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 5th, 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 10th, 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 25th, 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 29th, 06 Chmura left Venice for Connecticut Then Mar 2nd, 06 her separate husband
Was on a hit and run car accident needed to be cared for . Exhibit D
On or about May 10th,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 25th,06 Chmura received four certified mails ,one per day up until Chmura
left for Connecticut May 29th,09 those letters from counsel Ulrich ,certificate claim of
lien May 18th,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 19th,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 17th 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 20th,07 Chmura turn 65th and collapsed by a .Stroke
Hemorrhage on right side of the brain. and brought to Venice Hospital Exhibit I
Mar 26th Chmura was transferred to South Health Sarasota for rehab until May 4th 07
Exhibit J
May 5th,07 Chmura was brought back to Stamford Connecticut for further treatment
Sept 26th,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 29th 07 SRP Motion to Default against Chmura’s ‘s property1130 ,October 3rd
07,SRP had Judge Bennett foreclosed property 1130 Exhibit L)
OCTOBER 3rd 2007,OCTOBER 10th, OCTOBER 16th ,OCTOBER 18th,OCTOBER
24th,OCTOBER 26th,OCTOBER 30th,NOVEMBER 7th, NOVEMBER 8th,DECEMBER
12th, 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 13th 07 Chmura returned to Venice with a helper to follow up
case 2006-ca-5401-sc, JAN 3rd 08 Judge Bennett grant SRP purchased property 1130
for $100.Exhibit M )
JAN 3rd 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 8th,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 10th08 ,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 13th,08 Chmura went back to Connecticut a letter order Chmura must be at the
hearing on Apr 17th,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 1st,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 19th,08 Chmura returned Venice to attend case 2007-sc-001666sc ,Jun 20th,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 2nd,08 Judge Galen grant HOA motion for Attorney Fees and Costs
Jun 26th,08 Chmura retained counsel Inverso for HOA case
Sep 29th ,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
2nd 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 11th,08 to counsel Inverso . So on court
record Apr 29th,08 Default by a clerk was set aside and May 2nd,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 18th 09 Chmura returned Venice for Deposition case 2006-ca 005401sc
Mar 20th,09 Stamford CT called to let Chmura know that counsel Ulrich and counsel
Inverso had prepared three hearings for Chmura: Mar 26th,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 3rd 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 15th 09. for health issues Exhibit U
Jun 15th 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 21st,09
Oct23rd,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 28th 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 23rd 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 2nd 09 Stamford CT telephoned that Oct 23rd,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 5th,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 29th,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 10th 10,counsel Kurvin faxed a consent letter for Chmura to sign for withdraw.
Mar 16th10 Judge Bonner grant counsel Kurvin motion to withdraw and denied
Chmura motion to continuance.
Mar 18th 10 Judge Bonner did not response Chmura’s pleadings to attend phone hearing
Mar 22nd 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 31st,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 5th,10 Chmura sent to Sarasota Division of Appeal a Notice of Appeal.
Apr 16th,10 Chmura moved a Motion to Stay pending Appeal.
Jun 9th,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 22nd,10 Gene Courts HOA filed a Motion to Strike Chmura’s Appeal. Exhibit 4
Jul 7th,10 Gene Court Hoa filed a Motion Opposed his Motion to strike Chmura ‘s Initial
Brief . Exhibit 5
Jul 16th,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
VS
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 16th,2010”, BY JUDGE DEFURIA .THE GRANTING RESPONDENTS ‘ MOTION FOR ATTORNEY’S FEES AND COSTS BY JUDGE KIMBERLY BONNER MARCH 31st,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 31st10 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 16th,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 17th,08 till Jun 1st,08 then granted Respondents Final Judgment of Mandatory
Injunction on Default against Petitioner comply with Florida law.
Whether Sep 3rd 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 29th,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 26th,97 to date total about over
Ninety Motion are the acts of Harassment, Extort money , Hate Crime
Where the Judges knowingly the “ April 29th 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 26th,06 ,following was Billie King Pelecan Pointe
Home Owner Association claimed of Lien May 18th,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 23rd,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 5th,10 for Mar 31st,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 29th,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 5th DCA 2003) (striking pleadings and entering default.).
.1- THE SANCTIONS ORDERS WERE FACIALLY INSUFFICIENT
The entirety of the first sanction orders dated Mar 31st 10, but recorded Mar 22nd10 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 29th,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 5th 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 5th 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 4th,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 4th ,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 4th,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 4th
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 31st,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 29th 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 4th 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 17th,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 .
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