Support Linda Lan

STATEMENT OF THE CASE AND OF THE FACT.

This action involved a dispute which at the beginning it looked as if it arose out of a

Fight Appellant referred as “ Chmura “ the owner of 1195 Tuscany boulevard Venice

Florida referred as lot 153,and the 1130 Tuscany Boulevard referred a lot 31 and

Appealed, hereinafter referred as “Gene Court HOA” President of Pelican Pointe Home

Owner Association. Sam Rogers’s builders’ 1195 Tuscany property hereinafter referred as

SRP. Progressive Community Management Inc referred as PCM.

On Feb28th, 04 Chimera signed two contracts purchased from SRP lot 153 for Chimera

Retirement and lot 31 for daughters and future grandchildren. Chmura at that time owned

A travel agency in Manhattan Exhibit A

Jan 5^th, 06 Chmura went to inspect lot 153 their Chmura met three men one of them was

Gene Court HOA. They claimed they were Pelican Pointe HOA. They demand to inspect

Outside and inside of 1153 that Chmura had compliance with the HOA by law. They left

About 4pm. About 6pm one man came back his name is Gene Court wanted to see inside

The property again. Once he was inside the situation changed that Chmura had to ask him

To leave.

Jan 10^th, 06 Chmura went back to Connecticut, January 13,06 Chmura sent a letter to

Gene Court HOA at that time he was only a member of Pelican Pointe HOA, based on

The unexpected meeting Jan5th, 06, the attitude of the three men and the questions they

Asked, the way they acted clearly Chmura had stepped into a high racial profile

Association. Exhibit B

Jan 25^th, 06 the final inspection for lot 153, Chmura moved in without a closing

Procedure due to SRP used white out the original contracts on both lots for a higher

Prices Exhibit C

Jan 29^th, 06 Chmura left Venice for Connecticut Then Mar 2^nd, 06 her separate husband

Was on a hit and run car accident needed to be cared for . Exhibit D

On or about May 10^th,06 Chmura went back to property 153, received two letters from

Counsel Ulrich represented HOA informed Chmura owed $33 per lot (153,31) due to

short payment of Oct 05 for assessment that counsel Ulrich and that two claim of liens

would be placed on both properties Exhibit E At this time litigation on lot 31 began

May 25^th,06 Chmura received four certified mails ,one per day up until Chmura

left for Connecticut May 29^th,09 those letters from counsel Ulrich ,certificate claim of

lien May 18^th,06 on lot 31, for $433 signed by Billie King , Treasure of HOA (the

first claim of lien also on lot 31 $169,926 signed by SRP Apr 19^th,06 from Apr 06 SRP

and HOA go parallel litigation with Chmura Exhibit F

July 3rd 06, Chmura retained counsel William Klein .for both cases SRP and HOA

Exhibit G

Counsel Klein passed away of heart after Thanksgiving 06. and counsel Domenico

lead the firm . advised Chmura that Florida is a Southern State Racial is a high profile in

Sarasota county. That Chmura should pay what ever Gene Court HOA demanded so that

they would release the liens . Even though under HOA rule assessment fee only applied

once there is a closing of the Property, Exhibit F Counsel Domenico also advised Chmura

to sell the property and leave Pelecan Pointe , Chmura must pay HOA $1142.71 for

attorney’s fees and costs HOA would refund it later. To date HOA still owes Chmura

$2938,23 .Exhibit H

Mar 17^th 07 Chmura was back in Venice .rumors that Chmura should sell her property

and get out of Sarasota county special Pelecan Pointe no other race allowed only white.

Chmura was just tense ,scared, and had no where to turn for help,. The stress and worry

had defeated Chmura . Mar 20^th,07 Chmura turn 65^th and collapsed by a .Stroke

Hemorrhage on right side of the brain. and brought to Venice Hospital Exhibit I

Mar 26^th Chmura was transferred to South Health Sarasota for rehab until May 4^th 07

Exhibit J

May 5^th,07 Chmura was brought back to Stamford Connecticut for further treatment

Sept 26^th,07 Gene Court HOA sued Chmura at Venice County court for Default the

Contract with HOA. No Certificate of Service to counsel on record Chmura. Exhibit K

(Sep 29^th 07 SRP Motion to Default against Chmura’s ‘s property1130 ,October 3^rd

07,SRP had Judge Bennett foreclosed property 1130 Exhibit L)

OCTOBER 3^rd 2007,OCTOBER 10^th, OCTOBER 16^th ,OCTOBER 18^th,OCTOBER

24^th,OCTOBER 26^th,OCTOBER 30^th,NOVEMBER 7^th, NOVEMBER 8^th,DECEMBER

12^th, These dates Gene Court HOA had the sheriff serving the court summons. Chmura

at 1195 Tuscany Venice but the house was not 1195 Tuscany because it has no gate as

described Exhibit L (Dec 13^th 07 Chmura returned to Venice with a helper to follow up

case 2006-ca-5401-sc, JAN 3^rd 08 Judge Bennett grant SRP purchased property 1130

for $100.Exhibit M )

JAN 3^rd 08 Gene Court HOA moved a motion for default by a clerk against Chmura , no

