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IN THE CIRCUIT COURT OF THE 15™ JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 502006AP000020XXXXMB
Division: “AY”
Kelvin Rance 3
Appellant/Plaintiff, A
=
YT -
Wal-Mart Stores, Inc. =
and 2
E&L Towin _
Appellee/Defendant 7
RESPONSE TO MOTION TO STRIKE APPELLANT’S INITIAL BRIEF OR
IN THE ALTERNATIVE, MOTION FOR EXTENSION OF TIME TO FILE
ANSWER BRIEF (D.E. 63)
THE Appellant, KELVIN RANCE, by these words answers
D.E. 63 (MOTION TO STRIKE APPELLANT’S INITIAL BRIEF OR IN
THE ALTERNATIVE, MOTION FOR EXTENSION OF TIME TO FILE
ANSWER BRIEF) pursuant to rules 9.210 and 9.300 Fla. R.
App. P. Appellant shows:
1. By order of the court and in compliance with
order of the court (D.E. 58, filed 05-MAY-2009),
this appellant timely filed his initial brief
(D.E. 59). There is no disagreement as to the
dadtimeliness in filing Appellant’s initial brief
and appendix to Appellant’s initial brief.
The record shows that the Appellant filed his
initial brief and appendix to initial brief on
11-MAY-2009 in compliance with the order of D.E.
58.
The appellee attempts to mislead the court by
stating in his motion (D.E. 63) that the
appellant files his initial brief 8 months late.
See D.E. 63 @ 2, 96. Appellant filed his initial
brief and appendix to initial brief on 11-MAY-
2009 in compliance with the order of D.E. 58.
The appellant timely filed his initial brief and
emailed the appellant a copy on May 11, 2009 and
further mailed by U.S. Mail as copy of initial
brief and appendix. See attached exhibit A which
is a copy of the email and initial brief sent to
the appellee on May 11, 2009.
The appellee states in his motion (D.E. 63) that
the initial brief was sent Sunday, May 10, 2009
See See D.E. 63 @ 2, 98. The bottom line is the
appellee had the appellant’s initial brief on the
Monday, May 11, 2009.6.
The appellee further attempts to mislead the
court by stating that the initial brief was filed
a year late. See D.E. 63 @ 2, 98. Appellant filed
his initial brief and appendix to initial brief
on 11-MAY-2009 in compliance with the order of
D.E. 58.
Rule 9.210 excludes pages from the page count of
rule 9.210(a) (5). 9.210(a) (5) further allows
briefs longer than the 50 page count cited by the
appellee. 9.210(a) (5) specifically states: “[T]he
table of contents and the citation of authorities
shall be excluded from the computation. Longer
briefs may be permitted by the court”.
9.210(a) (5) further specifically excludes the
signature and font compliance pages from the page
count.
Appellee in his motion (D,E, 63) shall not toll
the time to move to strike or file an answer
brief as rule 9.210(f) gives the appellee 20 days
to file his answer brief. The appellee has filed
his motion (D.E. 63) late and has not filed an
answer brief at all. See D.E. 63 which was filed
on June 3, 2009 and an initial brief filing shall
be filed May 11, 2009. The math between the10.
filing of the appellee’s motion of D.E. 63 and
the appellant’s initial brief shall be over 20
days. Further see rule 9.300(d) (9).
Further the appellee did not comply with rule
9.300 in that this appellee moves the court to
continue, extend the date in which this appellee
must filed an answer brief. The appellee has not
consulted this appellant as to warrant if this
appellant has an objection to the late filing,
continuance in filing an answer brief pursuant to
rule 9.300(a). For the record this appellant
objects to a continuance in filing a motion (D.E.
63), or late filing of an answer brief.
The bottom line as to the appellee’s
motion (D.E. 63) is the appellee moved for
summary judgment while there was pending
discovery. Such granting of summary
judgment while pending discovery is in
violation of Fleet Finance & Mortg., Inc. v. Carey, 707
So.2d 949 (Fla.App. 4 Dist.,1998) the court wrote “[T]his court
has held on many occasions that “a court should not enter
summary judgment when the opposing party has not
completed discovery.” /zharsky v Sueden House Properties of Boca
Raton, {ne., 673 S0.2d 975. 977 (Fla, 4th DCA 1996) (quoting Brandauer v.
Publix Super Markets. Ine. 687 So.2d 932, 933 (1995)). See also Sica v.
411.
12.
Sam Caliendo Design, Inc., 623 So.2d 859 (Fla. 4th DCA 1993); Moore v.
Freeman, 396 So.2d 276 (Fla. 3d DC.\ 1981) (trial court's granting of
summary judgment was premature where the opposing party,
through no fault of his own, had not completed discovery).
