IN THE FOURTH DISTRICT COURT OF APPEALFOR THE STATE OF FLORIDA

CASE NO. 4DCA#: 13-3796

L.T. Case No. 502011CPOOCP005095XXXXSB

JASON HALLE,Appellant,

v.

PETER HALLE,Appellee.

ON APPEAL FROM THE CIRCUIT COURT OF THE FIFTEENTHJUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA

APPELLANT'S REPLY BRIEF

Jason Halleprose209 NW 21 st CourtWilton Manors, FL 33311Tel: 954-654-8150Fax: 954-653-1513jason@jasonhalle.com

TABLE OF CONTENTS

Table of Contents .ii

Table of Citations .iii

Argument in Response and Rebuttal to Argument Presentedin the Answer Brief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 1

Conclusion 10

Certificate of Service 13

Certificate of Compliance with Font Requirement. 13

11

TABLE OF CITATIONS

CASES

Dieudonne v. Publix Super Markets, Inc.,994 So.2d 505,506 (Fla. 3d DCA 2008) 3

Dryden Waterproofing, Inc. v. Bogard,488 So. 2d 672, 673 (Fla. 4thDCA 1986) 6, 12

Eagletech Communications, Inc. v. Bryn Marr Inv. Group, Inc.79 So. 3d 855 (Fla. 4th DCA 2012) 7

Gamma Dev. Corp. v. Steinberg,621 So. 2d 718 (Fla. 4thDCA 1993) 6

Gladstone v. Smith,729 So. 2d 1003-1004 (Fla. 4th DCA 1999) 6

Kairalla v. John D. and Katherine T. MacArthur Found.,534 So. 2d 774,775 (Fla. 4thDCA 1988) 6

Kozich v. Kozokoff,945 So. 2d 533 (Fla. 4th DCA 2006) 8

Samuels v. King Motor Co. of Fort Lauderdale,782 So. 2d 489 (Fla. 4th DCA 2001) 3

Thomas v. Pridgen,549 So. 2d 1195, 1196-97 (Fla. 1st DCA 1989) 7

Town of Micanopy v. Connell,304 So. 2d 478 (Fla. 1st DCA 1974) 7, 8

iii

FLORIDA RULES OF CIVIL PROCEEDURE

Rule 1.110 (b)General Rules of Pleading - Claims for Relief 9

Rule 1.190Amended and Supplemental Pleadings 6, 10

TREASTIES

Henry P. Trawick, Jr., Florida Practice and Procedure § 14:9 (2014) 10

Juan Ramirez, Jr., Florida Civil Procedure, § 9-1(a) (3rd ed. 2013) 11

Philip J. Padovano, Florida Civil Practice § 7:10 (2014) 11

iv

ARGUMENT IN RESPONSE AND REBUTTAL TO ARGUMENTPRESENTED IN THE ANSWER BRIEF

For the first nineteen (19) months, the thrust of this case on appeal consisted

of Peter Halle, "Appellee", fighting jurisdiction. The phrase failure to state a cause

of action was never mentioned in a court pleading until the Motion to Dismiss the

Third Amended Complaint was filed by the Appellee on June 19,2013. (R. 409-

415)

Peter Halle, Appellee, states on page 2 of his Answer Brief that he has spent

"well over $100,000 thousand dollars in legal fees." The Appellee wants to

mislead this honorable court by having it believe that all of this money and time

was spent because I, the Appellant, could not state a cause of action. But in fact,

probably 95% of his time and money was spent fighting jurisdiction.

On March 26,2013, an Order was signed by Judge French taking

jurisdiction of this case after more than 16 months of the Appellee trying to fight

against it. (R. 651)

On April 22, 2013, Peter Halle, Appellee, served me a Notice of Appeal (R.

672-674). The Appeal was to the Fourth District Court of Appeal and it was

assigned the case number 4DCA#: 13-1381.

1

On November 27,2013, the Fourth District Court of Appeal Affirmed the

Lower Court's Order taking jurisdiction of the case.

On December 13, 2013, a Mandate was issued by this Honorable Court

upholding jurisdiction in Florida.

Very little of the Appellee's time or attorney's fees were spent because any

of my Complaints failed to state a cause of action. The majority was spent fighting

jurisdiction both in the Lower Court and the Fourth District Court of Appeal.

