(c) contemplates a hearing on a summary judgment motion.
State Farm Fire & Cas. Co. v. Lezcano, 22 So.3d 632, 634 (Fla. 3d DCA 2009). Indeed, a trial
court does not have discretion to decide whether to conduct a hearing on a motion for summary
judgment. Kozich v. Hartford Ins. Co. of Midwest, 609 So.2d 147, 148 (Fla. 4th DCA 1992) (“[Rule
1.510(c) ] does not provide the trial court with discretion to decide whether ‘a hearing is required.’
»), Thus, where a trial court grants final summary judgment without conducting a hearing pursuant
to rule 1.510(c), reversal is required. See, e.g., Greene v. Seigle, 745 So.2d 411, 411 (Fla. 4th DCA
1999); Travelers Ins. Co. v. Fla. Med. Ctr., Inc., 621 So.2d 581, 581 (Fla. 4th DCA 1993); Kozich,
609 So.2d at 148.”
18. And similar to the ruling in Lezcano, the District Court of Appeal held that trial court
committed fundamental error in entering final summary judgment without prior hearing.
Fourth District Court of Appeal Rulings
19. As for the Fourth District, the rulings on this issue are harmonious with those in Lezcano
and Chiu. By way of example, in Greene v. Seigle, 745 So.2d 411 (Fla. 4th DCA 1999) the Fourth
DCA ruled that where the trial court granted defendant’s motion for summary judgment without a
hearing or notice to plaintiff, it violated Rule 1.510(c) and plaintiff's due process rights, which
required reversal. A denial of the guarantee of due process represents a violation of a clearly
established principle of law such that certiorari relief is warranted.
20. In Greene, “...Eight days after Wright filed his motion for summary judgment, the trial
court granted it without a hearing or notice to Plaintiff. This violated Florida Rule of Civil
Procedure 1.510(c) and Plaintiff's due process rights and thus requires a reversal. See Mondestin
v. Duval Fed. Sav. & Loan Ass'n, 500 So.2d 580 (Fla. 4th DCA 1986)(holding that a party against
whom a motion for summary judgment is filed is entitled to notice and a meaningful opportunity
to be heard).” See, Id. at 432.
21. Similarly, in Richard y. Bank of America, NA, 258 So.3d 485 (Fla. 4" DCA 2018). The
Trial Court had entered an order granting summary judgment on default against Richard.
22. As with the Third District, the Fourth District Court of Appeal cited both Lezcano and Chiu
in its opinion, also citing Greene and Kozich (as did Lezcano and Chiu).
23. In doing so, the Fourth District Court of Appeal ruled that “[a] judgment is void when it is
entered by a court lacking jurisdiction over the subject matter of the case or jurisdiction over the
person of the defendant or where there is a violation of due process.” See, Id at 488.
24. The Fourth concluded that failing to conduct a hearing on the motion for summary
judgment was a violation of due process, and that the judgment was therefore void. See, Jd at 489.
Florida Rules of Civil Procedure 1.140
Defenses
25, This Court entered an order dismissing with prejudice Count 1V of Plaintiffs Complaint.
Florida Rules of Civil Procedure describes the proper procedure for Motions to Dismiss or Motion
for Judgment based on defenses in the rule, which include lack of jurisdiction which is what was
plead by Defendant.
26. Rule 1.140(b) states as follows:
(d) Preliminary Hearings. The defenses 1 to 7 in subdivision (b) of this rule,
whether made in a pleading or by motion, and the motion for judgment in
subdivision (c) of this rule shall be heard and determined before trial on
application of any party unless the court orders that the hearing and determination
shall be deferred until the trial.
27 It is axiomatic that Motions to Dismiss are brought pursuant to Rule 1.140(b).
ANALYSIS
25. There can be no dispute Plaintiff's were denied due process when this Court failed to
conduct a hearing on Defendant’s motion for Summary Judgment and in the alternative, their
motion to dismiss.
26. Pursuant to Richard v. Bank of America, infra, this judgment is therefore void.
27. The Order/Judgment should be stricken, and the matters addressed in defendant’s motion
set for a hearing thereon.
CONCLUSION
WHEREFOR, Plaintiff respectfully requests an Order granting their Motion for
Reconsideration, and in conjunction therewith, an Order striking this Court’s September 11, 2020
Order/Judgment thereon.