Further, it is reversible error to grant summary judgment
where depositions are still pending’. Any further
delay in these proceedings shall be
prejudicial to the appellant in that it
shall be difficult to find witnesses to
adjudicate the trial court action.
Further the trial court violated the
law in that the trial court did not allow
this appellant to amend his complaint
between granting of motion for summary
judgment and final summary judgment. See
Dausman v. Hillsborough Area Regional
Transit, 898 So.2d 213, 30 Fla. L. Weekly D728, Fla.App. 2
Dist.,2005.
There is no way the appellee can get
around the premature issue of premature
granting of final summary judgment while
there was pending discovery or granting of
final summary judgment while denying a
motion to amend the complaint.Dated: June 11, 2009
Kelvin Rance
4037 Plumbago Place
Lake Worth, Florida
33462
954-254-1965
Certificate of Service
The Appellant, Kelvin Rance certifies that all
parties or interested parties have been served a
copy hereof on June 11, 2009, thru the law office of
Quintairos, Prieto, Wood & Boyer P.A., Attn: David
Tarlow Esq., One East Broward Boulevard, Suite 1400,
Fort Lauderdale, Florida 33301, Telephone: (954)
523-7008, (954) 523-7009 and E&L Towing c/o Thomas
E. Kingcade, P.A., 209 S. Olive Avenue, West Palm
Beach, Florida 33401 and J. Freddy Rhoads, 1615
forum place, suite 4-D, West Palm Beach, Florida,
33401 and Evan Snow, 5117 Cheryl Lane, West Palm
6Beach, Florida 33415. Service hereof to all
aforementioned shall be by U.S. mail on June 11,
2009.
Dated: June 11, 2009.
Kelvin Rance
4037 Plumbago Place
Lake Worth, Florida
33462
954-254-1965 cellExhibit A
Rance v- Wal-mart Stores Inc.; Initial Brief on
502006AP000020XXXXMB
Ten Kelvin Rance (krance@hotmail.com)
Sent Mon $/11/09 3:11 AM
To: David Tarlow (dtarlow@qpwblaw.com)
@1 attachment OGRE
Appellant...doc (346 5 KB)
David Tarlow
Pls find my initial brief for Palm Bch Circuit Court case
number 502006APO000020XXXXMB.
Do you need a mailed copy of the brief or is this emailed
acceptable?
Kelvin Rance
954-254-1965IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY FLORIDA
qaus
KELVIN RANCE, APPELLATE DIVISION (CIVIL)
CASE NO: 502006AP000020XXXXMB
Appellant, LT. NO.: 2005CC008726XXXXMB
DIVISION: ‘AY’ 2 8
ve of =
az 2
WAL-MART STORES INC, So. ok
Appellee. 23). =
! ase ¢
“23 &
BY ORDER OF THE COURT: =
THIS CAUSE came before the Court upon Appellee’s Third Motion to Dismiss Appeal,
filed January 15, 2009, Appellant’s Motion to File Answer to Wal-Mart’s Third Motion to Dismiss,
filed on January 30, 2009, and Appellant’s amended response, filed on February 9, 2009. Appellant
has drawn the Court’s attention to several outstanding motions that the Court has not yet ruled upon,
which tolled the time for Appellant to file the Initial Brief. Accordingly, it is
ORDERED and ADJUDGED that Appellee’s Third Motion to Dismiss Appeal is
DENIED. Appellant’s Motion to File Answer to Wal-Mart’s Third Motion to Dismiss is
GRANTED and the response is accepted as timely. It is further
ORDERED and ADJUDGED that Appellant’s Motion to Correct and Supplement the
Record Missing Correct D.E. 121, filed August 18, 2008, is GRANTED. The clerk is directed to
supplement the record on appeal with docket entry 121 of the lower court file (“Verified Notice of
Failure to Make Discovery”). It is further
Seen Pere eee eer eeer Pare ereeeeeee rere et
the date of this order. FAILURE TO COMPLY WITH THIS ORDER MAY RESULT IN
DISMISSAL OF THE APPEAL.
DONE and ORDERED in Chambers, at West Palm Beach, Palm Beach County, Florida,
this 5" day of May, 2009.