Peter Halle, Appellee, knew that if he could convince the Florida Courts that

jurisdiction was magically somehow located outside of the State of Florida, that I,

Jason Halle, "Appellant", would not have the financial resources or the physical

stamina to continue the case in another venue. The Appellee is well aware of the

poor state of my health. The fact that I have been representing myself pro se is a

testament to my lack of financial resources.

Now, Peter Halle, Appellee, wants this Honorable Court to believe he has

somehow been abused or prejudiced, even though both the Lower Court ruling and

the affirmation by the Fourth District Court of Appeal have both ruled that Florida

has jurisdiction! Somehow the Appellee believes that spending all of this money

mostly fighting jurisdiction is a justifiable reason to dismiss my Complaint with

prejudice.

2

In Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489 (Fla. 4th

DCA 200 I) it clearly states on page 501, "The Plaintiffs' interest in resolving this

case on the merits outweighs any 'time, effort, energy, and expense' King Motor

might incur by continuing to defend itself."

The Appellee, Peter Halle, has cited Dieudonne v. Publix Super Markets,

Inc., 994 So.2d 505 (Fla. 3d DCA 2008). This is particularly strange since the

Court found in this case on page 506, "Although we agree that the complaint was

properly dismissed, the dismissal should have been without prejudice".

In Peter Halle's ("Appellee") Answer Brief, page 1, ~1, he states that Jason

Halle, Appellant, amended his Complaint five (5) times and used a chart that he

fabricated (R.779-80) to illustrate his point. I believe it is very important to go

through these alleged facts because this chart gives an incorrect impression of what

had transpired.

On November 4,2011, I filed an original Complaint (R. 1-35).

On December 13,2011, Peter Halle, Appellee, served a Motion to Dismiss

for Lack of Personal Jurisdiction and Improper Venue (R. 41-64). All arguments in

this motion pertained only to jurisdiction and nowhere in the Appellee's motion to

dismiss was there any mention of dismissing for failure to state a cause of action.

3

On February 15,2012, there was a hearing where Judge Martz ordered a

continuance for jurisdictional discovery. The Order was signed on February 21,

2012. (R163-164)

On February 19,2012, I served a First Amended Complaint as a result of

new information I was obtaining regarding jurisdiction. (R. 165-176)

On February 29, 2012, I was served a Motion to Dismiss the First Amended

Complaint for Lack of Jurisdiction by the Appellee. CR.177-181) Again, failure to

state a cause of action was never mentioned as a reason to dismiss in this motion.

On March 15,2012, I tried to amend my First Amended Complaint with a

Second Amended Complaint without leave of the court (R. 182-200). It was

stricken on May 2,2012, for no reason other than that I had failed to ask for leave

of the Court (R. 248).

On May 8, 2012, I served a Motion (R. 249-252) to the Court to amend my

First Amended Complaint with a Third Amended Complaint CR.253-318). In the

Motion I stated clearly in ~'s 2, 3, 4, 5,6 and 12 that the purpose of the amendment

was to incorporate new and essential jurisdictional facts that had I had become

aware of during discovery obtained from Fidelity Investments and other sources.

4

On May 30,2012, Peter Halle, Appellee, gave written consent (stipulated to

a proposed agreed upon order) to file the Third Amended Complaint (R. 395). The

agreed order was signed by the Honorable James Martz on June 4,2012. (R. 396)

On June 19,2012, Peter Halle, Appellee served a motion to dismiss the third

amended complaint for lack of personal jurisdiction, improper venue, and failure to

state a cause of action (R. 409-415). This was the first time the phrase "failure to

state a cause of action" was ever used in a pleading in this case.

For almost nine months not much took place. There was a rotation of Judges.

The Honorable James Martz was replaced by the Honorable David French. We

were too late in 2012 to get on Judge Martz's calendar and it took a while to get on

Judge French's calendar in 2013.

On March 20,2013, in a hearing before the Honorable David French the

Appellee's motion to dismiss the Third Amended Complaint for lack of

personal jurisdiction, improper venue, and failure to state a cause of action

was DENIED (R. 651). This had the effect of the State of Florida taking

jurisdiction of the case for the first time in more than sixteen (16) months.

As of April 16, 2013, the Fourth Amended Complaint that the Appellee had

given written consent to amend, was before the Court (R. 631-650). Since the

Second Amended Complaint was never considered by the Court, this was in fact

5

the third (3rd) and last time my complaint was successfully amended despite

the fact that the Appellee has blatantly stated that I have amended my

complaint five (5) times.

