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Does an attorney have to file a "Notice of Appearance" before filing a motion to dismiss? Can you reference the statute?

Zephyrhills, FL |

I was wondering if an attorney has to be signed on to a case and file a "Notice of Appearance" before filing any motions, including a motion to dismiss. Is there a statute that references this question? Any help would be greatly appreciated.

Attorney Answers 3

Posted

With all due respect to my colleague Mr. Mallory, I've actually heard both rules. For years I have operated under the rule as Mr. Mallory has stated it: that any filing by an attorney constitutes that attorney's "entry into the case" if you will. However, consumer attorneys have been debating recently about how they have successfully challenged actions by attorneys who have not first filed a notice of appearance. So, if you are facing a situation where the opposing attorney has filed a document without first filing his/her Notice Of Appearance, I would advise you to object to it and see what happens.

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Asker

Posted

We had a hearing on his motions to dismiss and one got dismissed for condition precedent and the other was abated for causes of action allowing it to be amended. Can I still object to these motions when I did not do it at the hearing at the time? In other words, can I file another motion objecting to it anyway?

Earl Kenneth Mallory

Earl Kenneth Mallory

Posted

Fla. R. Civ. P. 1.500 provides, in pertinent part: (b)BytheCourt. When a party against whom affirmative relief is sought has failed to plead or otherwise defend [10] as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, that party shall be served with notice of the application for default. (Emphasis added)..The term "any paper," as used in subsection (b) of the Rule, has been broadly interpreted by Florida courts to include virtually any indication by a defendant that he intends to defend. As the First District explained in Gulf Maintenance & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So.2d 813, 816 (Fla. 1st DCA 1989), "Florida courts have . . . liberally construed the term 'any paper' to include a defendant's Pro se letter to plaintiff and not filed with the court, an attorney's letter stating that he had not yet been retained, and even a letter drafted, signed, and mailed by a paralegal of a law firm." Where any paper has been filed or served, the defendant must be served with notice of the plaintiff's motion for default and the default, if any, must be entered by the court and not by the clerk.

Asker

Posted

Thank you. I really appreciate the information.

Posted

Filing of any “paper” or other document by an attorney in the court file constitutes an appearance for all purposes UNLESS the Motion to Dismiss is based upon lack of personal jurisdiction over the attorney’s client.

This response does not create an attorney-client relationship. Unless you are already a client of the Mallory Law Group, pursuant to an executed employment agreement, you should not use, interpret, or rely on this response as legal advice or opinion. Do not act on any information in this response without seeking legal advice. Earl K. Mallory ekm@mallorylawgroup.com (561)743-3708.

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Earl Kenneth Mallory

Earl Kenneth Mallory

Posted

There is only ONE rule. (e) Appearance of Attorney. --An attorney may appear in a proceeding in any of the following ways: (1) By serving and filing, on behalf of a party, the party's first pleading or paper in the proceeding. (2) By substitution of counsel, but only by order of court and with written consent of the client, filed with the court. The court may condition substitution upon payment of, or security for, the substituted attorney's fees and expenses, or upon such other terms as may be just. (3) By filing with the court and serving upon all parties a notice of appearance as counsel for a party that has already appeared in a proceeding pro se or as co-counsel for a party that has already appeared in a proceeding by non-withdrawing counsel. Fla. R. Jud. Admin. 2.505

Posted

This is typically governed by the Florida Rules of Civil Procedure and local rules of court. I think it is safe to say you may have some Judges that require it and others that do not.

The answers given are not to be considered legal advice or the retention of an attorney. Every case is unique and cannot be adequately addressed in a forum such as this. You should immediately contact an attorney of your choice for a consultation and in depth analysis of each individuals case.

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Asker

Posted

Thank you for your response. It makes me wonder why this law isn't the same all across the board. Why doesn't Florida law require all attorneys to file a "Notice of Appearance?" Would you happen to know the answer to that?

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