February 15, 2013 - Supreme Court...ROBERT CRAIG MACLEOD Appellant v. CITIBANK, (SOUTH DAKOTA) N.A., et al., Appellees February 15, 2013 SC13-0071 5* DCA: 5D12 CA 000È6 7* CIRCUIT:

ROBERT CRAIG MACLEODAppellant

v.CITIBANK, (SOUTH DAKOTA) N.A., et al.,

Appellees

February 15*, 2013

SC13-0071

5* DCA: 5D12 CA 000È67* CIRCUIT: 2010 CA 002

Chief Justice Charles T. CanadyAttention: Hon. Clerk Thomas D. HallSupreme Court of the State ofFlorida500 South Duval StreetTallahassee FL 32399-1927

Sub.: Case SC13-0071 Appeal Submittal: Direct Conflict of Decisions

Dear Hon. Clerk Thomas D. Hall,

Please accept Appellant's Appeal as identified above.

There is no legal rational for the order subjudice which directly conflicts with toomany fundamental principles of law and procedure. A trial court is not allowed to reacha decision without hearing the matter or ordering any amendment while dismissing withprejudice. A trial court is not allowed to dismiss an action pursuant to a motion todismiss purporting an avoidance or defense; i.e., a motion to dismiss may onlychallenge the legal sufficiency of allegations (taken as true) to support the cause ofaction. A trial court is not allowed to consider unsupported assertions outside the fourcorners of the complaint. Consequently the 5* DCA is not allowed to PCA vis-à-visMandate which conflicts with the record proper.

Moving beyond this appeal, once a defense has been improperly pled in a motion todismiss, pursuant to the Doctrine of Waiver, the defense is forever barred.

Assuming arguendo, even if an improper motion to dismiss (alleging facts anddefenses outside the four corners of the complaint) was allowed; a complainant by lawhas a right to be heard on the matter and given opportunity to amend. The complaint subjudice was easily amended [Second Amended Complaint, February 14, 2012 (R II/259-266)] by the Appellant to the courts specifications but was refused reconsideration.

Respectfu

Robert Crai acLeod34 Russman Lane, Palm Coast, FL 32164 (386) 334-0864

Supreme Court of floríbaROBERT CRAIG MACLEOD SC13-0071

Appellant Lower Tribunal:5* DCA: 5D12 CA 000665

v. 7* Circuit: 2010 CA 002193

CITIBANK, (SOUTH DAKOTA) N.A., et al.,

Appellees /

February 15*, 2013

APPEAL BRIEF

DIRECT CONFLICT OF DECISIONS

ROBERT CRAIG MACLEOD34 Russman LanePalm Coast, FL 32164(386) 334-0864

Forma Pauperis Pro Se

I. TABLE OF CONTENTSII. Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

• SUMMARY..................................................... viiIII. APPEAL - CONFLICT OF DECISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1IV. BASIS FOR INVOKING JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

• CA USE OFACTION AGAINST CITIBANK, et al . . . . . . . . . . . . . . . . . . . . 3• EVIDENCE BEFORE THE COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

• PUNITIVEDAMAGES .......................................... 3V. DIRECT CONFLICT WITH DECISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. VIOLATION OF DUE PROCESS OPPORTUNITY . . . . . . . . . . . . . . . . 42. IMPROPERMOTIONTODISMISS ............................. 63. DISMISSAL WITH PREJUDICE ................................ 94. DOCTRINE OF WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125. ADDITIONS ................................................. 12

VI. STATEMENTOFFACTSFROMTHERECORD..................... 15VII. REQUESTEDRELIEF ............................................ 17VIII. ARGUMENT vis-à-vis THE ORDER SUB JUDICE . . . . . . . . . . . . . . . . . . . . 18IX. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23X. CONFLICT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23XI. DISMISSAL WITH PREJUDICE WAS UNAUTHORIZED . . . . . . . . . . . . . 26XII. BASED ON DECISION CONFLICT THE ORDER SHOULD BE VOIDED 27Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29Certificate of Compliance with Font Requirement . . . . . . . . . . . . . . . . . . . . . . . . 29

Table of Contents Page: i

Cases II. CASE CITATIONS PageAdams v. Knabb Turpentine Co.435 So.2d 944, 946 (Fla. 1"' DCA 1983) 11, 27

Babb v. Edwards412 So.2d 859 (Fla. 1982) 24, 25

Barbado v. GREEN & MURPHY, PA,758 So. 2d 1173 (Fla 4th DCA 2000) 7, 13

Bared v. Miami Professional Sports Ltd.353 So.2d 167 (Fla. 3'd DCA 1978) 14, 19, 20, 22

Bess v. Eagle Capital, Inc.704 So.2d 621 (Fla. 4* DCA 1997) 6, 13

Bill Williams Air Conditioning & Heating, Inc. v. Havmarket Cooperative Bank592 So.2d 302, 305 (Fla. 1st DCA 1991) 11, 27

Board ofEducation v. Farmingdale Classroom Teachers Assoc38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E2d 278 (1975) 26

Briscoe v. LaHue460 U. S. 325 (1983) 14

Brown v. Rowe96 Fla. 289, 118 So. 9 (Fla.1928) 23, 24

Bundv v. Rudd366 So.2d 440, 442 (Fla.1978) 23, 24

Byrd v. Leach226 So.2d 866 (Fla. 4* DCA 1969) 14, 19, 20, 22

Caleffe v. Vitale488 So.2d 627 (Fla. 4th DCA 1986) 24, 25

Castro v. Luce650 So.2d 1067 (Fla. 2"d DCA 1995) 1, 17, 29, App. 2 p. 1

Chaires v. North Florida National Bank432 So.2d 183 (Fla. 1®' DCA 1983) 8

Case Citations Page: i

Connollv v. Sebeco, Inc89 So.2d 482, 484 (Fla.1956) 7, 8

Corie v. Citv ofRiviera Beach954 So. 2d 68 (Fla. 4* DCA 2007) 24, 25

Countryside Christian Center, Inc. v. City ofClearwater542 So.2d 1037 (Fla. 2"d DCA 1989) 10

Crews v. Ellis531 So.2d 1372 (Fla. 1"* DCA 1988) 8, 10, 13

Crosby v. State97 So.2d 181 (Fla. 1957) 10

Curbelo v. Ullman571 So.2d 443, 445 (Fla.1990) 4

Dawson v. Blue Cross Association293 So.2d 90 (Fla. 1®' DCA 1974) 8, 13

Delia & Wilson, Inc. v. Wilson448 So.2d 621 (Fla. 4* DCA 1984) 10

Dep't ofLaw Enforcement v. Real Prop.588 So.2d 957, 960 (Fla. 1991) 4

Department ofRevenue v. Golder322 So. 2d 1 (Fla. 1975) 23, 25

Dickenson v. Parks104 Fla. 577, 140 So. 459 (1932) 10

Dingess v. Fla. Aircrafl Sales & Leasing, Inc.442 So.2d 431 (Fla. 5* DCA 1983 11

Downtown Investments, Ltd. v. Segal551 So.2d 561 (Fla. 3'd DCA 1989) 11

East Naples Water Svstems, Inc. v. Board ofCounty Commissioners ofCollier County457 So.2d 1057, 1059 (Fla. 2"d DCA 1984) 8, 13

Case Citations Page: ii

First Union Nat. Bank v. Turnev824 So.2d 172, 189 (Fla. 1" DCA 2001) 19

Fish v. Post ofAmvets No. 85560 So.2d 337, 339 (Fla. 1" DCA 1990) 12, 13

Folev v. Weaver Drugs, Inc177 So.2d 221 (Fla. 1965) 2

Frow v. De La Vega, 82 U.S. (15 Wall)552, 21 L.Ed. 60 (1872) 18

Gerentine v. Coastal Security Svstems529 So.2d 1191 (Fla. 5* DCA 1988) 10

GulfCoast Fans, Inc. v. Midwest Electronics Importers, Inc740 F.2d 1499, 1512 (11* Cir.1984) 18

Hamide v. State Dep't ofCorrections548 So.2d 877 (Fla. 1" DCA 1989) 8, 10

Horn v. Marine Hospitality Corp745 So 2d 329, 330 (Fla. 4* DCA 1998) 3

Huffv. State569 So. 2d 1247 (Fla. 1990) 14

J.B. v. Fla. Dep't ofChildren & Family Servs768 So.2d 1060, 1063 (Fla. 2000) 4

Jenkins v. State385 So.2d 1356 (Fla. 1980) 2

Johnson v. Studstill71 So.2d 251. (Fla. 1954) 14, 19, 20, 22

Kovach v. McLellan564 So. 2d 274, 276 (Fla. 5* DCA 1990) 10, 11

Kozel v. Ostendorf629 So.2d 817 (Fla. 1993) 26, 27

Case Citations Page: iii

Lewis State Bank v. Travelers Insurance Company356 So.2d 1344, 1345 (Fla. 1* DCA 1978) 8, 13

Lowe Inv. Corp. v. Clemente685 So. 2d 84, 85 (Fla. 2"d DCA 1996) 3Martin v. Eastern Airlines, Inc630 So.2d 1206 (Fla. 4* DCA 1994) 6, 9

McLaughlin v. Department ofHighway Safety & Motor Vehicles2 So. 3d 988, 989 (Fla. 2"4 DCA 2008), mandate recalled, 4 So. 3d 676 (Fla. 2009) 1

Miracle Ctr. Assocs. v. Scandinavian Health Spa, Inc889 So. 2d 877, 878 (Fla. 3'd DCA 2004) 12

National Football League Players Assoc. v. Office and Prof. Employees Intern. Union, Local2947 F. Supp. 540, 545 (D.D.C.1996) 26

Noack v. B.L. Watters, Inc410 So.2d 1375 (Fla. 5* DCA 1982) 14, 19, 20, 22

Pizzi v. Central Bank & Trust Company250 So.2d 895, 897 (Fla. 1971) 8

Roger Rankin Enterprises v. Green433 So.2d 1248 (Fla. 3'd DCA 1983) 11

Russ v. State95 So.2d 594 (Fla. 1957) 28

Rvan's Furniture Exch., Inc. v. McNair120 Fla. 109, 162 So. 483, 487 (1935) 4

Shields, 528 So.2d at 968; Niki Unlimited, Inc. v. Legal Servs. ofGreaterMiami483 So.2d 46, 48 (Fla. 3rd DCA 1986) 4

Sigma Fin. Corp. v. Investment Loss Recoverv Servs, Inc.673 So.2d 572 (Fla. 4* DCA 1996) 12, 13

