Response Appendix UPL-D, UPL Investigation No. 20133090

RESPONSE OF NEIL J.
GILLESPIE TO THE FLORIDA BAR

UNLICENSED PRACTICE OF LAW INVESTIGATION NO. 20133090(5)
THE FLORIDA BAR, Unlicensed Practice of Law Investigation of
Ghunise L. Coaxum, UPL Bar Counsel Neil J . Gillespie, Case No. 20133090(5)
Unlicensed Practice of Law Department,
Orlando Branch Office Posted online on Scribd:
_____________________________________/ http://www.scribd.com/doc/186736628/
Response Appendix UPL-D, UPL Investigation No. 20133090(5)
Submitted in Support of Emergency Motion to Disqualify Defendants Counsel
Ryan Christopher Rodems & Barker, Rodems & Cook, PA, Hillsborough Co. Florida
http://www.scribd.com/doc/55960451/Emergency-Motion-to-Disqualify-Ryan-Christopher-
Rodems-Barker-Rodems-Cook-05-CA-7205-J uly-09-2010
Appendix 1 Declaration of Ryan Christopher Rodems, Amscot case 8:99-cv-2795-T-26EAJ
Appendix 2 Affidavit of Neil Gillespie, Amscot case 8:99-cv-2795-T-26EAJ
Appendix 3 Declaration of William J . Cook, Amscot case 8:99-cv-2795-T-26EAJ
Appendix 4 Declaration of Chris A. Barker, Amscot case 8:99-cv-2795-T-26EAJ
Appendix 5 Notice of Serving Answers and Objections to Amscots First Set of
Interrogatories to Neil Gillespie, Amscot case 8:99-cv-2795-T-26EAJ
Appendix 6 Doc. 85, Order Granting Motion for Intervention as Plaintiffs and Proposed Class
Representatives by Gay Ann Blomefield and Neil Gillespie; class certification
denied without prejudice, Amscot case 8:99-cv-2795-T-26EAJ
Appendix 7 Doc. 116, Order, denied class certification, case dismissed with prejudice, Amscot
case 8:99-cv-2795-T-26EAJ
Appendix 8 Doc 118, Notice of Appeal, Amscot case 8:99-cv-2795-T-26EAJ , District Court
Appendix 9 J oint Stipulation For Dismissal with Prejudice, November 6, 2001, U.S. Eleventh
Circuit, Amscot Appeal No. 01-14761A
Appendix 10 Doc 121, Order granting dismissal with prejudice, each party bearing its own
costs and attorneys fees, U.S. Eleventh Circuit, Amscot Appeal No. 01-14761A
Appendix 11 PACER docket, U.S. District Court, Amscot case 8:99-cv-2795-T-26EAJ
Appendix 12 PACER docket, U.S. Eleventh Circuit, Amscot Appeal No. 01-14761A
Appendix 13 Gillespies Initial Brief by Robert W. Bauer, Appeal 2D08-2224, 2dDCA Florida
Case 8:99-cv-02795-RAL Document 92 Filed 04/25/01 Page 157 of 316 PageID 1048
Appendix 1
Appendix 2
Appendix 3
Appendix 4
Appendix 5
Appendix 6
Appendix 7
Appendix 8
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
CASE l-IO ..
EUGENE R. CLEMENT,
GAY ANN BLOMEFIELD , and
NEIL GILLESPIE, individually and
on behalf of others similarly situated,
Appellants,
i

1

1
I
I

v.
AMSCOT CORPORATION,
Appellee.
______________, 1
JOINT STIPULATION FOR DISMISSAL WITH PREJUDICE
The Parties, by and th_ou(Jh tI-leir undersigrled counsel, .. flg
amicably resolved this matter, pursuant to Federal Rule of
Procedure 42 (b) move for dismissal with prejtldice ""to: th
each party bearing its own fees and costs.
RESPECTFULLY SUBMITTED this day of November, 2001.
RODEMS & COOK, Gray, Harris, Bobinson,
Shackleford, Farrior
WILLIAM J. CO K, ESQUIRE R. FERNANDEZ, ES
Florida Bar No. 986194 Florida Bar No. 008 5
300 West Platt Street 501 E. Kennedy Blvd
150 Sllite 1400
Tampa, Florida 33606 Tampa, Florida 33602
(813) 489-1001 (TEL) (813) 273-5000 (TE"L)
(813) 489-1008 (FAX) 273-5145
Z.:\.t to rrle :i5 for Appe11ant .. for Appellee
Appendix 9
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and
Eleventh Circuit Rule 26.1-1, counsel for the Appellants certify
that the following persons and entities have an interest in the
outcome of this case.
Alpert, Jonathan L., Esq.
Alpert & Ferrentino, P.A.
Amscot Corporation
Anthony, John A., Esq.
Barker, Rodems & Cook, P.A.
Barker, Chris A., Esq.
Blomefield, Gay Ann
Clement, Eugene R.
Cook, William J., Esq.
Gillespie, Neil
Gray, Harris, Robinson, Shackleford, Farrior, P.A.
Lazzara, The Honorable Richard A.
United States District Judge, Middle District of Florida
MacKechnie, Ian
Rodems, Ryan Christopher, Esq.
Appendix 10
ARBITRATION, CLOSED, EAJ
U.S. District Court
Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE #: 8:99-cv-02795-RAL
Clement v. Amscot Corporation
Assigned to: Judge Richard A. Lazzara
Demand: $0
Case in other court: 01-14761-A
Cause: 15:1640 Truth in Lending
Date Filed: 12/08/1999
Date Terminated: 08/01/2001
Jury Demand: Plaintiff
Nature of Suit: 890 Other Statutory Actions
Jurisdiction: Federal Question
Plaintiff
Eugene R. Clement
individualy and on behalf of others
similarly situated
represented by Jonathan L Alpert
Jonathan L. Alpert
Suite 821
4041 Collins Ave
Miami Beach, FL 33140
813-230-9915
Fax: 786-248-0436
Email: JONALPERT@AOL.COM
TERMINATED: 12/18/2000
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Scott J. Flint
Scott J. Flint, PA
Suite 276
695 Central Ave
St Petersburg, FL 33701
727-483-8404
Email: flintlawfirm@gmail.com
LEAD ATTORNEY
William J. Cook
Barker, Rodems & Cook, PA
Suite 790
501 E Kennedy Blvd
Tampa, FL 33602
813/489-1001
Fax: 813/489-1008
Email: wcook@barkerrodemsandcook.com
LEAD ATTORNEY
V.
Defendant
https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?663123559727506-L_1_0-1
Appendix 11
Amscot Corporation
A Florida Corporation
represented by Christine Noworyta Smith
GrayRobinson, P.A.
301 E. Pine St., Suite 1400
P.O. Box 3068
Orlando, FL 32802-3068
407/843-8880
LEAD ATTORNEY
John A. Anthony
Anthony & Partners, LLC
Suite 2800
201 N Franklin St
Tampa, FL 33602
813/273-5066
Fax: 813/273-5145
Email: janthony@anthonyandpartners.com
LEAD ATTORNEY
Mediator
Peter J. Grilli represented by Peter J. Grilli
Peter J. Grilli, P.A.
3001 W. Azeele St.
Tampa, FL 33609-3138
813/874-1002
Email: meditr@aol.com
PRO SE
V.
Movant
Carita M. Wells
represented by Carita M. Wells
Carita M. Wells, Esq.
1435 w. Busch Blvd., Suite A
Tampa, FL 33612
813/935-8668
PRO SE
Intervenor Plaintiff
Gay Ann Blomefield represented by Scott J. Flint
(See above for address)
LEAD ATTORNEY
William J. Cook
LEAD ATTORNEY
Intervenor Plaintiff
Neil Gillespie represented by Scott J. Flint
LEAD ATTORNEY
William J. Cook
LEAD ATTORNEY
V.
Intervenor Defendant
Amscot Corporation represented by Christine Noworyta Smith
LEAD ATTORNEY
John A. Anthony
LEAD ATTORNEY
Counter Claimant
Amscot Corporation represented by Christine Noworyta Smith
LEAD ATTORNEY
John A. Anthony
LEAD ATTORNEY
V.
Counter Defendant
Gay Ann Blomefield represented by Scott J. Flint
LEAD ATTORNEY
William J. Cook
LEAD ATTORNEY
Counter Defendant
Neil Gillespie represented by Scott J. Flint
LEAD ATTORNEY
William J. Cook
LEAD ATTORNEY
Date Filed # Docket Text
12/08/1999 1 CLASS ACTION COMPLAINT filed; jury trial demanded, injunctive relief requested
(bls) (Entered: 12/10/1999)
12/08/1999 MAGISTRATE JUDGE CASE ASSIGNMENT Magistrate assigned: Elizabeth A.