Certificate of Service to counsel on record Domenico and Chmura Exhibit N

JAN 8^th,08 Judge Phyllis Galen granted Gene Court HOA Motion for Final Judgment

against Chmura again no Certificated of Service to party and her counsel

Jan 10^th08 ,Chmura agreed meet counsel Ulrich , counsel Domenico at the office of

counsel Ulrich .However no promise s was kept , Chmura was taken to a room with

the whole Board of HOA. Chmura collapsed and was taken to Venice Hospital Exhibit R

Apr 13^th,08 Chmura went back to Connecticut a letter order Chmura must be at the

hearing on Apr 17^th,09 Exhibit O

Apr16th,08 Chmura faxed a letter and Dr Powis ‘s letter to Judge Phyllis Galen and

Counsels Ulrich and Whitney pleading continuance till Jun 1^st,08 for two cases; 2007-

cc-006870sc, 2007sc 001666sc. About 3pm,Judge Phyllis Galen’s clerk Shanon

telephoned Dr Powis that Judge Galen granted Chmura the motion for continuance till

Jun1st ,09r both cases. Exhibit P

Jun 19^th,08 Chmura returned Venice to attend case 2007-sc-001666sc ,Jun 20^th,08

Stamford CT called that there was two copies letters from counsel Ulrich that Apr29th,08

Gene Court HOA had entered a Final Judgment for Default against Chmura and also

May 2^nd,08 Judge Galen grant HOA motion for Attorney Fees and Costs

Jun 26^th,08 Chmura retained counsel Inverso for HOA case

Sep 29^th ,08 rehearing this case Chmura submit with counsel Inverso to court Drs Powis

Letter that Judge Phyllis Garlen did grant the continuance , therefore Judge Phyllis

Garlen found Chmura not in contempt of court date April29th 08 , therefore May

2^nd 08 Final Judgment was relief, .Chmura did not violate HOA rule. Thus Chmura only

have to submit the drawing and picture of the current 1195 landscaping for HOA to have

on file.This demand Chmura already DHL Aug 11^th,08 to counsel Inverso . So on court

record Apr 29^th,08 Default by a clerk was set aside and May 2^nd,08 Final Judgment for

Attorneys’ Fees and Costs was relief. Case 2007cc6870 sc was vindicated and this case

was closed

The relationship of attorney and client broke due to counsel Inverso had billed Chmura

almost $20,000 which Chmura already paid over $12,000 0 and another $8000

was on demand paying right away or withdrawn from the case

Chmura bring out case 2009-cc-1986,case 2006-ca-005401-sc/2D07-5135 because they

are related to this case( please revise Exhibits and Dockets).

Mar 18^th 09 Chmura returned Venice for Deposition case 2006-ca 005401sc

Mar 20^th,09 Stamford CT called to let Chmura know that counsel Ulrich and counsel

Inverso had prepared three hearings for Chmura: Mar 26^th,09,: 9.15am(10minutes

reserved}case 2007cc 6870 sc HOA’s Motion Order of Contempt and Arrest Warrant

against Chmura. , 9.35 am case 2007cc6870 sc Inverso Motion to withdraw. as Chmura

counsel , 11am counsel Inverso withdraw from case 2007-ca-6265-nc.

Attending three cases in less one hour , Chmura went to the Sarasota court instead of

Venice county court. Judge Kimberly Bonner granted a phone hearing. The court

switched Gene Court HOA case 2007cc6870 sc to be heard after counsel Inverso

withdrawn from case. The court did not rule the Arrest Warrant however order Chmura

again submit the plan of what Chmura currently having on property in within two weeks

or Chmura would be arrested .Counsel Fishell helped typing the letter to Judge Bonner

attached two current photos of property1195 Tuscany also the draw laid out the

landscaping Chmura submitted to court on Apr 3^rd 09 also sent Notice of Absence From

Jurisdiction and/or unavailability to court and Certificate of Service to counsel Ulrich that

Chmura will not be available from Apr10th,09 to Jun 15^th 09. for health issues Exhibit U

Jun 15^th 09 Chmura was back in Venice for hearing case 2007 sc 001666sc

Sept 3rd,09 . Judge Kimberly Bonner sit the hearing.with no subject because counsel

Ulrich did not expect Chmura would be present , attending the hearing were Gene

Court HOA ,Don Kerndt stated that they went to inspect Chmura ‘s property five

days and two days ago and the plants were not removed yet. Then counsel Ulrich stand

up to do a closing argument like on TV : “Defendant is a very wealthy woman,Defendant

owes several properties in Pelican Pointe, Defendant involving in numerous legal cases in

Sarasota County ,Defendant has her nose up not talking to neighbors, Defendant violated

HOA rule that Defendant planted shrubs,flowers without asking the Board permission

Defendant did not obey Florida law,Defendant never appear in court because Defendant

has money. We are surprised that Defendant came to court today . Plaintiff pray to the

court to punish those foreigners who think that they can get away with money. This is

Pelican Pointe Home Owner Association the most prestigious Home Owner Association

in Florida we do not allow some one like Defendant to live here”

Judge Bonner granted Chmura thirty days to take care of the plants and clean up the

weeds . Chmura with the help of three friends Counsel Fishsell , Michael Alsonso, Bob