Nowhere in Rule 1.190 of the Florida Rules of Civil Procedure does it

mention that there is a limit to the amount of times a litigant may amend. It only

keeps pointing out that if the amendments are justified and they contain new

evidence or are in the interest of justice they should be allowed. I believed that all

of my amendments followed this rule.

In Gladstone v. Smith, 729 So. 2d 1002 (Fla. 4th DCA 1999) which was

cited by the Appellee on pages 17 and 18 of his Answer Brief, the case also goes

on to state on page 1003, "A claim should not be dismissed with prejudice 'without

giving the plaintiff an opportunity to amend the defective pleading, unless it is

apparent that the pleading cannot be amended to state a cause of action.' Kairalla

v. John D. and Katherine T. MacArthur Found., 534 So. 2d 774,775 (Fla. 4thDCA

1988). The opportunity to amend a complaint should be liberally given. See

Gamma Dev. Corp. v. Steinberg, 621 So. 2d 718 (Fla. 4th DCA 1993); Dryden

Waterproofing, Inc. v. Bogard, 488 So. 2d 672,673 (Fla. 4thDCA 1986)."

In Gladstone v. Smith, it was also pointed out on page 1004, that, "Gladstone

amended his complaint 10 times in this case."

6

In Eagletech Communications, Inc. v. Bryn Marr Inv. Group, Inc., 79 So. 3d

855,866 (Fla. 4th DCA 2012) which was cited by the Appellee, the case goes on to

state in the conclusion on pages 866 and 867, "We affirm the trial court's ruling

dismissing Eagletech's Fifth Amended Complaint for failure to state a cause of

action. We find, however, that based on the orders of the previous trial judges

denying similar motions to dismiss the third amended and fourth amended

complaints, the trial court erred in dismissing the Fifth Amended Complaint with

prejudice. Accordingly we reverse the trial court's order to the extent that it

dismisses the Fifth Amended Complaint with prejudice and remand this cause to

the trial court with instructions to allow appellant leave to amend its complaint."

On page 13 of the Appellee's Answer Brief he quotes liberally from Thomas

v. Pridgen, 549 So. 2d 1195, 1196-97 (Fla. 1st DCA 1989). However, the Appellee

neglected to quote from page 1197, "The order dismissing the second amended

complaint with prejudice is reversed and this cause is remanded for further

proceedings consistent with this opinion. REVERSED"

On page 14 of the Appellee's Answer Brief he misquotes from Town of

Micanopy v. Connell, 304 So. 2d 478, (Fla. 1st DCA 1974). On page 480 of the

citation the Appellee quotes, "generally interpreted to allow a plaintiff to amend

his complaint one time in an attempt to state a cause of action". In fact the quote

7

was: "generally interpreted to allow a plaintiff to at least amend his complaint one

time in an attempt to state a cause of action". Emphasis added to the missing words

of the Appellee's quote.

In Town of Micanopy v. Connell, on page 480 it goes on to state, "While the

trial court was correct in its dismissal of the complaint, it was an abuse of

discretion not to allow appellant to amend.

Reversed with directions to enter an order allowing appellant a reasonable

time to file an amended complaint."

On page 15 of the Appellee's Answer Brief he states that in Kozich v.

Kozokoff, 945 So. 2d 533 (Fla. 4th DCA 2006) the Court affirmed a dismissal with

prejudice. But the Appellee neglected to state that on the same page, "Appellant,

pro se, submitted a thirty-seven page complaint plus attachments, which the trial

court dismissed without prejudice to re-file a more concise complaint."

Between April 16, 2013, and May 28,2013, I spent many days in the

Shepard Broad Law Center Library of Nova University studying the law and

particularly trying to learn how to write a complaint. I then realized that my Fourth

Amended Complaint would not stand up in court.

8

No wonder the Appellee was so quick to give his written consent to allow

the Fourth Amended Complaint.

I undertook the task of writing a new complaint which I believed would

satisfy the requirements of Rule 1.11O(b) of the Florida Rules of Civil Procedure.

On May 28,2013, I made a motion to obtain leave of the court to amend my

Fourth Amended Complaint (R. 711-712) with a Fifth a Fifth Amended Complaint

(R. 713-762). This time the Appellee had no interest in giving his written consent

to allow it. Instead the Appellee fought this amendment vigorously.