CERTIFICATE OF SERVICE
I CERTIFY that a true and correct copy of the foregoing has been electronically filed via
the Florida Court e-Portal and delivered via e-portal service to: Kevin Rollin, counsel for the
Defendant, on this 24"" day of September 2020.
COLLINS BROWN BARKETT, CHARTERED
756 Beachland Blvd.
Vero Beach, FL 32963
(772) 231-4343
By: /s/ Aaron V. Johnson
Aaron V. Johnson
Florida Bar No. 618098
Primary E-mail: AJohnson@verolaw.com
Secondary E-mail: AJRule: law.com
Secondary E-mail: TWoods@verolaw.com
Tina Woods
ee a DS EEN II SUES AE EI I AS OA I TEE TE SSI
To: Aaron Johnson
Subject: RE: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251
From: Lisa Harper
Sent: Thursday, September 10, 2020 2:37 PM
To: iRCJudge
Ce: Aaron Johnson
Subject: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251
Good Afternoon Dominic,
Please find attached, the Defendant's Motion for Summary Judgment; Alternatively, Motion to
Dismiss Plaintiff's Fourth Amended Complaint with Prejudice and the proposed Order on same. | will
be scheduling a 30 minute hearing on this matter. Mr. Rollin wanted me to provide a courtesy copy of
the Motion for Judge Croom’s review prior to scheduling a hearing in this matter.
Thank you.
Sincerely,
Lisa Harper, Paralegal to
Kevin M. Rollin, Esquire &
Michelle D. Napier, Esquire
Napier & Rollin, PLLC
865 20" Place
Vero Beach, FL 32960
(772) 388-4447 — Telephone
(772) 388-0347— Facsimile
Lisa@NapierRollinLaw.com
Pex,
Nap ier&zRollin, puic
Attorneys At Law
OTHERWISE EXEMPT FROM
CONFIDENTIALITY NOTICE: THIS COMMUNICATION, ALONG WITH ANY ATTACHMENTS, MAY CONTAIN INFORMATION THAT IS CONFIDENTIAL, PRIVILEGEDARE ORHEREBY
INTENDED RECIPIENT, YOU
DISCLOSURE. IF YOU ARE NOT THE INTENDED RECIPIENT OR A PERSON RESPONSIBLE FOR DELIVERING IT TO THEATTACHED NOTIFIED THAT ANY
DISCLOSURE, COPYING, PRINTING, DISTRIBUTION, FORWARDING, OR USE OF ANY INFORMATION CONTAINED IN OR TO THIS E-MAIL IS STRICTLY PROHIBITED. if YOU HAVE
RECEIVED THIS E-MAIL IN ERROR, PLEASE IMMEDIATELY NOTIFY ME BY RETURN E-MAIL OR TELEPHONE AND DESTROY THE ORIGINAL E-MAIL AND ITS ATTACHMENTS WITHOUT
READING, PRINTING, SAVING OR FORWARDING IN ANY MANNER YOUR COOPERATION IS GREATLY APPRECIATED,
ANY DOCUMENTS ATTACHED TO THIS TRANSMISSION MAY CONSTITUTE WORK PRODUCT
Please consider the environment before printing this e-mail
PLAINTIFF'S
Tina Woods
erat erm eae ARLE SESS SSR TS ET OE ES TS TEBE,
To: Lisa Harper
Subject: RE: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251
From: Tina Woods
Sent: Friday, September 11, 2020 8:56 AM
To: IRCJudge2
Cc: Lisa Harper ; Aaron Johnson ; Kevin Rollin
Subject: RE: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251
Good Morning Dominic,
It seems as though | was inadvertently left out of the below email from Ms. Harper at Mr. Rollin’s
office. Mr. Johnson would request a one hour hearing on their Defendant’s Motion for Summary
Judgment; alternatively, Motion to Dismiss Plaintiff’s Fourth Amended Complaint with Prejudice.
Please forward dates and times for coordination at your earliest convenience.