Hall completed the job Oct 21^st,09

Oct23^rd,09 and about 8am Gene Court HOA together with Artis Tree Landscaping

men and trucks drove on the front lawn to the side lawn of Chmura’s home 1195

destroyed inhumanly the whole landscaping without any warning claimed they had

court order signed by Judge Kimberly Bonner. Chmura and her little dog tried to stop

them but two police officers was called to stop Chmura and also claimed HOA has court

order but refused to let Chmura read or read to Chmura .Then Chmura collapsed when

a man with a big axe pulled out her Jasmin flower five feet tall and threw it on the

ground. Chmura was taken by ambulance to Venice Hospital ,Chmura was taken back

home at 7pm. IT WAS OVER NO MORE HOME NO MORE VENICE, NO MORE

FLORIDA, All of Chmura ‘s life time working and saving Gene Court HOA and his

Gang savagely, inhumanly, cruelly destroyed these in within second. Exhibit Y

The pain and terror of that day haunt Chmura to this day and Chmura know that it will

haunt to the day that Chmura DIES . Now Chmura is frighten of Florida ,the State that

Chmura had dreamed to be her final place

Oct 28^th 09,Chmura was in court for case 2006 ca 005401 sc/2d07-5135 and was a prime

witness .Arriving court at 9am Chmura almost collapse seeing Gene Court HOA and his

men seating on the Plaintiff side looking at Chmura with the looks threaten which

Chmura will never forget.( Chmura find it difficult to describe) the raw openness the fear

Chmura felt, the nonstop bleeding of the OCTOBER 23^rd 2009 inhuman attack by

Gene Court HOA

The second day which was the final day of the trial ,at the end Chmura was having a

Herniated pain ,Chmura laid down on the bench outside the court room with eyes

closed. Suddenly there was a hand hit very hard on Chmura’s butt . Chmura almost

scream ,it was Gene Court HOA “Hello Linda” then he quickly got into the elevator.

Nov 2^nd 09 Stamford CT telephoned that Oct 23^rd,09 Gene Court HOA had filed a motion

for Attorney’s fees and costs for $15,934.20 . It were as if Chmura stomach had been cut

opened by Gene Court and now Gene Court HOA poured acid in the wound still

bleeding.. At this point Chmura was physically defeated and mentally exhausted

Chmura could not handle Florida any more. Chmura retained counsel Kurvin for both

cases: 2007-cc-6870-sc and 2009 cc 1986 nc He also counsel on record for case 2006-ca

005401 sc. Chmura left Florida Nov 5^th,09. Once staying at home in CT under care of

Dr Dresdner and Dr Powis Chmura regained some of her health and confidence and was

able to read counsel Ulrich motion for attorneys Fees and costs for Apr 29^th,08 ,Chmura

could not believe that Counsel Ulrich had openly engaged in a conduct involving

dishonesty, fraud,deceit of misrepresentation.

Chmura started reading Florida Civil Pra and learned that the court can set aside the

default and relief a final Judgment Florida Civil Pra.&9.1-9.5 rule 1500(d)

Chmura found herself alive again and believe in Florida wonderful Civil law system

Chmura asked counsel Kurvin to move a motion set aside the default and relief Final

Judgment and counter claim HOA .Counsel Kurvin labeled , trashed and accused

Chmura with the unbelievable words Exhibit 1

Feb 10^th 10,counsel Kurvin faxed a consent letter for Chmura to sign for withdraw.

Mar 16^th10 Judge Bonner grant counsel Kurvin motion to withdraw and denied

Chmura motion to continuance.

Mar 18^th 10 Judge Bonner did not response Chmura’s pleadings to attend phone hearing

Mar 22^nd 10 Gene Courts HOA counsel Ulrich sent Judge Kimberly Bonner the a

Pre typed Order Granting Plaintiff’s Motion for Attorney’s Fees and Costs to sign date

Mar 31^st,10 “ Order Granting Plaintiff‘s Motion for Attorney’s Fees and Costs

$15,934.57 but raised to $22,149.00 plus awarded Plaintiff $3,360.57. . Exhibit 2

Apr 5^th,10 Chmura sent to Sarasota Division of Appeal a Notice of Appeal.

Apr 16^th,10 Chmura moved a Motion to Stay pending Appeal.

Jun 9^th,10 Gene Courts HOA filed seven Motions in one Document Motion to strike

Defendant’s Notice of Appeal, Motion to strike Defendant’s to Stay Proceedings, Motion

to strike Defendant’s Notice of Counterclaim, Motion to Compel Defendant to Comply

with the Orders and Judgments of this Court, Motion to Compel Defendant to participate

in Post-Judgment Activities. Motion to Compel Defendant to Cease filing Pleadings in

a Concluded Matter, Motion for Protective Order Preventing Defendant from Filing

any further Pleadings in this Matter. Paragraphs 26, Gene Court HOA concluded:’

“Clearly, these endless motions pleadings, and now ridiculously untimely attempted

Appeal are brought forth solely for the purpose of delaying the case, harassing the

Plaintiff ,damaging the Plaintiff by forcing it to incur legal fees responding to these

Preposterous Motions, blatantly defying the authority of this Court and in effect

RAISING AN ANGRY MIDDLE FINGER TO THE ENTIRE LEGAL SYSTEM “

Paragraph 27 stated : “Accordingly Plaintiff begs this honorable court to stop the

bleeding and take action to prevent this Pro se Defendant from continuing to make a

mockery of this court and the entire judicial Process with her ridiculous and endless

charade” Exhibit 3

Jun 22^nd,10 Gene Courts HOA filed a Motion to Strike Chmura’s Appeal. Exhibit 4

Jul 7^th,10 Gene Court Hoa filed a Motion Opposed his Motion to strike Chmura ‘s Initial

Brief . Exhibit 5

Jul 16^th,10 Judge Rick DeFuria of Twelfth Judicial Circuit grant Order Dismissing

Appeal against Chmura and grant Gene Courts HOA Motion to Strike Initial Brief

against Chmura Exhibit 5 .

