IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR CHARLOTTE COUNTY CIVIL

DIVISION

RREF RB ACQUISITIONS, LLC Plaintiff CASE NO: 11-2520-CA v. SUNCOAST MEDICAL PLAZA, L.L.C., a Florida limited liability company, ANTHONY BRIGNONI, M.D., P.A., a Florida professional association, SUNCOAST OFFICE PARK PROPERTY OWNERS ASSOCIATION, INC., A Florida corporation, ANTHONY BRIGNONI, an individual, and ANY UNKNOWN TENANTS IN POSSESSION, Defendants. ________________________________________/ MOTION FOR REHEARING ON DEFENDANTS MOTION TO SET ASIDE AND VACATE DEFAULT JUDGMENT COME NOW, Defendants, SUNCOAST MEDICAL PLAZA, L.L.C., a Florida limited liability company, ANTHONY BRIGNONI, M.D., P.A., a Florida professional association, SUNCOAST OFFICE PARK PROPERTY OWNERS ASSOCIATION, INC., A Florida corporation, ANTHONY BRIGNONI, an individual, and ANY UNKNOWN TENANTS IN POSSESSION (Defendants) by and through undersigned counsel, Andrew P. Zesinger, hereby and moves this Honorable Court for Rehearing on Defendants Motion to Vacate and Set Aside Default Judgment and as grounds therefore would show the Court as follows: 1. On or about November 30, 2011 Defendants served upon Plaintiffs their Motion to

Dismiss.

2.

On or about December 1, 2011 Defendants filed with the Clerk of Court their Motion to

Dismiss. 3. On or about December 2, 2011 Plaintiff filed with the Clerk of Court a written response

to Defendants Motion to Dismiss. Defendant also filed at that time a Motion for Entry of Default Judgment against Defendants. 4. Defendants counsel received Plaintiffs Motion for Default Judgment and Response to

the Motion to Dismiss on December 2, 2011. 5. On or about December 2, 2011 the Court entered an order granting Plaintiffs Motion for

Entry of Default Judgment. 6. Then on or about December 13, 2011 Defendants filed a Motion to Set Aside or Vacate

the Default Judgment. 7. A hearing was held on January 10, 2012 on Defendants Motion to Set Aside or Vacate

the Default Judgment. Subsequent to that hearing this Court denied Defendants motion. 8. Pursuant to Rule 1.530(a) Defendants hereby seek a rehearing and relief from the Courts

entry of a Default Judgment. Rule 1.530(a) states in pertinent part: Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment. ARGUMENT AND AUTHORITY Defendants raised a meritorious defense in its Motion to Dismiss which was filed December 1, 2011, in that, Plaintiffs lacked the capacity to sue. The Motion to Dismiss was served at least one day prior to Plaintiffs filing their Motion for Entry of Default Judgment and this Courts subsequent order granting Plaintiffs motion. The proper time to have raised the

issue of Plaintiffs capacity to sue was prior to entry of such a judgment. Empire Electric Co. v. R.J. Hunt Constr. Co., 264 So. 2d 114 (Fla. 2nd DCA). Florida public policy also favors an adjudication on the merits over the entry of a default and thus a properly filed motion to vacate should be liberally granted. Apolaro v. Falcon, 566 So.2d 815, 816 (Fla. 3rd DCA 1990) also see Cunningham v. White, 390 So.2d 467, 468 (Fla. 3rd DCA 1980) the courts of this state have generally been quite liberal in setting aside default judgments and any reasonable doubt should be resolved in favor of granting that motion in order to permit a trial on the merits. "The longstanding policy in Florida is one of liberality toward vacating defaults, and any reasonable doubt with regard to setting aside a default should be resolved in favor of vacating the default and allowing trial on the merits." Allstate Ins. Co. v. Ladner, 740 So. 2d 42, 43 (Fla. 1st DCA 1999). The default judgment should be set aside because the complaint fails, on its face to state a recognizable claim [this Court lacks subject matter jurisdiction because Plaintiffs are unable to aver themselves of the jurisdiction of this Court as they lack the capacity to sue] and thus the complaint is void Horton, 926 So.2d at 437. A court's jurisdiction must be lawfully invoked by the filing of a proper pleading. Garcia v. Stewart, 906 So.2d 1117, 1122 (Fla. 4th DCA 2005). Furthermore, the failure to hold an evidentiary hearing which is necessary to determine whether Defendants could prove the facts alleged regarding Plaintiffs lacking the capacity to sue which was the basis for both the motion to dismiss and motion seeking relief from the [default] judgment is trial error. See Monsour v. Balk, 705 So.2d 968, 969 (Fla. 2d DCA 1998); see also Estate of Willis v. Gaffney, 677 So.2d 949, 951 (Fla. 2d DCA 1996) (reversing the denial of a motion for relief from final judgment and remanding for an evidentiary hearing so that the trial court could determine the credibility of the allegations contained in the affidavit); Depelisi v.