Singer v. Singer442 So.2d 1020, 1022 (Fla. 3'd DCA 1984) 12

Case Citations Page: iv

Solorzano v. First Union MORTG Corp896 So.2d 847, 849 (Fla. 4* DCA 2005) 14

Staples v. Battisti191 So.2d 583, 585 (Fla. 3rd DCA 1966), cert. denied 196 So.2d 926 (1967) 9

State ex rel. Davis v. Parks141 Fla. 516, 194 So. 613 (1939) 10

State ex rel. Mickle v. Rowe100 Fla. 1382, 131 So. 3331 (1930) 10

THI Holdings, LLC v. Shattuck93 So. 3d 419 (Fla. 2"4 DCA 2012) 14

Temples v. Florida Industrial Construction Co310 So.2d 326, 327 (Fla. 2"d DCA 1975) 6

Thompson v. Inv. Mgmt. & Research745 So. 2d 475, 476-477 (Fla. 5* DCA 1999) 10, 27

Torres v. K-Site 500 Assocs632 So.2d 110, 112 (Fla. 3'd DCA 1994) 12

U.S. for Use ofHudson v. Peerless Ins. Co374 F.2d 942 (4* Cir.1967) 18

United Servs. Auto. Ass'n v. Selz637 So.2d 320 (Fla. 4* DCA 1994) 7

University ofFlorida v. McLarthy483 So. 2d 723 (Fla. 1" DCA 1985) 1

Victor v. News & Sun Sentinel Company467 So.2d 499, 500 (Fla. 4* DCA 1985) 4

Viets v. Am. Recruiters Enters, Inc.922 So. 2d 1090 (Fla. 4* DCA 2006) 4, 6

Ward v. Atlantic Security Bank777 So.2d 1144, 1146 (Fla. 3'd DCA 2001) 14

Case Citations Page: v

Wilcox v. Raintree Inns ofAmerica, Inc76 F.3d 394 (10* Cir.1996) 18

Statutes and Other Legal Authorities: P_age§ 1.110(d)§ 1.110(f)§ 1.19(a)§ 1.540(b)(3)§ 1.540(b)(4)§ 9.03 (a)(2)(iv)§ 9.100§ 9.340§ Section 3(b)(3)§ 559.72§ 1, 2A, 2B, 5A(6), 3C(1), 3E(1)(c)

Fla. R. Civ. P. 1, 6, 7, 9, 17, 29Fla. R. Civ. P. 5, 19Fla. R. Civ. P. 1, 9, 11, 15, 17, 29Fla. R. Civ. P. 1, 17, 29Fla. R. Civ. P. 1, 4, 17, 29Fla. R. App. P. 1, 2, 17, 29Fla. R. App. P. 1, 2, 17, 29Fla. R. App. P. 1, 17, 29Florida Constitution Article V 1, 2, 17, 29Fla. Stat. 3, 5Code of Judicial Conduct 25

Case Citations Page: vi

SUMMARYThere is no legal rational for the order subjudice which directly conflicts with too many

fundamental principles of law and procedure. A trial court is not allowed to reach a

decision without hearing the matter or ordering any amendment while dismissing with

prejudice. A trial court is not allowed to dismiss an action pursuant to a motion to dismiss

purporting an avoidance or defense; i.e., a motion to dismiss may only challenge the legal

sufficiency of allegations (taken as true) to support the cause of action. A trial court is not

allowed to consider unsupported assertions outside the four corners of the complaint.

Consequently the 5* DCA is not allowed to PCA vis-à-vis Mandate which conflicts with

the record proper.

Moving beyond this appeal, once a defense has been improperly pled in a motion to

dismiss, pursuant to the Doctrine of Waiver, the defense is forever barred.

Assuming arguendo, even if an improper motion to dismiss (alleging facts and defenses

outside the four corners of the complaint) was allowed; a complainant by law has a right to

be heard on the matter and given opportunity to amend. The complaint subjudice was

easily amended [Second Amended Complaint, February 14, 2012 (R II/259-266)] by the

Appellant to the courts specifications but was refused reconsideration.

Case Citations Page: vii

IIL APPEAL - CONFLICT OF DECISIONS

COMES NOW, Appellant, Robert Craig MacLeod, pursuant to Article V, Section

3(b)(3) of the Florida Constitution and Fla. R. App. P. 9.03 (a)(2)(iv), Discretionary

Jurisdiction: Fla. R. App. P. Rule 9.340-1, Recall Mandate; Fla. R. App. P. 9.100; Fla. R.

Civ. P. 1.190(a), Liberality in Amendment of Pleadings; Fla. R. Civ. P. 1.540(b)(3),

Relief from an Order based on Opposing Party Fraud; Fla. R. Civ. P. 1.540(b)(4)

Judgment Void if no Opportunity to be Heard; Fla. R. Civ. P. 1.110(d) An Avoidance

must be Pled in an Answer (not in a motion to dismiss); and respectfully moves this

Court to grant his Appeal and that this Court enter an order to show cause addressing why

the order of the 5* DCA, FL, regarding denial ofRecall ofMandate dated January 1**,

2013, is not improper and ultimately (1) set aside said order, and (2) directing the 5*

DCA to remand the matter to a neutral trial court (without a conflict of interest) pursuant

to the conflict of decisions enumerated below, or, (3) the Court should assign a neutral

Judge to the 7* Circuit to "hear, conduct, try and determine" Petitioner's cause according

to procedure with cold neutrality and without prejudice;-2 And, any other relief the court

deems requisite and proper in the furtherance ofjustice; and, states as follows:

1 A timely motion to recall and modify a mandate may be an appropriate response to aconflict PCA [McLaughlin v. Department ofHighway Safety & Motor Vehicles, 2 So.3d 988, 989 (Fla. 2"4 DCA 2008), mandate recalled, 4 So. 3d 676 (Fla. 2009);University ofFlorida v. McLarthy, 483 So. 2d 723 (Fla. 1®l DCA 1985), mandaterecalled; See discussion from: The Florida Bar Journal April, 2011 Volume 85, No. 4,The Conflict PCA: When an Affirmance Without Opinion Conflicts with a WrittenOpinion by Ezequiel Lugo]

2 Castro v. Luce, 650 So.2d 1067 (Fla. 2"d DCA 1995); Appellant was entitled tohave the successor judge designated by the Chief Justice of The Supreme Court because

1

IV. BASIS FOR INVOKING JURISDICTION

This Court has jurisdiction over this matter pursuant to Article V, Section 3(b)(3) of

the Florida Constitution and Fla. R. App. P. 9.03 (a)(2)(iv), Discretionary Jurisdiction,

expressly and directly conflicting with a decision of another district court of appeal or of

the supreme court on the same question of law; and 9.100(a), Applicability.

"A majority of the [Supreme] Court determined that there was jurisdictionalpower under section 3(b)(3)[Constitution s. V] to review district court decisionsrendered "per curiam" without opinion if from the "record proper" conflict withanother decision could be discerned." [Jenkins v. State, 385 So.2d 1356 (Fla.1980) citing Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla. 1965)]

This appeal is based upon the "record proper" conflict with other fundamental court

decisions provoking the proposition that a perversion ofjustice or fraud based upon the

Appellee's pleadings belies the trial court January 18*, 2012 "Order Granting

Defendant's December 5'' 2011 Motion to Dismiss Amended Complaint andfor a More

Definite Statement" subjudice (R II/232-234). [Appendix 1]

This appeal is based entirely on the misapprehension of fundamental principles of law,

case authority and proceedings demonstrated by the Order subjudice (R II/232-234)

[Appendix 1]; enabling jurisdiction of the Supreme Court

the proceeding involved allegations of disrespect/criticism by the judge. Amidstallegations of disrespect and conflict of interest Judge Zambrano was unlawfullyassigned. [Appendix 2]

2

A transcript is unnecessary as trial court and 5* DCA conflicts are clearly deduced

from the Order subjudice. (R II/232-234) and Record Proper. [Appendix 1] (i.e., the

record proper) and governing case authority.-3

• CA USE OFACTIONAGAINST CITIBANK, et al.: This is a cause ofactionto recover damages for the Appellee's violations of the Florida Consumer CollectionPractices Act (FCCPA, Florida Statute §559.72), and the invasions ofAppellant'spersonal privacy. In August 2008, the Appellees commenced illegal debt collectionactivities against the Appellant as defined in the FCCPA and Statute §559.72 (7),(8), (12), (15), and (17).

• EVIDENCE BEFORE THE COURT: Over several months, the Appelleesjointly directed over 500 "prohibited" phone calls from 11 phone numbersrepeatedly engaging Appellant in verbally abusive phone calls. The conduct ofAppellees'joint wrongful behavior was documented in Appellant's log ofphone callcommunications submitted with Appellant's Complaint (R I/017-032, I/096-115)and Appellant's "Affidavit on Defendant's Harassment" dated February 10th, 2012(R I/242-252).

• PUNITIVE DAMAGES: Pursuant to FordMotor Credit Co. v. Sheehan 373 So.2d 956 (Fla. 1" DCA 1979), in today's dollars, a punitive award in excess of $50,000is justified for the Appellant, against the Appellee.

Lowe Inv. Corp. v. Clemente, 685 So. 2d 84, 85 (Fla. 2"* DCA 1996) If the standardof review, abuse of discretion, is found, a PCA may NOT be issued; [Horn v. MarineHospitality Corp., 745 So 2d 329, 330 (Fla. 4* DCA 1998) If the error is preserved inthe record, pleadings and orders; a PCA may NOT be issued.

If the record proper preserves conflict with written opinion, the appellate andSupreme courts have jurisdiction; from the Florida Bar Journal April, 2011 Volume 85,No. 4 The Conflict PCA: When an Affirmance Without Opinion Conflicts with aWritten Opinion by Ezequiel Lugo Page 46.

3

V. DIRECT CONFLICT WITH OTHER COURT RULINGS EVINCING TRIALCOURT ERROR:

1) DIRECT CONFLICT - VIOLATION OF DUE PROCESS OPPORTUNITY

TO BE HEARD - Fla. R. Civ. P. 1.540(b)(4) Judgment Void:

Denying a real opportunity to be heard before dismissal with prejudice is in direct

conflict with and contrary to all rule of law and pursuant to Fla. R. Civ. P. 1.540(b)(4)

voids the judgment of the trial court and thus the 5* DCA PCA decision.