________________________________________________________________

IN THE DISTRICT COURT OF APPEAL OF THE STATE FLORIDA

SECOND DISTRICT POST OFFICE BOX 327 , LAKELAND 33802-0327

LINDA LAN CHMURA

Petitioner Case No :2D10-3874

L .T No:2010 AP 004015

The Sanctuary At Pelican

Pointe Property Owners

Respondent(s)

PETITIONER’S INITIAL BRIEF FOR PETITION TO STOP A MISCARRIAGE OF JUSTICE ON ” THE ORDER DISMISSING APPEAL JULY 16^th,2010”, BY JUDGE DEFURIA .THE GRANTING RESPONDENTS ‘ MOTION FOR ATTORNEY’S FEES AND COSTS BY JUDGE KIMBERLY BONNER MARCH 31^st,2010

Linda Lan Chmura

Acting Pro se

35 West Broad Street. Unit 304

Stamford Connecticut 06902

Telephone: 203-276-0691

TABLE OF CONTENTS

Table of contents……………..

ISSUES PRESENTED FOR REVIEW.

I . SANCTIONS ORDERS

Whether the orders striking all of Petitioner’s defensive pleadings and her Appeal

Mar 31^st10 Order Granting Attorney ‘s Fees and Costs against Petitioner which contain

no finding of facts was sufficient under Commonwealth Federal Savings & Loan

Association v Tubero, 569 So 2d 1271 (Fla 1990) , Ham V Dunmire, 891 So 2d 492

(Fla 2004) and Mercer v Raine, 443 So 2d 944 (Fla 1983)

Whether the Order Dismissing Appeal Jul 16^th,10 Judge Rick DeFuria stated the basis

for relief under Rule 1,380, Fla R Civ Pro

Whether Judge Rick DeFuria failed to apply the proper standards in determining the

Propriety of the sanction imposed

Whether Judge Rick DeFuria grant “Order Dismissing Appeal” was not commensurate

the offending conduct disclosed by the record

Whether the Court complied with Kozel v Ostendorf in determining the sanction imposed

Whether Judge Phyllis Garlen abused the court discretion granted Petitioner continuance

from Apr 17^th,08 till Jun 1^st,08 then granted Respondents Final Judgment of Mandatory

Injunction on Default against Petitioner comply with Florida law.

Whether Sep 3^rd 09 hearing counsel Ulrich publicly condemned Petitioner for being a

Foreigner were prejudice, discrimination and not warrant the Constitution of the United

State of America

Whether the “APR 29^th,08” date counsel Ulrich and Respondents used this to extort

money from Petitioner.

Whether all the MOTIONS :COMPLAINT, SUMMOMS,DEFAULTS, ORDER OF

CONTEMPT,WARREN ARREST,FINAL JUDGMENT ,MANDATORY

INJUNTION ON DEFAULT S ,STRIKE, etc .since Sep 26^th,97 to date total about over

Ninety Motion are the acts of Harassment, Extort money , Hate Crime

Where the Judges knowingly the “ April 29^th 08” that Respondents /counsel Ulrich used

as a tool to engage in conduct involving dishonesty ,fraud ,deceit, misrepresentation

Whether the honorable Judges Phyllis Garlen ,the honorable Kimberly Bonner, the

Honorable Rick DeFuria abuse the power, the authority of justice to harbor the criminal

Acts of Respondents.

Table of citation………………

Statement of the case and of the facts …….

Summary of Argument……

Argument and standard of Review…….

Conclusion……………

Certificate of Service………

Certificate of Compliance…

___________________________________________________________________

SUMMARY OF ARGUMENT

I. SANCTIONS ORDER

1.The orders of Judge Rick DeFuria and Judge Kimberly Bonner striking all of

Petitioner’s pleadings constituted a clear abuse of discretion because the orders

contained no findings and is therefore facially deficient as it fails to comply with Fla

1983 and Fla 1990 and Fla 2004. The order is prejudicial because it precluded Petitioner

from submitting any evidence in defense of Respondents claim Final Judgment Of

Mandatory Injunction On Default which ultimately was the basis of the judgments

against Petitioner of her four years of being tortured and harassed started with Sam

Rodgers SRP Claimed of Lien Apr 26^th,06 ,following was Billie King Pelecan Pointe

Home Owner Association claimed of Lien May 18^th,06 . These two Claim of Liens were

unlawful on Chmura’s granddaughters property 1130 lot 31 Tuscany Blvd Venice Fl.

Sam Rodgers SRP ‘s Claim of Liens was unlawful when 1130 lot 31 was just started for

phrase one and two and Sam Rodgers SRP already possessing $339,853 Chmura’s cash.