Thank you,
Tina
COVID -19 / CORONA VIRUS
Collins Brown Barkett, Chartered has a COVID -19 / CORONA VIRUS accommodation and management plan in place. We
are being vigilant about maintaining a safe workplace, and to keeping those we work with safe. Aaron and | are back in
the office but continue to work via ZOOM ond telephonically with clients, thus reducing the number of people who may
need to attend our offices to necessary visits. We will endeavor to continue to serve you by using telephone
conferencing, video links, email etc. Please do not come to our offices if you have any flu-like symptoms and minimize
in-person meetings. Please excuse us if we do not shake your hand should we meet in the office.
Tina L. Woods-Reif, CP, FRP
Certified Paralegal, Florida Registered Paralegal
Aaron V. Johnson, Esquire
twoods@verolaw.com
OS
a
Collins Brown Barkett, Chartered
U.S. TOP RANKED LAW FIRMS™
FLORIDA'S TOP RANKED LAW FIRMS™
Based on AV® Preeminent™ Martindale-Hubbell® Lawyer Ratings
756 Beachland Boulevard
Vero Beach, Florida 32963
Phone: 772.231.4343
Fax: 772.234.5213
www.verolaw.com PLAINTIFF'S
i _
F
cP’
REGISTERED
PARALEGAL
i ny
laity
Paralegal
This e-mail is from the law firm of Collins Brown Barkett, Chartered and is intended solely for the use of the individual(s)
to whom it is addressed. The content is attorney-client privileged and confidential. If you believe you received this e-mail
in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to
anyone else.
From: Aaron Johnson <: johnson @verolaw.com>
Sent: Thursday, September 10, 2020 5:15 PM
To: Tina Woods
Subject: FW: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251
Aaron V. Johnson
Shareholder
ca
Collins Brown Barkett,Chartered
U.S. TOP RANKED LAW FIRMS™
FLORIDA'S TOP RANKED LAW FIRMS™
Based on AV® Preeminent™Martindale-Hubbell® Lawyer Ratings
756 Beachland Boulevard
Vero Beach, Florida 32963
Phone 772.231.4343
Fax 772.234.5213
www,verolaw.com
This e-mail is from the law firm of Collins Brown Barkett and is intended solely for the use of the individual(s) to whom it
is addressed. The content is attorney-client privileged and confidential. If you believe you received this e-mail in error,
please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else.
From: IRCJudge
Sent: : Thursday, September 10, 2020 2:58 PM
To: isa Harper
Ce: Aaron Johnson
Subject: RE: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251
This is the County Judge’s email. I believe Judge Croom’s email is ircjudge2@circui t
19.org
From: Lisa Harper
Sent: Thursday, September 10, 2020 2:37 PM
To: IRCjudge
Ce: Aaron Johnson
Subject: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251
Good Afternoon Dominic,
Please find attached, the Defendant's Motion for Summary Judgment; Alternatively, Motion to
Dismiss Plaintiff's Fourth Amended Complaint with Prejudice and the proposed Order on same. | will
be scheduling a 30 minute hearing on this matter. Mr. Rollin wanted me to provide a courtesy copy of
the Motion for Judge Croom’s review prior to scheduling a hearing in this matter
Thank you
Sincerely,
Lisa Harper, Paralegal to
Kevin M. Rollin, Esquire &
Michelle D. Napier, Esquire
Napier & Rollin, PLLC
865 20" Place
Vero Beach, FL 32960
(772) 388-4447 — Telephone
(772) 388-0347 ~ Facsimile
Lisa@NapierRollinLaw.com
»
{Nap ier&yRollin, etic
Pleas At Law
CONFIDENTIALITY NOTICE: THIS COMMUNICATION, ALONG WITH ANY ATTACHMENTS, MAY CONTAIN INFORMATION THAT IS CONFIDENTIAL, PRIVILEGED OR OTHERWISE EXEMPT FROM
DISCLOSURE. IF YOU ARE NOT THE INTENDED RECIPIENT OR A PERSON RESPONSIBLE FOR DELIVERING IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY
DISCLOSURE, COPYING, PRINTING, DISTRIBUTION, FORWARDING, OR USE OF ANY INFORMATION CONTAINED IN OR ATTACHED TO THIS E-MAIL IS STRICTLY PROHIBITED. IF YOU HAVE
RECEIVED THIS E-MAIL IN ERROR, PLEASE IMMEDIATELY NOTIFY ME BY RETURN E-MAIL OR TELEPHONE AND DESTROY THE ORIGINAL E-MAIL AND ITS ATTACHMENTS WITHOUT
READING, PRINTING, SAVING OR FORWARDING IN ANY MANNER. YOUR COOPERATION IS GREATLY APPRECIATED.