Summarizing the case law on "opportunity to be heard" is Viets v. Am. Recruiters

Enters, Inc., 922 So. 2d 1090 (Fla. 4* DCA 2006) requiring if a real opportunity to be

heard has been denied then the judgment is rendered void:

"A violation of the due process guarantee of notice and an opportunity tobe heard renders a judgment void."[See Curbelo v. Ullman, 571 So.2d 443,445 (Fla.1990); Ryan's Furniture Exch., Inc. v. McNair, 120 Fla. 109, 162So. 483, 487 (1935); Shields, 528 So.2d at 968; Niki Unlimited, Inc. v. LegalServs. ofGreater Miami, 483 So.2d 46, 48 (Fla. 3rd DCA 1986)]

"Generally, due process requires fair notice and a real opportunity to beheard and defend in an orderly procedure before judgment is rendered. [SeeJ.B. v. Fla. Dep't ofChildren & Family Servs, 768 So.2d 1060, 1063 (Fla.2000) quoting Dep't ofLaw Enforcement v. Real Prop., 588 So.2d 957, 960(Fla. 1991); Ryan's Furniture, 162 So. at 487]

"It is well settled that where a court is legally organized and hasjurisdiction of the subject matter and the adverse parties are given anopportunity to be heard, then errors, irregularities or wrongdoing inproceedings, short ofillegal deprivation ofopportunity to be heard, will notrender the judgment void." [Curbelo, 571 So. 2d at 445]

In the case subjudice, the issue for which Appellant's Complaint (R I/001-011, I/O17-

032, I/096-115) was dismissed with prejudice was not heard nor was the Complaint

heard. Rather, the complaint was dismissed pursuant to Defendant's motions to dismiss

4

(R I/55-58, I/62-65, R II/213-214, II/215-216) improperly alleging an avoidance/-

affirmative defense.

On December 22, 2010 Appellant filed his complaint (R I/001-011) against the parties

for joint act violations (abusive phone calls) of FCCPA, Florida Statute §559.72 and

Invasion ofPrivacy. The Record verifies that the Complaint was voluntarily amended

without court direction or hearing (at the behest of the Appellee) by the Appellant twice

while waiting almost a year for a hearing. [January 24, 2011 amendment (R I/017-032)

attached a phone call log; August 8, 2011 amendment (I/096-115) (double docketed on

August 16, 2011, I/116-135) removed conclusory statements and some charges.

At a November 9, 2011 hearing the Appellees' counsel was unprepared to proceed.

The court ordered the Appellees' counsel to update its motions to dismiss filed February

25, 2011 & March 14, 2011 (R I/55-58, I/62-65) which it did December 5*, 2011 (R

II/213-214, 215-216). On January 18*, 2011 the trial court (without any hearing on

matters of law or facts during the proceeding) dismissed the matter with prejudice,

writing the Appellant had not bifurcated the acts between the Appellees; i.e., the

complaint "fails to allege specific actions committed by each Defendant as required by

Florida Civil Procedure Rule 1.110(f)"). Aside from Appellees' misapprehending Fla. R.

Civ. P. 1.110(f) (see order analysis section), this was the first ruling by the court on the

matter subjudice issued without opportunity to be heard or to amend (as accurately

portrayed by the Record Proper).

5

Pursuant to conflict with the summary from Viets id., the 7* circuit trial court and 5*

DCA orders are void.

2) IMPROPER MOTION TO DISMISS ALLEGING AN AFFIRMATIVE

DEFENSE - Fla. R. Civ. P. 1.110(d) An Avoidance is to be Pled in an Answer:

Based upon the Appellees' pleadings, the Order misidentifies the Appellees as

separate parties rather than a Jointparty as pled; a mistaken identity defense.

Pursuant to Appellees' motions to dismiss (R I/55-58, I/62-65, R II/213-214, II/215-

216) the court speculated against the joint liability (a matter of fact) of the Defendants

who "jointly" collected a debt illegally. The evidence of record (§IV, above) specifically

identified the joint act, illegal debt collection, of the Defendants.

The trial court order and 5* DCA PCA expressly and directly conflicts with Fla. R.

Civ. P. 1.110(d) and ALL case authority on the matter; i.e., an affirmative defense must be

raised by pleading rather than by motion to dismiss [Temples v. Florida Industrial

Construction Co., 310 So.2d 326, 327 (Fla. 2"d DCA 1975)] [See FRCP 1.110(d)] [Cited

by Martin v. Eastern Airlines, Inc., 630 So.2d 1206 (Fla. 4* DCA 1994)]

An affirmative defense based upon reconfiguring the Appellees as separate entities

rather than ajoint entity requires extraneous evidence, a matter of fact (to be determined

by a jury), and cannot be pled in a motion to dismiss (which only may challenge the legal

sufficiency of the cause ofaction).

A motion to dismiss is required to target and specifically test the legal sufficiency of

the complaint and ONLY test the legal sufficiency of the complaint. [Bess v. Eagle

6

Capital, Inc., 704 So.2d 621 (Fla. 4* DCA 1997)] Appellee improperly chose to

challenge the evidence of the Complaint with a motion to dismiss which is allowed only

to test matters oflaw. Specifically from procedure, Fla. R. Civ. P. 1.110(d)"In pleading

to a preceding pleading, a party shall set forth affirmatively... or any other matter

constituting an avoidance or affirmative defense". The record proper evinces that the

Defendant's have never Answered the complaint.

The Defendants' motions to dismiss (R I/55-58, I/62-65, R II/213-214, II/215-216)

improperly advanced a mistaken identity avoidance or an affirmative defense which

directly conflicts with: "Defenses such as collateral estoppel, res judicata, joint (vs.

individual) liability and the expiration of the statute of limitations are appropriately

raised in the Answer, and not on a motion to dismiss." [Barbado v. GREEN & MURPHY,

PA, 758 So. 2d 1173 (Fla 4* DCA 2000); Citing United Servs. Auto. Ass'n v. Selz, 637

So.2d 320 (Fla. 4* DCA 1994); See Argument]

A motion to dismiss may only challenge the legal sufficiency of a complaint, based

upon the substantive allegations (i.e., is there a legally cognizable basis for a cause of

action, whether provable or not); which, directly conflicts with the court order pursuant

to Connolly v. Sebeco, Inc., 89 So.2d 482, 484 (Fla.1956) defining and differentiating (1)

a motion to dismiss from (2) a motionfor summaryjudgment and (3) improper pleadings.

Motion to Dismiss: "The function of a motion to dismiss a complaint is to raiseas a question of law the sufficiencv ofthe facts alleged to state a cause of action.For the purpose ofpassing upon a motion to dismiss the Court must assume allfacts alleged in the complaint to be true. Consequently a motion to dismiss acomplaint must be decided on questions oflaw and questions oflaw only."

7

"The purpose of a motion to dismiss is to ascertain if the plaintiff has alleged agood cause ofaction"

Motion for Summary Judgment: "A motion for summaryjudgment, raisesonly questions of fact and must be decided upon evidence and not pleadings""The purpose of a motion for summaryjudgment is to determine if there besufficient evidence to justify a trial upon the issues made by the pleadings."[Connolly v. Sebeco, Inc., 89 So.2d 482, 484 (Fla.1956)]

Affirmative defenses improperly pled are grounds for reversing dismissal. From

Hamide v. State Dep't ofCorrections, 548 So. 2d 877, 878 (Fla. 1* DCA 1989):

"In Crews [Crews v. Ellis, 531 So.2d 1372 (Fla. 1* DCA 1988)], this courtconcluded that it was clear 'the trial court based his dismissal with prejudiceon a motion to dismiss that contained affidavits and allegations of facts notcontained in the amended petition.' [531 So.2d at 1376] Similarly, in Victor v.News & Sun Sentinel Company, 467 So.2d 499, 500 (Fla. 4* DCA 1985), inreversing dismissal of a complaint with prejudice, the court noted that "thetrial court acted prematurely in considering matters that should properly beraised as affirmative defenses." [Pizzi v. Central Bank & Trust Company, 250So.2d 895, 897 (Fla. 1971)]

Hamide, id., continues:

"Furthermore, it is well settled that 'a trial court must look only to thefour corners of the complaint in deciding a motion to dismiss, and a motionto dismiss may not address factual matters not disclosed by the complaint.'"[Crews v. Ellis, 531 So.2d at 1376, (Fla. 1" DCA 1988) citing East NaplesWater Systems, Inc. v. Board ofCounty Commissioners ofCollier County,457 So.2d 1057, 1059 (Fla. 2 DCA 1984); See also Lewis State Bank v.Travelers Insurance Company, 356 So.2d 1344, 1345 (Fla. 1" DCA 1978);Dawson v. Blue Cross Association, 293 So.2d 90 (Fla. 1* DCA 1974)]

"In other words, 'The function of a motion to dismiss a complaint is toraise as a question of law the sufficiency of the facts alleged to state a causeof action, and a court is notpermitted to speculate as to whether a plaintiffhas any prospect ofproving the allegations.'" [Chaires v. North FloridaNational Bank, 432 So.2d 183 (Fla. 1* DCA 1983)]

It was reversible error to grant a motion to dismiss based on affirmative defenses that

should be pled in the answer to the complaint, and may not be asserted as grounds for

8

motion to dismiss even though availability may appear on the face of the complaint.

[Staples v. Battisti, 191 So.2d 583, 585 (Fla. 3rd DCA 1966), cert. denied 196 So.2d 926

(1967), See FRCP 1.110(d); Cited by Martin v. Eastern Airlines, Inc., 630 So.2d 1206

(Fla. 4* DCA 1994)]

As pleading an avoidance/affirmative defense in a motion to dismiss is barred by

procedure Fla. R. Civ. P 1.110(d), which is cemented in case law, the trial court, and

thus the 5* DCA PCA, decision is in direct conflict with and contrary to all rule of

law defining what is permissible in a motion to dismiss. Appellee's improper arguing

of a mistaken identity defense in a motion to dismiss served as the improper basis for

the January 18*, 2012 "Order Granting Defèndant 's December 5'^ 2011 Motion to

Dismiss Amended Complaint andfor a More Definite Statement"

3) DIRECT CONFLICT - DISMISSAL WITH PREJUDICE - Fla. R. Civ. P.

1.190(a), Liberality in Amendment of Pleadings:

The court has NEVER held a hearing on "joint liability" or ruled upon "joint liability"

prior to dismissing with prejudice pursuant to the improper motions to dismiss (R I/55-58,

I/62-65, R II/213-214, II/215-216). The Appellant sought to amend his complaint several

times but was never afforded a hearing on any of his self amended pleadings. A hearing

on "joint liability" (improperly pled in Defendants' motions to dismiss) was never

garnered prior to the court issuing its dismissal with prejudice. The Defendants' (using

the same attorney) issued their final motions to dismiss (alleging the affirmative

defense/avoidance of non-joint acts, not supported by any evidence) on December 5*,

9

2011 (R II/213-214, 215-216) followed by the trial court order to dismiss withprejudice

on January 18*, 2011, without any hearing on matters of law or facts during the

proceeding.

