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Sample Dry Van Dispatch Service

Legal Memorandum

Sample #1

Cost:  $139.00

Memo of Law

To:     Ordering Attorney

From:  National Paralegals

Date:  11/3/2000

Issue: Is acting pro se a reasonable excuse for failing to timely file an independent action against an estate in Florida?

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An independent Dry Van Dispatch Service action against an estate must be filed within thirty (30) days of receipt of an objection to the claim unless good cause is shown for an extension of the time limitation period. Section 733.705(4), Florida Statutes (1989).

 

Good cause requires a substantial reason for the failure to comply and consists of either a legal excuse or a significant cause, not arbitrary or contrary to the evidence. In re Estate of Goldman, 79 So.2d 846, 848 (Fla.1955); see also In re Estate of Wilisch, 384 So.2d 223, 226 (Fla. 3rd DCA 1980) (there must be a legal excuse for failing to timely file an independent action); Exchange Nat’l Bank of Winter Haven v. Field, 338 So.2d 889, 890 (Fla. 2nd DCA 1976) (legal excuse requires a substantial reason for the failure to comply timely).

 

Misunderstanding legal requirements is not a reasonable excuse. See In re Estate of Goldman, 79 So.2d at 848; In re Estate of Wilisch, 384 So.2d at 223. See also Pearson v. Pefkarou, 734 So.2d 551 (Fla. 3d DCA 1999) (rejecting argument that Pearson’s status as pro se litigant should excuse his failure to file his cause on a timely basis). Merely acting pro se does not constitute good cause. A trial court’s decision to extend the time limitation period must not be arbitrary or contrary to the evidence. In re Estate of Goldman, 79 So.2d at 848.

 

However, a pro se party can demonstrate good cause if there is a mistake of fact.Kelly Assisted Living Services, Inc. v. Estate of Reuter, 681 So.2d 813 (Fla. 3d DCA 1996).  In Kelly, the claimant inadvertently submitted the same claim twice and mistakenly believed only the second claim would be stricken. Similarly, mistakenly filing a complaint in the wrong court division was determined to be good cause for an extension of time. In Williams v. Estate of Williams, 493 So.2d 44 (Fla. 5th DCA 1986).

 

A pro se litigant must be able to demonstrate a reason apart from his representation status to establish good cause for failing to timely file an independent action against an estate.

 

 

 

Sample #2

 

Cost:  $139.00

 

Memo of Law

To:     Ordering Attorney

From:  National Paralegals

Date:  7/23/2003

 

Issue: Does a party’s consent to continuing jurisdiction in a dissolution settlement agreement supersede the jurisdictional authority of 61.14, Florida Statutes?

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Parties to an action are free to enter a settlement agreement.  As part of an agreement, a party may consent to personal jurisdiction in a family court matter.  Walsh v. Walsh, 388 So. 2d 240, 242 (Fla. 2d DCA 1980).  A party in a dissolution proceeding can go as far as to consent to jurisdiction in a state where he has never lived and has no connection with.  See Wilkerson v. Wilkerson, 418 So.2d 403, 404 (Fla. 1st DCA 1982).  Once the terms of a settlement agreement are incorporated into a court order, the agreement takes on the dignity and effect of a court decree.  Walsh, 388 So. 2d at 242.  Therefore, the court retains continuing jurisdiction to enforce the terms of the settlement agreement.  Id.

 

Public policy of Florida encourages settlement agreements and enforcement of their terms. See Robbie v. City of Miami, 469 So. 2d 1384 (Fla. 1985); see also, Sun Microsystems of California, Inc. v. Engineering and Manufacturing Systems, C.A., 682 So. 2d 219, 220 (Fla. 3d DCA 1996).  Moreover, the Supreme Court of Florida recently answered the following certified question in the affirmative:

 

DOES A COURT HAVE JURISDICTION TO ENFORCE A SETTLEMENT AGREEMENT WHERE THE COURT HAS EITHER INCORPORATED THE SETTLEMENT AGREEMENT INTO A FINAL JUDGMENT OR APPROVED THE SETTLEMENT AGREEMENT BY ORDER AND RETAINED JURISDICTION TO ENFORCE ITS TERMS?

 

Paulucci v. General Dynamics Corp., 842 So. 2d 797, 799 (Fla. 2003).

 

The Court in Paulucci reasoned the trial courts express retention of jurisdiction within the order approving the settlement agreement to enforce its terms makes it clear to all parties the court intended to retain jurisdiction.  Id. at 803.

 

 

While 61.14, Florida Statutes, permits a party to file a petition to modify child support with the circuit court within which the party resides, the statute is silent as to jurisdiction when the parties  previously entered a court approved settlement agreement reserving jurisdiction.  The importance of 61.14 is establishing jurisdiction in a new venue when the parties can not agree on venue.  Section 61.14 is a default provision which does not supercede the parties previous agreement.

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