Jenkins (bls) (Entered: 12/10/1999)
12/08/1999 FILING FEE PAID. ( Filing Fee $ 150.00 Receipt #T002057) (bls) (Entered:
12/10/1999)
12/08/1999 SUMMONS issued for Amscot Corporation. Consent issued. (bls) (Entered:
12/10/1999)
12/08/1999 Arbitration candidate. (bls) (Entered: 12/10/1999)
12/14/1999 2 NOTICE of designation under Local Rule 3.05 - TRACK 3. (ctc) (src) (Entered:
12/14/1999)
12/15/1999 3 WAIVER OF SERVICE Returned Executed as to Amscot Corporation 12/10/99;
Answer due on 2/8/00 for Amscot Corporation (src) (Entered: 12/16/1999)
12/20/1999 4 CERTIFICATE OF SERVICE of [2-1] track 3 notice by Eugene R. Clement (src)
(Entered: 12/22/1999)
12/22/1999 5 MOTION by Eugene R. Clement with memorandum in support for leave to take
discovery referred to Magistrate Judge Elizabeth A. Jenkins (src) (Entered:
12/23/1999)
01/07/2000 6 MEMORANDUM by Amscot Corporation in opposition to [5-1] motion for leave to
take discovery (src) (Entered: 01/10/2000)
02/11/2000 7 CASE MANAGEMENT REPORT. (src) (Entered: 02/14/2000)
02/23/2000 8 ORDER Directing Counsel to Confer and Report. Response to joint interrogatories due
5/1/00 Preliminary Pretrial Hearing set for 9:30 5/15/00 Scheduled for Magistrate
Judge Elizabeth A. Jenkins (s/rjc) ctc (src) (Entered: 02/24/2000)
02/29/2000 9 CERTIFICATE OF SERVICE of [8-1] order by Eugene R. Clement (src) (Entered:
03/01/2000)
02/29/2000 10 MOTION by Eugene R. Clement with memorandum in support (unopposed) to extend
time to move for class certification (src) (Entered: 03/01/2000)
02/29/2000 11 ORDER denying as moot [5-1] motion for leave to take discovery ( Signed by
Magistrate Judge Elizabeth A. Jenkins ) ctc (src) (Entered: 03/01/2000)
03/02/2000 12 ORDER granting [10-1] motion to extend time to move for class certification; resetting
motion filing deadline for 5/8/00 ( Signed by Judge Richard A. Lazzara ) ctc (src)
(Entered: 03/03/2000)
03/09/2000 13 MOTION by Amscot Corporation with memorandum in support to dismiss complainti
for failure to state claim (src) (Entered: 03/10/2000)
03/28/2000 14 FIRST AMENDED CLASS ACTION COMPLAINT by Eugene R. Clement amending
[1-1] complaint (Answer due 4/14/00 for Amscot Corporation ); demand (src)
Modified on 03/29/2000 (Entered: 03/29/2000)
03/28/2000 15 AGREED MOTION with memorandum in support by Eugene R. Clement (agreed) to
obviate filing response to defendant's motion to dismiss (dfd) (Entered: 03/29/2000)
03/30/2000 16 ORDER granting [15-1] consent motion to obviate filing response to defendant's
motion to dismiss, denying as moot [13-1] motion to dismiss complaint for failure to
state claim ( Signed by Judge Richard A. Lazzara ) ctc (src) (Entered: 03/30/2000)
04/14/2000 17 MOTION by Amscot Corporation with memorandum in support to dismiss first
amended class action complaint (src) (Entered: 04/17/2000)
04/28/2000 18 RESPONSE to standard interrogatories filed by Eugene R. Clement (src) (Entered:
05/01/2000)
04/28/2000 19 MEMORANDUM by Eugene R. Clement in opposition to [17-1] motion to dismiss
first amended class action complaint (src) (Entered: 05/01/2000)
05/04/2000 20 MOTION by Eugene R. Clement with memorandum in support to extend time to move
for class certification (src) (Entered: 05/05/2000)
05/08/2000 22 RESPONSE to standard interrogatories filed by Amscot Corporation (src) (Entered:
05/09/2000)
05/09/2000 21 ORDER granting [20-1] motion to extend time to move for class certification. Plaintiff
shall have up to 7/7/00 to file motion for class certification. ( Signed by Judge Richard
A. Lazzara ) ctc (src) (Entered: 05/09/2000)
05/15/2000 23 PRELIMINARY PRETRIAL CONFERENCE held on 5/15/00 before Magistrate
Judge Elizabeth A. Jenkins. Parties are directed to attend mediation between 7/15/01
& 9/1/01. Parties will select their own mediator. Court Reporter: Diane Montana (src)
(Entered: 05/16/2000)
05/16/2000 24 ORDER on preliminary pretrial conference. ( Signed by Magistrate Judge Elizabeth A.
Jenkins ) ctc (src) (Entered: 05/17/2000)
05/18/2000 25 CASE MANAGEMENT AND SCHEDULING ORDER setting Third-Party/Joinder
deadline on 9/1/00; Discovery cutoff 7/1/01; dispositive motion filing deadline for
9/1/01 Pretrial conference for 9:30 2/7/02; Scheduled for Magistrate Judge Elizabeth
A. Jenkins ( signed by Deputy Clerk ) ctc (src) (Entered: 05/19/2000)
05/18/2000 DEADLINE updated; setting jury trial for term commencing 3/4/02 scheduled for
Judge Richard A. Lazzara (src) Modified on 05/19/2000 (Entered: 05/19/2000)
07/07/2000 26 MOTION by Eugene R. Clement for class certification (sak) (Entered: 07/10/2000)
07/07/2000 27 MEMORANDUM by Eugene R. Clement in support of [26-1] motion for class
certification. (sak) (Entered: 07/10/2000)
07/07/2000 28 NOTICE of filing deposition transcripts of Bill Worling, Ian Andrew MacKechnie and
Ian MacKechnie in support of motion for class certification by Eugene R. Clement.
(sak) (Entered: 07/10/2000)
07/07/2000 29 DEPOSITION of Bill Worling by Eugene R. Clement re: [26-1] motion for class
certification. (Transcript filed separately.) (sak) (Entered: 07/10/2000)
07/07/2000 30 DEPOSITION of Ian Andrew MacKechnie by Eugene R. Clement re: [26-1] motion
for class certification. (Transcript filed separately.) (sak) (Entered: 07/10/2000)
07/07/2000 31 DEPOSITION of Ian MacKechnie by Eugene R. Clement re: [26-1] motion for class
certification. (Transcript filed separately.) (sak) (Entered: 07/10/2000)
07/07/2000 32 REQUEST for oral argument by Eugene R. Clement re: [26-1] motion for class
certification. (sak) (Entered: 07/10/2000)
07/07/2000 33 NOTICE of filing unreported authorities cited in memorandum in support of motion
for class certification by Eugene R. Clement. (Cases cited filed under separate cover.)
(sak) (Entered: 07/10/2000)
07/12/2000 34 CONSENTED MOTION and incorporated memorandum of law by Eugene R.