Billie King HOA ‘s Claim of Lien for assessment fees was unlawful when 1130 lot 31 to

date there is no Certificate of Occupancy

2-. The orders denying of Petitioner’s plead of continuance was prejudicial which

sought rescission of the very contract which formed the basis of the Respondents claim

attorney’s fees and Cost and the resulting judgments

3-Even if the absence of factual findings is not fatal to the sanction order and therefore

to the result judgments, the underlying motion for sanction did not allege a prima facie

basis for any relief under rule 1.380,Fla Civ Pro in as much as the motion alleges no facts

which would render rule 1.380 applicable. Respondents failed to allege the existence of

any precondition for relief under (b) (c) or (d) of the rule. Therefore no relief

was available under the motions.

4-Even if the motion for sanctions were deemed sufficient to allow some relief, the court

failed to apply the proper standard in assessing the propriety of the sanction imposed.

The overriding purpose of rule 1.380 is assuring compliance with discovery .The sanction

imposed on Petitioner did not serve or further that purpose as much as the sanction order

had no other effect than to terminate Petitioner’s ability to further participate in the case.

5-Even if some sanction were found to have been warranted the extreme nature of the

sanction impose was not commensurate with any conceivable offense which might be

shown in the record . The extreme nature of the sanction required evidence of conduct

far more offensive than can be extracted from the record in this case. The court failed to

abide by its duty to fashion a sanction ,if any ,which was commensurate with the

offending conduct.

6-.In resolving the issue of sanction, the trial court was required to apply the guidelines

set forth in Kozel v Ostendorf ,629 so 2d 817 (Fla 1993) Kozel requires the court to

examine these factors in determining whether the conduct warranted sanctions. The

record does not reflect that the considered any of these factors . Moreover if sanction are

found to be appropriate ,Kozel further requires the court to determine the propriety of the

specific sanction to be imposed. Specifically the court must consider whether some

lesser sanction would be effective or viable. The sanction imposed here is among the

most drastic available, yet the record does not reflect that the county court considered any

lesser sanction prior to entering its order. The court failed to comply with Kozel

7-.The motion for sanctions, the hearing there on and the resulting order denied Petitioner

due process given the terminal effect of the sanction order. The motion failed to allege

grounds arising under rule. 1.380 Fla r Civ Pro.

8-The order imposing the sanctions granted relief beyond that which was pray for in the

motion. The disputed nature of some of the discovery issues strongly suggests that an

evidentiary trial should have been required. Petitioner was not allowed to participate the

hearing but yet Judge Kimberly Bonner grant the order against Petitioner based on a

correspondence with counsel Ulrich

9- The sanction order describes reliance on the motion and argument of Respondents only

10- The effect of the sanctions order was devastating to Petitioners defenses and built up

the belief PETITIONER WILL NOT HAVE ANY FAIR TRIAL under any circumstance.

in Sarasota county courts as well as Twelve Circuit court

11-No alternative basis exists upon which to justify the sanction orders

12-Judge Bonner’s “INHERENT authority” to impose sanctions in matters other than

than those governed by the discovery rule does not support the actions taken in this case.

13- Sanction , as a tool of discipline or as a mean of vindicating the court’s authority, is

well recognized, however the standard for assessing an appropriate sanction remains

fundamentally the same. The severity of the sanction must be commensurate with the

offense. Default, Dismissal or Striking of Pleadings are the most severe of sanctions

which court can impose. Those sanctions are reserved for conduct which displays

deliberated and willful action that amounts to callous or insubordinate disregard for the

authority of the court. Conduct approaching that character no where appears in the

record of this case.

II . RIGTH TO THE GRAND JURY TRIAL

14 -Petitioner never violate the HOA rule and never default court order

15-Petitioner now is entitle to a Grand Jury trial Supreme court on the issues of Financial

Damages, Punitive irreparable Damages consistent with the rule governing defaults,

16-Petitioner is a minimum entitle to a Grand Jury trial Supreme court on any

unliquidated damage claims including savagely inhumanly destroyed her residence on

Oct 23^rd,09 and the claim attorney fees and costs ,Punitive damage against Respondents

III-COMPLIANCE WITH RULE 1.440, Fla R Civ Pro

17- Rule 1,440 Fla R. Civ Pro requires the entry of an order by the court setting the case

for trial Here on Mar 31st,10 Petitioner received the Order Granting Attorney Fees and

Costs, no hearing, no signature, only stamped Judge Kimberly Bonner that Petitioner

must pay Counsel Ulrich $22,149.00 and Respondents $3,360.57 .

18- The Order Dismissing Appeal of Judge DeFuri against Petitioner is unlawful ,unfair

It denied Petitioner ‘s Constitution right ,.It demonstrated a deliberate disregard the core

Of the Appeal which was the Apr 5^th,10 for Mar 31^st,10 that Judge Bonner county Judge

ruled a case in her chamber not in her Jurisdiction . Petitioner did not appeal the two

dates “September 28,2007, April 30, 2007” as Judge Defuria stated

IV. PETITIONER’S MOTION FOR REARGUMENT

19-It was an abuse of the county court Judge Kimberly Bonner’s discretion to deny

Petitioner Continuance and attending the hearing by phone to reargue the sanction order

The factual contents of the motion reconsideration were of equal evidentiary dignity with

those of Respondent’s motion and those facts were not of such a nature that not to

believe. As for the same, the motions and argument fail to set forth even a single incident

egregious, willful, or intentional misconduct. Some lesser sanction ,if any at all, than

striking all of Petitioner’s pleadings and ordered her property destroyed

It was unlawful that Judge Kimberly Bonner used her power as the Judge seat on a

hearing on a case already vindicated. ”APRIL 29^th,08” RES JUDICATA.