On June 11,2013, at a hearing before Judge David French the Appellee

argued against allowing my amendment. Since I believed the Court would grant its

leave to amend, I did not arrange for a court reporter at this hearing. When Judge

French informed me that he was not going to give the court's leave to file the

amendment, I was surprised. I, however, was not overly concerned because I

recollect that Judge French assured me that there would be time to amend later if it

was necessary. CR.781)

On August 28,2013, there was a hearing on the Fourth Amended Complaint.

On September 25,2013, Judge David French signed an Order dismissing the

Fourth Amended complaint with prejudice.

9

In 22 months and 9 days I successfully amended my complaint only 3

times. The first time was as my right according to Rule 1.190(a) of the Florida

Rules of Civil Procedure and the second and third times were with the written

consent of the Appellee. Before the hearing on September 25, 2013, not one of

my complaints had ever been dismissed for failure to state a cause of action or

any other reason.

CONCLUSION

"Pleadings should be reviewed during the progress of an action to assure that

all causes of action or defenses are being asserted. New causes of action or

defenses may be developed by discovery. If they are discovered, a prompt motion

to amend should be made." Henry P. Trawick, Jr., Florida Practice and Procedure

§ 14:9 (2014).

Despite the fact that the Appellee claims that my amendments were an

abuse, all of my successful amendments were made with the Appellee's written

consent or by Rule 1.190(a) of the Florida Rules of Civil Procedure.

Iwas not granted leave of the court to amend as a result of the only

dismissal for failure to state a cause of action.

"A complaint that fails to state a cause of action should be dismissed without

prejudice so that the plaintiff can cure the deficiency by filing an amended

10

complaint. The appellate courts have said that the dismissal of a compliant with

prejudice runs contrary to the policy of allowing amendments so that controversies

can be decided on the merits. Unless it appears that the privilege to amend has

been abused or that the compliant is clearly untenable, the trial judge should not

dismiss a complaint with prejudice. This rule applies even if the court has

previously granted an opportunity to amend the complaint. If the plaintiff might be

able to allege additional facts, or if the ultimate facts alleged may support relief

based upon another theory of liability, it would be an abuse of discretion to dismiss

the complaint with prejudice." Page 229, Philip J. Padovano, Florida Civil Practice

§ 7:10 (2014).

"Generally, the sufficiency of the allegations contained in a complaint ... is

tested by a motion to dismiss. If the pleading fails to state a cause of action, the

trial judge should dismiss with leave to amend. If after amendment the pleading

still fails to state a cause of action, a motion to dismiss should be filed again.

There is no magical number of dismissal amendments that will be allowed, but

a dismissal with prejudice is generally not an abuse of discretion after amendments

beyond the third attempt." Page 9-4, Juan Ramirez, Jr., Florida Civil Procedure, §

9-1(a) (3rd ed. 2013).

11

Multiple motions to dismiss were never granted in this action. Only one

motion to dismiss was granted with no opportunity to amend.

As stated in Dryden Waterproofing, Inc. v. Bogard, 488 So. 2d 672,673 (Fla.

4thDCA 1986), "We recognize the oft stated feeling among some members of the

bench and bar that three unsuccessful attempts at stating a cause of action should

be sufficient (three strikes and you're out). However, the rule, more accurately

stated, is that leave to amend a complaint should be freely granted when justice so

requires and it should not be denied unless the privilege has been abused or it is

clear the pleading cannot be amended to state a cause of action."

I pray for relief from this Honorable Court. I pray the Court will reverse in

part and remand with directions to the Lower Court to allow me, the Appellant, a

reasonable amount of time to amend my complaint, plus any other relief that this

Honorable Court may deem just and proper.

12

Respectfully submitted,

JASON HALLE, pro se209 NW 21 st CourtWilton Manors, FL 33311Tel: 954-654-8150Fax: 954-653-1513jason@jasonhalle.com

By:

~~

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and accurate copy of the foregoing, Appellant'sReply Brief, has been furnished by electronic mail to: Michael J. Napoleone,mnapoleone@richmangreer.com, One Clearlake Centre, Suite 1504,250Australian Avenue South, West Palm Beach, FL 33401, this 6th day of March,2014.

CERTIFICATE OF COMPLIANCE

I HEREBY CERIFY that this brief was prepared in Times New Roman, 14 pointfont and complies with the provisions of Rule 9. 120(a)(2) of the Florida Rules ofAppellate Procedure.

By:

13