Clement (unopposed) to extend time to file memorandum in response to motion for
class certification (bls) (Entered: 07/13/2000)
07/13/2000 35 ORDER granting [34-1] unopposed motion to extend time to file memorandum in
response to motion for class certification; response to motion set to 8/11/00 for [26-1]
motion for class certification by plaintiff ( Signed by Judge Richard A. Lazzara ) ctc
(eec) (Entered: 07/14/2000)
07/18/2000 36 NOTICE of filing supplemental authority by Eugene R. Clement in opposition to
[17-1] motion to dismiss first amended class action complaint (rjc) (Entered:
07/19/2000)
08/08/2000 37 MOTION by Amscot Corporation with memorandum in support to extend time until
8/31/00 in which to respond to motion for class certification (rm) (Entered:
08/09/2000)
08/10/2000 38 ORDER granting [37-1] motion to extend time until 8/31/00 in which to respond to
motion for class certification, response to motion set to 8/31/00 for [26-1] motion for
class certification by plaintiff No further extensions will be granted absent compelling
and extraordinary circumstances. (Signed by Judge Richard A. Lazzara) ctc (rm)
(Entered: 08/11/2000)
08/28/2000 39 MOTION by Amscot Corporation with memorandum in support to compel more
complete responses to first set of interrogatories referred to Magistrate Judge Elizabeth
A. Jenkins (rm) (Entered: 08/29/2000)
08/31/2000 40 RESPONSE by Amscot Corporation in opposition to [26-1] motion for class
certification (rm) (Entered: 09/01/2000)
08/31/2000 41 MOTION by Amscot Corporation with memorandum in support to compel plaintiff to
respond to certified question and related questions referred to Magistrate Judge
Elizabeth A. Jenkins (rm) (Entered: 09/01/2000)
08/31/2000 42 ORDER denying without prejudice [39-1] motion to compel more complete responses
to first set of interrogatories. Defendant may refile the motion in compliance with the
local rule. (Signed by Magistrate Judge Elizabeth A. Jenkins) ctc (rm) (Entered:
09/01/2000)
08/31/2000 43 NOTICE of filing deposition of Eugene R. Clement with related documentation by
Amscot Corporation (rm) (Entered: 09/01/2000)
08/31/2000 44 DEPOSITION with exhibits of Eugene R. Clement by Amscot Corporation re: [17-1]
motion to dismiss first amended class action complaint Transcript filed separately. (rm)
(Entered: 09/01/2000)
09/08/2000 45 ORDER denying [17-1] motion to dismiss first amended class action complaint (Signed
by Judge Richard A. Lazzara) ctc (rm) (Entered: 09/11/2000)
09/18/2000 46 RESPONSE by Eugene R. Clement in opposition to [41-1] motion to compel plaintiff
to respond to certified question and related questions (rm) (Entered: 09/19/2000)
09/18/2000 47 UNOPPOSED MOTION by Eugene R. Clement with memorandum in support for
leave to file reply to defendant's response to plaintiff's motion for class certification
Proposed reply attached. (rm) Modified on 09/19/2000 (Entered: 09/19/2000)
09/20/2000 48 ORDER granting [41-1] motion to compel plaintiff to respond to certified question and
related questions granting [47-1] consent motion for leave to file reply to defendant's
response to plaintiff's motion for class certification to the extent that plaintiff may file
a reply 10 days after defendant files its supplement to its response. The clerk shall not
docket the reply that was submitted along with the unopposed motion (Signed by
Judge Richard A. Lazzara) ctc (rm) (Entered: 09/21/2000)
09/22/2000 49 ANSWER, affirmative defenses and counterclaim by Amscot Corporation to [14-1]
first amended complaint (rm) (Entered: 09/25/2000)
10/10/2000 50 UNOPPOSED MOTION by Amscot Corporation with memorandum in support
(unopposed) to extend time to continue deposition of plaintiff as to certified question
and related questions, due to plaintiff's illness referred to Magistrate Judge Elizabeth
10/12/2000 51 ORDER granting [50-1] consent motion to extend time to continue deposition of
plaintiff as to certified question and related questions, due to plaintiff's illness (Signed
10/26/2000 52 SUPPLEMENTAL RESPONSE by Amscot Corporation in opposition to [26-1] motion
for class certification. (sak) (Entered: 10/27/2000)
10/26/2000 53 NOTICE of filing deposition transcript of continued deposition of Eugene R. Clement
in support of supplemental response in opposition to motion for class certification by
Amscot Corporation. (sak) (Entered: 10/27/2000)
10/26/2000 54 DEPOSITION of Eugene R. Clement by Amscot Corporation re: [52-1] supplemental
response in opposition to motion for class certification. (Transcript filed separately.)
(sak) (Entered: 10/27/2000)
11/09/2000 55 REPLY by Eugene R. Clement to response to [26-1] motion for class certification (rm)
(Entered: 11/15/2000)
11/09/2000 56 MOTION with memorandum in support to intervene by Gay Ann Blomefield, Neil
Gillespie as plaintiffs and proposed class representatives (rm) (Entered: 11/15/2000)
11/21/2000 57 NOTICE of supplemental authority in support of motion for class certification by
Eugene R. Clement (rm) (Entered: 11/22/2000)
11/28/2000 58 RESPONSE by Amscot Corporation in opposition to [56-1] motion to intervene by
Gay Ann Blomefield, Neil Gillespie as plaintiffs and proposed class representatives
(rm) (Entered: 11/29/2000)
12/11/2000 59 NOTICE of supplemental authority in opposition to motion for class certification by
12/14/2000 60 JOINT MOTION (STIPULATION) by Eugene R. Clement, Gay Ann Blomefield, Neil
Gillespie (stipulation) to substitute the firm of Barker, Rodems and Cook in place of
the firm of Alpert, Barker, Rodems, Ferrentino and Cook (rm) (Entered: 12/15/2000)
12/14/2000 61 NOTICE of lien by Eugene R. Clement, Gay Ann Blomefield, Neil Gillespie (rm)
(Entered: 12/15/2000)
12/14/2000 62 NOTICE of supplemental authority in opposition to motion for class certification by
12/18/2000 63 ORDER granting [60-1] joint stipulation to substitute the firm of Barker, Rodems and
Cook in place of the firm of Alpert, Barker, Rodems, Ferrentino and Cook; terminated
attorney Scott J. Flint and attorney William J. Cook for Eugene R. Clement. ( Signed
by Judge Richard A. Lazzara ) ctc (eec) (Entered: 12/19/2000)
12/18/2000 64 THIRD NOTICE of filing supplemental authority by Amscot Corporation re: [58-1]
opposition response to motion for class certification (jlh) (Entered: 12/19/2000)
12/18/2000 65 VERIFIED NOTICE of filing documents pertaining to transactions regarding Gay Ann
Blomefield and Neil Gillespie by Amscot Corporation (jlh) (Entered: 12/19/2000)
12/26/2000 66 FOURTH NOTICE of supplemental authority in support of opposition to motion for
class certification by Amscot Corporation (rm) (Entered: 12/27/2000)
12/28/2000 67 MOTION by Amscot Corporation with memorandum in support for partial stay of
Local Rule 4.04(e) (rm) (Entered: 12/29/2000)
01/03/2001 68 FIFTH NOTICE of supplemental authority in support of opposition to motion for class
certification by Amscot Corporation (rm) (Entered: 01/04/2001)
01/08/2001 69 MOTION by Amscot Corporation for protective order in response to subpoena for
production of documents directed to the attorney individually referred to Magistrate
Judge Elizabeth A. Jenkins. STRICKEN PURSUANT TO [70-1] ORDER DATED
1/10/01. (rm) Modified on 01/11/2001 (Entered: 01/09/2001)
01/10/2001 70 ORDER striking [69-1] motion for protective order in response to subpoena for
production of documents directed to the attorney individually. The clerk is directed to
strike the motion and return it to counsel for plaintiff. (Signed by Magistrate Judge
Elizabeth A. Jenkins) ctc (rm) (Entered: 01/11/2001)
01/12/2001 71 MOTION by Eugene R. Clement with memorandum in support to extend time until
1/26/01 in which to respond to motion for partial stay of Local Rule 4.04(e) (rm)
(Entered: 01/12/2001)
motion for partial stay of Local Rule 4.04(e), response to motion set to 1/26/01 for
[67-1] motion for partial stay of Local Rule 4.04(e) by defendant (Signed by Judge
Richard A. Lazzara) ctc (rm) (Entered: 01/17/2001)
01/22/2001 73 UNOPPOSED MOTION by Eugene R. Clement with memorandum in support
(unopposed) for leave to file memorandum in response to defendant's notices of
supplemental authority in opposition to motion for class certification Proposed
response attached. (rm) Modified on 01/23/2001 (Entered: 01/23/2001)
01/24/2001 74 MOTION by Carita M. Wells for protective order referred to Magistrate Judge
Elizabeth A. Jenkins (jlh) (Entered: 01/25/2001)
01/24/2001 75 ORDER granting [73-1] consent motion (unopposed) for leave to file memorandum in
response to defendant's notices of supplemental authority in opposition to motion for
class certification ( Signed by Judge Richard A. Lazzara ) ctc (jlh) (Entered:
01/25/2001)
01/26/2001 76 MEMORANDUM IN RESPONSE by Eugene R. Clement to [67-1] motion for partial
stay of Local Rule 4.04(e) (jnb) (Entered: 01/29/2001)
01/26/2001 77 ORDER denying [74-1] motion for protective order. However, if the parties are unable
to resolve the dispute they may request a telephonic hearing during the deposition by
contacting chambers. ( Signed by Magistrate Judge Elizabeth A. Jenkins ) ctc (jnb)
(Entered: 01/29/2001)
01/30/2001 78 ORDER that [67-1] motion for partial stay of Local Rule 4.04(e) is referred to
Magistrate Judge Elizabeth A. Jenkins, that [76-1] motion response is referred to
Magistrate Judge Elizabeth A. Jenkins (Signed by Judge Richard A. Lazzara) ctc (rm)
(Entered: 01/31/2001)
01/31/2001 79 SECOND NOTICE of supplemental authority in support of plaintiff's motion for class
certification by Eugene R. Clement (rm) (Entered: 02/01/2001)
02/02/2001 80 NOTICE of filing report and recommendation in connection with Amsoct's fourth
notice of supplemental authority in opposition to motion for class certification by
02/07/2001 81 RESPONSE by Amscot Corporation in opposition to [79-1] notice (rm) (Entered:
02/08/2001)
02/09/2001 82 SIXTH NOTICE of supplemental authority in opposition to motion for class
03/12/2001 83 NOTICE of supplemental authority in support of plaintiff's motion for class
certification by Eugene R. Clement (rm) (Entered: 03/12/2001)
03/12/2001 84 SEVENTH NOTICE of supplemental authority in opposition to motion for class
03/20/2001 85 ORDER granting [56-1] motion to intervene by Gay Ann Blomefield, Neil Gillespie as
plaintiffs and proposed class representatives set class action complaint deadline at
3/26/01 for Neil Gillespie, for Gay Ann Blomefield denying without prejudice [26-1]
motion for class certification, to filing an amended motion for class certification by
4/23/01. Defendant shall file a response to motion for class certification by 5/18/01.
