Preview
Filing # 106126047 E-Filed 04/10/2020 04:25:52 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
HOMEBRIDGE FINANCIAL
SERVICES, INC.,
Plaintiff,
v. Case No.: 2018-CA-003041-MF
MICHAEL R. PARKEY, et al.,
Defendants.
/
DEFENDANTS”, MICHAEL R, PARKEY AND MARK D, PARKEY, MOTION TO_
STRIKE “ORDER SETTING NON-JURY TRIAL” DATED MARCH 17, 2020 AND
OBJECTIONS TO SETTING THIS CASE FOR AN UNTIMELY TRIAL DATE
COMES NOW, Defendants, MICHAEL R. PARKEY and MARK D. PARKEY
(hereinafter referred to as “Defendants”), by and through the undersigned counsel, and pursuant to Rule
1.200(b) and 1.440 of the Florida Rules of Civil Procedure, hereby move to strike the Court’s “Order Setting
Non-Jury Trial” dated March 17, 2020 and objects to setting this case for an untimely Trial Date, and in
support thereof state as follows:
1. This Court erred in setting this matter for Trial before the pleadings were closed and this
case was “at issue”.
2. A case is not “at issue” until the pleadings are closed. See Fla. R. Civ. P. 1.440(a). (“An
action is at issue after any motions directed to the last pleading served have been disposed
of or, if no such motions are served, 20 days after service of the last pleading.”).
3. It is error to schedule a trial before a case is at issue. See Precision Constructors, Inc. v.
Valtec Constr. Corp., 825 So. 2d 1062, 1063 (Fla. 3d DCA 2002); Turnage v. Turnage,
653 So. 2d 485 (Fla. 5th DCA 1995); Loss v. Loss, 608 So. 2d 39, 40 (Fla. 4th DCA 1992);
Durand v. Durand, 569 So. 2d 838, 839 (Fla. 3d DCA 1990); International Jai-Alai Players
Ass'n v. Dania Jai-Alai, 563 So, 2d 1117, 1119 (Fla. 4th DCA 1990); Bennett v.
Continental Chem., Inc., 492 So. 2d 724, 727 (Fla. 1st DCA 1986); and Leeds v. C.C.
Chem Corp., 280 So. 2d 718 (Fla. 3d DCA 1973).
4. In light of the immediately cited cases, Florida case law is clear in providing for strict
compliance with each of the requirements of Rule 1.440, failure of which results in a
judgment that is reversible. See also Department of Revue v. Marcovitch, 765 So. 2d 944,
945 (Fla. Sth DCA 2000) and Garcia v. Lincare Inc., 906 So. 2d 1268 (Fla. 5th DCA 2005).
Page 1 of 2This general principle was announced in an en banc decision of the First District Court of
Appeal which took a “bright line approach” to the interpretation and application of the
Rule, mandating strict observance with its provisions. Bennett, 492 So. 2d at 727. As the
Fourth District Court of Appeal explained, “The provision in the civil rules requiring
pleadings and the proper setting of trials on the merits are not merely a convenience for the
trial judge and parties to dispense with over the objection of an adverse party. They are
mandatory...” Alabau v. Town of Lake Park, 617 So. 2d 872, 873 (Fla. 4th DCA 1993).
. Here, in the instant action, the case was not “at issue” at the time the Court entered its Trial
Order, nor is the case ripe for trial now. On March 17, 2020 the pleadings were not closed
since Defendants’ Motion to Strike and Objection to Plaintiffs Untimely Reply remains
pending and Plaintiff has a pending Motion to Amend Reply.
. Additionally, discovery is not completed as Plaintiff has pending objections it recently
lodged to all of our discovery that Defendants are in the process of calling up for hearing.
. Further, the one hour Plaintiff requested in their Renewed Notice for Non-Jury Trial is
insufficient as this Trial will require one full day of Trial.
. Moreover, the pending COVID-19 pandemic has frustrated Defendants’ opportunity to
adequately prepare for Trial.
