IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

LARRY R. BRADSHAW.,

Petitioner, Appeal No. 2DIO-5604

v.
Lower Tribunal Case No.
2009CA-001575

WASHINGTON MUTUAL BANK FIKfA

WASIDNGTON MUTUAL BANK, FA
SUCCESSOR BY MERGER TO BANKUNITED
FSB FIKfA BANK UNITED OF TEXAS, FS,
US- BANK NATIONAL ASSOCIATION
-
AS
TRUST~E !?Q~ G~MPS 2004-4,

Respondent.
I
-------------------------------

RESPONDENT'S RESPONSE TO PETITION FOR WRIT OF,MANllAMUS.

On or about November 29, 2010, Petitioner, Larry R. Bradshaw

("Petitioner") filed a Petition for Writ of Mandamus ("Petition") requesting that

this Court direct the lower tribunal to reinstate a foreclosure action that has been

voluntarily dismissed and to dismiss a pending foreclosure action against him.

Because Petitioner does not have a clear legal right to the relief requested, the trial

court does not have a duty to grant the relief requested, and he had an adequate

remedy at law, the Petition should be denied. Respondent, US Bank National

Association As Trustee for GSMPS ("Bank"), should be permitted to continue its

pending foreclosure action against Petitioner.

I. Statement of Facts

This action arises from mortgage foreclosure actions filed against Petitioner,

Larry R. Bradshaw ("Petitioner"), in the Circuit Court of the Twentieth Judicial

Circuit in and for Lee County, Florida.l On or about October 2, 2006, a mortgage

foreclosure complaint was filed against Petitioner in Washington Mutual Bank

F/KIA Washington Mutual Bank FA ("Washington Mutual") v. Larry R.

Bradshaw, Case No. 06-CA-004271 ("2006 Case"). See Mortgage Foreclosure

Complaint Case No. 06-CA-004271, attached hereto as Respondent's Appendix 1.

Washington Mutual voluntarily dismissed the 2006- Case when Petitioner.reinstated ~'-. _;.:~d'·_

the loan. See Memorandum of Law in Opposition to Defendant's Motion for

Evidentiary Hearing, attached to Petition as Exhibit P-15.

On or about September 27, 2007, a mortgage foreclosure complaint was

filed against Petitioner in Washington Mutual Bank F/KIA/ Washington Mutual

Bank, FA Successor by Merger to BankUnited, FSB F/KIA Bank United of Texas,

FSB v. Larry R. Bradshaw Case No. 07-CA-011562 ("2007 Case"). See Mortgage

Foreclosure Complaint Case No. 07-CA-001562, attached hereto as Respondent's

Appendix 2. Washington Mutual's allegations were essentially the same, with

exception of a different default date than was alleged in the 2006 Case. During the

1 The Florida Supreme Court has stated that the "doctrine of res judicata does not necessarily bar
successive foreclosure suits, regardless of whether or not the mortgagee sought to accelerate payments
on the note in the first suit." See Singleton v. Greymar Associates, 882 So. 2d 1004, 1008 (Fla. 2004).
pendency of the 2007 Case, documents were filed on behalf of Washington Mutual

by attorneys from Florida Default Law Group, P.L. ("FDLG") and Echevarria,

Codilis & Stawiarski. According to the Florida Department of State Division of

Corporations website, FDLG is a registered business with a registered fictitious

name of Echevarria, Codilis & Stawiarski. See Florida Department of State

Division of Corporations website printout and Application for Registration of

Fictitious Name, attached hereto as composite Appendix 3.

On or about June 11,~2008, Washington Mutual filed a Motion to

Voluntarily.Dismiss Case and Cancel Notice of Lis Pendens. See Exhibit P--l3 of ~ --.-~
. ..

would be required on any such motion, however, a voluntary dismissal "pursuant

to Rule 1.420(a) [Florida Rules of Civil Procedure ("Rule(s)")] does not require a

court order-plaintiff may dismiss 'without order of the court' by filing a notice or

the parties may stipulate." See Exhibit P-14 of Petition. Soon thereafter, on or

about July 3, 2008, Washington Mutual served a Notice of Voluntary Case

Dismissal ("Notice") pursuant to Rule 1.420(a). See Exhibit P-2 of Petition. The

Notice of Voluntary Case Dismissal was served prior to the date of a hearing set on

Petitioner's Motion to Dismiss. The Notice did not make the docket until July 9,

2008.