(Signed by Judge Richard A. Lazzara) ctc (rm) (Entered: 03/20/2001)
03/23/2001 86 INTERVENOR'S COMPLAINT by Gay Ann Blomefield, Neil Gillespie against
Amscot Corporation. Jury demand. (rm) (Entered: 03/26/2001)
03/27/2001 87 ANSWER and affirmative defenses by Amscot Corporation to [86-1] intervenor
complaint (rm) (Entered: 03/28/2001)
03/27/2001 87 COUNTERCLAIM by Amscot Corporation against Gay Ann Blomefield, Neil
Gillespie (rm) (Entered: 03/28/2001)
03/28/2001 88 ORDER denying without prejudice [67-1] motion for partial stay of Local Rule 4.04(e)
(Signed by Magistrate Judge Elizabeth A. Jenkins) ctc (rm) (Entered: 03/28/2001)
04/23/2001 89 MOTION by Eugene R. Clement to certify class action (jlh) (Entered: 04/24/2001)
04/23/2001 90 MOTION by Eugene R. Clement, Gay Ann Blomefield, Neil Gillespie for leave to file
memorandum in excess of page limit (jlh) (Entered: 04/24/2001)
04/25/2001 91 ORDER granting [90-1] motion for leave to file memorandum in excess of page limit.
Plaintiffs shall have a 10 page extension. (Signed by Judge Richard A. Lazzara) ctc
(rm) (Entered: 04/26/2001)
04/25/2001 92 MEMORANDUM by Eugene R. Clement, Gay Ann Blomefield, Neil Gillespie in
support of [89-1] motion to certify class action (rm) (Entered: 04/26/2001)
05/09/2001 93 NOTICE of supplemental authority in support of renewed motion for class
certification by Eugene R. Clement, Gay Ann Blomefield, Neil Gillespie (rm)
(Entered: 05/10/2001)
05/14/2001 94 MOTION by Amscot Corporation to extend time until 6/4/01 in which to file response
to renewed motion for class certification (rm) (Entered: 05/15/2001)
05/16/2001 95 ORDER granting [94-1] motion to extend time until 6/4/01 in which to file response to
renewed motion for class certification, response to motion set to 6/4/01 for [89-1]
motion to certify class action by plaintiff ( Signed by Judge Richard A. Lazzara ) ctc
(jlh) (Entered: 05/16/2001)
06/01/2001 96 MOTION by Amscot Corporation with memorandum in support to extend time until
6/14/01 in which to respond to renewed motion for class certification (rm) (Entered:
06/04/2001)
renewed motion for class certification response to motion set to 6/14/01 for [89-1]
motion to certify class action by plaintiff (Signed by Judge Richard A. Lazzara) ctc
(rm) (Entered: 06/05/2001)
06/08/2001 98 MOTION by Carita M. Wells to strike name from service list (jlh) (Entered:
06/11/2001)
06/12/2001 ENDORSED ORDER granting [98-1] motion to strike name from service list ( Signed
by Judge Richard A. Lazzara ) ctc (jlg) (Entered: 06/13/2001)
06/14/2001 99 MOTION by Amscot Corporation for leave to file response in opposition to renewed
motion for class certification in excess of page limit (jlh) (Entered: 06/15/2001)
06/18/2001 100 ORDER granting [99-1] motion for leave to file response in opposition to renewed
motion for class certification in excess of page limit ( Signed by Judge Richard A.
Lazzara ) ctc (jlh) (Entered: 06/19/2001)
06/18/2001 101 RESPONSE by Amscot Corporation in opposition to [89-1] motion to certify class
action (jlh) (Entered: 06/19/2001)
06/18/2001 102 NOTICE of filing original deposition in support in opposition to renewed motion for
class certification by Amscot Corporation (jlh) (Entered: 06/19/2001)
06/18/2001 103 DEPOSITION of Gay Ann Blomefield by Amscot Corporation re: [101-1] opposition
response Transcript filed separately. (jlh) (Entered: 06/19/2001)
06/18/2001 104 DEPOSITION of Neil J. Gillespie by Amscot Corporation re: [101-1] opposition
response Transcript filed separately. (jlh) (Entered: 06/19/2001)
06/18/2001 105 ORDER granting [99-1] motion for leave to file response in opposition to renewed
motion for class certification in excess of page limit ( Signed by Judge Richard A.
Lazzara ) ctc (jlg) (Entered: 06/19/2001)
06/28/2001 106 UNOPPOSED MOTION by Amscot Corporation (unopposed) to extend time
discovery until 8/1/01 referred to Magistrate Judge Elizabeth A. Jenkins (rm) (Entered:
06/29/2001)
07/02/2001 107 ORDER granting [106-1] consent motion to extend discovery until 8/1/01, reset
discovery due for 8/1/01 (Signed by Judge Richard A. Lazzara) ctc (plk) (Entered:
07/02/2001)
07/09/2001 108 NOTICE of mediation conference set for 8/13/01 at 9:30 by Peter J. Grilli (rm)
(Entered: 07/09/2001)
07/10/2001 109 ORDER appointing Peter J. Grilli as mediator in this action. (Signed by Judge Richard
A. Lazzara) ctc (rm) (Entered: 07/11/2001)
07/11/2001 110 UNOPPOSED MOTION by Eugene R. Clement, Gay Ann Blomefield, Neil Gillespie
with memorandum in support (unopposed) for leave to file reply brief to Amscot's
memorandum in opposition to plaintiff's renewed motion for class certification
Proposed reply brief attached. (rm) Modified on 07/12/2001 (Entered: 07/12/2001)
07/11/2001 111 NOTICE of filing deposition of Eileen Vasquez in support of renewed motion for class
certification by Eugene R. Clement, Gay Ann Blomefield, Neil Gillespie (rm)
(Entered: 07/12/2001)
07/11/2001 112 DEPOSITION of Eileen Vasquez by Eugene R. Clement, Gay Ann Blomefield, Neil
Gillespie re: [89-1] motion to certify class action Transcript filed separately. (rm)
(Entered: 07/12/2001)
07/16/2001 113 ORDER granting [110-1] consent motion for leave to file reply brief to Amscot's
memorandum in opposition to plaintiff's renewed motion for class certification (Signed
07/16/2001 114 MEMORANDUM by Eugene R. Clement, Gay Ann Blomefield, Neil Gillespie in
support of [89-1] motion to certify class action (rm) (Entered: 07/17/2001)
07/31/2001 115 MOTION by Eugene R. Clement, Gay Ann Blomefield, Neil Gillespie with
memorandum in support to compel discovery referred to Magistrate Judge Elizabeth
08/01/2001 116 ORDER denying [89-1] motion to certify class action. Count I is dismissed with
prejudice. Counts II and III are dismissed without prejudice to bringing them in state
court. The clerk is directed to close this file. (Signed by Judge Richard A. Lazzara) ctc
(rm) (Entered: 08/02/2001)
08/01/2001 CASE CLOSED. (rm) (Entered: 08/02/2001)
08/01/2001 MOTION(S) no longer referred: [115-1] motion to compel discovery, [106-1] consent
motion (unopposed) to extend time discovery until 8/1/01, [74-1] motion for protective
order, [69-1] motion for protective order in response to subpoena for production of
documents directed to the attorney individually, [50-1] consent motion (unopposed) to
extend time to continue deposition of plaintiff as to certified question and related
questions, due to plaintiff's illness, [41-1] motion to compel plaintiff to respond to
certified question and related questions, [39-1] motion to compel more complete
responses to first set of interrogatories (plk) (Entered: 08/21/2001)
08/01/2001 MOTION(S) no longer referred: [39-1] motion to compel more complete responses to
first set of interrogatories, [5-1] motion for leave to take discovery (plk) (Entered:
08/21/2001)
08/02/2001 117 ORDER denying as moot [115-1] motion to compel discovery (Signed by Judge
Richard A. Lazzara) ctc (rm) (Entered: 08/03/2001)
08/20/2001 118 NOTICE OF APPEAL by Eugene R. Clement, Gay Ann Blomefield, Neil Gillespie re:
[116-1] order. Filing fee $ 105.00; Receipt #T011535; Transcript information form due
9/4/01 ctc (plk) (Entered: 08/21/2001)
08/21/2001 TRANSMITTAL of initial appeal package to USCA consisting of certified copies of
notice of appeal, docket sheet, order/judgment being appealed, and motion, if
applicable, re: [118-1] appeal. Transcript information form sent. (plk) (Entered:
08/21/2001)
08/28/2001 NOTICE dated 8/23/01 assigning 11th Circuit case number re: [118-1] appeal. Appeal
number assigned: USCA case #: 01-14761-A (crs) (Entered: 08/29/2001)
08/29/2001 119 TRANSCRIPT INFORMATION FORM filed re: [118-1] appeal; transcript not
requested; Certificate of readiness due 9/12/01. USCA #01-14761-A (crs) (Entered:
08/29/2001)
09/25/2001 120 CERTIFICATE of readiness with certified copies of indexed district court docket sheet
sent to USCA re: [118-1] appeal (ROA consists of: Volume pleadings: 4; Volume
exhibits: 4 folders which include documents filed separately;) USCA#01-14761-A
(crs) (Entered: 09/25/2001)
10/17/2001 ACKNOWLEDGMENT by USCA of receiving certificate of readiness on 9/28/01 re:
[118-1] appeal. USCA #01-14761-A (crs) (Entered: 10/17/2001)
12/10/2001 121 ORDER (USCA) dismissing [118-1] appeal. The parties joint stipulation for dismissal
of this appeal with prejudice, which is construed as a motion to dismiss this appeal
with prejudice, with the parties bearing their own costs and attorney's fee, is granted.