Pursuant to the record, the Appellees professional counsel were unprepared to

participate in a hearing on all Appellant's matters held November 9*, 2011; however,

were favorably allowed to continue their defense in their December 5*, 2011 motions to

dismiss (R II/213-214, II/215-216).

Anecdotally, the Appellant cannot fathom a circumstance, showing up incourt, after a year to prepare, claiming unpreparedness as a rationale forcontinuance, and actually being granted this continuance (additionalopportunity to plead) at the expense of the taxpayers. Appellant has neverbeen extended such preferential treatment.

Thompson v. Inv. Mgmt. & Research, [745 So. 2d 475, 476-477 (Fla. 5* DCA 1999)]

informs that to dismiss with prejudice is an abuse of discretion if the court offered no

opportunity to amend an amendable complaint.

From Kovach v. McLellan [564 So. 2d 274, 276 (Fla. 5* DCA 1990)]:

"Unless it appears that the privilege to amend has been abused or that thecomplaint is clearly untenable, it is an abuse of discretion to dismiss acomplaint with prejudice. [See generally Hamide v. State Dep't ofCorrections,548 So.2d 877 (Fla. 1®' DCA 1989); Countryside Christian Center, Inc. v. CityofClearwater, 542 So.2d 1037 (Fla. 2"d DCA 1989); Crews v. Ellis, 531 So.2d1372 (Fla. l®' DCA 1988); Delia & Wilson, Inc. v. Wilson, 448 So.2d 621 (Fla.4* DCA 1984)]

"This rule continues even where an opportunity to amend was previouslygranted." [See, e.g., Crews, supra; Gerentine v. Coastal Security Systems, 529So.2d 1191 (Fla. 5* DCA 1988)]

10

The record evinces the Appellant was never afforded a single court ordered

amendment prior to dismissal with prejudice. Therefore, the privilege to amend was

never abused as an opportunity to amend was never previously granted.

Kovach, id., continues: "Therefore, where a party may be able to allegeadditional facts, as in Crews, or where the ultimate facts alleged may supportrelief based upon another theory, such as in Roger Rankin Enterprises v. Green,433 So.2d 1248 (Fla. 3'd DCA 1983), dismissal with prejudice is an abuse ofdiscretion."

"Additionally, dismissal with prejudice is contrary to the rule of liberality inthe amending of pleadings so as to reach the merits of the case. [Fla. R. Civ. P.1.190; and see, e.g., Downtown Investments, Ltd. v. Segall, 551 So.2d 561 (Fla.3'd DCA 1989); Dingess v. Fla. Aircraft Sales & Leasing, Inc., 442 So.2d 431(Fla. 5* DCA 1983)]"

Similarly, from Adams v. Knabb Turpentine Co., 435 So.2d 944, 946 (Fla. 1"1 DCA

1983):

"However, "all doubts should be resolved in favor of allowingamendment. It is the public policy of this state to freely allow amendmentsto pleadings so that cases may be resolved upon their merits.""; also see BillWilliams Air Conditioning & Heating, Inc. v. Haymarket Cooperative Bank,592 So.2d 302, 305 (Fla. 1®l DCA 1991)]

There is no record in Floridian case law of a case, based on matters of fact and law,

being dismissed with prejudice without opportunity for being heard.

As liberality in amendment is required by procedure Fla. R. Civ. P. 1.190,

cemented in case law, the trial court, and thus the 5* DCA PCA, decision is in direct

conflict with and contrary to all rule of law on dismissal with prejudice.

11

4) DIRECT CONFLICT - DOCTRINE OF WAIVER:

Moving beyond this appeal, once a defense has been improperly pled in a motion to

dismiss the defense is forever barred.

Appellee never answered the Complaint (R I/001-011, I/017-032, I/096-115) or

challenged any of the evidence (log of harassing phone calls and phone numbers). The

trial court erred mistakenly allowing the improper motions to dismiss (R I/55-58, I/62-65,

R II/213-214, II/215-216) which was based on avoidance and affirmative defense. An

improper pleading is no pleading at all forever disallowing the motions to dismiss (R

I/55-58, I/62-65, R II/213-214, II/215-216) affirmative defense.

The defense, not having been properly barred, conflicts with Torres v. K-Site 500

Assocs. 632 So.2d 110, 112 (Fla. 3'd DCA 1994); Singer v. Singer, 442 So.2d 1020, 1022

(Fla. 3'd DCA 1984); where a party waived the opportunity to raise issues (affirmative

defenses) having not properly raised the issues; and, Miracle Ctr. Assocs. v.

Scandinavian Health Spa, Inc., 889 So. 2d 877, 878 (Fla. 3'd DCA 2004); where the

doctrine ofwaiver precludes additional challenges waived by intention or inference.

5) DIRECT CONFLICT - ADDITIONS: The trial court erred in dismissing

Appellant's Complaint (R I/001-011, I/017-032, I/096-115) based on Appellee's

improper pleading of affirmative defenses, and, other additions and deletions to the

substantive allegations of the Complaint.

A court may not go beyond the four corners of the complaint, to include additions and

deletions, in considering the legal sufficiency of the allegations. Sigma Fin. Corp. v.

12

Investment Loss Recovery Servs., Inc., 673 So.2d 572 (Fla. 4* DCA 1996); Fish v. Post

ofAmvets No. 85, 560 So.2d 337, 339 (Fla. 1* DCA 1990):

"Where a complaint is dismissed based on extraneous evidence leadingthe judge to believe that the plaintiff is not entitled to relief, the judge hasreversibly erred". [Barbado v. Green & Murphy, P.A., 758 So.2d 1173, 1174(Fla. 4* DCA 2000); Citing, Bess v. Eagle, id.; Sigma Fin. Corp. v.Investment Loss Recovery Servs., Inc., 673 So.2d 572 (Fla. 4* DCA 1996);Fish v. Post ofAmvets No. 85, 560 So.2d 337, 339 (Fla. 1" DCA 1990)]

There exists trial court reversible error where the court has adjudged upon extraneous

evidence fraudulent pleadings and improper pleadings.

The Appellees improperly introduced an evidentiary affirmative defense (individual

vs. joint acts) in their motion to dismiss; however, without a scintilla of evidence.

Not only was the pleading improper (from above) but the unsupported allegation of

"individual vs. joint acts" was merely an unsupported allegation, "addition", to the proper

Complaint. The order (R II/232-234) improperly relied upon this fraudulent

misrepresentation "addition" without substantiation. In other words, ruling without

verification on a scenario not presented in the Complaint.

This was a matter for a jury consideration, to be raised in the Answer proper,

proffering evidence.

"Furthermore, it is well settled that 'a trial court must look only to thefour corners of the complaint in deciding a motion to dismiss, and a motionto dismiss may not address factual matters not disclosed by the complaint.'"[Crews v. Ellis, 531 So.2d at 1376, (Fla. 1®' DCA 1988) citing East NaplesWater Systems, Inc. v. Board ofCounty Commissioners ofCollier County,457 So.2d 1057, 1059 (Fla. 2" DCA 1984); See also Lewis State Bank v.Travelers Insurance Company, 356 So.2d 1344, 1345 (Fla. 1** DCA 1978);Dawson v. Blue Cross Association, 293 So.2d 90 (Fla. 1* DCA 1974)]

13

Thus the Order subjudice (R II/232-234) [Appendix 1] conflicts with Huffv. State,

569 So. 2d 1247 (Fla. 1990); and, THI Holdings, LLC v. Shattuck, 93 So. 3d 419 (Fla. 2"

DCA 2012) stipulating "the ruling should be based on matters that appear of record

before the court."

The trial court order based upon Appellees' fraudulent misrepresentation omitted-4 to

base its ruling on the actual Complaint (R I/001-011, I/017-032, I/096-115) before the

court but rather on the additions and deletions of the Appellee, effectively trying a case

not presented by the Appellant.

Improperly making defensive unsupported assertions in a motion to dismiss is

insufficient. Noack v. B.L. Watters, Inc., 410 So.2d 1375 (Fla. 5* DCA 1982); Bared v.

Miami Professional Sports Ltd., 353 So.2d 167 (Fla. 3'd DCA 1978); Byrd v. Leach, 226

So.2d 866 (Fla. 4* DCA 1969); Johnson v. Studstill, 71 So.2d 251 (Fla. 1954), a mere

assertion is insufficient.

To date, Appellant's actual legally sufficient Complaint (R I/001-011, I/017-032,

I/096-115) has gone unchallenged.

OMISSION: Fraud also includes the intentional omission of a material fact. Ward v. AtlanticSecurity Bank, 777 So.2d 1144, 1146 (Fla. 3M DCA 2001). See also Solorzano v. First Union MORTGCorp., 896 So.2d 847, 849 (Fla. 4* DCA 2005); First Union Nat. Bank v. Turney, 824 So.2d 172, 189(Fla. 1" DCA 2001), Cited by "Florida Causes ofAction", Marc A. Wites

14

VI. STATEMENT OF FACTS FROM THE RECORD:

Appellant filed his complaint:

12/22/2010 COMPLAINT (R I/001-011)

Appellant on his own volition first amended his complaint pursuant to FRCP 1.190

(a) Amendment; to include computer files of phone records contained on a CD. This was

a lawful first amendment not requiring leave of the court as no paper had been filed by

the Appellees:

01/24/2011 AMENDED COMPLAINT - CD ATTACHED (R I/017-032) [Firstamendment which did not require court permission was identical to the originalComplaint, but included Files of Illegal Phone Calls delineated by phone number of thecaller, this evidence was not challenged; see FRCP 1.190 (a) Amendment]

The Appellees then filed Defendant "Zakheim 's" motion to dismiss:

02/25/2011 MOTION TO DISMISS AMENDED COMPLAINT AND TO COMPELSEPARATE STATEMENTS AND/OR FOR MORE DEFINITE (R I/055-058)

The Appellees then filed a Defendant "Citibank's" motion to dismiss:

03/14/2011 MOTION TO DISMISS AMENDED COMPLAINT AND TO COMPELSEPARATE STATEMENTS AND/OR FOR MORE DEFINITE (R I/062-065)

There was NEVER a hearing, dismissal or ordered amendment on these filings.

The Appellant has never agreed with Appellee's argument for separate and more

definite statement because the tortuous acts were ofjoint commission as evinced by the

evidence.