GLENN KELLEY ~
Mg CIRCUIT JUDGE
CAROLINE ALLISON SORET , ESQ , 2525 PONCE DE LEON BLVD SUITE 400 MIAMI, FL 33134-6012
DAVID M TARLOW , ESQ 801 BRICKELL AVE SUITE 1901 MIAMI, FL 33131-0000
KELVIN RANCE , 4037 PLUMBAGO PL LAKE WORTH, FL 33462
THOMAS E KINGCADE , ESQ 209 SOUTH OLIVE AVENUE WEST PALM BEACH, FL 33401
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IN THE CIRCUIT COURT OF THE 15™ JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 502006AP000020XXXXMB Division: “AY” Kelvin Rance 3 Appellant/Plaintiff, A = YT - Wal-Mart Stores, Inc. = and 2 E&L Towin _ Appellee/Defendant 7 RESPONSE TO MOTION TO STRIKE APPELLANT’S INITIAL BRIEF OR IN THE ALTERNATIVE, MOTION FOR EXTENSION OF TIME TO FILE ANSWER BRIEF (D.E. 63) THE Appellant, KELVIN RANCE, by these words answers D.E. 63 (MOTION TO STRIKE APPELLANT’S INITIAL BRIEF OR IN THE ALTERNATIVE, MOTION FOR EXTENSION OF TIME TO FILE ANSWER BRIEF) pursuant to rules 9.210 and 9.300 Fla. R. App. P. Appellant shows: 1. By order of the court and in compliance with order of the court (D.E. 58, filed 05-MAY-2009), this appellant timely filed his initial brief (D.E. 59). There is no disagreement as to the dadtimeliness in filing Appellant’s initial brief and appendix to Appellant’s initial brief. The record shows that the Appellant filed his initial brief and appendix to initial brief on 11-MAY-2009 in compliance with the order of D.E. 58. The appellee attempts to mislead the court by stating in his motion (D.E. 63) that the appellant files his initial brief 8 months late. See D.E. 63 @ 2, 96. Appellant filed his initial brief and appendix to initial brief on 11-MAY- 2009 in compliance with the order of D.E. 58. The appellant timely filed his initial brief and emailed the appellant a copy on May 11, 2009 and further mailed by U.S. Mail as copy of initial brief and appendix. See attached exhibit A which is a copy of the email and initial brief sent to the appellee on May 11, 2009. The appellee states in his motion (D.E. 63) that the initial brief was sent Sunday, May 10, 2009 See See D.E. 63 @ 2, 98. The bottom line is the appellee had the appellant’s initial brief on the Monday, May 11, 2009.6. The appellee further attempts to mislead the court by stating that the initial brief was filed a year late. See D.E. 63 @ 2, 98. Appellant filed his initial brief and appendix to initial brief on 11-MAY-2009 in compliance with the order of D.E. 58. Rule 9.210 excludes pages from the page count of rule 9.210(a) (5). 9.210(a) (5) further allows briefs longer than the 50 page count cited by the appellee. 9.210(a) (5) specifically states: “[T]he table of contents and the citation of authorities shall be excluded from the computation. Longer briefs may be permitted by the court”. 9.210(a) (5) further specifically excludes the signature and font compliance pages from the page count. Appellee in his motion (D,E, 63) shall not toll the time to move to strike or file an answer brief as rule 9.210(f) gives the appellee 20 days to file his answer brief. The appellee has filed his motion (D.E. 63) late and has not filed an answer brief at all. See D.E. 63 which was filed on June 3, 2009 and an initial brief filing shall be filed May 11, 2009. The math between the10. filing of the appellee’s motion of D.E. 63 and the appellant’s initial brief shall be over 20 days. Further see rule 9.300(d) (9). Further the appellee did not comply with rule 9.300 in that this appellee moves the court to continue, extend the date in which this appellee must filed an answer brief. The appellee has not consulted this appellant as to warrant if this appellant has an objection to the late filing, continuance in filing an answer brief pursuant to rule 9.300(a). For the record this appellant objects to a continuance in filing a motion (D.E. 63), or late filing of an answer brief. The bottom line as to the appellee’s motion (D.E. 63) is the appellee moved for summary judgment while there was pending discovery. Such granting of summary judgment while pending discovery is in violation of Fleet Finance & Mortg., Inc. v. Carey, 707 So.2d 949 (Fla.App. 4 Dist.,1998) the court wrote “[T]his court has held on many occasions that “a court should not enter summary judgment when the opposing party has not completed discovery.” /zharsky v Sueden House Properties of Boca Raton, {ne., 673 S0.2d 975. 