The Virtuosity of Courts in Adjudicating “Desperation Litigation”

Every once in a while, an opinion comes along that reminds us that our courts routinely deal, not only with seasoned appellate practitioners, but also with inexperienced lawyers and pro se parties, whose conduct must truly tax the patience of the judiciary.  A profound demonstration of an appellate court’s tolerance can be found in a recent opinion of the Second District Court of Appeals.  In Nogales v. Countrywide Home Loans, Inc., No. 2D12-2916, 27 Fla. L. Weekly D2296b (Fla. 2d DCA Sept. 28, 2012), the court put aside what must have been frustration, if not sheer annoyance, with pro se appellant, Susann E. Nogales, and issued a disproportionately-thorough Order on Motion for Reconsideration of Order of Dismissal, affirming the dismissal of Ms. Noglaes’ appeal for failure to timely file a Notice of Appeal.

Florida courts are routinely sympathetic to pro se parties, who may not have the means to afford counsel to represent their interests.  As Judge Gary Farmer on the Fourth District Court of Appeals once said, “I am prepared (from time to time) to excuse noncompliance with technical, procedural rules, and sometimes disregard overly zealous litigation stratagems by pro se parties . . . .”  McAliley v. McAliley, 704 So.2d 611, 613 (Fla. 4th DCA 1997)(Farmer, J. concurring).  However, that sympathy is not boundless and can be exploited.  See id.  With the foreclosure crisis, the courts have seen more and more pro se parties with a lot to lose. The phrase “desperation litigation” comes to mind.

The Nogales case was just such a case involving a foreclosure of a residential property in Lee County.  The lender obtained a final judgment of foreclosure on September 22, 2010.  Several months later, Ms. Nogales filed a motion to vacate the final judgment and request to stay foreclosure sale–both of which were denied by the trial court.  On January 25, 2012, the trial court issued an order directing issuance of a writ of possession.  Ms. Nogales followed that with a “verified motion to vacate the unlawful order issued in chambers on December 8, 2011” and, after that, a “motion of demand for decision on verified motion to vacate the unlawful order issued in chambers on December 8, 2011.”  The latter motion was denied by the trial court on April 2, 2012.

On May 11, 2012, Ms. Nogales filed a notice of appeal attempting to appeal all of the aforementioned orders dating back to September 2010.  To excuse her untimeliness in filing, Ms. Nogales apparently stumbled across the case of Rinas v. Rinas, 847 Sp. 2d 555 (Fla. 5th DCA 2003), which contains, as dicta, the statement that “Therefore, when a final judgment is void from the outset, the requirement to file an appeal within 30 days of rendition of the final judgment does not apply.”  The Rinas case dealt with an appeal of a final judgment that the trial court never had jurisdiction to enter (i.e. the trial court improperly determined issues of custody and child support for a non-party child in connection with a domestic violence injunction against father for the protection of another child).

Notwithstanding the lack of any proof or argument that the trial court lacked jurisdiction to enter the final judgment of foreclosure and the subsequent orders denying relief therefrom, Ms. Nogales made the creative, but unsupported argument that the trial court’s orders were void.  The ever-patient court stated, “If there is some defect in jurisdiction . . . that might conceivably render an order ‘void’ or at least ‘voidable,’ that defect has not been disclosed to us.”  Nevertheless, the court went on to state that, even if it were to assume one or more of the appealed orders was “void,” the time to file an appeal would not be extended.

In granting the appellant’s Motion for Reconsideration, the Second District demonstrated the profound patience the courts continue to show to pro se parties, even those whose conduct arguably arises to the level of vexatious or abusive.

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