Wishner, 15 So.3d 808, 810 (Fla. 4th DCA 2009) (determining that the plaintiff was entitled to an evidentiary hearing on his rule 1.540 motion to vacate the dismissal of his complaint in order to address whether the plaintiff had received notice of hearings). In the instant case Defendant and Defendants counsel failed to file an answer as ordered by this Court as a result of inadvertence, mistake, neglect or excusable neglect. Fla. R. Civ. P. 1.540 (b) gives the court discretion to relieve a party of a final judgment or order upon motion and terms as are just due to mistake, inadvertence or excusable mistake. Defendants justifiably relied upon Fla. R. Civ. P. 1.140(b) in filing its Motion to Dismiss prior to the filing of an answer. Rule 1.140(b) states in pertinent part:
Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted.

Florida Rule of Civil Procedure 1.120(a) provides:

Capacity. It is not necessary to aver the capacity of a party to sue or to be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

The Fourth DCA held in Wittington Condominium Apts., Inc. v. Braemar Corp., 313 So.2d 463, 466 (Fla. 4th DCA 1975), cert. denied, 327 So.2d 31 (Fla.1976) "specific negative averment" referred to in Rule 1.120 may be reflected in a responsive pleading (answer) or presumably in what might be described as a "speaking motion" whether denominated as a motion to dismiss, a motion to drop improperly joined parties, or a motion to strike. Moreover, the facts of the instant case are similar to those in Empire in that Defendants served and filed their Motion to Dismiss on December 1, 2011 based upon Plaintiff lacking the capacity to sue prior to the entry of a default judgment which was entered December 2, 2011. At a minimum this Court should hold an evidentiary hearing to determine if Plaintiff can avail itself of the jurisdiction of this Court. If Plaintiff is determined to lack the capacity to sue then Defendants Complaint is void on its face and should be dismissed. If in the alternative this Court finds Plaintiff does have the capacity to sue and thus can avail itself of the jurisdiction of this Court then Defendants should be allowed to file an answer and affirmative defenses and have this case determined upon its merits and not adjudicated by a technical default. WHERFORE, Defendants, respectfully request that this Court find that Plaintiffs Defendant failed to file an answer as ordered due to excusable neglect, inadvertence or mistake, enter an Order setting aside or vacating its December 2, 2011, Order for Default, and return this matter to the trial court for an evidentiary hearing determining Plaintiffs capacity to sue and a determination of this case on its merits. Dated this day of January, 2012.

________________________________________ Andrew P. Zesinger, Esquire Attorney for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Motion for Extension of Time to Respond to Complaint has been furnished by email (tandre@joneswalker.com) and facsimile

(305-679-5710) to Tony Andre, Esq. at Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P. 201 South Biscayne Blvd., Suite 2600 Miami, FL 33131 this 12th day of December, 2011.

THE LAW OFFICES OF G. RUSSELL DONALDSON, P.C. Counsel for the Defendants P.O. Box 781707, Orlando, FL 32878 Tel (561) 891-1312 Fax (561) 491-2728

By:____________________________ Andrew P. Zesinger, Esq. FL. Bar No. 0722073