. In light of the foregoing, Defendants respectfully request this Court to enter an Order
sustaining their objections and striking the Court’s “Order Setting Non-Jury Trial” dated March
17, 2020 and wait on scheduling this case for Trial until the pleadings are closed, the case is at
issue, and the COVID-19 pandemic has passed.
WHEREFORE, Defendants, MICHAEL R. PARKEY and MARK D. PARKEY,
respectfully request this Court to enter an Order sustaining their objections and striking the Court’s “Order
Setting Non-Jury Trial” dated March 17, 2020 and wait on scheduling this case for Trial until the pleadings
are closed, the case is at issue, the COVID-19 pandemic has passed, and any other relief this Court deems
fair and just.
/s/ ANTHONY N. LEGENDRE, II, Esq.
ANTHONY N. LEGENDRE, II, Esq.
Fla. Bar No.: 67221
Primary E-mail: anthonylegendre@live.com
Secondary E-mail: Anthony@Law-Legends.com
Secondary E-mail: Ronald@Law-legends.com
Law Offices of Legendre & Legendre, PLLC
P.O. Box 948599
Maitland, FL 32794-8599
(407) 460-8525
Page 2 of 2CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true and correct copy of the foregoing has been furnished
by E-mail
E-portal to Attorneys for Plaintiff, of Albertelli Law
(servealaw@albertellilaw.com), P.O. Box 23028, Tampa, Florida 33623, on this 10" day of
April, 2020.
/s/ ANTHONY N. LEGENDRE, II, Esq.
ANTHONY N. LEGENDRE, II, Esq.
Fla. Bar No.: 67221
Primary E-mail: anthonylegendre@live.com
Secondary E-mail: Anthony@Law-Legends.com
Secondary E-mail: Ronald@Law-legends.com
Law Offices of Legendre & Legendre, PLLC
P.O. Box 948599
Maitland, FL 32794-8599
(407) 460-8525
Attorney for Defendants,
MICHAEL R. PARKEY and MARK D. PARKEY
Page 3 of 2
Preview
Filing # 106126047 E-Filed 04/10/2020 04:25:52 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA HOMEBRIDGE FINANCIAL SERVICES, INC., Plaintiff, v. Case No.: 2018-CA-003041-MF MICHAEL R. PARKEY, et al., Defendants. / DEFENDANTS”, MICHAEL R, PARKEY AND MARK D, PARKEY, MOTION TO_ STRIKE “ORDER SETTING NON-JURY TRIAL” DATED MARCH 17, 2020 AND OBJECTIONS TO SETTING THIS CASE FOR AN UNTIMELY TRIAL DATE COMES NOW, Defendants, MICHAEL R. PARKEY and MARK D. PARKEY (hereinafter referred to as “Defendants”), by and through the undersigned counsel, and pursuant to Rule 1.200(b) and 1.440 of the Florida Rules of Civil Procedure, hereby move to strike the Court’s “Order Setting Non-Jury Trial” dated March 17, 2020 and objects to setting this case for an untimely Trial Date, and in support thereof state as follows: 1. This Court erred in setting this matter for Trial before the pleadings were closed and this case was “at issue”. 2. A case is not “at issue” until the pleadings are closed. See Fla. R. Civ. P. 1.440(a). (“An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading.”). 3. It is error to schedule a trial before a case is at issue. See Precision Constructors, Inc. v. Valtec Constr. Corp., 825 So. 2d 1062, 1063 (Fla. 3d DCA 2002); Turnage v. Turnage, 653 So. 2d 485 (Fla. 5th DCA 1995); Loss v. Loss, 608 So. 2d 39, 40 (Fla. 4th DCA 1992); Durand v. Durand, 569 So. 2d 838, 839 (Fla. 3d DCA 1990); International Jai-Alai Players Ass'n v. Dania Jai-Alai, 563 So, 2d 1117, 1119 (Fla. 4th DCA 1990); Bennett v. Continental Chem., Inc., 492 So. 2d 724, 727 (Fla. 1st DCA 1986); and Leeds v. C.C. Chem Corp., 280 So. 2d 718 (Fla. 3d DCA 1973). 