ANY DOCUMENTS ATTACHED TO THIS TRANSMISSION MAY CONSTITUTE WORK PRODUCT.
Please consider the environment hefore printing this e-mail
Preview
Filing # 113929753 E-Filed 09/24/2020 03:46:53 PM IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA RICHARD O. SHIREY Case No.: 312019CA000251 Plaintiff, JUDGE JANET C. CROOM Vv. STACIE BROWNE SHIREY, Defendant. / MOTION FOR RECONSIDERATION COMES NOW, RICHARD O. SHIREY, Plaintiff, and by and through his undersigned counsel, files this Motion for Reconsideration pursuant to Florida Rules of Civil Procedure 1.530, and states in support thereof: Procedural Background 1 On August 28, 2020, Counsel for Defendant filed a Motion for Summary Judgment and/or Alternatively, Motion to Dismiss. 2 On September 10, 2020, Counsel for defendant emailed this Court’s Judicial Assistant requesting 30-minute hearing time. See, Exhibit “A”. 3 On September 11, 2020, Counsel for Plaintiff requested a one-hour time-slot for the hearing. See Exhibit “B”. 4 On September 10, 2020, Counsel for Defendant emailed this Court’s Judicial Assistant with a proposed order on their motion. See, Exhibit “A”. 5 On September 11, 2020, this Court entered an Order Granting Summary Judgment to Counts 1, 2, and 3, and entering a final judgment of Dismissal on Count 4 (with prejudice) without a hearing. 6 Plaintiff's Motion for Reconsideration concerns this September 11, 2020 Order. ARGUMENT Florida Rule of Civil Procedure 1.530 Motion for reconsideration. 7 As it concerns a motion for reconsideration; Florida Rules of Civil Procedure 1.530(a) and (b) provides guidance as to when a motion for consideration is appropriate, and when (time) it should be filed: (a) Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment. (b) Time for Motion. A motion for new trial or for rehearing shall be served not later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action. A timely motion may be amended to state new grounds in the discretion of the court at any time before the motion is determined. 8 The date of the filing of this motion is within the allotted 15 days as provided for in 1.530(b). Florida Rule of Civil Procedure 1.510 Motion for Summary Judgment 9 As it concerns summary judgment, Florida Civil Rule of Procedure 1.510 describes the procedure and instructions for Motions for Summary Judgment. 10. Rule 1.510 Contemplates a hearing on Motions for Summary Judgment. See, FRCP 1.510(b). Decisional Law il. As to the requirements for hearings on motions for summary judgment, Florida decisional law is conclusive, and there is no disagreement on the issue. 12. In State Farm Fire and Cas. Co. y. Lezcano, 22 So0.3d 632 (Fla 3d DCA 2009), the county court granted Summary Judgment without a hearing in favor of the insureds based on allegations that State Farm allegedly failed to pay medical payments under their policy. The ruling was appealed to the Circuit Court which PCA’d the county court’s ruling, and a petition for certiorari was filed with the Third District Court of Appeal. 13. As with the present case, in Lezcano, “...[B]oth parties agree that the county court never conducted a hearing on Lezcano’s motion for summary judgment.” Jd. at 633. 14. In its analysis, the Third DCA wrote: “{h]ere, the county court granted Lezcano’s motion for summary judgment without conducting a hearing on the motion. Florida Rule of Civil Procedure 1.510(c) contemplates a hearing on a summary judgment motion. “The rule does not provide the trial court with discretion to decide whether ‘a hearing is required.’ ” Kozich v. Hartford Ins. Co. of Midwest, 609 So.2d 147, 148 (Fla. 4th DCA 1992). A trial court’s failure to conduct a hearing prior to ruling on the motion for summary judgment constitutes a denial of the due process guarantee of notice and an opportunity to be heard.” 