Legal Question in Civil Litigation in Florida

I am a defendant in a civil suit for damages, and imposition of a constructive trust and other available relief which has slowly been going on for over a little over 2-1/2 years. A lis pendis has been placed on our house in Florida and our home in another state. We have used all of our savings on legal fees, over $100,000. I am now representing myself and my husband per se. I was a acourt reporter for over 30 years so have some knowledge, butr not all. I discovered this within the first six months of the onset and told my attorney. I asked him to file a Motion to Dismiss

My question is: The plaintiff's filed this lawsuit with two Florida Statutes that are not statutes and, in fact, do not exist and have never existed. I checked this out with Tallahassee. They also filed it in addition to these two non-existent Florida Statutes, as "this is also an action for equitable relief within the jurisdiction of this court under Article V 20(c)(3) of the Florida Constitution".

I discovered this in the first six months and I asked my lawyer to file a Motion to Dismiss the complaint based on the plaintiff's failure to state a cause of action.

He never did it. His answer was that the Judge would just allow them to change those two Fl Statutes and continue.

Now that I am per se, I want to file the Motion to Dismiss. What do you advise or

can you tell me about this?

Betty


Asked on 9/13/09, 2:51 pm

3 Answers from Attorneys
Sarah Grosse Sarah Grosse, Esquire

You are PRO SE (not per se). After 2 1/2 years and $100K in legal fees, this case obviously did not just start. There has to be an extensive file history, which no one here can know.

As for filing a Motion to Dismiss, it is a procedural matter and is within the discretion of your attorney. Sometimes an attorney must proceed according to his client's wishes (such as in a settlement), but filing a motion is a procedural matter, and you cannot make your attorney file a Motion.

You already know about Motions to Dismiss, apparently. So, I'm not sure what, in general, you would like to be told about them. At this late stage in the game, you might want to look into whether it's time to file a Motion for Summary Judgment, or whether it's even too late for that. You would do well to read the FL Rules of Civil Procedure. You also need to obtain your full file from the attorney and read it all.

Good luck to you.

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Answered on 9/13/09, 3:08 pm
David Slater David P. Slater, Esq.

A motion to dismiss can be made anytime. You are pro se, not per se.

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Answered on 9/13/09, 3:08 pm
Alan Wagner Wagner, McLaughlin & Whittemore P.A.

If the statutes referenced incorrectly do exist, but the complaint just gives the wrong number, your laweyer was correct -- the judge would simply allow them to correct the error. If the law simply does not exist, then you can file a motion for sunmmary judgment for failure to state a cause of action.

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Answered on 9/13/09, 3:25 pm


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