Beyer v. City of Marathon & State of Florida

16th Jud. Cir. Case No. CA-M-05-313 (Audlin, J.)

Third DCA Case No. 3D08-2864

Beyer v. City of Marathon & State of Florida was dismissed October 31, 2008, on Statute of Limitation Grounds, by Circuit Judge David Audlin. The landowners appealed the final judgment to the Florida Third District Court of Appeal (DCA). On December 31, 2008, the 3rd DCA REVERSED Shands v City of Marathon and Collins, et al. v. Monroe County & State of Florida, two appeals of earlier Audlin dismissals on the same statute of limitation theory. The Shands decision was final (mandate issued) on January 15, 2009, and the Collins mandate  will issue on February 18, 2009.

In light of the Third DCA's Shands and Collins decisions, we served motions on February 6, 2009, requesting the Beyer, McCole, and Sutton appeals be remanded to the trial court. Our motion was denied, and we are litigating the appeals.

July 13, 2009: Beyer & McCole v. Marathon & the State of Florida. The Third District Court of Appeal (DCA)postponed rulings on our motions to strike certain documents from the Records on Appeal (ROA). We were concerned that counsel for the City of Marathon do not understand the appellate process, although one of them (MDS) appeared in 16 appellate proceedings between 1990 and 2007. The other (AMS) has appeared in only three appellate proceedings, between 2001 and 2007. For whatever reasons, the two of them "stuffed" the ROA with documents that were not "before the trial court" when it granted their summary judgments in these cases. Most of the stuffing took place after the Notices of Appeal were filed! The Third DCA decided to carry our motions to strike with the case, and stated that counsel will need to explain, at oral argument, how these documents could have been "before the court" when it dismissed the case on a summary judgment.