ARGUMENT

SANCTIONS ORDERS.

20-STANDARD OF REVIEW- As a general rule the determination of sanctions for

discovery violations is abuse of discretion. Mercer v Raine, 443 so 2d 944 (Fla 1983).

Where severe sanctions such as Default, Dismissal or Striking of Pleadings are imposed

the court must make express written findings of fact supporting the conclusion that the

failure to obey the court order demonstrated willful or deliberate disregard. See

Commonwealth Federal Savings& Loan Association v Tubero, 569 So 2d 1271(Fla

1990) (involving dismissal or Defalt) Ham v Dumire,891 So 492 (Fla 2004 ) (involving

dismissal ), Smith Original Homes Inc. v Carpet King Carpets Inc. ,896 So 2d 844 (Fla

2d DCA 2005 ) (striking pleadings and entry of default) Nielsen v Joannou, 835 So 2d

1219 (Fla 5^th DCA 2003) (striking pleadings and entering default.).

.1- THE SANCTIONS ORDERS WERE FACIALLY INSUFFICIENT

The entirety of the first sanction orders dated Mar 31^st 10, but recorded Mar 22^nd10 is

quoted as follows:

ORDER GRANTING PLAINTIFF ‘S MOTION FOR ATTORNEYS FEES AND COSTS

“This cause having come before the court on Plaintiff, The sanctuary at Pelican

“Pointe property owners association inc….motion for Attorneys’ fees and costs and the

“ court having considered the motion the filings with the court, the argument of counsel

“ the affidavits and testimony of witnesses and being otherwise apprised of the merits in

this action it is hereby ordered and adjudged that:

1 -Pursuant to the Final Judgment entered in this action in favor of Plaintiff and against

Defendant, wherein this court held that ”Plaintiff is the prevailing in this action and

entitled to an award of its reasonable attorney’s fees and costs incurred in connection

with this action “ Plaintiff’s Motion for Attorney’s fees and costs is hereby granted and

2- Plaintiff is hereby awarded its reasonable attorney’s fees in the amount of $22.149.00

for which let execution issue immediately and

3- Plaintiff is hereby awarded its costs in the amount of $3,360.57, for which let

execution issue immediately and

4-Defendant shall completed under oath Florida Rule of Civil Procedure Form

1,977(Fact and Information Sheet) including all requirements and serve it on Plaintiff’s

attorney within forty five(45)days from the date of this final judgment, unless the final

judgment is satisfied or post-judgment discovery is stayed. A copy of the Fact

Information Sheet is attached to this order

Done and ordered at Sarasota, Sarasota county March 31 2010

The honorable Kimberly Bonner

County court Judge

21- The second sanction order dated July 16 ,2010 recorded is quoted as follow:

ORDER DISMISSING APPEAL

This Matter is before the court on the Appellee’s Motion to Strike Appeal, which the

Court will proceed to treat as a Motion to Dismiss Appeal (the “Motion”.) The Court

has carefully reviewed the Motion , the record , and is otherwise duly advised in the

premises .

On September 28,2007 , the Complaint was filed in this matter in the County Court

In and for Sarasota County ,Florida . On April 30, 2008 ,Final Judgment in favor of

Appellee was filed and recorded . On April 5 ,2010 Appellant filed a Notice of Appeal

Appealing among other things . the Final Judgment filed and recorded on April 30,2008.

Pursuant to Florida Rule of Appellate Procedure , 9,110(b) an appellant must file the

Notice of Appeal and the filing fee”..with the clerk of the lower tribunal within 30days

Of rendition of the order to be reviewed “..Appellant’s Notice of Appeal was filed almost

two years after the Final Judgment . Accordingly , Appellant’s appeal is untimely and is

therefore dismissed.

It is hereby ODERED and ADJUDGED that the Motion is GRANTED . Petitioner’s

Appeal is DISMISSED.

DONE and ORDERED in Chambers, in Sarasota ,Sarasota County, Florida this 16 day

of July 2010.

__Signed_______________________

Rick DeFuria, Circuit-Judge

In as much as the foregoing order strikes all of the defendant’s pleadings in the case, the

order deprived the defendant of all means of defending against the claims underlying the

final judgments. It further deprived defendant of the means to pursue her counter claim.

The order does not contain findings of fact nor and reference to the existence of such

findings. The order indicates only that the court considered the motion and argument

of Respondents’ counsel. The order contains no suggestion that any evidence was

received or considered. The order contains no evidence what violation Petitioner had

committed .The order contains no financial lost to Respondents. The order contains no

invoices of working to what incident caused by Petitioner that Counsel Ulrich had to put

his time on .The order contains no explanation to why the court exonerated the dismissal

of Sep 29^th,08 order

The striking of pleadings as been equated in severity with the sanction of dismissal, see

Wolford v.boone, 874 so 2d 1207(Fla 5^th DCA 2004)and with the sanction of default

see Smith Original Homes Inc v Carpet King Carpets inc896 so 2d 844 (Fla 2d DCA

Watson v Peskoe, 407 So 2d 954(Fla 3d DCA 1981 Striking of pleadings or entry of

default is the most severe of all sanction and should be employed only in the most

extreme circumstances , see also Heimer v travelers insurance company ,400 so 2d 771,

In Wolford above the court stated” the striking of pleadings or dismissal (Fla 3d DCA

1981).of a case should be reserved for the most contumacious behavior”.