15. In its ruling the Third DCA concluded that “[t]he county court deprived State Farm of due process when it entered the final judgment as to Lezcano without conducting the required hearing.” Id. at 633. They went on to rule that “[b]ecause State Farm was deprived of a hearing as required under Rule 1.510(c), we conclude that the circuit court appellate division departed from the essential requirements of the law and deprived State Farm of due process.” Jd. at 634. 16. In Chiu v. Wells Fargo Bank, N.A., 242 So.3d 461 (Fla. 3d DCA 2018), the trial court granted summary judgment without hearing in favor of Wells Fargo bank against Chiu due to a loan default. 17. The Chiu court cited the Lezcano case, with a similar analysis, “This Court has held that Florida Rule of Civil Procedure 1.510(c) contemplates a hearing on a summary judgment motion. State Farm Fire & Cas. Co. v. Lezcano, 22 So.3d 632, 634 (Fla. 3d DCA 2009). Indeed, a trial court does not have discretion to decide whether to conduct a hearing on a motion for summary judgment. Kozich v. Hartford Ins. Co. of Midwest, 609 So.2d 147, 148 (Fla. 4th DCA 1992) (“[Rule 1.510(c) ] does not provide the trial court with discretion to decide whether ‘a hearing is required.’ »), Thus, where a trial court grants final summary judgment without conducting a hearing pursuant to rule 1.510(c), reversal is required. See, e.g., Greene v. Seigle, 745 So.2d 411, 411 (Fla. 4th DCA 1999); Travelers Ins. Co. v. Fla. Med. Ctr., Inc., 621 So.2d 581, 581 (Fla. 4th DCA 1993); Kozich, 609 So.2d at 148.” 18. And similar to the ruling in Lezcano, the District Court of Appeal held that trial court committed fundamental error in entering final summary judgment without prior hearing. Fourth District Court of Appeal Rulings 19. As for the Fourth District, the rulings on this issue are harmonious with those in Lezcano and Chiu. By way of example, in Greene v. Seigle, 745 So.2d 411 (Fla. 4th DCA 1999) the Fourth DCA ruled that where the trial court granted defendant’s motion for summary judgment without a hearing or notice to plaintiff, it violated Rule 1.510(c) and plaintiff's due process rights, which required reversal. A denial of the guarantee of due process represents a violation of a clearly established principle of law such that certiorari relief is warranted. 20. In Greene, “...Eight days after Wright filed his motion for summary judgment, the trial court granted it without a hearing or notice to Plaintiff. This violated Florida Rule of Civil Procedure 1.510(c) and Plaintiff's due process rights and thus requires a reversal. See Mondestin v. Duval Fed. Sav. & Loan Ass'n, 500 So.2d 580 (Fla. 4th DCA 1986)(holding that a party against whom a motion for summary judgment is filed is entitled to notice and a meaningful opportunity to be heard).” See, Id. at 432. 21. Similarly, in Richard y. Bank of America, NA, 258 So.3d 485 (Fla. 4" DCA 2018). The Trial Court had entered an order granting summary judgment on default against Richard. 22. As with the Third District, the Fourth District Court of Appeal cited both Lezcano and Chiu in its opinion, also citing Greene and Kozich (as did Lezcano and Chiu). 23. In doing so, the Fourth District Court of Appeal ruled that “[a] judgment is void when it is entered by a court lacking jurisdiction over the subject matter of the case or jurisdiction over the person of the defendant or where there is a violation of due process.” See, Id at 488. 24. The Fourth concluded that failing to conduct a hearing on the motion for summary judgment was a violation of due process, and that the judgment was therefore void. See, Jd at 489. Florida Rules of Civil Procedure 1.140 Defenses 25, This Court entered an order dismissing with prejudice Count 1V of Plaintiffs Complaint. Florida Rules of Civil Procedure describes the proper procedure for Motions to Dismiss or Motion for Judgment based on defenses in the rule, which include lack of jurisdiction which is what was plead by Defendant. 