Motion to Compel Court to Comply

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MIAMI-DADE COUNTY

GENERAL JURISDICTION DIVISION

CASE NO.: 99-21062 CA 15

NORMAN LANSON,
MERYL LANSON, and
BARON’S STORES, INC., a Florida
Corporation,

Plaintiffs,

vs.

RONALD C. KOPPLOW, ESQ.,
KOPPLOW & FLYNN, P.A., a Florida
Professional Association, MARC
COOPER, ESQ., COOPER & WOLFE, P.A.,
a Florida Professional Association,
SONYA L. SALKIN, ESQ., and
MALNIK & SALKIN, P.A., a Florida
Professional Association,

Defendants.
_______________________________________/

PLAINTIFFS’ MOTION TO COMPEL COURT
TO COMPLY PREVIOUS COURT ORDERS

COMES NOW, Plaintiffs, Meryl Lanson, Pro Se, and Norman Lanson, through his undersigned counsel, and files their Motion to Compel the Court to Comply with Previous Court Orders, and further states as follows:
1. On September 13, 2005, the late Judge Manuel Crespo entered an Order Granting Defendants’ Motion for Partial Summary Judgment on Claims of Emotional Distress, and Deferring Ruling on Claims for Reputation Damage. (Exhibit #1)
2. In its Order, the Court stated that it was deferring ruling on reputation damages until the Plaintiffs had filed their Motion for Leave to Amend Complaint to include allegations for reputation damages.
3. The Plaintiffs have requested a hearing on their Motion for Leave to File a Third Amended Complaint, but have been deprived of that hearing, as ordered by Judge Crespo. Furthermore, this Court, at the very first hearing held on April 24, 2008 said that the Second Amended Complaint was a mess and it would have to be cleaned up.
4. Plaintiffs cleaned up the “mess” and filed a Third Amended Complaint. This Court refuses to have a hearing on the Third Amended Complaint and has deprived the Plaintiffs their right to Amend pursuant to Judge Crespo’s Order and this Court’s instructions.
5. In addition, the Plaintiffs are requesting the Court to comply with Senior Judge Herbert Stettin’s February 14, 2008 signed Agreed Order reserving Plaintiffs’ right to challenge all of the Defendants’ Amended Affirmative Defenses at an evidentiary hearing. (Exhibit #2)
6. Pursuant to that Agreed Order, Plaintiff had twenty days to challenge the Amended Affirmative Defenses. On March 4, 2008, Plaintiffs challenged § 87 and § 88 of the Defendants Amended Affirmative Defenses by filing a Motion to Strike as a Sham Pleading pursuant to FRCP 1.150.
FRCP 1.150 states:
Rule 1.150 (a) contemplates a full evidentiary hearing where the parties have the opportunity to offer evidence on the issue of whether the pleading attacked alleges a cause of action or defense that is false in fact. The rule provides that “the court shall hear the motion, taking evidence of the respective parties.” Fla. R. Civ. P. 1.150(a).
7. On March 4, 2008, Plaintiffs filed “Plaintiffs’ Motion to Stay and/or for a Continuance of the Hearing on Defendants’ Motion for Summary Judgment as to All Claims Brought by “Baron’s Stores, Inc.,” or, in the alternative, Motion to Strike “Baron’s Stores, Inc.” as a Party Plaintiff.

On Page 3, No. 6 states:

“The Defendants scheduled a hearing before this Court on the MSJ for March 18, 2008. This hearing should be stayed for four reasons:

A. On Page 5 of that Motion, No. 11:

“Second, because Kopplow and Cooper, in § 87 and § 88 of their Amended Affirmative Defenses, have inserted a new issue into this case, nearly eight and one-half years after it was filed, Plaintiffs are entitled to take discovery regarding the circumstances surrounding the filing of the alleged Amended Plan of Liquidation upon which the Defendants rely. By e-mail dated February 28, 2008, counsel for Plaintiffs informed Defendants that they were going to depose Defendant Sonya Salkin, Esq. who represented Baron’s in the bankruptcy proceeding, and Cathy Herschcopf, Esq., who was an attorney for the Creditor’s Committee in the bankruptcy case, and asked for dates when they would be available for same. To date, March 4, 2008, only counsel for Kopplow has responded, and has only provided dates on which he would be available for the deposition of Salkin. Further, these are only the first two witness Plaintiffs will need to depose regarding this issue.