Appellant on his own volition again amended his complaint pursuant to Appellee's

02/25/2011 filing incorporating clarifications and updating the causes of action. This

amendment was double docketed for unknown reasons:

15

08/09/2011 AMENDED COMPLAINT (second amended complaint) (R I/096-115)08/16/2011 AMENDED COMPLAINT (second amended complaint, double

docketed) (R I/116-135)

The Appellees did not answer this motion.

The lower tribunal then set an unauthorized shotgun hearing for November 9*, 2011.

09/06/2011 HEARING SET FOR 11/09/2011 AT 1:30 PM IN 401, JDG:

ZAMBRANO, RAUL (Omitted from Record; See Clerk's docket Appendix 3)

During the November 9, 2011 shotgun hearing (of all Appellant's cases), the instant

matter was never heard as the Appellees had the daring to inform they were unprepared.

The lower tribunal ordered the Appellee to respond to the 08/08/2011 amendment.

The Appellees did so and filed two motions to dismiss:

12/5/2011 DEFENDANT'S, CITIBANK (SOUTH DAKOTA)N.A., MOTION TODISMISS COMPLAINT AND FOR A MORE DEFINITE STATEMENT (R II/213-214)

12/5/2011 DEFENDANT'S, ZAKHEIM & ASSOCIATES, P.A., MOTION TODISMISS COMPLAINT AND FOR A MORE DEFINITE STATEMENT (R II/215-216)

After this submittal, there were NO hearings or order to amend.

The lower tribunal then dismissed the case with prejudice without a single court

directed amendment and no opportunity for Appellant to argue his case or amend.

1/18/2012 ORDER GRANTING DEFENDANT'S DECEMBER 5, 2011 MOTIONTO DISMISS AMENDED COMPLAINT AND FOR MORE DEFINITE STATEMENT(R II/232-234)

The case 2011 CA 002193 has never been heard or provided with an opportunity to

amend by the lower tribunal. [With emphasis]

Therefore, to plead to the 5* DCA that (1) Mr. MacLeod was "afforded ample

opportunitv, over almost a year's time, to properly amend his complaint;" or, (2)

16

Macleod' s "failure to properlyplead despite multiple opportunities;" is an act of

deliberate misrepresentation.

VIL REQUESTED RELIEF

Appellant, Robert Craig MacLeod, based upon the aforementioned express and direct

conflict with court decisions AND, pursuant to Article V, Section 3(b)(3) of the Florida

Constitution and Fla. R. App. P. 9.03 (a)(2)(iv), Discretionary Jurisdiction; Fla. R. App.

P. Rule 9.340, Recall Mandate; Fla. R. App. P. 9.100; Fla. R. Civ. P. 1.190(a), Liberality

in Amendment of Pleadings; Fla. R. Civ. P. 1.540(b)(3), Relief from an Order based on

Opposing Party Fraud; Fla. R. Civ. P. 1.540(b)(4) Judgment Void if no Opportunity to be

Heard; Fla. R. Civ. P. 1.110(d) An Avoidance must be Pled in an Answer (not in a

motion to dismiss); and respectfully moves this Court to grant his Appeal and that this

Court enter an order to show cause addressing why the order of the 5* DCA, FL,

regarding denial ofRecall of Mandate dated January 1", 2013, is not improper and

ultimately (1) set aside said order, and (2) directing the 5* DCA to remand the matter to a

neutral trial court (without a conflict of interest) pursuant to the conflict of decisions

enumerated above, or, (3) the Court should assign a neutral Judge to the 7* Circuit to

"hear, conduct, try and determine" Petitioner's cause according to procedure with cold

neutrality and without prejudice;3 And, any other relief the court deems requisite and

proper in the furtherance ofjustice.

Castro v. Luce, 650 So.2d 1067 (Fla. 2"4 DCA 1995); Appellant was entitled to havethe successor judge designated by the Chief Justice of The Supreme Court because the

17

VIII. ARGUMENT vis-à-vis THE ORDER SUB JUDICE

Lower Tribunal 7'' Circuit Case 2010 CA 002193 Court Order Dismissing Complaint

(R II/232-234)- Mispreresentations [Sustaind by 5** DCA PCA Mandate]:

1) A transcript is unnecessary as direct conflict is clearly deduced from the Record.

2) The 7* Circuit one-sided order, pursuant to Appellee's fraudulent misrepresentations

of the Record, was clearly written by the Appellees' counsel for the court.

3) The Appellees' order misrepresenting the Record sets off:

"The Plaintiffs Amended Complaint alleges 2 counts: Count I, theDefendants' violated the Florida Consumer Collection Practices Act(FCCPA); Count II, Invasion of Privacy. The Deféndants respond that thefactual allegations as to each of them are combined so that it is unclear whateach Defendant allegedly did to violate the FCCPA."

The Appellees order omits that they were charged as jointly responsible for the joint-

acts represented in the Complaint. Based upon the joint-act, harassment, accomplished

jointly as indicated in the call-record evidence, bifurcation is possible; but irrelevant.'

Appellant's Complaint presented an exhibit of phone calls (delineated by Appellees'

phone numbers) indicating the harassment was a joint act. The Appellee presented no

evidence at all to dispute thejoint act evidence. Both Appellee 's are represented by the

same attorney clearly illustrating the accuracy of the joint-acts/joint-responsibility

proceeding involved allegations of disrespect/criticism by the judge. Amidst allegations ofdisrespect and conflict of interest Judge Zambrano was unlawfully assigned. [Appendix 2]6 Frow v. De La Vega, 82 U.S. (15 Wall) 552, 21 L.Ed. 60 (1872); Wilcox v.Raintree Inns ofAmerica, Inc., 76 F.3d 394 (10* Cir.1996); GulfCoast Fans, Inc. v.Midwest Electronics Importers, Inc., 740 F.2d 1499, 1512 (11' Cir.1984); U.S. for UseofHudson v. Peerless Ins. Co., 374 F.2d 942 (4* Cir.1967); Allowing joint pleadings.

18

allegations of the Complaint. Besides, the avoidance/affirmative defense was improperly

pled as a motion to dismiss.

4) The Appellees' order misrepresenting the Record continues:

"This Court agrees that the Amended Complaint contains conclusorvallegations pertaining to both Defendants as a whole, and fails to allegespecific actions committed by each Defendant as required by Florida CivilProcedure Rule 1.110(f)."

This is an unsupported allegation.-7 Appellees' order omitted any reference to

"conclusory allegations" (there are none; even so, they do not of themselves dismiss a

complaint) to mislead the court. FRCP Rule 1.110(f) is misapprehended saying nothing

of bifurcating joint acts [a matter offact] and is an irrelevant defense concoction

wrongfully pled in a motion to dismiss; which, only considers the legal sufficiency [a

matter oflaw] of the cause ofaction. A joint act is by definition a "single set of

circumstances". Separate pleadings are only required if "separation facilitates the clear

presentation of the matter set forth" (which in a joint-act is irrelevant) qualified by the

"contents of each paragraph being limited as far as practicable". The defense "specific

actions" argument, taken to its ultimate conclusion, would have a separate statement of

fact for each of the 500+ harassing phone calls, obvious hokum to dismiss the complaint.


Noack v. B.L. Watters, Inc., 410 So.2d 1375 (Fla. 5* DCA 1982); Bared v. MiamiProfessional Sports Ltd., 353 So.2d 167 (Fla. 3rd DCA 1978); Byrd v. Leach, 226 So.2d866 (Fla. 4* DCA 1969); Johnson v. Studstill, 71 So.2d 251 (Fla. 1954), a mere assertionis insufficient.

19

"Additionally, under Rule 1.11(b), a complaint is required to contain ashort and plain statement of the ultimate facts showing that the pleader isentitled to relief."

The Appellees omitted reference to any assertion that did not qualify as "short and

plain statement of the ultimate facts showing that the pleader is entitled to relief." Again

this is simply an unsupported allegation of the Appellees -8


"Rule 1.42(b) states that any party may move for dismissal of an action orof any claim against him for failure of an adverse party to comply with theRules or any order of the court."

This misapprehension of the Appellees omits (1) that the court had ordered NO

amendment EVER [having never heard argument or determined the facts based upon the

evidence] and (2) that Rule 1.42(b) assumes a proper Answer has been proffered raising

affirmative defenses:

"After a party seeking affirmative relief in an action tried by the courtwithout a jury has completed the presentation of evidence, any other partymay move for a dismissal on the ground that on the facts and the law the partyseeking affirmative relief has shown no right to relief, without waiving theright to offer evidence if the motion is not granted. The court as trier of thefacts may then determine them and render judgment against the party seekingaffirmative relief or may decline to render judgment until the close of all theevidence."

The Appellees order omitted that the court has never looked at the evidence presented

by the Appellant AND that the Appellees had improperly raised their affirmative defense

in a motion to dismiss.


Noack, id.; Bared, id.; Byrd, id.; Johnson, id.; a mere assertion is insufficient.

20

"A dismissal under this rule operates as adjudication on the merits, after thePlaintiffhas been given an opportunity to amend the complaint."

This misapprehension of the Appellees omits that (1) the court had ordered NO


evidence. Rule 1.42(b) assumes a proper Answer has been proffered and that THE

COURT has ordered an amendment AND looked at the evidence.


"Plaintiff, Robert Macleod has been given multiple opportunities to complywith the rules ofcivil procedure."

This is a misrepresentation of the court record as evinced by the aforementioned

statement of facts. The Appellees' order omitted that (1) the court had ordered NO


evidence.


"The Defendants' previous motions have put the Defendant on notice of hisnoncompliance with the aforementioned Rules of Civil Procedure."

The Appellees' order omitted that (1) the court had ordered NO amendment EVER

[having never heard argument or determined the facts based upon the evidence, (2) the

Appellant takes orders from the court NOT the Appellee, (3) the court had not heard the

case and (4) the court had NOT heard the argument and weighed the evidence indicating

Appellant's full compliance "with the aforementioned Rules of Civil Procedure."

10) The Appellees' order misrepresenting the Record concludes:

21

"The Fifth District Court of Appeals affirmed a dismissal based on similardisjointed pleadings in Dewitt v. Rossi, 559 So.2d 659 (Fla. 5* DCA 1990,Also, see Barrett v. City of Margate, 743 So.2d 1160, 1163 (Fla. 4th DCAI999)."

This vague unsupported allegation fails to identify or reference a "similar disjointed

pleading" in Appellant's complaint.-"

The Appellees omitted to inform that in both Dewitt and Barrett the "COURT'

directed multiple amendments using dismissals with rationale. No "COURT' directed

amendments were ever provided in the case subjudice.

The clerk's docket indicates the statements to be false as the lower tribunal never

provided a single opportunity for amendment. The Appellees misled the Court.