Issued as the mandate: 12/7/01. USCA #01-14761-AA (crs) (Entered: 12/10/2001)
PACER Service Center
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PACER Login: ng0053 Client Code: njg
Description: Docket Report Search Criteria: 8:99-cv-02795-RAL
Billable Pages: 10 Cost: 1.00
United States Court of Appeals
for the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303-2289
(404) 335-6100
Closed
Docket #: 01-14761-AA
Short Style: Eugene R. Clement v. Amscot Corporation
Docket Date: 08/23/2001
Lead Case:
Agency:
Nature of Suit: Other: Statutory Actions
Misc. Type:
Clerk: Dixon, Eleanor
Clerk Phone: (404) 335-6172
District Information
Docket #: 99-02795-CV-T-26 Judge: Richard A. Lazzara
Dkt Date: 12/08/1999 District: Florida-Middle
NOA Date: 08/20/2001 Office: MFL-Tampa
Secondary Case Information
Docket #: Judge:
Dkt Date: / /
Case Relationships
Docket # Short Style Relation Status
Pending Motions
No Pending Motions
http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
Appendix 12
(404) 335-6100
01-14761-AA
Eugene R. Clement v. Amscot Corporation
EUGENE R. CLEMENT,
individually and on behalf of others similarly
situated,
Plaintiff-Appellant,
GAY ANN BLOMEFIELD,
NEIL GILLESPIE,
Plaintiffs-Intervenors
Counter-Defendants
Appellants,
versus
AMSCOT CORPORATION,
A Florida Corporation,
Defendant-Intervenor
Counter-Claimant
Appellee.
United States Court OF Appeals
FOR the Eleventh Circuit
(404) 335-6100
Appellant Appellant Attorney
Eugene R. Clement
Address Not On File
Record Excerpts filed on 10/03/2001
Fees: Paid on 08/20/2001
William John Cook
Barker, Rodems & Cook P.A.
400 N ASHLEY DR STE 2100
TAMPA, FL 33602-4350
(813) 489-1001
Fax: (813) 489-1008
wcook@barkerrodemsandcook.com
No Briefing Information Found.
Gay Ann Blomefield
Address Not On File
William John Cook
TAMPA, FL 33602-4350
(813) 489-1001
Fax: (813) 489-1008
Neil Gillespie
Address Not On File
Appellant Brief Filed filed on 10/03/2001
William John Cook
TAMPA, FL 33602-4350
(813) 489-1001
Fax: (813) 489-1008
Appellee Appellee Attorney
Amscot Corporation
Address Not On File
Person Not Found
John A. Anthony
GrayRobinson, P.A.
201 N FRANKLIN ST STE 2200
TAMPA, FL 33602-5822
(813) 273-5066
Fax: (813) 221-4113
janthony@gray-robinson.com
Initial Service
Lara R. Fernandez
101 E KENNEDY BLVD STE 2700
TAMPA, FL 33602-5150
(813) 227-7404
Fax: (813) 229-6553
lfernandez@trenam.com

(404) 335-6100
File Date Entry Party Pending
08/20/2001 Fee Status: Paid (08/20/01) for Eugene R. Clement
Eugene R.
Clement
No
08/20/2001 Fee Status: Paid (08/20/01) for Gay Ann Blomefield
Gay Ann
Blomefield
No
08/20/2001 Fee Status: Paid (08/20/01) for Neil Gillespie
Neil
Gillespie
No
08/24/2001
DKT7CIV (Docketing 7) issued. cc: Loesch, Sheryl L. cc: Cook,
William J. cc: Anthony, John A.
No
08/24/2001 Briefing Notice Issued No
09/04/2001 Appearance Form Submitted: William J. Cook
William John
Cook
No
09/04/2001 Transcript Order Form: Appellants- No transcript required No
09/04/2001 Civil Appeal Statement Form- Appellants No
09/05/2001 Probable Jurisdiction Noted No
09/07/2001 Appearance Form Submitted: John A. Anthony
John A.
Anthony
No
09/28/2001 Certificate of Readiness No
10/03/2001
Appellant's Brief Filed: Appellants-Clement, Eugene R., Blomefield,
Gay Ann, and Gillespie, Neil (Atty: William J. Cook)
Neil
Gillespie
No
10/03/2001
Record Excerpts: Appellant-Clement, Eugene R. (Atty: William J.
Cook)
Eugene R.
Clement
No
11/09/2001 Joint Stipulation to Dismiss Appeal with Prejudice No
12/07/2001
The parties joint stipulation for dismissal of this appeal with prejudice,
which is construed as a motion to dismiss this appeal with prejudice,
with the parties bearing their own costs and attorney fees, is
GRANTED(JLE/RB).j
No
12/07/2001
DIS-4 (Dismissal 4 Letter) issued. cc: Cook, William J. cc: Anthony,
John A. To: Loesch, Sheryl L.
No
12/07/2001 CASE CLOSED No
Send Comment Change Client Code Search
INTHEDISTRICTCOURTOFAPPEALOFTHESTATEOFFLORIDA
SECONDDISTRICT
APPELLATEDIVISION
NEILJ. GILLESPIE,
APPELLATECASENO.:
Defendant/Appellant,
LowerCourtCaseNo. 05-CA-007205
vs.
BARKER,RODEMS &COOK,P.A.,
aFloridaCorporation;and
WILLIAMJ. COOK,
Plaintiffs/Appellees.
/
ONAPPEALFROMTHECIRCUITCOURTFORTHE
THIRTEENTHJUDICIALCIRCUITOFFLORIDA
APPELLANT'SINITIALBRIEF
RobertW. Bauer,Esq.
CounselfortheAppellant,NeilJ. Gillespie
FloridaBarNo. 0011058
2815NW13
th
Street, Suite200E
Gainesville,Florida
Telephone: (352)375-5960
Fax: (352)337-2518
OralArgumentRequested
Appendix 13
TABLEOFCONTENTS
TableofCitations, Statutes,andOtherAuthorities iii
StatementoftheCaseandFacts v
SummaryofArgument viii
Argument:
StandardofReview x
I. THETRIALCOURTERREDINAWARDING
ATTORNEY'SFEESUNDER 57.105,FLA. STAT.
(2003)TOTHEAPPELLEESBECAUSETHEPROSE
APPELLANTHADAGOODFAITHBELIEFTHAT
HISCLAIMWAS SUPPORTEDBYLAW 1
A. Thiscourtshouldreversetheawardofattorney'sfees in
favoroftheappelleesbecausethetrialcourtabusedits
discretioninholdingaproselitigantandaprofessional
attorneytothesamestandardofcare 3 0
B. Thiscourtshouldreversetheawardofattorney'sfees in
favoroftheappelleesbecausethetrialcourterredin
findingthattheappellant'slawsuitwasfrivolous 8
Conclusion 13
CertificateofService 14
CertificateofCompliance 15
11
TABLE OF CITATIONS, STATUTES, AND OTHER AUTHORITIES
57.105, Fla. Stat. (2003) viii, 1
Bacon v. American Federation ofState, County, and Municipal Employees Council
#13
795 F.2d 33 (7th Cir. 1986) 2, 3, 4
Biermann v. Cook
619 So.2d 1029 (Fla. 2d DCA 1993) 4, 5
Bowen v. Brewer
936 So.2d 757 (Fla. 2d DCA 2006) 9
Clark v. Green
814 F.2d 221 (5th Cir. 1987) 3
Cankaris v. Cankaris
382 So.2d 1197 (Fla. 1980) x
Connelly v. Old Bridge Village Co-Op, Inc.