4. In light of the immediately cited cases, Florida case law is clear in providing for strict compliance with each of the requirements of Rule 1.440, failure of which results in a judgment that is reversible. See also Department of Revue v. Marcovitch, 765 So. 2d 944, 945 (Fla. Sth DCA 2000) and Garcia v. Lincare Inc., 906 So. 2d 1268 (Fla. 5th DCA 2005). Page 1 of 2This general principle was announced in an en banc decision of the First District Court of Appeal which took a “bright line approach” to the interpretation and application of the Rule, mandating strict observance with its provisions. Bennett, 492 So. 2d at 727. As the Fourth District Court of Appeal explained, “The provision in the civil rules requiring pleadings and the proper setting of trials on the merits are not merely a convenience for the trial judge and parties to dispense with over the objection of an adverse party. They are mandatory...” Alabau v. Town of Lake Park, 617 So. 2d 872, 873 (Fla. 4th DCA 1993). . Here, in the instant action, the case was not “at issue” at the time the Court entered its Trial Order, nor is the case ripe for trial now. On March 17, 2020 the pleadings were not closed since Defendants’ Motion to Strike and Objection to Plaintiffs Untimely Reply remains pending and Plaintiff has a pending Motion to Amend Reply. . Additionally, discovery is not completed as Plaintiff has pending objections it recently lodged to all of our discovery that Defendants are in the process of calling up for hearing. . Further, the one hour Plaintiff requested in their Renewed Notice for Non-Jury Trial is insufficient as this Trial will require one full day of Trial. . Moreover, the pending COVID-19 pandemic has frustrated Defendants’ opportunity to adequately prepare for Trial. . In light of the foregoing, Defendants respectfully request this Court to enter an Order sustaining their objections and striking the Court’s “Order Setting Non-Jury Trial” dated March 17, 2020 and wait on scheduling this case for Trial until the pleadings are closed, the case is at issue, and the COVID-19 pandemic has passed. WHEREFORE, Defendants, MICHAEL R. PARKEY and MARK D. PARKEY, respectfully request this Court to enter an Order sustaining their objections and striking the Court’s “Order Setting Non-Jury Trial” dated March 17, 2020 and wait on scheduling this case for Trial until the pleadings are closed, the case is at issue, the COVID-19 pandemic has passed, and any other relief this Court deems fair and just. /s/ ANTHONY N. LEGENDRE, II, Esq. ANTHONY N. LEGENDRE, II, Esq. Fla. Bar No.: 67221 Primary E-mail: anthonylegendre@live.com Secondary E-mail: Anthony@Law-Legends.com Secondary E-mail: Ronald@Law-legends.com Law Offices of Legendre & Legendre, PLLC P.O. Box 948599 Maitland, FL 32794-8599 (407) 460-8525 Page 2 of 2CERTIFICATE OF SERVICE I HEREBY CERTIFY, that a true and correct copy of the foregoing has been furnished by E-mail E-portal to Attorneys for Plaintiff, of Albertelli Law (servealaw@albertellilaw.com), P.O. Box 23028, Tampa, Florida 33623, on this 10" day of April, 2020. /s/ ANTHONY N. LEGENDRE, II, Esq. ANTHONY N. LEGENDRE, II, Esq. Fla. Bar No.: 67221 Primary E-mail: anthonylegendre@live.com Secondary E-mail: Anthony@Law-Legends.com Secondary E-mail: Ronald@Law-legends.com Law Offices of Legendre & Legendre, PLLC P.O. Box 948599 Maitland, FL 32794-8599 (407) 460-8525 Attorney for Defendants, MICHAEL R. PARKEY and MARK D. PARKEY Page 3 of 2