26. Rule 1.140(b) states as follows: (d) Preliminary Hearings. The defenses 1 to 7 in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment in subdivision (c) of this rule shall be heard and determined before trial on application of any party unless the court orders that the hearing and determination shall be deferred until the trial. 27 It is axiomatic that Motions to Dismiss are brought pursuant to Rule 1.140(b). ANALYSIS 25. There can be no dispute Plaintiff's were denied due process when this Court failed to conduct a hearing on Defendant’s motion for Summary Judgment and in the alternative, their motion to dismiss. 26. Pursuant to Richard v. Bank of America, infra, this judgment is therefore void. 27. The Order/Judgment should be stricken, and the matters addressed in defendant’s motion set for a hearing thereon. CONCLUSION WHEREFOR, Plaintiff respectfully requests an Order granting their Motion for Reconsideration, and in conjunction therewith, an Order striking this Court’s September 11, 2020 Order/Judgment thereon. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of the foregoing has been electronically filed via the Florida Court e-Portal and delivered via e-portal service to: Kevin Rollin, counsel for the Defendant, on this 24"" day of September 2020. COLLINS BROWN BARKETT, CHARTERED 756 Beachland Blvd. Vero Beach, FL 32963 (772) 231-4343 By: /s/ Aaron V. Johnson Aaron V. Johnson Florida Bar No. 618098 Primary E-mail: AJohnson@verolaw.com Secondary E-mail: AJRule: law.com Secondary E-mail: TWoods@verolaw.com Tina Woods ee a DS EEN II SUES AE EI I AS OA I TEE TE SSI To: Aaron Johnson Subject: RE: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251 From: Lisa Harper Sent: Thursday, September 10, 2020 2:37 PM To: iRCJudge Ce: Aaron Johnson Subject: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251 Good Afternoon Dominic, Please find attached, the Defendant's Motion for Summary Judgment; Alternatively, Motion to Dismiss Plaintiff's Fourth Amended Complaint with Prejudice and the proposed Order on same. | will be scheduling a 30 minute hearing on this matter. Mr. Rollin wanted me to provide a courtesy copy of the Motion for Judge Croom’s review prior to scheduling a hearing in this matter. Thank you. Sincerely, Lisa Harper, Paralegal to Kevin M. Rollin, Esquire & Michelle D. Napier, Esquire Napier & Rollin, PLLC 865 20" Place Vero Beach, FL 32960 (772) 388-4447 — Telephone (772) 388-0347— Facsimile Lisa@NapierRollinLaw.com Pex, Nap ier&zRollin, puic Attorneys At Law OTHERWISE EXEMPT FROM CONFIDENTIALITY NOTICE: THIS COMMUNICATION, ALONG WITH ANY ATTACHMENTS, MAY CONTAIN INFORMATION THAT IS CONFIDENTIAL, PRIVILEGEDARE ORHEREBY INTENDED RECIPIENT, YOU DISCLOSURE. IF YOU ARE NOT THE INTENDED RECIPIENT OR A PERSON RESPONSIBLE FOR DELIVERING IT TO THEATTACHED NOTIFIED THAT ANY DISCLOSURE, COPYING, PRINTING, DISTRIBUTION, FORWARDING, OR USE OF ANY INFORMATION CONTAINED IN OR TO THIS E-MAIL IS STRICTLY PROHIBITED. if YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE IMMEDIATELY NOTIFY ME BY RETURN E-MAIL OR TELEPHONE AND DESTROY THE ORIGINAL E-MAIL AND ITS ATTACHMENTS WITHOUT READING, PRINTING, SAVING OR FORWARDING IN ANY MANNER YOUR COOPERATION IS GREATLY APPRECIATED, ANY DOCUMENTS ATTACHED TO THIS TRANSMISSION MAY CONSTITUTE WORK PRODUCT Please consider the environment before printing this e-mail PLAINTIFF'S Tina Woods erat erm eae ARLE SESS SSR TS ET OE ES TS TEBE, To: Lisa Harper Subject: RE: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251 From: Tina Woods Sent: Friday, September 11, 2020 8:56 AM To: IRCJudge2 Cc: Lisa Harper ; Aaron Johnson ; Kevin Rollin Subject: RE: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251 Good Morning Dominic, It seems as though | was inadvertently left out of the below email from Ms. Harper at Mr. Rollin’s office. Mr. Johnson would request a one hour hearing on their Defendant’s Motion for Summary Judgment; alternatively, Motion to Dismiss Plaintiff’s Fourth Amended Complaint with Prejudice. Please forward dates and times for coordination at your earliest convenience. Thank you, Tina COVID -19 / CORONA VIRUS Collins