In Smith above the court stated” the striking of pleadings in this case is analogous to the

striking of pleadings for noncompliance with a court’s order compelling discovery which

is the most severe of all sanctions and should be employed only in extreme circumstances

Mercer v Raine 443 so 2d 944 (Fla 1983) “.

When imposing sanctions of such severity as Dismissal, Default or the Striking of

Pleadings a trial court must make findings of fact which demonstrate that such sanction is

justified. See Comonwealth Federal Savings and loan Association v Tubero 569 so 2d

1271 (Fla 1990). In Wolford above the appellate court disapproved of the trial court’s

sanction order where it failed to include explaining the basis of its ruling. Also in Smith

above the trial court was reversed because its order “made no findings of willful

disregard, gross indifference or deliberate callousness” Nielsen v. Joannou 835 so 2d

1219 (Fla 5^th DCA 2003) involved the appeal of a sanction order striking the defendant’s

pleadings and entering a default against him. In reversing the appellate court referred to

the sanctions order, dated Mar 4^th,02” and observed:

-“There is obvious error on the face of the record which while not clearly

enunciated by the defendant warrants reversal of Mar 4^th ,02 order . In Commonwealth

Federal Savings&Loan Association v Tubero 569 so 2d 1271 (Fla 1990) the supreme

court recognized that a trial court has discretion to order a default against a party for that

party’s failure to comply with discovery requirements . The standard by which such

order is reviewed is whether there was an abuse of discretion with the caveat that the

subject order must contain an express finding of willful non-compliance to warrant such

extreme sanction (cites omitted) The Mar 4^th,02 order contains no such finding no any

facts what so ever from which finding could be derived. The order is facially defective

and is patently inadequate to support entry of a default. The order must be reversed and

the cause remanded for further proceedings consistent with Tubero.”

The sanctions order in Petitioner exhibit the same defect as those written in Nielsen, an

absence of findings. See also Thomas v Chase Manhattan Bank ,875 so 2d 758 (Fla 4^th

DCA 2004) (an express written finding of a party’s willful or deliberate to comply is

necessary to sustain sanction); Ham v Dunmire, 891 so 2d 492 (Fla 2004) (approving

Tubero for the principal that a trial court must make a “ finding that the conduct upon

which the order is based was equivalent to willfulness or deliberate disregard”)

The order in Petitioner clearly displays the same facial deficiencies as found in

Nielsen

In accordance with the remedy approved in the above cases, the sanction order in

Petitioner must be reversed and the Lower Tribune Mar 31^st,10 Jurisdiction must be

relinquished and Petitioner’s Counter Claim be trial with the Grand Jury Supreme Court

Even if the absence of findings were not fatal to the sanctions order ,the underlying

motion for sanctions, brought pursuant to rule 1.380 Fla r civ Pro was not sufficient to

entitle Respondents to any relief

At the time of Respondents’ motion for sanctions neither the record nor the allegation of

the motion to warren any relief under the rule.

The sanctions orders do not satisfy the principal objective Rule 1,380, Fla Rule Civ Pro

In discussion of Rule 1 ,380, the court observed , in Allstate Insurance Company v Biddy

, 392 So 2d 938 (Fla 2d DCA 1980) that while the imposition of attorney’s fees and costs

were appropriate for failure to comply with discovery orders, more serious sanctions may

not be. In reversing a default a default against an offending party, the court noted (from

Hurley v Werly, 203 So 2d 530, 537 ) (Fla 2d DCA 1967):

“ The rule is not penal. It is not punitive . It is not aimed at punishment of the litigant,.

The objective is compliance- compliance with the discovery Rules. The sanctions are set

up as a mean to an end, not the end itself. The end is compliance . The sanctions should

be invoked only in flagrant cases, certainly in no less than aggravated cases, and then

only after the court has given the defaulting party a reasonable opportunity to conform

after originally failing or refused refusing to appear..) See Carr v R, 788 So 2d 1067

(Fla 2d DCA 2001) see also Traveler’s Insurance Company v Rodriguez, 357 So 2d 464

(Fla 2d DCA 1978) and in Real Estate of Ulm,345 so 2d 1099 (Fla 2d DCA 1977).

Here, Petitioner suffered a sanction equally as severe as that impose in Allstate. Here, the

consequences to Petitioner could not be justified under the reasoning in Allstate. There

was no indication that any conduct amounted to a “flagrant” case of non-compliance

since there had been no prior order with which Petitioner had failed to conform. More

over and contrary to the directive of Allstate, sanctions were imposed before Petitioner

was given notice of any “noncompliance” and before Petitioner was given an

“opportunity” to correct the offending behavior, if any . As a result ,the underlying

purpose of Rule 1,380 , Fla R Civ Pro was not served by the action of the trial court

in the present case. See also Hyman v Schwartz,177 So 2d 750 (Fla 3d DCA 1965)) (a

defending party should be given a fixed time within which to comply before suffering the

striking of pleadings or defaults

As we have seen the sanction order failed to contain findings as to the nature of the

conduct .of Petitioner .. Inspection of the record reveals no evidence of deliberated

disobedience with respect to any court order respecting any matter. The sanction chosen

by Judges Bonner and Judge DeFuria are not in conformity with Allsate because the

orders affected a termination of Petitioner’s side of the case and achieved no compliance

related objective.

