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  1. #1
    Join Date
    Sep 2010

    Default Motion for Partial Summary Judgment

    My question involves court procedures for the state of: FL

    I'm trying to figure out how to proceed. I have an appointed Trustee for a Trust in default (for breach) but have two non-appointed(meaning they took over the Trust without authority) Trustees which did a MTD on jurisdictional issues. Now my relief was in two parts:
    1.) declaration of new Trustee I appointed, and order the defendants to turn over Trust assets/document, to account, declare breach of trust
    2.) once accounting took place, to award damages for the breach of trust if damages resulted from breach.

    Now the two non-appointed Trustees have admitted in their MTD that they are not Trustees so I don't see any contested material facts as to #1 of my relief. Would a motion for Partial summary judgment be the correct course of action? Can I do it even though there is no hearing date yet on MTD for the non-defaulted party?

  2. #2
    Join Date
    Mar 2009
    Key West, FL

    Default Re: Motion for Partial Summary Judgment

    You are doing this pro se? Dangerous.

    If they did an MTD on jurisdictional issues, you have to deal with that. A SJM will do you no good because before anything else, the court has to determine jurisdiction. You have to fight the jurisdiction issue.

    They claim not to be trustees? If they did that in the motion it is meaningless. If they did it in an affidavit, then you have to deal with that, but nothing matter unless you overcome the jurisdictional issue.

    You will not get a SJ if there are disputed facts, which obviously there are.

    Also, partial SJ are frowned upon and are appealable which means the case can be tied up in court for years and nothing will happen with the other part of the case.

    I have a case where the evidence wins a number of counts, but it is too early to know if the defendants are going to try to challenge the evidence. Until they file an answer or reply to requests for admissions, I won't really know what they are going to claim about the evidence. Lucky for me, it is all public record and obtained from state servers under public records requests which the State Attorney can verify, plus federal court records that are self authenticating.

    There is a specific injuction you can file to force the trust to maintain assets and records, but I don't do that kind of law and have no idea what it is called though I recently noticed it in a case I skimmed.

  3. #3
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: Motion for Partial Summary Judgment

    You should be working with a lawyer. With no disrespect intended, you don't have a good grasp of legal issues and at least by legal writing standards you don't write clearly - two things that can make a strong case go south in a hurry.

    If the "non-appointed trustees" admit in their motion that they're not trustees, upon what basis do they even claim to have standing? Are they represented by counsel? If you sued them purporting that they're "non-appointed trustees" and they denied that in your motion for summary disposition, that could make sense - they would be arguing that they're not proper parties to your lawsuit - but it wouldn't shed any light on what you're trying to accomplish. Really, I don't think anybody is going to be able to give you much of an answer without reviewing the case history and reading the motion.

    And how does a "defaulted party" figure into this - who are the parties?

  4. #4
    Join Date
    Sep 2010

    Default Re: Motion for Partial Summary Judgment

    It's a real strange case and the attorney for the defendant is a junior lawyer. I have caught the defendants in multiple major lies in their filings.

    Let me see if I can further explain while still making it simple to understand.

    Corporate Trustee A: Original appointed Trustee (has defaulted in case)
    Corporate Trustee B: Unappointed Trustee (has filed a motion to dismiss), but they also controlled Trustee A

    I was told by Trustee B that Trustee A had changed their name to B. I found out that Trustee A was actually dissolved and their was no corporate name change.

    Trustee B in their MTD now says Trustee A was the Trustee, and they don't explain anything else because they have not answered the complaint yet because of their MTD. In their MTD though, they go on about how I have improperly named a new Trustee. You hit the nail on the head, Trustee B has no standing and actually appears in their MTD to be defending Trustee A... it's real strange. I pointed this out in my response to their MTD, that they lack standing now.

    So, at this point my thought was there is no material issue as to who the new Trustee is and get an declaration and order for Trustee A to turn over and account to the new Trustee.... so I was thinking a Motion for Partial Summary Judgment as to Trustee A.

    I will still have to defend against MTD for Trustee B since I believe Trustee B has the assets for the Trust. Does this make sense?

  5. #5
    Join Date
    Mar 2009
    Key West, FL

    Default Re: Motion for Partial Summary Judgment

    And I thought I had some nightmare cases.

    You really do need an attorney unless there is so little money involved in the trust that it is not worth it.

    There are only limited things to bring up in a MTD. You shoud have attacked it that way. You did your response already so to late with that, but you can still try to raise things in oral argument. Anything that is an affirmative defense, challenging the facts, etc. can't be raised in a MTD. You need to read some case law.

    I do nothing with trusts and can't help except with general things. If I did that kind of law I would have shot myself years ago.

    Sometimes after the MTD is filed, one realizes the mistakes made in the complaint. Unless the defendant has made a really good argument on failure to state a claim, none of the other things raised in a MTD will result in anything other than a dismissal with leave to amend. A pro se might get 3 shots at that, but why waste it.

    If no party has filed an answer, and usually every attorney is going to try a MTD or other motions first, the plaintiff can file the first amended complaint at any time. The defense MTD's are then moot.

    I have a case with two groups of defendants, rep by two lawyers. One lawyer filed crap a 1st year would be ashamed to file and the other did a pretty good job. We had a hearing before a magistrate and I won most of it, except their big whine that the complaint is too long. I filed exceptions and they responded. Then the judge tells us that the rules require a hearing and another set of briefs. So the other side is flying lawyers into town thinking they are going to be arguing their MTD's. And then we'll be arguing my motion to amend for punitive damages and a sanctions demand of mine. Of course they figure they will win and my motions then will not be heard and put off. One lawyer Fedexed the judge some presentation in a binder. Well, today I filed an amended complaint, much stronger than the original with a few new multimillion counts including a Florida Civil RICO action. I mailed them today per the rules. They are all going to crap their pants when we get to court and they find out all their motions are moot. The judge has no discretion to do anything else. See Boca Burger v. Forum, 2005, FL Supreme Court. So, the ONLY things that will be heard are my motions, plus a new motion to strike some of the crap in a statement of the case.

    Anyway you got to know how to play the game to win.

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