The court record is clear, illustrating the falsity of these statements. The record

indicates there was NEVER a court order dismissing the original complaint for

amendment or an order to amend Appellant's Complaint.

11) The Appellees' order misrepresenting the Record closes with:

"Therefore it is ordered and adjudged the Defendant's motion to dismiss isgranted with prejudice."

The Appellees' misrepresentation of the record is the basis of the trial court order of

dismissal with prejudice. That is, misrepresenting the Record misled the Court to

represent that the Appellant was failing to comply with COURT direction; which is false.

The court never ruled on joint vs. individual liability until the fmal order with

prejudice.

Noack, id.; Bared, id.; Byrd, id.; Johnson, id.; a mere assertion is insufficient.

22

IX. CONCLUSION

The above analysis makes it unambiguously clear that the Order (R II/232-234) is not

representative of the facts and circumstances of the case subjudice and is in express and

direct conflict with the fundamental principles and matters of law determined by

Floridian case authority.

The misappropriated case citations presented in the Order (R II/232-234) conflict with

the order itself and as such are entirely irrelevant to the case subjudice. Their

presentation is sufficient to infer the Order (R II/232-234) is the product of Appellee

misrepresentations.

X."CONFLICT OFINTEREST"

Judges in good faith are required to reveal, in writing, potential conflicts of interest.

[Department ofRevenue v. Golder, 322 So. 2d 1 (Fla. 1975); Also, see generally, Bundy v.

Rudd, 366 So.2d 440, 442 (Fla.1978); citing Brown v. Rowe, 96 Fla. 289, 118 So. 9

(Fla.1928); et al]

The 7* Circuit judge has a long work history with the opposing parties in the case 2011

CA 000112, and related cases 2011 CA 00057 & 000129. Petitioner believes conflict of

interest has inappropriately contributed to the decisions of the lower tribunal and w_&

continue to do so.

The trial judge has a long work history in the State Attorney Office where he developed

relationships with the actors who are Defendants in Case 2011 CA 000112 and is familiar

with the evidence.

23

The 7* Circuit Trial Judge, Honorable Raul A. Zambrano, was a Director in the Deland,

FL, State Attorney Office where he became familiar with the evidence and facts of the

underlying criminal Case 2004 CFFA 00397 [giving rise to Petitioner's Civil Cases 2011

CA 000057, 000112 and 000129] through the involved personnel, Shannon Peters, Esq.,

State Attorney, Judge Zambrano's employee who worked the case in Flagler County. The

judge had a partiality toward his former employee, Shannon Peters, and through Ms.

Peters, a personal knowledge of disputed evidentiary facts.

The Judge did not notify the Petitioner of his conflict of interest and adjudicated the

matter of his disqualification. This conduct demonstrates that the judicial process is

conflicted resulting in economic harm and injustice on the Petitioner. "A judge presented

with a motion for his disqualification may not adjudicate the question of disqualification."

And, "once a basis for disqualification has been established, the writ of prohibition must

issue directing the trial judge Respondent to disqualify himself in all proceedings to which

the Petitioner is a party." [Bundy v. Rudd, 366 So.2d 440, 442 (Fla.1978); Brown v. Rowe,

96 Fla. 289, 118 So. 9 (Fla.1928); et al]

The Judge's actions expressly and directly conflicts with the decision concerning

"conflict of interest" of Caleffe v. Vitale, 488 So.2d 627 (Fla. 4* DCA 1986); Babb v.

Edwards, 412 So.2d 859 (Fla. 1982); Corie v. City ofRiviera Beach, 954 So. 2d 68 (Fla. 4*

DCA 2007), et al.; wherein it was/is found that a conflict of interest is sufficient to invoke

a writ ofprohibition.

24

Honorable 7* Circuit Judge Dennis Craig recused himself from all Petitioners'

proceedings for the identical conflict ofwork history.

Anecdotally, despite Petitioner's Petition for Writ ofProhibition against theaforementioned judge pursuant to conflict of interest [SC12-2141], 7* CircuitChief Judge William A. Parsons has, on January 30*, 2013, inexplicably orderedassignment of the aforementioned conflicted Judge Zambrano to another case ofthe Petitioner.

5'' DCA Judges: Judge William D. Palmer worked from 1976 to 1997 [over 20

years] for Carlton Fields, Appellee's Attorney, in Appeal 5D12-0526, an abuse of

discretion. Judge Sawaya worked as a State Attorney, Appellee in Appeal 5D12-0666,

an abuse of discretion. Judge Cohen worked as a State Attorney, Appellee in Appeal

5D12-0666, an abuse of discretion. None of these Respondents notified the Petitioner of

their conflict of interest. This behavior demonstrates that the judicial process is being

perverted to inflict economic harm and injustice on the Petitioner.

[Department ofRevenue v. Golder, 322 So. 2d 1 (Fla. 1975), A judge mustconvey a potential conflict of interest to all parties; Caleffe v. Vitale, 488 So.2d627 (Fla. 4* DCA 1986); Babb v. Edwards, 412 So.2d 859 (Fla. 1982); Corie v.City ofRiviera Beach, 954 So. 2d 68 (Fla. 4* DCA 2007), et al.; wherein it was/isfound that a "conflict of interest [bias]" is sufficient to invoke a writ ofprohibition; Canons 1, 2A, 2B, 5A(6), 3C(1) AND 3E(1)(c)]

"It is the established law of this State that everv litigant is entitled to nothingless than the cold neutralitv ofan impartial judge. It is the duty of the court toscrupulously guard this right of the litigant and to refrain from attempting toexercise jurisdiction in any manner where his qualification to do so is seriouslybrought into question. The exercise ofany otherpolicy tends to discredit andplace the judiciarv in a compromising attitude which is bad for theadministration ofjustice." [Crosby v. State, 97 So.2d 181 (Fla. 1957); State exrel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939); Dickenson v. Parks, 104Fla. 577, 140 So. 459 (1932); State ex rel. Mickle v. Rowe, 100 Fla. 1382, 131So. 3331 (1930)]

The 7* Circuit trial court utilized a shotgun hearing-1° at 1:30 PM on November 9*,

2011and the 5* DCA scheduled a shotgun hearing at 9:00 AM on October 16*, 2012. A

shotgun hearing was unauthorized as it prejudiced the Appellant's matters. Refusal to

grant staggered hearings-11 has been found sufficient to support an inference that the

process was being perverted to inflict economic harm on a party; i.e., trial court

reversible error. The 5* DCA cancelled its shotgun hearing when Appellant motioned

the court [citing case authority] of the impropriety of shotgun hearings. The 5* DCA

retaliated, an abuse of discretion, by issuing per curiam affirmance on all Appellant's

appeals. The lower tribunal reversibly erred to the detriment of the Appellant using an

unauthorized shotgun hearing, ruling carte blanche against the Appellant's actions based

upon the adverse parties' misrepresentations and improper pleadings.

XI. DISMISSAL WITH PREJUDICE WAS UNAUTHORIZED

(See also Section V. 3. Direct Conflict: Dismissal with Prejudice)

Pursuant to Kozel v. Ostendorf 629 So.2d 817 (Fla. 1993), since the Order (R II/232-

234) does not represent the facts and circumstances of the case subjudice, and the case

io A shotgun hearing is where the court demands a party appear to face all opposingparties, all proceedings, at the same instance giving preferential advantage to opposingcounsel; rather than staggering hearings as required in National Football League PlayersAssoc. v. Office and Prof Employees Intern. Union, Local 2, 947 F. Supp. 540, 545(D.D.C.1996); citing, Board ofEducation v. Farmingdale Classroom Teachers Assoc., 38N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975); refusal to grant staggeredhearings was sufficient to support an inference that the process was being perverted toinflict economic harm on the school district.

" Id.

26

law cited in the order is entirely irrelevant to the actual facts and circumstances of the

case subjudice, dismissal with prejudice was inappropriate.

• Supreme Court Rules for dismissal with prejudice [Judge Altenbernd]:• 1) whether the attorney's disobedience was willful, deliberate, or contumacious,

rather than an act of neglect or inexperience;• 2) whether the attorney has been previously sanctioned;• 3) whether the client was personally involved in the act of disobedience;• 4) whether the delay prejudiced the opposing party through undue expense, loss

of evidence, or in some other fashion;• 5) whether the attorney offered reasonable justification for noncompliance; an• 6) whether the delay created significant problems ofjudicial administration• Upon consideration of these factors, if a sanction less severe than dismissal

with prejudice appears to be a viable alternative, the trial court should employsuch an alternative. [Kozel v. Ostendorf 629 So. 2d 817 (Fla. 1993)]

• Kozel v. Ostendorf 629 So. 2d 817 (Fla. 1993); on abusive dismissal. "Becausedismissal is the ultimate sanction in the adversarial system, it should be reserved forthose aggravating circumstances in which a lesser sanction would fail to achieve ajust result."

• Thompson v. Inv. Mgmt. & Research, id; to dismiss with prejudice is a gross abuseof discretion if the court offered no opportunity to amend an amendable claim

1) FRCP 1.19(a) Leave of court [to amend] shall be given freely when justice so

requires.

2) "However, "all doubts should be resolved in favor of allowing amendment. It is the

public policy of this state to freely allow amendments to pleadings so that cases may be

resolved upon their merits."" [Adams v. Knabb Turpentine Co., 435 So.2d 944, 946 (Fla.1* DCA 1983); also see Bill Williams Air Conditioning & Heating, Inc. v. HaymarketCooperative Bank, 592 So.2d 302, 305 (Fla. 1* DCA 1991)]

XII. BASED ON DECISION CONFLICT THE ORDER SHOULD BE VOIDED

1) Pursuant to decision conflict, the trial court inadvertently issued an order on January

18*, 2012 improperly titled "Order Granting Defendant 's December 5'h 2011 Motion to

27

Dismiss Amended Complaint andfor a More Definite Statement" (R II/232-234) which in

the body of the order declared with prejudice.

2) Based upon the aforementioned, the January 18*, 2012 improperly titled Order (R

II/232-234) should be annulled.

3) Pursuant to decision conflict based upon Appellee's fraudulent misrepresentation,

documented herein and the aforementioned references, wherein the Appellee, who

purportedly, as a sworn officer of the Court, is "as much dedicated tofinding the truth as

are the courts it serves", the Order (R II/232-234) subjudice should be annulled.