915 So.2d 652 (Fla. 2d DCA 2005) 1
Graefv. Dames & Moore Group, Inc.
957 So.2d 257 (Fla. 2d DCA 2003) x
Harlow v. Bergson
893 F.2d 187 (8th Cir. 1990) 3
Langford v. Ferrera
823 So.2d 795 (Fla. 1st DCA 2001) 9
Mason v. Highlands County Bd. OfCounty Com 'rs
817 So.2d 922 (Fla. 2d DCA 2002) 1
Mercury Ins. Co. v. Coatney
910 So.2d 925 (Fla. 1st DCA 2005) x
Peyton v. Horner
920 So.2d 180 (Fla. 2d DCA 2006) x
111
Schulmeister v. Yaffe
912 So.2d 53 (Fla. 4th DCA 2005) 1
Ship Construction and Funding Services (USA), Inc. v. Star Cruises, PLC
135 Fed. Appx. 218 (11th Cir. 2005) 8, 9
StagI v. Bridgers
807 So.2d 177 (Fla. 2d DCA 2002) 1, 8,9,10
Turovets v. Khromov
943 So.2d 246 (Fla. 4th DCA 2006) x, 2, 3
Visoly v. Security Pacific Credit Corp.
768 So.2d 482 (Fla. 3d DCA 2000) 1, 5, 6
Yakavonis v. Dolphin Petroleum, Inc.
934 So.2d 246 (Fla. 4th 2006) x
IV
STATEMENT OF THE CASE AND FACTS
This is a case of an inexperienced, unknowledgeable pro se litigant who filed
a nlotion which he in good faith believed was supported by material facts being
sanctioned because he does not possess the skills and qualities of an attorney. His
motion was a carbon copy of a motion filed by the opposing counsel. In his
confusion about the proper format of this kind of motion, the pro se appellant used
the opposing counsel's motion as an example. He believed that following the
example of practiced attorneys would ensure that his motion would be properly
styled. As a pro se appellant, he should not be held to the standard of a licensed
attorney and should instead be granted leniency by the court.
Barker, Rodems, and Cook represented the appellant in an action against
Amscot Corporation, and it was this case that led to the action before this Court.
R. at 11. The case ended in a settlement in which each of the three plaintiffs,
including the appellant, received $2,000, and Barker, Rodems, and Cook were
awarded $50,000 for attorney's fees and costs. R. at 12. The appellant became
suspicious of his attorneys' motives during the course of settlement discussions
because of the attorneys' insistence that the true barrier to settling the case was
paying the plaintiffs. R. at 13-14.
The appellant was told that the $50,000 award of attorney's fees was ordered
by the United States Court of Appeals for the 11 th Circuit. R at 8. However, this
v
was not true, as that Court actually dismissed the case with prejudic,e, and ordered
each party to pay their own attorney's fees and costs. R. at 31. Only later did the
law finn disclose to the appellant how much was actually expended in legal fees,
and the figure was much less than the $50,000 the firm received in the settlement.
R. at 13. This discrepancy in the actual costs and expenses and those awarded led
the appellant to file a complaint against his former attorneys for breach of contract
and fraud. R. at 8-31.
After the appellant filed his initial complaint, the Oefendants responded with
a "Motion to Dismiss and Strike." R. at 32-33. Parts of this motion were not
successful. R. at 36-37. Later, the Defendants filed their "Answer, Affirmative
Defenses and Counterclaim," which made claims against the appellant for libel. R.
at 38-48. The appellant responded to this motion with "Plaintiffs Motion to
Dismiss and Strike Counterclaim," in which the appellant made claims in
paragraphs 3-8 that were almost identical to those made in the Defendants'
previous "Motion to Dismiss and Strike." R. at 49-50. This pleading prompted the
Defendants to file "Defendants' Motion for Sanctions Pursuant to Section
57.105(1), Florida Statutes," which was later amended. R. at 55-57; 82-105.
Attorney's fees were eventually awarded against the appellant on March 27,
2008. R. at 204-205. On April 25, 2008, the appellant filed his "Notice of
Appeal." R. at 206-208. The issue on review for this Court is whether the lower
VI
court abused its discretion in awarding attorney's fees against the appellant. The
appellant respectfully asks this Court to reverse the trial court's award of attorney's
fees against the appellant.
VII
SUMMARYOFARGUMENT
Thisappealaddresseswhetherattorney'sfees shouldbeawardedagainsta
proseappellantwholackstheeducationandexperienceofanattorneywhenhis
claimheingoodfaithbelievedtobesupportedbymaterialfacts. Theappellant
followedtheexampleofopposingcounselindraftingthemotionthatwasthe
subjectof theawardofattorney'sfees andbelievedthatbecausehewasfollowing
theirexamplethattheclaimswithinhismotionweresupportedbymaterialfacts.
Anawardforattorney'sfees isproperwhenaclaimiscompletelydevoidofmerit
orusedas amethodofabusingthejusticesystem. Thisdidnotoccurinthiscase.
Thelowercourtawardedattorney'sfees againsttheproseappellant. Abuse
of discretionisthestandardofreviewofawardsofattorney'sfeesunder57.105,
Fla. Stat. (2003). ThisCourtshouldreversetheawardofattorney'sfeesbecause
thelowercourtabuseditsdiscretioninnotgrantingtheappellantleniencydueto
hisprosestatus. Givingproselitigantsleniencyduetotheirinexperiencewiththe
legalsystemhasfound supportinthecourtsandiswithintheirdiscretion. Itis
unfairtoexpectaproselitigantto actinthesamemannerasanattorneywould.
ThisCourtshouldgranttheappellantthatleniency.
Thelowercourtalsoerredinfindingtheappellant'smotiontobefrivolous
becausetheappellantwithdrewthemotionbeforeitwasevercompletelyheardby
thecourt. Todetermineifamotionorpleadingmeritsanawardofattorney'sfees
VIII
against the presenting party, it is examined at the time it is initially filed. If it
sufficient then, it is not frivolous and does not merit and award of attorney's fees.
The appellant's motion was sufficient when initially filed, and because it was never
entirely heard by the court, it never even became frivolous.
This Court should reverse the trial court's award of attorney's fees against
the appellant because he should be granted leniency due to his pro se status and the
motion he filed was not frivolous.
IX
STANDARDOFREVIEW
Thetrialcourtabuseditsdiscretionwhenitawardedattorney'sfees under
57.105,Fla. Stat. (2003)infavoroftheappelleeswhentheproseappellant's
pleadingwasnotfrivolous andthecourtdidnottograntleniencytotheprose
appellant. Thestandardofreviewofanawardofattomey'sfees under57.105,
Fla. Stat. (2003)is abuseofdiscretion. Peyton v. Horner, 920 So.2d180(Fla. 2d
DCA2006); Turovets v. Khromov, 943 So.2d246(Fla. 4th2006); Yakavonis v.
Dolphin Petroleum, Inc., 934So.2d615 (Fla. 4th2006);Mercury Ins. Co. v.
Coatney, 910So.2d925 (Fla. 1st2005); Grae(v. Dames & Moore Group, Inc., 957
So.2d257(Fla. 2dDCA2003). Discretionisabusedifnoreasonablemancould
joininthedecisionofthetrialcourt. Cankaris v. Cankaris, 382So.2d1197(Fla.
1980).
x
ARGUMENT
I. THETRIALCOURTERREDINAWARDINGATTORNEY'SFEES
UNDER57.105,FLA. STAT. (2003)TOTHEAPPELLEES BECAUSETHE
PROSEAPPELLANTHADAGOODFAITHBELIEFTHATHIS CLAIMWAS
SUPPORTEDBYMATERIALFACTS.
Thetrialcourt'sawardofattorney'sfees againsttheproseappellantwas
improperbecausethemotionthatwasthesubjectoftheawardwasnotfrivolous
becausetheappellantbelieveditwassupportedbynecessarymaterialfacts.
57.105,Fla. Stat. (2003)providesthatwhena"losingparty...kneworshould
haveknownthataclaim... wasnotsupportedbythematerialfactsnecessaryto
establishtheclaim"acourt"shallawardareasonableattorney'sfeetobepaidto
theprevailingparty." Thisstatutehasbeeninterpretedbycourtsto meanthata
claimmustbecompletelyandclearlydevoidofmeritandfacts beforeattorney's
fees maybeawarded. Stagl v. Bridgers, 807So.2d 177(Fla. 2dDCA2002);
Mason v. Highlands County Bd. ofCounty Com 'rs, 817 So.2d922(Fla.2dDCA
2002). See also Schulmeister v. Yaffe, 912 So.2d53 (Fla.4thDCA2005); Visoly v.
