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Filing # 53471809 E-Filed 03/08/2017 04:10:01 PM
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
ROBERT H. GAINES, an individual,
PLAINTIFF
vs. CASE NO. 2016 CA 006156 NC
DIVISION: CIRCUIT CIVIL
STEPHEN H. TICK, as Trustee, STEPHEN H. TICK,
an individual, PHILLIP J. TICK, an individual, and
HAROLD L. TICK, an individual,
DEFENDANTS
MOTION TO VACATE DEFAULT JUDGMENT FOR POSSESSION
Comes now the Plaintiff, by and through his undersigned counsel, and moves this court to
vacate the Default Judgment for Possession entered in this cause on March 1, 2017, and as
grounds therefore would state as follows:
1. Said Default Judgment for Possession was entered without motion or other notice
whatsoever to the undersigned attorney for the plaintiff.
2. Entry of default orders, especially those which dispossess a person from their
residence, should not be entered without due process, including notice and fair hearing to the
attorneys of record for the party sought to be dispossessed.
3, The undersigned received the Default Judgment for Possession in the regular mail
on March 8, 2017, instantaneously receiving a call from the Plaintiff, indicating that he had been
served with the Default Writ of Possession, and that he would be required to remove himself
from the premises by the afternoon of March 9, 2017.
4, Despite the fact that the undersigned is subscribed to the ClerkNet on the above
referenced case, no reference was made through emails or otherwise that the Default Judgment
of Possession was entered, or even being considered by the court.
5, The Default Judgment for Possession could not have been entered by the Court
without communication to the Court from counsel for the Defendants, and the undersigned
received no notice of said communication.
Filed 03/08/2017 04:26 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL6 The pleadings are clear that the defendant has lived in the present residence for
over 20 years, and that serious issues of possession and entitlement to purchase and own said
residence are before this court, including, as is set forth in his affirmative defense filed in this
cause:
Plaintiff's occupancy of the subject Real Property is not now and has never
been a rental. Plaintiff presently occupies the subject Real Property pursuant to the
terms of the 1996 Agreement with Marjorie L. Tick, more particularly set forth in
the initial pleadings of the Plaintiff in this cause, which are re-alleged and
incorporated herein by reference. Pursuant to that 1996 Agreement, Plaintiff is
required to assume all living expenses for his occupancy from the date of the death
of Marjorie L. Tick, upon which Plaintiff has already made one payment to Harold
L. Tick and for which Plaintiff stands ready to pay the balance upon notice of
amounts due or paid for quarterly maintenance, insurance or other living expenses.
7. To the extent the failure of the undersigned attorney to follow any referenced
Florida Statute which may have required deposit of a rent in controversy or a motion determine
said rent, said failure of the undersigned should not be visited upon the Plaintiff by a
dispossession of his 20 year residence, especially considering the extraordinary issues set forth in
this cause. The undersigned, concurrent with this motion, has filed a Motion to Determine Rent.
8, The prejudice to the Defendants in this cause, who are out-of-state alleged owners
of the real property, with no history of prior possession of the property, 1s minimal in the event
the court vacates the Default Judgment for Possession.
9, The prejudice to the Plaintiff, a 20 year resident of the property in dispute, 1s
significant, in that he has had no opportunity to be heard in this case nor has he had an
opportunity be noticed that the Default Judgment of Possession would be entered.
10. The undersigned attorney is a solo practitioner, is scheduled to be out of the
country from Friday, March 10, 2017 through Monday, March 20, 2017, and is only available for
hearing prior to leaving the country on March 9, 2017 (not including the 10:00 AM hour or the
1:00 PM hour, for which the undersigned already has conflicting hearings).
Wherefore, the undersigned respectfully requests this court to vacate the default judgment
of possession in this cause, grant an emergency hearing in this cause on Thursday, March 9,
2017, or after March 20, 2017, and grant such other relief as is just in this cause.Respectfully submitted,
Stephen F, Ellis, P.A.
/Stephen F. Ellis
Stephen F. Ellis, Esquire
Attorney for Plaintiff
Florida Bar Number: 0262854
Stephen F. Ellis, P.A.
1800 Second Street, Suite 735
Sarasota, Florida 34236
Telephone: (941) 366-7200
Fax: (941) 955-4985
E-Mail: steve@sfellislaw.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 8, 2017, the foregoing document was
electronically filed with the Clerk of the Circuit Court of Sarasota County, Florida using the
Florida Courts E-Filing Portal and served on all counsel of record via the Portal, which
constitutes compliance with the service requirement of Fla. R. Jud. Admin 2.516, pursuant to
AOSC 13-49.
Stephen F. Ellis, P.A.
/Stephen F. Ellis
Stephen F. Ellis, Esquire
Attorney for Plaintiff
Florida Bar Number: 0262854
Stephen F, Ellis, P.A.