12 "We have considered also that the affidavit before us is made by defendant's attorney.This attorney is first andforemost an officer ofthis Court and the trial court. His swornduty as an attorney requires that he be as much dedicated tofinding the truth as are thecourts he serves. Above all else he owes to the courts the duty ofgoodfaith andhonorable dealing. We must assume that the attorney for defendant made the affidavit inquestion in full view of his position as an officer of the court and his obligation not onlyto his client but to the court as well. Ifthe trial court finds that the affidavit filed by theattornev was filed in bad faith, for the purpose ofdelav, or that he swore falsely the trialcourt can and should discipline him." [Russ v. State 95 So.2d 594 (Fla. 1957)]

28

WHEREFORE, Appellant, Robert Craig MacLeod, based upon the aforementioned

express and direct conflict with court decisions AND, pursuant to Article V, Section

3(b)(3) of the Florida Constitution and Fla. R. App. P. 9.03 (a)(2)(iv), Discretionary

Jurisdiction; Fla. R. App. P. Rule 9.340, Recall Mandate; Fla. R. App. P. 9.100; Fla. R.

Civ. P. 1.190(a), Liberality in Amendment ofPleadings; Fla. R. Civ. P. 1.540(b)(3),

Relief from an Order based on Opposing Party Fraud; Fla. R. Civ. P. 1.540(b)(4)

Judgment Void if no Opportunity to be Heard; Fla. R. Civ. P. 1.110(d) An Avoidance

must be Pled in an Answer (not in a motion to dismiss); respectfully moves this Court to

grant his Appeal and that this Court enter an order to show cause addressing why the

order of the 5* DCA, FL, regarding denial of Recall of Mandate dated January 1", 2013,

is not improper and ultimately (1) set aside said order, and (2) directing the 5* DCA to

remand the matter to a neutral trial court (without a conflict of interest) pursuant to the

conflict of decisions enumerated above, or, (3) the Court should assign a neutral Judge to

the 7* Circuit to "hear, conduct, try and determine" Petitioner's cause according to

procedure with cold neutrality and without prejudice;-13 And, any other relief the court

deems requisite and proper in the furtherance ofjustice.

Castro v. Luce, 650 So.2d 1067 (Fla. 2"4 DCA 1995); Appellant was entitled to havethe successor judge designated by the Chief Justice of The Supreme Court because theproceeding involved allegations of disrespect/criticism by the judge. Amidst allegations ofdisrespect and conflict of interest Judge Zambrano was unlawfully assigned. [Appendix 2]

29

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by

USPS Mail to Maureen G. Pearcy, Esq., Hinshaw & Culbertson LLP, 2525 Ponce de

Leon Boulevard, Suite 400, Coral Gables, FL 33134-6044, this 15* day of February,

2012.

Respect

ROBERT C IG MACLEOD, Forma Pauperis Pro Se

34 Russman LanePalm Coast, FL 32164 (386) 334-0864

CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS

I hereby certi that this Petition complies with the font requirements of Rule 9.210.

ROBERT CR G MACLEOD

30

APPENDIX 1: "ORDER GRANTING DEFENDANT'S DECEMBER 5, 2011 MOTIONTO DISMISS AMENDED COMPLAINT AND FOR A MORE DEFINITE

STATEMENT"["With Prejudice" Improperly Omitted from Title]IN THE CIRCUiT COURT. SEVENTH JUDICIAL CIRCUIT.

IN AND FOR FLAGLER COUN1Y FLORIDA

ROBERT CRAlu M/\fŒOD.Pbimiff, CASE NO 2010 UA 002193

(1 BANK (SOUTH DAKOTA) N A.,AND ZAKHEIM & ASSCX]ATES. PA

Defendants.

ORDbR GRAN IIXG DhFliNDANT'S DliCFMBERj,20.1LM()I10\ lO DISMIS%.iMt;bDE} ( OòfP[ AIN l' AND FOR A MORI: Dhf INIJT Tl \TliMENT

This matter came to be heard on November 19, 201lon the Deféndant's Motion to

Dismis the Plaintiff's Amended Complaint filed hmuary 24 2011 and.for a More Definne

Simenient Leave to amend the origmal complaini was neither sought nor granted. Additional

amended complaints were füed on Jánuary 24c201 i August 201 I and August 16, 20 l 1. again

without leave. At the hearing this Court gramed ihe motion to dismiss, and permitted the August

16. 2011 imended Comnlaint to štand The Defendants were ordered to iespond to said

:nnended comniaint within 20 days. The Defendants' responded with a Motion to Dismiss

(:ompbbt and for a More Defmite Statement on November 29, 2011 (file date December 5,

Xi!: L The motion is essentially the same as previous motions filed by the Defendants and

responded to by the Plaintiff. Having reviewed the record, considered the arguments of the

pmies. and being otherwise fuuy advised in the premises this court now 11nds as fouows:

' æ nk shamienuciamende.J compum tiled on August 9, 2m i and Augum 16 201 m Aupst 16" acJ be med abpdka

Appendix 1: Page 1


STATEMENT" ["With Prejudice" Improperly Omitted from Title]

The Plaintiff's /\mended Complaint alleges2 countsiCotmtl the Defendants"violated

the Wrida Consumer Cohection Pracûces Act (FCCPA) Count U, invasion of Prïney. The

D&ndants respond that the thetual allegations as to each of them are combined so that it is

obelear what each Defendant ahegedly did to violate the FCCPA. This Cotut agrees that the

Anwnded Complaint contains conclusory allegations pertaining to both Defendants as a whole.

and ibils to aHege specific actions committed by each Defendant as required by Florida Civu

Prácèduœ Rule 1. i 10(il AdditionåHy, under Ride hl10(b); a complaint is required to contain a

shorrand plain statement of the ultimate íbets shovdng that the pleader is entitled to relief Rule

L420(b) states that any party may niove for dismissal of an áction or of any claim against him

for failure of an adverse party to comply with the Rules or any order of the court. A dismissa!

under this rule operates as adjudication on the nuits after the Plaintiff has been given an

opportunity to amend the complaim. Plaintiff, Robert Mäckod has been gi%n mukije

oppormnities to comply with the rules ofcivil procedure: The Defendants' previous motions

nine put the Defendant on notice of his noncompliance with the aforementioned Rules of Civü

Procedure. %e Fifth Disitiet Comt of Appeals affirnied a dismissal based on similar disjointed

pleadings in Dewin w Rossi. 559 So 2d 659 (Ha 5th DCA 1990)diso ce Barren w Ci/F of

¼œë,743 So 2d i 160L1163 (Flå 4th DCA 1999)(observing that notivithstanding the

fundamental principle ofallowing pro se litigants procedural latitude; a practice effböted to

ensure access to the courts for all emzens, pro se litiganu; are not immtüte from the rules of

procedure)

Theréibre. it is

Appendix 1: Page 2


STATEMENT"["With Prejudice" Improperly Omitted from Title]

URDFRE D and ADJUDGED the Defendants Motion to Dismiss is Granted wîth prejudice

i he Plaintiffr Robert Macleod, shall take nothing b3 this action and that the Defendana Caibank

(South Dakota) KA and 2akhehn & Associates,RA go hence without day

DONE ùnd ORDER ED in Chainbers, Kim C Ilam nd as ( enter, Bunne Florida,

day of January, 2012

The Plaind ff sha!1 have 30 days within which to p a t rde

AUL A. ZA 3ANOCIRCUTT COURT JUDGE

Gopies to:

Barbara Fernandez Esq Hinshaw & Culbertson LLP9155 S. Dadeland Hivd Suite !600M!am i, F L 3H56-274 i

Robert Craid MacLeod

14 Russman LmiePá!m Co:ist FL 32164

Appendix 1: Page 3

APPENDIX 2: On Improper Judicial Assignments

Castro v. Luce, 650 So.2d 1067 (Fla. 2"d DCA 1995): Appellant was entitled to havethe successor judge designated by the Chief Justice of The Supreme Court because theproceeding involved allegations of disrespect/criticism by the judge.

Cited by Jimenez v. Rateni, 967 So. 2d 1075 (Fla. 2d DCA 2007): To obtain certiorarirelief from an "erroneous interlocutory order," a petitioner must initially establish as abasis for the exercise of certiorari jurisdiction that "[the] interlocutory order createsmaterial harm irreparable by postjudgment appeal." 1077*1077 [Parkway Bank v. FortMyers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995)] If that jurisdictionalthreshold is met, the petitioner must go on to show that the challenged order "departs fromthe essential requirements of the law." Id.

We have common law certiorari jurisdiction to review the circuit court's order herebecause the utilization of an improper process for the assignment of a judicial case causes"material injury . . . that cannot be corrected on postjudgment appeal." Id. at 648. Theasserted injury consists in the litigant being required to proceed with the adjudication of an

appeal before a judicial officer who has been assigned unlawfully. This is akin to

the injury of being required to try a case before a judgewho has improperly denied a motion for disqualificationof the judge, an injury for which interlocutory relief isavailable by way ofprohibition. [Castro v. Luce, 650 So.2d 1067 (Fla.

2d DCA 1995)] It is also akin to the injury ofbeing required to try a case where the trialcourt has erred in its disposition of a motion for disqualification of counsel, an injury forwhich certiorari relief is available. See Gonzalez ex rel. Colonial Bank v. Chillura, 892So.2d 1075 (Fla. 2d DCA 2004).