Security Pacific Credit Corp., 768 So.2d482(Fla. 3dDCA2000). Ifaclaimis
"arguablysupportableunderthefacts andlaw,"courtshavefoundthatitdoesnot
violatethestatute. Connelly v. Old Bridge Village Co-Op, Inc. 915 So.2d652(Fla.
2dDCA2005).
Asaproselitigant,theappellantdoesnothavethesoundunderstandingand
1
foundation in the knowledge and practice of law that the appellees, attorneys, have.
When the appellant filed his "Plaintiffs Motion to Strike and Dismiss
Counterclaim" on February 10, 2006, he believed that it was supported by material
facts because his motion was essentially identical to the appellees' "Defendants'
Motion to Dismiss and Strike," filed September 9, 2005. R. at 34-35; 49-50. He
chose to use their motion as an example because he was filing the same motion
they had. By following the lead of licensed attorneys, the appellant believed he
was drafting his motion properly. A reasonable pro se litigant in the appellants'
position with the same level of experience in this procedural context would have
filed this motion following the example of professional attorneys believing it was
the proper format. Bacon v. American Federation o(State, County, and Municipal
Employees Council #13,795 F.2d 33 (7th Cir. 1986).
The appellant's claim did not violate 57.105, Fla. Stat. (2003) because
when the claim was filed, he in good faith believed it was supported by material
facts. The appellant mimicked the actions of the experienced opposing counsel
because he had no experience drafting motions. He believed that by doing so, his
motion would be properly drafted. The award of attorney's fees against the
appellal1t was improper because his motion did not violate 57.105, Fla. Stat.
(2003), and this court should show deference to the appellant in applying the
statute because he is a pro se litigant and lacks the legal experience of an attorney.
2
A. Thiscourtshouldreversetheawardofattorney'sfees infavoroftheappellees
becausethetrialcourtabuseditsdiscretioninholdingaproselitigantanda
professionalattorneytothesamestandardofcare.
Thedecisionto awardattorney'sfees infavorof theprevailingpartyunder
57.105,Fla. Stat. (2003)isamatterlefttothediscretionofthetrialcourt. Turovets
v. Khromov, 943 So.2d246(Fla.4thDCA2006). Thisdiscretionallowsacourtto
showdeferenceto aproselitigantbyapplyingthestatuteagainsthimmore
lenientlythanalicensedattorney. Itisunreasonabletoholdaproselitigant,a
laymanwithno legaleducationorexperience,tothesamestandardas alicensed
attorneywhohaslegaleducationinadditiontopracticalexperience. Thetrial
courtabuseditsdiscretionbyholdingaproselitigantto thesamestandardofcare
asanattorney.
Thereissupportforholdingproselitigantsandattorneystodifferent
standardsofcareinthreeFederalCourtsof Appealscircuits. Onecourthaseven
goneso farasto saythatit"wouldbecruelasitwouldbepointlesstohold
laymen...toastandardof carethattheycannotattain." Bacon v. American
Federation orState, County, and Municipal Employees Council #13, 795 F.2d33,
35 (7thCir. 1986). See also Clark v. Green, 814F.2d221 (5thCir. 1987);Harlow
v. Bergson, 893 F.2d 187(8thCir. 1990). TheproselitigantinBacon suedhis
union, lost, andthenattemptedtoappealthedecision. Inhisappellatebrief,Bacon
3
failedtoallegeanybasisas to whythelowercourterredintheirdecisionandthe
courtcharacterizedhisbriefas incoherent. Id. at35. InBacon, the7
th
Circuit
expressedthatcourtsaregenerallymorelenientwithpro selitigantsincivilcases.
Id. at35.
Whenthepro seappellantfiled his"PlaintiffsMotionto DismissandStrike
Counterclaim,"hewasnotabusingthelegalsystem. Thismotionwassimplya
responseto the"Defendants'MotiontoDismissandStrike,"notamethodof
abusingthelegalsystembypresentingincoherentramblingstothecourt. The
pleadingwasnotunusualoroutoftheordinaryandwasnotusedas amethodof
delayingtheproceedings. It wasamerelyresponseto theappellees'motion.
Becausetherewasabasisfortheappellant'sclaim,unliketheproselitigantin
Bacon, theappellantinthiscaseshouldbegivendeferenceintheapplicationofthe
statuteagainsthimas heis aproselitigant.
InFlorida,proselitigantshavebeenheldto adifferentstandardofcarethan
thatofattorneysinordertoprovidetheconstitutionalrightofaccessto thecourts
whichallowsthosewhomaynotbeabletoaffordlegalrepresentationafair
opportunityto litigatetheirclaimsandto representthemselvesincourt. Biermann
v. Cook. 619So.2d 1029(Fla. 2dDCA 1993). ThecourtinBiermann statedthat
"proselitigantsmaybegivenacertainamountoflatitudeintheirproceedings."
Id. at 1031. InBiermann, aproselitigantappealedadecisionthatquietedtitleto
4
his property which was taken by the Internal Revenue Service. Id. He then to
relitigate matters that were res Judicata in his appeal. Id. at 1029. The pro se
litigant in this case filed many outlandish pleadings filled with conspiracy theories
and then began refusing to accept letters from the opposing counsel because the
letters were not properly addressed, because he alleged it would be in violation of
Florida procedure. Id. at 1030.
The appellant's actions in this case did not resemble the pro se litigant's
antics in Biermann. Clearly, the pro se litigant in Biermann was using pleadings as
a method of unreasonably burdening and abusing the court system and was not
entitled any leniency from the courts. In contrast, "Plaintiffs Motion to Dismiss
and Strike Counterclaim" was merely a response to a pleading he received from the
opposing litigants. Subsequent pleadings the appellant filed were not outlandish
because these pleadings were solely an attempt to procure counsel and did not
contain unrelated conspiracy theories. While the pro se litigant in Biermann was
not entitled to any leniency, the appellant is entitled to leniency fron1 the court
because he did not use his pleadings in an attempt to abuse the legal system.
InVisoly v. Security Pacific Credit Corp., 768 So.2d 482 (Fla. 3d 2000), the
court held that a frivolous claim under 57.105, Fla. Stat. (2003) is one which
raises arguments a reasonable lawyer would know are not well grounded in fact.
The litigants in this case delayed a foreclosure for nine years by filing five appeals,
5
A f
among other pleadings. Id. at 485. In their sixth appeal, Visoly and his wife,
through their lawyer, appealed an award of attorney's fees against them under
57.105, Fla. Stat. (2003) claiming that they because they were not specifically
named, they were not parties to the lawsuit. Id. at 489. A reasonable lawyer
would have known that this claim was completely devoid of fact and merit
sinceVisolys were obviously parties to the lawsuit because they had initiated
various legal proceedings and filed documents with the court. Id. The court
upheld the award of attorney's fees against them because the attorney's actions in
filing the pleading. Id.
The appellant in this case is not an attorney and cannot act as a reasonable
attorney. He should not be held to the standard of what a reasonable lawyer would
know is not well grounded in fact. The appellant can only be expected to act as a
reasonable pro se litigant when filing pleadings with the court and should be held
to the standard of what a reasonable pro se litigant would know.
Although the appellant felt confident in his ability to proceed pro se,
evidenced by filing "Plaintiffs Qualifications to Proceed Pro Se" on May 3, 2006,
his resume and other accomplishments fall short of the skills, education, and
experience that a licensed, experienced attorney possesses. R. at 73-77. The
appellant is a well-educated man who received an A.B.A. degree in Business
Administration and a B.A. degree in Psychology and Philosophy. R. at 73.
6 --------
. '
--_._-------
However,theappellant'slegaleducationis limitedtothecompletionofcoursesin
legalassisting,civillitigation,andlegalresearchandwriting. R. at73-74.
Completionofthesethreeclassesis nowherenearequivalentto theappellees' level
oflegalknowledge.
Eventheappellantrealizedthathislimitedlegalexperiencewasinadequate
whencomparedto theappelleesdespitehisstrongconfidenceinhisabilities. This
isshownbyhisattemptstoacquireanattorneyoverthecourseoflitigation. On
April25, 2006,theappellantfiled"PlaintiffsMotionfor AppointmentofCounsel,
Attorney'sFees,andLegalRetainer"whichrequestedthatcounselbeappointed
forhimattheexpenseoftheappellees. R. at63-72. Furtherevidenceofthe
appellant'sbeliefthatheneededtheassistanceoflegalcounselis evidencedbythe
appellant'sJuly31,2006,filingof"PlaintiffsNoticeofCancellationofHearings,
NoticeofSeekingCounsel,ADA"whichnotifiedthecourtthattheappellantwas
seekingassistanceofcounselthroughtheHillsboroughCountyBarReferral
ServiceandwouldthenrequestappointmentofcounselundertheAmericanswith
DisabilitiesActif unsuccessful. R. at 118. Althoughtheappellantinitiallyfelt
confidentinhisabilityto representhimselfprose,hesoonrealizedheneededthe
guidanceofanattorney.
Pro selitigantsarenotonequalgroundwithattorneysas faraslegal
educationandpracticalskillsandshouldnotbeheldto thesamestandardofcare.
7
'
Courts have a duty to protect pro se litigants from manipulation by more
experienced opposing counsel. The courts have discretion to exercise more
leniency with the appellant. Itis unfair and an abuse this court's discretion to hold
the appellant, a pro se litigant, to a standard of conduct that he cannot attain; that of
a licensed attorney. The court should give deference to the appellant, a pro se
litigant, and apply the statute more leniently against him.
B. This court should reverse the award of attorney's fees in favor of the
appellees because the trial court erred in finding that the appellant's lawsuit was
frivolous.
An award of attorney's fees under 57.105 Fla. Stat. (2003) is only proper
when a claim is frivolous -- so clearly devoid of merit and facts as to make it
untenable. Stagl v. Bridgers, 807 So.2d 177 (Fla. 2d DCA 2002). The appellant
had a good faith basis for making his claim because he used the example of
seasoned attorneys and believed that a motion of this type should be formatted
exactly the same way as the appellee's because he had never drafted a Motion to
Dismiss and Strike.
Before attorney's fees may be awarded to the prevailing party, the
presenting party's claim must be frivolous. Ship Construction and Funding
Services (USA). Inc. v. Star Cruises. PLC, 135 Fed.Appx. 218 (lith Cir. 2005). A
claim's frivolity is determined when it is filed, and if it is sufficient when initially
8
'
filed, the party presenting the claim will not be subject to attorney's fees.
Langford v. Ferrera. 823 So.2d 795, 797 (Fla. 1st DCA 2001). In determining
whether a claim was frivolous when filed, courts will focus on what the party
presenting the claim knew or should have known at the time before and
immediately after the suit was filed. Bowen v. Brewer. 936 So.2d 757 (Fla. 2d
DCA 2006).
At the time the appellant's motion was initially filed, it was not frivolous
because there was a good faith basis for filing the motion. The appellant chose to
follow the opposing attorneys' example by formatting his "Plaintiffs Motion to
Dismiss and Strike Counterclaim" after the appellees' Motion to Dismiss and
Strike" because he believed that because the appellees are licensed attorneys, they
knew what they were doing and their motion was a model.
At no point did the appellant's motion become frivolous during the course of
litigation. At the April 25, 2006, hearing on the appellant's motion to dismiss and
strike the appellees' counterclaim, the judge denied several paragraphs of the
motion, but was unable to consider the remaining paragraphs due to insufficient
time. R. at 242. The failure of a claim does not automatically give rise to the
awarding of attorney's fees to the prevailing party under 57.105, Fla. Stat. 2003.
Ship, 135 Fed.Appx. at 222. In Stagl v. Bridgers. 807 So.2d 177 (Fla. 2d DCA
2002), a pro se litigant's complaint was dismissed three times for failure to state a
9
'
causeofaction. Thecourtheldthatthiswasnotenoughto sustainanawardof
attorney'sfees. Id.
AftertheApril 25,2006hearing,therewereno furtherhearingsonthe
motiontoconsidertheremainingparagraphs. Someoftheappellant'sclaimswere
denied,butunderStagl, thiswouldnotbesufficientto meritanawardofattorney's
fees infavoroftheappellees. Theappelleesarguethatbecauseseveralparagraphs
oftheappellant'smotionweredeniedatthishearing,theappellantshouldhave
knownthattherestoftheparagraphswouldalsobedenied. Atnotimedidthe
courtmakeanyreferencetothemotion'sremainingparagraphsandtheirvalidity.
Theonlysourcethatproclaimedtheinvalidityoftheremainderofthe
appellant'smotionwastheappellees. InaletterdatedApril26,2006,attachedas
Exhibit 1to the"Defendants'AmendedMotionfor SanctionsPursuantto 57.105
(1),FloridaStatutes"filedonJune6, 2006,theattorneyfortheappelleesinformed
theappellantthattheremainderofthisclaimseitherlackedmeritorwouldbe
denied. Rat 111. Theattorneyfurtherofferedthatiftheappellantwould
withdrawhismotiontostrikeanddismisstheircounterclaim,theappelleeswould
withdrawtheirmotionforsanctions. R. at 111. Noreasonableperson,whethera
lawyerorproselitigantwouldbelievethattheopposingcounselwasofferingthis
adviceinagoodnaturedattemptto behelpful. Thelawsuitbetweentheappellant
andtheappelleesstartedoutas afraudclaim. Clearlytheappellanthadlosttrust
10
I
and faith in these attorneys and did not believe the appellees' had his best interests
in mind when advising him to withdraw his motion. While this was a clever
bullying tactic, it further shows why the appellant was reasonable in believing that
the remainder of the motion was valid.
In addition, if the failure of a part of a motion is enough to merit an award of
sanctions, the appellees would also be subject to sanctions as their motion to
dismiss and strike fared about as well as the appellant's motion. In an "Order on
Defendants' Motion to Dismiss and Strike," dated January 13,2006, Judge Nielsen
denied parts of the appellees' motion. R. at 36. This is exactly what occurred in
the April 25, 2006 hearing on the appellant's motion. If sanctions were not
appropriate when parts of the appellees' motion were denied, sanctions are not
appropriate in this instance when parts of the appellant's motion are denied.
The court erred in awarding attorney's fees to the appellees. An award of
attorney's fees is only proper when a party makes a claim that is completely devoid
of fact or merit when initially filed or if an initially valid claim becomes frivolous
over the course of litigation. The appellant's motion was not frivolous when
initially filed because he had a good faith basis for making the claims. The
appellant's motion did not become frivolous during litigation because the entire
motion was never heard and the appellant had no reason to believe the motion was
invalid. The appellant then withdrew the motion before the remainder could be
11
{ I
heard. Because the appellant's motion was neither initially frivolous nor did it
become frivolous, this court should reverse the award of attorney's fees against the
appellant.
12
,
CONCLUSION
Thetrialcourterredingrantinganawardofattorney'sfees againsttheappellant.
Thiswouldresultinproselitigantsbeingunfairlyheldto thesamestandardsof
careandconductoflicensed,experiencedattorneys. Aproseappellantwho
clearlyshowsrespectforthelegalsystemandagoodfaithefforttoproperlyfile
pleadingsandmotionsshouldbegivenleniencybecauseevenwiththeirgoodfaith
effort,theysimplylacktheeducation,training, andexperienceofanattorney.
Holdingproselitigantsto anunattainablestandardofconductdoesnotprotectthe
integrityofthelegalsysteminthatitdoesnotprotecttheconstitutionalrightto
accesstothecourt. ThisCourtshouldreversetheawardofattorney'sfees against
theappellant.
Respectfullysubmitted,
~
~ ~
R O t 5 e ~ W. Bauer,Esq.
CounselforAppellantNeilJ.
Gillespie
TanyaM. UhlEsq.
2815NW13
th
Street,Suite200E
Gainesville,Florida
Telephone: (352)375-5960
Fax: (352)337-2518
13
f
CERTIFICATEOFSERVICE
IHEREBYCERTIFYthatatrueandcorrectcopyoftheforegoing INITIAL
BRIEFOFAPPELLANTNEILJ. GILLESPIEwasfurnishedto eachpersonlisted
belowbyU.S. MailonJuly 3 ,2008.
RyanChristopherRodems,Esq.
400NorthAshleyDrive, Suite2100
Tampa,FL33602
LawOfficeofRobertW. Bauer,P.A.
",r" ;;;-;7
B Y : ; t ~ ~
RobertW. Bauer,Esq.
TanyaM. UhlEsq.
2815NW13
th
Street,Suite200E
Gainesville,Florida
Telephone: (352)375-5960
Fax: (352)337-2518
14
CERTIFICATEOFCOMPLIANCE
TheundersignedattorneycertifiesthatthisBriefhasbeenpreparedin
accordancewithRule9.210(a)andissubmittedinTimesNewRoman, 14-point
font.
LawOfficeofRobertW. Bauer,P.A.
7""----- .-c- -
-.
c._..---
RobertW. Bauer,Esq.
TanyaM. UhlEsq.
2815NW13
th
Street, Suite200E
Gainesville,Florida
Telephone: (352)375-5960
Fax: (352)337-2518
15

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RESPONSE OF NEIL J.

GILLESPIE TO THE FLORIDA BAR

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