Thereafter, on or about July 14,2008, Petitioner filed Defendant's Motion to

 Disregard Judge Adams Order Dismissing the Case Without Prejudice and Motion

to Strike Plaintiffs Notice of Voluntary Case Dismissal and Reinstate Case No:

07-CA-11562 and Enter Default on Defendant's Motion for Summary Judgment

("Defendant's Motion") and a Brief in Support of Defendant's Motion. See

Exhibit P-3 to Petition. At a hearing on Defendant's Motion, the trial court

determined that it did not have jurisdiction to hear Defendant's Motion since the

case had been voluntarily dismissed. See Exhibit P-5 of Petition.

Subsequently, on or about December 23, -2008, Respondent Bank initiated a

_.~..new .foreclosure action.against ..Petitioner in US Bank National -:Association, as_.__...- ---c-<· __

("Pending Foreclosure"). See Mortgage Foreclosure Complaint Case No. 08-CA-

055974, attached hereto as Respondent's. Appendix 4. The complaint alleges the

.- --
same default date as was alleged in the 2007- Case, which was dismissed without

prejudice. This matter is currently pending, but has been stayed pending the

outcome of this Petition.

In the Petition, Petitioner requests that this Court reinstate the 2007 Case and

dismiss the Pending Foreclosure.2 Petitioner complains that Washington Mutual's

Notice is a legal nullity since it was filed by an attorney not of record and claims

2 Petitioner also requests that the Court "order the judges or Clerk of Courts to remove the gallery
microphones, and reinstate the pro se dignity and deserved respect to the court rooms, and order
restitution as allowed by law in both cases." Petitioner does not support these claims for relief with any
authority, and Respondent is unaware of any authority for such relief.
 that he has not been afforded the opportunity to file a motion for costs in the 2007

Case because there has been no final order entered upon which to make such

motion. See Petition at 9, 10. Washington Mutual in the 2007 Case was properly

represented by attorneys from the same law firm, and thus, the Notice served to

properly dismiss the action pursuant to Rule 1.420. Thus, if Petitioner were

entitled to recover costs, which Respondent does not concede, he had thirty (30)

days from the service of the Notice, pursuant to Rule 1.525, to do so. Petitioner

failed to avail himself ofthis procedural remedy, nor did he seek a timely appeal of

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taken. Therefore, the Petition should be denied.

II. Argument

It is well settled in Florida that "a party petitioning for a writ of mandamus

must establish a clear legal right to performance of the act requested, an

indisputable legal duty, and no adequate remedy at law." See Smith v. State, 696

So. 2d 814, 815 (Fla. 2d DCA 1997); see also City of Bradenton v. Johnson, 989

So. 2d 25, 26 (Fla. 2d DCA 2008) ("[MJandamus is a common law remedy to

enforce an established legal right by compelling a public officer or agency to

perform a legally required ministerial duty."). Thus, Petitioner, to obtain the relief

sought here, must establish that he has a legal right to have the 2007 Case
 reinstated and the Pending Forec1osure dismissed, that the lower court has a duty to

do so, and that he had no adequate remedy at law. The Petition fails on all

elements.

A. Petitioner is not entitled to have the 2007 Case reinstated as it was

properly dismissed pursuant to Rule 1.420(a).

Rule 1.420(a), provides, in relevant part, "an action may be dismissed by

plaintiff without order of court ... by serving, ...a notice of dismissal at any time

before a hearing on motion for summary judgment." The Rule also states that

unless otherwise provided in the notice, the dismissal will be without.prejudicec., -v , , •• :

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The service and filing of a notice of voluntary dismissal generally: .."deprivesthe.i.;

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trial court of jurisdiction over the case." See Ambory v. Ambory, 442 So. 2d 1087,

1088 (Fla. 2d DCA 1983).