Appendix 2: Page 1

APPENDIX 3: 7'' Circuit Case 2010 CA 2193 Clerk's Docket

8/22/2012 NOTICE OF DESIGNATION OF EMAIL ADDRESS PURSUANT TO RULE 2.5167/20/2012 PAYMENT $0.00 RECEIPT #20120136875/15/2012 NOTICE OF CHANGE OF ADDRESS5/11/2012 NOTICE OF CHANGE OF ADDRESS5/11/2012 MAILED RECORD TO 5THDCA5/10/2012 CIRC CIV FEE FOR PREPARE DOCUMENT ASSESSED $28.005/10/2012 CIRC CIV FEE PREPARING, ETC (APPELLATE) ASSESSED $284.504/13/2012 MOTION FOR REHEARING3/21/2012 EMAILED MOTION TO SET ASIDE ORDER ON DEFAULT3/20/2012 ACKNOWLEDGMENT OF NEW CASE - 5D12-11072/23/2012 ACKNOWLEDGMENT OF NEW CASE-5D12-6652/16/2012 MAILED C/C NOTICE OF APPEAL TO 5THDCA2/15/2012 NOTICE OF APPEAL2/14/2012 EMAILED - MOTION FOR SECOND AMENDED COMPLAINT AND HEARING

TIME2/14/2012 EMAILED - SECOND AMENDED COMPLAINT2/14/2012 EMAILED - MOTION FOR RECONSIDERATION2/10/2012 EMAILED - AFFIDAVIT ON DEFENDANTS' HARASSMENT2/10/2012 AFFIDAVIT ON DEFENDANTS' HARASSMENT2/8/2012 ORDER DENYING MOTION FOR REHEARING1/27/2012 EMAILED - MOTION FOR REHEARING OR MORE CORRECTLY "A HEARING"

AND HEARING TIME1/18/2012 CASE CLOSED1/18/2012 ORDER GRANTING DEFENDANT'S DECEMBER 5, 2011 MOTION TO DISMISS

AMENDED COMPLAINT AND FOR MORE DEFINITE STATEMENT12/14/2011 EMAILED - PLAINTIFF'S OPPOSITION TO DEFENDANT'S 11/29/2011 MOTION TO

DISMISS AND MEMORANDUM OF LAW12/6/2011 EMAILED - SUMMARY OF 11/09/2011 IN COURT ARGUMENT12/5/2011 DEFENDANT'S, ZAKHEIM & ASSOCIATES, P.A., MOTION TO DISMISS

COMPLAINT AND FOR A MORE DEFINITE STATEMENT12/5/2011 DEFENDANT'S, CITIBANK (SOUTH DAKOTA) N.A., MOTION TO DISMISS

COMPLAINT AND FOR A MORE DEFINITE STATEMENT11/07/2011 SECOND MOTION TO REHEAR MOTION FOR DEFAULT FINAL JUDGMENT

AGAINST CODEFENDANT CITIBANK (SOUTH DAKOTA) N.A.11/04/2011 ORDER DENYING MOTION FOR ENLARGMENT OF TIME11/04/2011 ORDER DENYING MOTION TO REHEAR ORDER GRANTING PLAINTIFF'S

MOTION FOR DEFAULT FINAL JUDGMENT11/04/2011 FAXED COPY- MOTION INVOKING FLORIDA STATUTE 38.09 TO

IMMEDIATELY ENTER ORDER OF DISQUALIFICATION11/01/2011 ORDER OF THE COURT - STH DCA -APPEAL DISMISSED11/01/2011 FAXED COPY - MOTION TO REHEAR MOTION FOR ENTRY OF DEFAULT FINAL

JUDGMENT AGAINST CODEFENDANT CITIBANK (SOUTH DAKOTA) N.A. ANDPROVIDE HEARING TIME ON NOVEMBER 19TH, 2011

11/01/2011 FAXED COPY - MOTION TO WITHHOLD ADJUDICATION AND ENSUREHEARING TIME

11/01/2011 FAXED COPY - MOTION FOR HEARING TIME11/01/2011 FAXED COPY - MOTION TO BE HEARD ON JUDGE ZAMBRANO RECUSAL

Appendix 3: Page 1

APPENDIX 3: 7*' Circuit Case 2010 CA 2193 Clerk's Docket

11/01/2011 FAXED COPY - MOTION FOR FLORIDA STATUTE 38/04 - "SWORN STATEMENTBY JUDGE HOLDING HIMSELF QUALIFIED" (TO BE HEARD)

10/31/2011 FAXED COPY - MOTION FOR ENLARGEMENT OF TIME - RESCHEDULE (TO BEHEARD)

10/28/2011 ORDER DENYING MOTION TO RECUSE10/28/2011 ORDER DENYING MOTION TO ABATE10/26/2011 MOTION TO ABATE PROCEEDINGS09/30/2011 GOOD FAITH CERTIFICATE09/30/2011 MOTION OF PLAINTIFF CRAIG MACLEOD TO RECUSE JUDGE ZAMBRANO09/30/2011 GOOD FAITH CERTIFICATE09/30/2011 AFFIDAVIT OF ROBERT CRAIG MACLEOD09/30/2011 MOTION OF PLAINTIFF ROBERT CRIAG MACLEOD TO RECUSE JUDGE

ZAMBRANO09/22/2011 ACKNOWLEDGMENT OF NEW CASE -5D11-309509/14/2011 DIRECTIONS TO CLERK09/14/2011 NOTICE OF APPEAL09/13/2011 PLAINTIFF ROBERT CRAIG MACLEOD'S OPPOSITION TO ORDER GRANTING

DEFENDANT'S CITIBANK (SOUTH DAKOTA) NA, MOTION TO SET ASIDEDEFAULT

09/13/2011 MOTION TO SET ASIDE ORDER GRANTING DEFENDANT'S CITIBANK (SOUTHDAKOTA)NA, MOTION TO SET ASIDE DEFAULT

09/06/2011 HEARING SET FOR 11/09/2011 AT 1:30 PM IN 401/ , JDG: ZAMBRANO, RAUL08/31/2011 ORDER GRANTING DEFENDANT'S, CITIBANK (SOUTH DAKOTA), NA MOTION

TO SET ASIDE DEFAULT08/31/2011 NOTICE OF HEARING - SPECIAL SET - 15 MINUTES08/22/2011 ORDER DENYING MOTION TO SET ASIDE JUDICIAL "IN COURT" GRANTING

PLAINTIFF'S MOTION FOR DEFAULT FINAL JUDGMENT08/22/2011 MOTION TO SET ASIDE JUDICIAL "IN COURT" RULING ON DEFENDANT'S

RESPONSE TO PLAINTIFF'S MOTION FOR DEFAULT FINAL JUDGMENT [II] -PRECENDENCE OF FILINGS

08/22/2011 ADDENDUM TO MOTION TO SET ASIDE JUDICIAL "IN COURT" RULING ONDEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR DEFAULT FINALJUDGMENT - ADDITIONAL CIATIONS

08/16/2011 MOTION TO SET ASIDE JUDICIAL "IN COURT" RULING ON DEFENDANT'SRESPONSE TO PLAINTIFF'S MOTION FOR DEFAULT FINAL JUDGMENT

08/16/2011 MOTION FOR SUMMARY JUDGMENT08/16/2011 PLAINTIFF'S SECTION 768.72 MOTION FOR PUNITIVE DAMAGES08/16/2011 AMENDED COMPLAINT08/09/2011 AMENDED COMPLAINT08/08/2011 HEARING SET FOR 08/16/2011 AT 8:30 AM IN 401/, JDG: ZAMBRANO, RAUL08/08/2011 NOTICE OF HEARING - SPECIAL SET06/22/2011 JUDGE ZAMBRANO, RAUL: ASSIGNED06/22/2011 ORDER OF RECUSAL AND REASSIGNMENT/ORDER OF REASSIGNMENT06/02/2011 RESPONSE TO PLAINTIFF'S MOTION FOR DEFAULT FINAL JUDGMENT04/25/2011 ENTRY OF DEFAULT - CITIBANK (SOUTH DAKOTA) N.A.04/25/2011 AFFIDAVIT ON CLERK'S DEFAULT AGAINST CODEFENDANT CITIBANK

(SOUTH DAKOTA) N.A.04/25/2011 MOTION FOR ENTRY OF DEFAULT BY CLERK

Appendix 3: Page 2

APPENDIX 3: 7*h Circuit Case 2010 CA 2193 Clerk's Docket

04/20/2011 ENTRY OF DEFAULT - TO JUDGE FOR SIGNATURE04/07/2011 INFORMATION "REMINDER" FOR ENTRY OF DEFAULT FINAL JUDGMENT

AGAINST CODEFENDANT CITIBANK (SOUTH DAKOTA) N.A.04/07/2011 MOTION "REMINDER" FOR ENTRY OF DEFAULT FINAL JUDGMENT AGAINST

CODEFENDANT CITIBANK (SOUTH DAKOTA)03/14/2011 INFORMATION TOWARD CLERK'S DEFAULT FINAL JUDGMENT AGAINST

CODEFENDANT CITIBANK03/14/2011 MOTION TO DISMISS COMPLAINT03/14/2011 NOTICE OF APPEARANCE - BARBARA FERNANDEZ FOR CITIBANK &

ZAKHEIM & ASSOCIATES,P.A.03/03/2011 MOTION FOR DEFAULT FINAL JUDGMENT AGAINST CODEFENDANT

CITIBANK (SOUTH DAKOTA) N.A.02/25/2011 MOTION TO DISMISS AMENDED COMPLAINT AND TO COMPEL SEPARATE

STATEMENTS AND/OR FOR MORE DEFINITE STATEMENT02/23/2011 RETURN OF SERVICE SERVED 01/31/2011- SCOTT C. ZAKHEIM02/18/2011 INFORMATION02/17/2011 NOTICE OF APPEARANCE - DAVID P. HARTNETT FOR ZAKHEIM &

ASSOCIATES, P.A.02/09/2011 RETURN OF SERVICE SERVED 01/28/11-CITIBANK/DAVE ZIMBECK01/24/2011 SUMMONS ISSUED - CITIBANK, DAVE ZIMBECK01/24/2011 SUMMONS ISSUED - CITIBANK, SCOTT ZAKHEIM01/24/2011 PAYMENT $34.00 RECEIPT #201100155701/24/2011 CIVIL COVER SHEET OTHER CIRCUIT CIVIL01/24/2011 AMENDED COMPLAINT - CD ATTACHED01/24/2011 CIRC CIV FEE FOR PREPARE DOCUMENT ASSESSED $14.0001/24/20 I 1 CIRCUIT CIVIL FILING FEES (SUMMONS) ASSESSED $20.0012/28/2010 SUMMONS ISSUED CITIBANK NA12/22/2010 APPLICATION FOR DETERMINATION OF CIVIL INDIGENT STATUS12/22/2010 CIVIL COVER SHEET PROFESSIONAL MALPRACTICE12/22/2010 COMPLAINT12/22/2010 JUDGE ZAMBRANO, RAUL: ASSIGNED12/22/2010 FLAGLER CASE#: 2010 CA 002193 M12/22/2010 CIVIL COVER SHEET PROF MALPRACTICE BUSINESS12/22/2010 CIRCUIT CIVIL FILING FEES (SUMMONS) ASSESSED $10.0012/22/2010 CIRCUIT CIVIL FILING FEE OTHER ASSESSED $400.0012/22/2010 CIRC CIV ADDITIONAL DEFENDANT > 5 FEE ASSESSED $0.00

Appendix 3: Page 3

Documents

February 15*, 2013 - Supreme Court...ROBERT CRAIG MACLEOD Appellant v. CITIBANK, (SOUTH DAKOTA) N.A., et al., Appellees February 15*, 2013 SC13-0071 5* DCA: 5D12 CA 000È6 7* CIRCUIT:

February 15, 2013 - Supreme Court...ROBERT CRAIG MACLEOD Appellant v. CITIBANK, (SOUTH DAKOTA) N.A., et al., Appellees February 15, 2013 SC13-0071 5* DCA: 5D12 CA 000È6 7* CIRCUIT: