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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
RICHARD C. SENKER, Trustee of the Richard
C. Senker and Patricia A. Senker Land Trust,
a Florida Land Trust,
vs.
Plaintiff,
CASE NO. 2007 CA 008509 NC
SNAVELY SIESTA ASSOCIATES, LLC, io 86 2
an Ohio Limited Liability Company, Polen oo mm
23 3 oO
Defendant. ay — oO
wor CO TY
MEMORANDUM OF LAW IN SUPPORT OF “e5 th 2
MOTION FOR EMERGENCY ORDER TO SHOW CAUSE as
Plaintiff, RICHARD C. SENKER, Trustee of the Richard C...Senker
and Patricia A. Senker Land Trust (“Senker”) hereby submits his
Memorandum of Law in support of his Motion for Order’ to Show Cause
against Kirk Pinkerton, P.A. for its failure to comply with the
Court’s Order to disburse funds within 10 days of the entry of the
order.
1. The relevant language of Court’s order is as follows:
Escrow Agent, Kirk Pinkerton,
P.A.,
ordered to
to Senker within 10 days of this order and to report to
is
disburse all funds remaining in escrow under the Contract
the Court the amount of said disbursement.
2:
Kirk Pinkerton, P.A. cites the case of Wagner v. Uthoff,
846 So. 2d 1177 (Fla. 2d DCA 2003) for the proposition. that. Rule
1.090, Florida Rules of Civil Procedure,
extends the time. for
“gion
vty
a.disbursement and reporting on the amount held in escrow for an
additional 5 days past the 10 days ordered by the Court, since the
Order was sent by the Court to the parties through the U.S. Mail.
3. In Wagner, the act required was prescribed by Section
57.011 indicating that “the defendant may, after 20 days’ notice to
plaintiff” . . . which the court interpreted to be “service”
meaning the additional 5 days would be allowed.
4. However, the 5 additional days for mail service permitted
by Rule 1.090, also known as the “mailbox rule”, does not apply to
orders of the Court where a the Order directs that something be
done within a specified time, unless the Order specifically
indicates that the additional time for performance is permitted.
Jewish Federation of Palm Beach County, Inc. v. Rapaport, 682 So.
2d 1149 (Fla 4% DCA 1996).
5. Additionally, cases that interpret the “mailbox rule”
provided by the Rules of Appellate Procedure also find similarly to
Jewish Federation. See Bell v. U.S.B. Acquisition Company, Inc.,
734 So. 2d 403 (Fla. 1999) (holding that five day mailing rule will
only provide additional five days when recipient must perform an
act within some time after service of a document by mail, and not
whan action is required to be done after rendition or filing of
order.)
6. In the instant case, at issue is the court’s order which
requires disbursement and reporting “within 10 days of this order”,a-y
not within 10 days of the service of the order and therefore, the
additional 5 days allowed by the “mailbox rule” do not apply to
extend the time for Kirk Pinkerton’s disbursement of the funds in
escrow to Senker.
WHEREFORE, Senker seeks an emergency order to show cause why
Kirk Pinkerton, P.A. shall not be held in contempt of court for its
failure to comply with the Court’s September 4, 2008 order, for a
eee ee ee eee ee ee, te ae See es et “ se tee — — - ee oe —_— —ee —_ —
reasonable attorney’s fee and costs of bringing seeking the order
to show cause, pursuant to Rule 1.570, Florida Statutes, and for
such other relief as the Court deems proper.
Certificate of Service
I CERTIFY that a copy of the foregoing has been provided via
e-mail attachment and U.S. Mail to Scott Petersen, Esquire, 50
Central Avenue, Suite 700, Sarasota, Florida 34236 and via
facsimile and U.S. Mail to Charles V. Longo, 25550 Chagrin
Boulevard, Suite 320, Beachwood, Ohio 44122 on September 16, 2008.
THE EDWARDS LAW FIRM, PL
1901 Morrill Street
Sarasota, Florida 34236
Telephone: 941-363-0110
Facsimile: 941-952-9111
E-mail: sedwards@edwards-lawfirm.com
Counsel, for Plaintifzgy, Senker
0057495
~
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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA RICHARD C. SENKER, Trustee of the Richard C. Senker and Patricia A. Senker Land Trust, a Florida Land Trust, vs. Plaintiff, CASE NO. 2007 CA 008509 NC SNAVELY SIESTA ASSOCIATES, LLC, io 86 2 an Ohio Limited Liability Company, Polen oo mm 23 3 oO Defendant. ay — oO wor CO TY MEMORANDUM OF LAW IN SUPPORT OF “e5 th 2 MOTION FOR EMERGENCY ORDER TO SHOW CAUSE as Plaintiff, RICHARD C. SENKER, Trustee of the Richard C...Senker and Patricia A. Senker Land Trust (“Senker”) hereby submits his Memorandum of Law in support of his Motion for Order’ to Show Cause against Kirk Pinkerton, P.A. for its failure to comply with the Court’s Order to disburse funds within 10 days of the entry of the order. 1. The relevant language of Court’s order is as follows: Escrow Agent, Kirk Pinkerton, P.A., ordered to to Senker within 10 days of this order and to report to is disburse all funds remaining in escrow under the Contract the Court the amount of said disbursement. 2: Kirk Pinkerton, P.A. cites the case of Wagner v. Uthoff, 846 So. 2d 1177 (Fla. 2d DCA 2003) for the proposition. that. Rule 1.090, Florida Rules of Civil Procedure, extends the time. for “gion vty a.disbursement and reporting on the amount held in escrow for an additional 5 days past the 10 days ordered by the Court, since the Order was sent by the Court to the parties through the U.S. Mail. 3. In Wagner, the act required was prescribed by Section 57.011 indicating that “the defendant may, after 20 days’ notice to plaintiff” . . . which the court interpreted to be “service” meaning the additional 5 days would be allowed. 4. However, the 5 additional days for mail service permitted by Rule 1.090, also known as the “mailbox rule”, does not apply to orders of the Court where a the Order directs that something be done within a specified time, unless the Order specifically indicates that the additional time for performance is permitted. Jewish Federation of Palm Beach County, Inc. v. Rapaport, 682 So. 2d 1149 (Fla 4% DCA 1996). 5. Additionally, cases that interpret the “mailbox rule” provided by the Rules of Appellate Procedure also find similarly to Jewish Federation. See Bell v. U.S.B. Acquisition Company, Inc., 734 So. 2d 403 (Fla. 1999) (holding that five day mailing rule will only provide additional five days when recipient must perform an act within some time after service of a document by mail, and not whan action is required to be done after rendition or filing of order.) 6. In the instant case, at issue is the court’s order which requires disbursement and reporting “within 10 days of this order”,a-y not within 10 days of the service of the order and therefore, the additional 5 days allowed by the “mailbox rule” do not apply to extend the time for Kirk Pinkerton’s disbursement of the funds in escrow to Senker. WHEREFORE, Senker seeks an emergency order to show cause why Kirk Pinkerton, P.A. shall not be held in contempt of court for its failure to comply with the Court’s September 4, 2008 order, for a eee ee ee eee ee ee, te ae See es et “ se tee — — - ee oe —_— —ee —_ — reasonable attorney’s fee and costs of bringing seeking the order to show cause, pursuant to Rule 1.570, Florida Statutes, and for such other relief as the Court deems proper. Certificate of Service I CERTIFY that a copy of the foregoing has been provided via e-mail attachment and U.S. Mail to Scott Petersen, Esquire, 50 Central Avenue, Suite 700, Sarasota, Florida 34236 and via facsimile and U.S. Mail to Charles V. Longo, 25550 Chagrin Boulevard, Suite 320, Beachwood, Ohio 44122 on September 16, 2008. THE EDWARDS LAW FIRM, PL 1901 Morrill Street Sarasota, Florida 34236 Telephone: 941-363-0110 Facsimile: 941-952-9111 E-mail: sedwards@edwards-lawfirm.com Counsel, for Plaintifzgy, Senker 0057495 ~