Brown Barkett, Chartered has a COVID -19 / CORONA VIRUS accommodation and management plan in place. We are being vigilant about maintaining a safe workplace, and to keeping those we work with safe. Aaron and | are back in the office but continue to work via ZOOM ond telephonically with clients, thus reducing the number of people who may need to attend our offices to necessary visits. We will endeavor to continue to serve you by using telephone conferencing, video links, email etc. Please do not come to our offices if you have any flu-like symptoms and minimize in-person meetings. Please excuse us if we do not shake your hand should we meet in the office. Tina L. Woods-Reif, CP, FRP Certified Paralegal, Florida Registered Paralegal Aaron V. Johnson, Esquire twoods@verolaw.com OS a Collins Brown Barkett, Chartered U.S. TOP RANKED LAW FIRMS™ FLORIDA'S TOP RANKED LAW FIRMS™ Based on AV® Preeminent™ Martindale-Hubbell® Lawyer Ratings 756 Beachland Boulevard Vero Beach, Florida 32963 Phone: 772.231.4343 Fax: 772.234.5213 www.verolaw.com PLAINTIFF'S i _ F cP’ REGISTERED PARALEGAL i ny laity Paralegal This e-mail is from the law firm of Collins Brown Barkett, Chartered and is intended solely for the use of the individual(s) to whom it is addressed. The content is attorney-client privileged and confidential. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. From: Aaron Johnson <: johnson @verolaw.com> Sent: Thursday, September 10, 2020 5:15 PM To: Tina Woods Subject: FW: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251 Aaron V. Johnson Shareholder ca Collins Brown Barkett,Chartered U.S. TOP RANKED LAW FIRMS™ FLORIDA'S TOP RANKED LAW FIRMS™ Based on AV® Preeminent™Martindale-Hubbell® Lawyer Ratings 756 Beachland Boulevard Vero Beach, Florida 32963 Phone 772.231.4343 Fax 772.234.5213 www,verolaw.com This e-mail is from the law firm of Collins Brown Barkett and is intended solely for the use of the individual(s) to whom it is addressed. The content is attorney-client privileged and confidential. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. From: IRCJudge Sent: : Thursday, September 10, 2020 2:58 PM To: isa Harper Ce: Aaron Johnson Subject: RE: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251 This is the County Judge’s email. I believe Judge Croom’s email is ircjudge2@circui t 19.org From: Lisa Harper Sent: Thursday, September 10, 2020 2:37 PM To: IRCjudge Ce: Aaron Johnson Subject: Richard O'Shirey vs. Stacie Brown Shirey - Case No. 312019CA000251 Good Afternoon Dominic, Please find attached, the Defendant's Motion for Summary Judgment; Alternatively, Motion to Dismiss Plaintiff's Fourth Amended Complaint with Prejudice and the proposed Order on same. | will be scheduling a 30 minute hearing on this matter. Mr. Rollin wanted me to provide a courtesy copy of the Motion for Judge Croom’s review prior to scheduling a hearing in this matter Thank you Sincerely, Lisa Harper, Paralegal to Kevin M. Rollin, Esquire & Michelle D. Napier, Esquire Napier & Rollin, PLLC 865 20" Place Vero Beach, FL 32960 (772) 388-4447 — Telephone (772) 388-0347 ~ Facsimile Lisa@NapierRollinLaw.com » {Nap ier&yRollin, etic Pleas At Law CONFIDENTIALITY NOTICE: THIS COMMUNICATION, ALONG WITH ANY ATTACHMENTS, MAY CONTAIN INFORMATION THAT IS CONFIDENTIAL, PRIVILEGED OR OTHERWISE EXEMPT FROM DISCLOSURE. IF YOU ARE NOT THE INTENDED RECIPIENT OR A PERSON RESPONSIBLE FOR DELIVERING IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISCLOSURE, COPYING, PRINTING, DISTRIBUTION, FORWARDING, OR USE OF ANY INFORMATION CONTAINED IN OR ATTACHED TO THIS E-MAIL IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE IMMEDIATELY NOTIFY ME BY RETURN E-MAIL OR TELEPHONE AND DESTROY THE ORIGINAL E-MAIL AND ITS ATTACHMENTS WITHOUT READING, PRINTING, SAVING OR FORWARDING IN ANY MANNER. YOUR COOPERATION IS GREATLY APPRECIATED. ANY DOCUMENTS ATTACHED TO THIS TRANSMISSION MAY CONSTITUTE WORK PRODUCT. Please consider the environment hefore printing this e-mail