This Court has held pursuant to Rule 1.420(a), parties have an "absolute .._

right to take a voluntary dismissal as a matter of right," with limited exception,

See Service Experts, LLC v. Northside Air Conditioning & Electrical Service, Inc.,

-- So. 3d --,35 Fla. L. Weekly D2512 (Fla. 2d DCA November 17,2010); see also

Fears v. Lunsford, 314 So. 2d 578, 579 (Fla. 1975)("We hold that the plaintiffs

right to take a nonsuit or voluntary dismissal is absolute"). The exceptions to the

absolute right are "( 1) if there is fraud on the court, (2) if the defendant can

establish the common law exception to the right of voluntary dismissal, or (3) if the

plaintiff dismisses the case at a state which is deemed the equivalent of a summary
judgment." See Service Experts, 35 Fla. L. Weekly D25l2 at *3. Petitioner does

not argue that the second or third exceptions apply, rather posits that since the

Notice was not filed until after the time scheduled for the trial court to hear

Petitioner's Motion to Dismiss, and was filed by an attorney "not of record," that

the Notice constitutes a fraud on the court. See Petition at 17. The Service Experts

decision states "only under the right circumstances can fraud allegations support a

trial court's decision to strike a plaintiffs notice of voluntary dismissal." See 35

Fla. L. Weekly D25l2 at *5. Such circumstances include situations in which a:

1089, 1090 (Fla. 3d DCA 1979) .

. Petitioner has not put forth sufficient allegations of fraudulent.conduct .by.. - - - _

any party to warrant vacating the Notice. Plaintiff in the 2007 Case had not

received any affirmative relief which is sought to prevent the court from reversing.

Indeed, the plaintiff had attempted to dismiss the action weeks before, but by the

wrong method, according to the Judge's Memorandum. Pursuant to the Judge's

Memorandum, and Rule 1.420(a), the plaintiff served its Notice before the hearing

on Petitioner's Motion to Dismiss.

Petitioner argues that the Notice was a legal nullity because it was signed by

a different attorney than the attorney who had signed the original complaint. As
 stated above, FDLG and Echevarria, Codilis, and Stawiarski are one in the same,

entity, having properly registered the fictitious name with the Florida Department

of State Division of Corporations. Thus, there can be no dispute that the plaintiff

was appropriately represented and the Notice a valid exercise of the plaintiffs

rights under Rule 1.420. As such, Petitioner's arguments are without merit, and the

Petition should be denied.

B. Petitioner is not entitled to recover costs from the dismissal of the

2007 Case .

. Petitioner asserts that he has .been unable to seek his costs in the..2007.'-case.,.... cc

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2007 Case by the trial court. As discussed above, the 2007 Case was properly

voluntarily dismissed by service of the Notice prior to trial or hearing on a motion

for summary judgment. Upon voluntary dismissal of an action; -the Rules provide .

for methods by which an adverse party may recover its costs. Rule 1.420( d)

provides: "Costs in any action dismissed under this rule shall be assessed and

judgment for costs entered in that action, once the action is concluded as to the

party seeking taxation of costs." Rule 1.525 provides the time frame in which a

motion for costs must be filed:

Any party seeking a judgment taxing costs, attorneys' fees, or both

shall serve a motion no later than 30 days after filing of the judgment,
including a judgment of dismissal, or the service of a notice of
voluntary dismissal, which judgment or notice concludes the action as
to that party.
 Thus, a party seeking to recover costs pursuant to Rule 1.420(d), must file a motion

for such costs within 30 days of service of a notice of voluntary dismissal. See

Melton Mgmt, Inc. v. Krott-Shaughnessy, 872 So. 2d 320, 321 (Fla. 4th DCA

2004); Ramos v. Orthodontic Centers of Fla., Inc., 893 So. 2d 663, 664 (Fla. 4th

DCA 2005). Although, as stated above, a voluntary dismissal generally divest a

court of jurisdiction, "a voluntary dismissal does not divest the court of jurisdiction

to conclude ancillary matters involved in the case such as outstanding and

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Motion for Costs in the 2007 Case within 30 days of the service of the Notice, and

thus cannot now recover any costs.

-<> - • "'-~:-~_.-_.- Respondent recognizes that Rule 1.420(cl) provides a meG:llanism-by"which-a' -=:': -,,---

party may seek costs from a previously dismissed action in a subsequently filed

action and that the subsequent action may be stayed until such costs are paid. This

provision of Rule 1.420( d) does not apply under these circumstances as there is no

identity of the parties. This Court, in Deluca v. Harriman, 402 So. 2d 1205, 1207

(Fla. 2nd DCA 1981) found that Rule 1.420(d) "requires identify of adverse

parties," and where the parties in the second suit are not identical to those in the

first suit, the trial court errs in staying the second action. The plaintiff in the 2007

Case is not the same as in the Pending Foreclosure. Thus, there is no identity of
 parties, and Petitioner is not entitled to invoke the final provision of Rule 1.420( d)

to stay the Pending Foreclosure.