8. It is well-settled that summary judgment is inappropriate when discovery is ongoing, and the “facts were not so crystallized that nothing remained but questions of law.” St. Fort v. Florida Department of Transportation, 688 So.2d 469 (Fla. 4th DCA 1997). Put differently, summary judgment should not be granted until the facts are “sufficiently developed to enable the trial court to be reasonably certain that no genuine issue of material fact existed.” Sanchez v. Sears, Roebuck and Co., 807 So.2d 196 (Fla. 3rd DCA 2002). Accordingly, the Defendants’ MSJ should be stayed pending the completion of discovery on this issue…

9. Third, as set forth above, Plaintiffs are not required to serve their responses to Kopplow’s and Cooper’s Amended Affirmative Defenses until March 5, 2008. At that time, Plaintiffs will be serving, inter alia, a Motion to Strike § 87 and § 88 of Kopplow’s and Cooper’s Amended Affirmative Defenses as a Sham Pleading. This Court will need to resolve that issue prior to hearing Defendants’ MSJ.

10. Fourth, as a related corollary to the third reason, until this Court resolves Plaintiffs’ Motion to Strike § 87 and § 88 of Kopplow’s and Cooper’s Amended Affirmative Defenses as a Sham Pleading, Plaintiffs are not required to serve their reply to those Affirmative Defenses. Fla. R. Civ. P. 1.140 (a) (2); Fla. R. Civ. P. 1.100(a). Until the Plaintiffs serve their reply to those Affirmative Defenses, the pleadings are not closed and summary judgment should not be granted. Lakes of the Meadow v. Arvida/JMB Partners, L.P., 714So. 2d 1120,. 1122 (Fla. 3rd DCA 1998) (The movant’s burden is an especially heavy one where, as here, the pleadings are not closed.”)

11. As noted in the Transcript on the hearing held on October 15, 2008 – Page 87 Line: 17 through Page 88 Line 17:

Ms. Lanson: I want a hearing on those fraudulent documents that we are entitled to.

The Court: I’m not giving you one.

Ms. Lanson: You’re not giving me a hearing on the 87 and 88 –

The Court: No, because I’ve explained to you on numerous occasions why not, and I’m not going over it again.

Ms. Lanson: You follow Judge Hyman when you want to –

The Court: Please give me – please give me a date.

Ms. Lanson: I want an order that you’re not giving us an evidentiary hearing on the --

The Court: Miss Lanson, you are in no position to dictate to me; I don’t care what you’re suffering from. I will not have you dictate to me what you want and when you want it and how you want it. If you want an order on that, you drat one; I will edit it and sign it. The same thing that I do for these attorneys; they have to draft their orders, I will edit it and sign it. So you go ahead and draft it; I will edit it and sign it. But don’t you dictate to me.

12. This Court has previously been put on notice of Judge Stettin’s Order. However, this Court has refused to abide by Judge Stettin’s February 14, 2008 Order. The Plaintiffs were deprived the benefit of their bargain, pursuant to the Agreed Order entered on February 14, 2008.
13. To this date, Judge Cohen refuses to abide by Judge Crespo and Judge Stettin’s previous Orders to the detriment and prejudice of the Plaintiffs.
WHEREFORE, the Plaintiffs request a hearing to compel the Court to comply with the following prior Orders:
a) Judge Crespo’s September 13, 2005 Order Granting Defendants’ Motion for Partial Summary Judgment on Claims of Emotional Distress, and Deferring Ruling on Claims for Reputation Damage until the Plaintiffs had filed their Motion for Leave to Amend Complaint to include allegations for reputation damages.

b) Judge Stettin’s February 14, 2008 Agreed Order.
Respectfully submitted,

By: ____________________
Mary Alice Gwynn, Esq.



By: _____________________
Meryl M. Lanson, Pro Se

















CERTIFICATE OF SERVICE

I HEREBY CERTIFY that true and exact copies of the foregoing were forwarded by electronic mail, facsimile and/or U.S. Mail on November 5, 2008, to all parties on the attached Service List.


Mary Alice Gwynn, P.A.
805 George Bush Boulevard
Delray Beach, FL 33483
Telephone: 561-330-0633
Facsimile: 561-330-8778
E-mail: mgwynnlaw@aol.com

By: _______________________
Mary Alice Gwynn, Esq.
Florida Bar No.: 879584
Meryl M. Lanson, Pro Se
18652 Ocean Mist Drive
Boca Raton, FL 33498
Telephone: 561-488-2740
Facsimile: 561-488-2861
E-mail: mlanson@bellsouth.net


By: ____________________
Meryl M. Lanson, Pro Se



SERVICE LIST


Robert M. Klein, Esq.
Stephens, Lynn, Klein
Two Datran Center, PH II
9130 South Dadeland Blvd.
Miami, FL 33156

Lauri Waldman Ross, Esq.
Ross & Girten, P.A.
Two Datran Center – Suite 1612









9130 South Dadeland Boulevard
Miami, Florida 33156

Lewis N. Jack, Jr., Esq.
P.O. Box 330519
Miami, FL 33233

Charles W. Throckmorton, Esq.
Kozyak Tropin & Throckmorton, P.A.
2525 Ponce de Leon Blvd., 9th Floor
Coral Gables, FL 33134

Reggie D. Sanger, Esq.
208 S.E. 9th Street
Ft. Lauderdale, FL 33316