977 (Fla, 4th DCA 1996) (quoting Brandauer v. Publix Super Markets. Ine. 687 So.2d 932, 933 (1995)). See also Sica v. 411. 12. Sam Caliendo Design, Inc., 623 So.2d 859 (Fla. 4th DCA 1993); Moore v. Freeman, 396 So.2d 276 (Fla. 3d DC.\ 1981) (trial court's granting of summary judgment was premature where the opposing party, through no fault of his own, had not completed discovery). Further, it is reversible error to grant summary judgment where depositions are still pending’. Any further delay in these proceedings shall be prejudicial to the appellant in that it shall be difficult to find witnesses to adjudicate the trial court action. Further the trial court violated the law in that the trial court did not allow this appellant to amend his complaint between granting of motion for summary judgment and final summary judgment. See Dausman v. Hillsborough Area Regional Transit, 898 So.2d 213, 30 Fla. L. Weekly D728, Fla.App. 2 Dist.,2005. There is no way the appellee can get around the premature issue of premature granting of final summary judgment while there was pending discovery or granting of final summary judgment while denying a motion to amend the complaint.Dated: June 11, 2009 Kelvin Rance 4037 Plumbago Place Lake Worth, Florida 33462 954-254-1965 Certificate of Service The Appellant, Kelvin Rance certifies that all parties or interested parties have been served a copy hereof on June 11, 2009, thru the law office of Quintairos, Prieto, Wood & Boyer P.A., Attn: David Tarlow Esq., One East Broward Boulevard, Suite 1400, Fort Lauderdale, Florida 33301, Telephone: (954) 523-7008, (954) 523-7009 and E&L Towing c/o Thomas E. Kingcade, P.A., 209 S. Olive Avenue, West Palm Beach, Florida 33401 and J. Freddy Rhoads, 1615 forum place, suite 4-D, West Palm Beach, Florida, 33401 and Evan Snow, 5117 Cheryl Lane, West Palm 6Beach, Florida 33415. Service hereof to all aforementioned shall be by U.S. mail on June 11, 2009. Dated: June 11, 2009. Kelvin Rance 4037 Plumbago Place Lake Worth, Florida 33462 954-254-1965 cellExhibit A Rance v- Wal-mart Stores Inc.; Initial Brief on 502006AP000020XXXXMB Ten Kelvin Rance (krance@hotmail.com) Sent Mon $/11/09 3:11 AM To: David Tarlow (dtarlow@qpwblaw.com) @1 attachment OGRE Appellant...doc (346 5 KB) David Tarlow Pls find my initial brief for Palm Bch Circuit Court case number 502006APO000020XXXXMB. Do you need a mailed copy of the brief or is this emailed acceptable? Kelvin Rance 954-254-1965IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA qaus KELVIN RANCE, APPELLATE DIVISION (CIVIL) CASE NO: 502006AP000020XXXXMB Appellant, LT. NO.: 2005CC008726XXXXMB DIVISION: ‘AY’ 2 8 ve of = az 2 WAL-MART STORES INC, So. ok Appellee. 23). = ! ase ¢ “23 & BY ORDER OF THE COURT: = THIS CAUSE came before the Court upon Appellee’s Third Motion to Dismiss Appeal, filed January 15, 2009, Appellant’s Motion to File Answer to Wal-Mart’s Third Motion to Dismiss, filed on January 30, 2009, and Appellant’s amended response, filed on February 9, 2009. Appellant has drawn the Court’s attention to several outstanding motions that the Court has not yet ruled upon, which tolled the time for Appellant to file the Initial Brief. Accordingly, it is ORDERED and ADJUDGED that Appellee’s Third Motion to Dismiss Appeal is DENIED. Appellant’s Motion to File Answer to Wal-Mart’s Third Motion to Dismiss is GRANTED and the response is accepted as timely. It is further ORDERED and ADJUDGED that Appellant’s Motion to Correct and Supplement the Record Missing Correct D.E. 121, filed August 18, 2008, is GRANTED. The clerk is directed to supplement the record on appeal with docket entry 121 of the lower court file (“Verified Notice of Failure to Make Discovery”). It is further Seen Pere eee eer eeer Pare ereeeeeee rere et the date of this order. FAILURE TO COMPLY WITH THIS ORDER MAY RESULT IN DISMISSAL OF THE APPEAL. DONE and ORDERED in Chambers, at West Palm Beach, Palm Beach County, Florida, this 5" day of May, 2009. GLENN KELLEY ~ Mg CIRCUIT JUDGE CAROLINE ALLISON SORET , ESQ , 2525 PONCE DE LEON BLVD SUITE 400 MIAMI, FL 33134-6012 DAVID M TARLOW , ESQ 801 BRICKELL AVE SUITE 1901 MIAMI, FL 33131-0000 KELVIN RANCE , 4037 PLUMBAGO PL LAKE WORTH, FL 33462 THOMAS E KINGCADE , ESQ 209 SOUTH OLIVE AVENUE WEST PALM BEACH, FL 33401