As Petitioner is not entitled to recover costs in the 2007 Case for his failure

to timely file a motion for costs after service of the Notice, Petitioner is unable to

establish a clear legal right required for a writ of mandamus.

c. The trial court has no duty to reinstate the 2007 Case or dismiss
the Pending Foreclosure.

As stated above, a writ of mandamus is only appropriate to force a tribunal

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subsequent to a valid notice of voluntary dismissal or to dismiss the Pending

Foreclosure as between a different plaintiff and Petitioner. Rather, the-trial-court's

Although pro se litigants are given, "procedural latitude, a practice effected to

ensure access to the courts for all citizens, pro se litigants are not immune from the

rules of procedure." See Barrett v. City of Margate, 743 So. 2d 1160, 1162 (Fla.

4th DCA 1999). Petitioner did not avail himself of the procedural remedy

available to him, and cannot now complain that his failure to do so is the fault of

the trial court, counsel for Washington Mutual, or Respondent.

Petitioner has made no argument in support of his request that the Pending

Foreclosure action be dismissed, and cites no authority which would allow for the
 dismissal of the action. As such, the Petition should be denied.

D. Petitioner had an adequate remedy at law to seek costs

As discussed above, Petitioner had an adequate remedy at law to seek to

recover any costs he may have incurred in the 2007 Case. Rules 1.420( d) and

1.525 provide that Petitioner had thirty (30) days from the service of the Notice to

seek recovery of his costs. Petitioner failed to do so, and his failure to do so should

not prevent Respondent from proceeding in the Pending Foreclosure.

Had Petitioner timely sought recovery of his costs in the 2007 Case, he
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Petitioner had an adequate remedy at law, and therefore is not entitled to a writ of

_ mandamus in this matter.

..

III. Conclusion

Petitioner is unable to establish any entitlement to a writ of mandamus in

this action. Petitioner has no legal right, at this stage in the proceedings, to recover

costs from Washington Mutual that Petitioner incurred in defending the 2007 Case.

Petitioner failed to articulate any legal or ministerial duty of the trial court or

Respondent to provide the relief requested. Petitioner also had available to him an

adequate remedy at law to recover his costs in the 2007 Case, but failed to avail

himself of such procedural opportunities. Thus, Petitioner has failed to establish

 that he is entitled to any of the relief requested in the Petition, and Respondent

should be able to proceed without further delay in prosecuting the Pending

Foreclosure.

CERTIFICATE OF COMPLIANCE

I, the undersigned counsel for Respondent, hereby certify that this Response

complies with the font requirement of Fla. R. App. Pro. 9.100(1).

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

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Erin M. Berger
Florida Bar #014977
Kass, Shuler, Solomon, Spector, Foyle &
Singer, P .A., Attorneys for Respondent
P.O. Box 800, 1505 N. Florida Ave.
Tampa, FL 33601
(813) 229-0900
eberger@kasslaw.com
 IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

LARRY R. BRADSHAW.,

Petitioner, Appeal No. 2DIO-5604

v.
Lower Tribunal Case No.
2009CA-001575

WASHINGTON MUTUAL BANK F/KiA

WASIDNGTON MUTUAL BANK, FA
SUCCESSOR BY MERGER TO BANKUNITED
- FSB FIKIA BANK UNITED OF TEXAS, FS,
___.USBANK NATIONAL ASSQCIATIQNAS- ... ~-"".---~ . '-'---'-~ ." .-
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----------------------------~/

RESPONDENT'S APPENDIX TO RESPONSE TO PETITION FOR WRIT·

OF MANDAMUS
-,7.2...-- ....

1. Mortgage Foreclosure Complaint Case No. 06-CA-004271

2. Mortgage Foreclosure Complaint Case No. 07-CA-001562, attached hereto
as Respondent's Appendix 2
3. Florida Department of State Division of Corporations website printout and
Application for Registration of Fictitious Name
4. Mortgage Foreclosure Complaint ~ase N~ ?8-CA-055974

~(\\~~~
Erin M. Berg
Florida Bar #014977
Kass, Shuler, Solomon, Spector, Foyle &
Singer, P.A., Attorneys for Respondent
P.O. Box 800, 1505 N. Florida Ave.
Tampa, FL 33601
(813) 229-0900
eberger@kasslaw.com