Even if there had been proof of an order and its violation, the sanction would fail in

as much as there was no evidence of it cause . The motions did not contain proof of

conduct of such character . See Carr v Reese, 780 So 2d 1067 (Fla 2d DCA 2001) (the

harshest sanction should be imposed only when there is evidence that the party

deliberately and willfully refused to comply with the court’s order, not when the

failure to comply was due to confusion., Certificate of Service was not sent , using date

Apr 29^th 08 when the court already grant a continuance, and also inability due to being

treatment for a stroke. Here the proceedings producing the sanctions order

against Petitioner were note evidentiary in nature, thus there was no determination as to

the scope of the dispute its cause or or the nature of the motivation behind it, see Kamhi v

Waterview Towers Condominium Association, 793 So 2d 1033 (Fla 4^th DCA 2001)

{absent evidence of willful failure to comply or extensive prejudice to opponent, granting

order striking pleadings constitutes abuse of discretion) K & K World Enterprises v

Union SPOL , SRO .692 So 2d 1001 (Fla 3d DCA 1997) (court reversed order striking

Pleadings because there was no evidence in the record as to the reasons for non-

compliance) ; Belflower v Cushman & Wakerfield of Florida Inc, 510 So 2d 1130 (Fla

2d DCA 1987) evidentiary hearing required to determine reason for misconduct before

imposing default)

In any event the severity of the sanction was not warranted for any number of reasons;1)

Respondents engage in conduct in connection with the practice of law that is prejudicial

to the administration of justice including knowing or through callous indifference,

disparage, humiliate and discriminate on account of race and national origin ,marital

status, sexual orientation, age, physical characteristic against Petitioner 2) that a violation

of an order or rule occurred . 3)that any conduct was willful, deliberate or callous 4) that

the conduct complained of was intentional as opposed to negligent. 4)that it was prolong

from May 2006 to date and repetitive 5) that prior or alternative sanction had been tried

and found ineffective or 6)that Petitioner had act in bad faith or gross indifference

without any real evidences which establishes some form of “ willful non-compliance”

the severity on Petitioner does not conform to the requirements of Merce and Tubero and

therefore could not sustained by this court

Judge Kimberly Bonner violated the constitution law selected and imposed a sanction

more severe than the sanction sought by the moving party. As a matter of fact Judge

Bonner imposed a sanction equivalent in severity to the most severe which could have

been imposed. The sanction imposed is not supported by anything contained. in this

record. The sanctions order deprived Petitioner of every opportunity she possessed to

protect her rights .The sanctions order and resulting final judgments clearly operated in

prejudice to Petitioner. Equally clearly, those judgments are the product of denial of due

process.

It has been recognized that Judge Kimberly Bonner possess an “inherent authority” to

impose the most severe of sanctions as a coercive or disciplinary measure., see In Re the

Estate of Ulm , 345 So 2d 1099 (Fla 2d DCA 1977) . The court stated:

“ The law abhors denial of access to the courts for any reason other than the

willful abuse of the processes of the court “ “Dismissal of an action with

prejudice is a drastic punishment which should be imposed unless the actions of

the party show a deliberate and insubordinate disregard for the court authority”

As a result, it was an abuse of the court’s discretion that Judge DeFuria denied

reconsideration of the sanctions order, particularly where that order had such terminal

consequences. It was an abuse because Judge Kimberly imposed the most severe

sanction available at a time when the Judge was aware that the offending conduct was

both disputed and not charged as egregious in nature.

CONCLUSION

The Order Granting Attorney’s Fees and Costs March 31,2010 against Petitioner

but there was no trial and there was no hearing what so ever also Mar 17^th,10 Petitioner

moved a Motion to Continuance or attend the Order by phone pursuant Fla Civ Pra 1,440

and 1,460 Judge Bonner denied. .It look as a if Judge Bonner made her own law without

any consideration that this is the United State of America under Liberty and Justice

where as its citizens equally enjoy the constitution rights. Exhibit A

The Order Dismissing Appeal against Petitioner ruled by Judge DeFuria that Petitioner

appeal the 28 September 2007 complaint and April 30,2008 was untimely limit. In this

Order Judge Defuria read only Respondents’ Motion to Dismiss Appeal against

Petitioner because Petitioner did not appeal these dates, and the Order March 31,2010

is the date Petitioner appeal. Thus Dismissal of action with prejudice is a drastic

Punishment and wrong.

The court records for both cases 2D10-1260/ L.T case;2006 CA 005401 SC, Case 2D10-

3874LT case 2007 cc 6870 sc that all the Sanctions, Orders, Default, Dismiss ,Contemp

strike Appeal are identical claimed dates Exhibit AAA

The court records shows these two cases started April 2006 and still are active . It is

Clearly an abuse justice system, prejudice, race discrimination. It is confirmed that

the Judges using the powerful black cape upheld this power of law which supposed to

protect the old, the young, the rich, the poor, the sick from those Scam artists, dishonest,

defraud, the financial predators however it is vise versa .

The final judgments should be reversed and that the April 29,2008 be remanded for a

Grand Jury Supreme court triable on all related cases and all issues .

Support Linda Lan

Tuesday, October 12, 2010

Sunday, October 10, 2010

Petitioner's Initial Brief