1800 Second Street, Suite 735
Sarasota, Florida 34236
Telephone: (941) 366-7200
Fax: (941) 955-4985
E-Mail: steve@sfellislaw.com
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Filing # 53471809 E-Filed 03/08/2017 04:10:01 PM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA ROBERT H. GAINES, an individual, PLAINTIFF vs. CASE NO. 2016 CA 006156 NC DIVISION: CIRCUIT CIVIL STEPHEN H. TICK, as Trustee, STEPHEN H. TICK, an individual, PHILLIP J. TICK, an individual, and HAROLD L. TICK, an individual, DEFENDANTS MOTION TO VACATE DEFAULT JUDGMENT FOR POSSESSION Comes now the Plaintiff, by and through his undersigned counsel, and moves this court to vacate the Default Judgment for Possession entered in this cause on March 1, 2017, and as grounds therefore would state as follows: 1. Said Default Judgment for Possession was entered without motion or other notice whatsoever to the undersigned attorney for the plaintiff. 2. Entry of default orders, especially those which dispossess a person from their residence, should not be entered without due process, including notice and fair hearing to the attorneys of record for the party sought to be dispossessed. 3, The undersigned received the Default Judgment for Possession in the regular mail on March 8, 2017, instantaneously receiving a call from the Plaintiff, indicating that he had been served with the Default Writ of Possession, and that he would be required to remove himself from the premises by the afternoon of March 9, 2017. 4, Despite the fact that the undersigned is subscribed to the ClerkNet on the above referenced case, no reference was made through emails or otherwise that the Default Judgment of Possession was entered, or even being considered by the court. 5, The Default Judgment for Possession could not have been entered by the Court without communication to the Court from counsel for the Defendants, and the undersigned received no notice of said communication. Filed 03/08/2017 04:26 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL6 The pleadings are clear that the defendant has lived in the present residence for over 20 years, and that serious issues of possession and entitlement to purchase and own said residence are before this court, including, as is set forth in his affirmative defense filed in this cause: Plaintiff's occupancy of the subject Real Property is not now and has never been a rental. Plaintiff presently occupies the subject Real Property pursuant to the terms of the 1996 Agreement with Marjorie L. Tick, more particularly set forth in the initial pleadings of the Plaintiff in this cause, which are re-alleged and incorporated herein by reference. Pursuant to that 1996 Agreement, Plaintiff is required to assume all living expenses for his occupancy from the date of the death of Marjorie L. Tick, upon which Plaintiff has already made one payment to Harold L. Tick and for which Plaintiff stands ready to pay the balance upon notice of amounts due or paid for quarterly maintenance, insurance or other living expenses. 7. To the extent the failure of the undersigned attorney to follow any referenced Florida Statute which may have required deposit of a rent in controversy or a motion determine said rent, said failure of the undersigned should not be visited upon the Plaintiff by a dispossession of his 20 year residence, especially considering the extraordinary issues set forth in this cause. The undersigned, concurrent with this motion, has filed a Motion to Determine Rent. 8, The prejudice to the Defendants in this cause, who are out-of-state alleged owners of the real property, with no history of prior possession of the property, 1s minimal in the event the court vacates the Default Judgment for Possession. 9, The prejudice to the Plaintiff, a 20 year resident of the property in dispute, 1s significant, in that he has had no opportunity to be heard in this case nor has he had an opportunity be noticed that the Default Judgment of Possession would be entered. 10. The undersigned attorney is a solo practitioner, is scheduled to be out of the country from Friday, March 10, 2017 through Monday, March 20, 2017, and is only available for hearing prior to leaving the country on March 9, 2017 (not including the 10:00 AM hour or the 1:00 PM hour, for which the undersigned already has conflicting hearings). Wherefore, the undersigned respectfully requests this court to vacate the default judgment of possession in this cause, grant an emergency hearing in this cause on Thursday, March 9, 2017, or after March 20, 2017, and grant such other relief as is just in this cause.Respectfully submitted, Stephen F, Ellis, P.A. /Stephen F. Ellis Stephen F. Ellis, Esquire Attorney for Plaintiff Florida Bar Number: 0262854 Stephen F. Ellis, P.A. 1800 Second Street, Suite 735 Sarasota, Florida 34236 Telephone: (941) 366-7200 Fax: (941) 955-4985 E-Mail: steve@sfellislaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 8, 2017, the foregoing document was electronically filed with the Clerk of the Circuit Court of Sarasota County, Florida using the Florida Courts E-Filing Portal and served on all counsel of record via the Portal, which constitutes compliance with the service requirement of Fla. R. Jud. Admin 2.516, pursuant to AOSC 13-49. Stephen F. Ellis, P.A. /Stephen F. Ellis Stephen F. Ellis, Esquire Attorney for Plaintiff Florida Bar Number: 0262854 Stephen F, Ellis, P.A. 1800 Second Street, Suite 735 Sarasota, Florida 34236 Telephone: (941) 366-7200 Fax: (941) 955-4985 E-Mail: steve@sfellislaw.com