IN THE SUPREME COURT OF FLORIDA DOUGLAS D. STRATTON, STRATTON & FEINSTEIN, P.A. and DAVID LESMAN Case No.: 3D11-205 Consolidated: 3D11-20 Petitioners, vs. 6000 INDIAN CREEK, LLC, et al., L/T Case No.: 09-90302 Respondents. On discretionary conflict review of a decision of the Third District Court of Appeal PETITIONERS' JURISDICTIONAL BRIEF FILED BY: DOUGLAS D. STRATTON, ESQ. Florida Bar No. 240966 407 Lincoln Road, Suite 2A Miami Beach, Florida 33139 (305) 672-7772 office (305) 672-1038 fax douglas@srlawfirm.com
TABLEOFCONTENTS TableofContents... i TableofCitations...ii StatementoftheCaseandFacts... 1-3 Summary of the Argument........................................... 4 Argument... 5-6 Conclusion... 7 CertificateofCompliance... 8 CertificateofService... 8 1
TABLE OF CITATIONS PAGE NO Pro-Act Dental Lab Inc vs. Strategic Group LLC 986 So.2d 1244 (Fla. 2008)...................................... 4, 5, 6 Florida Constitution, Article V, Section 3(b)(3)........................... 4 Florida Rules of Civil Procedure 9.030(a)(2)(A)(iv)....................... 4 F.S. 57.105...3 11
STATEMENT OF CASE AND FACTS Petitioners Douglas D. Stratton, Stratton & Feinstein, P.A., and David Lesman seek review of a decision of the Third District Court of Appeal affirming the ruling of the Trial Court in part and remanding the directions to the Trial Court in part. The Third District Court of Appeal's decision upholds the Trial Court's ruling that Appellee, the Wilson-Simons Revocable Trust could seek relief from the Trial Court in 11* Judicial Circuit Case No. 09-90302 CA 25, notwithstanding the fact that the Wilson-Simons Revocable Trust was not a party to the litigation. U.S. Century Bank filed a Mortgage foreclosure action against 6000 Indian Creek LLC, the owner of a condominium located in Miami-Dade County, Florida. David Lesman was the tenant in the premises. A Final Judgment of Foreclosure was entered in April 2010 (A-1). Paragraph 9 and 12 of the Final Judgment state: 9. RIGHT OF POSSESSION. Upon filing of the Certificate of Title, Defendants and all persons claiming under or against Defendants since the filing of the Notice of Lis Pendens shall be foreclosed of all estate or claim in the property and the purchaser at sale shall be let into possession of the property, subject to the provisions of the "Protecting Tenants at Foreclosure Act of 2009". 12. JURISDICTION. The Court retains jurisdiction of this action to enter further orders that are proper, including, without limitation, writs of possession and deficiency judgments. The successful bidder at the sale was Plaintiff, U.S. Century Bank, and a 1
Certificate of Title was issued to the bank as the successful bidder (A-2). Three weeks later, the Wilson-Simons Revocable Trust,, purchased the condominium unit from U.S. Century Bank and U.S. Century Bank conveyed title via a Warranty Deed, recorded on the Public Records of Miami-Dade County, Florida (A-3). The Trust then filed a Motion in the foreclosure case for a Writ of Possession (A-4). Paragraph 9 of the Final Judgment of Foreclosure gives the ability to the "purchaser at sale" to enforce the Final Judgment and be put into possession. Albeit, the Wilson-Simons Revocable Trust was not the purchaser at the foreclosure sale. Neither Petitioner Douglas D. Stratton, nor the law firm of Stratton & Feinstein, P.A., Petitioner David Lesman's attorney or record, raised the issue of the lack of the Trial Court's jurisdiction to hear the Motion at the initial hearing, but did in fact raise the defense of Petitioner David Lesman's entitlement to protection under the "Protection Tenants in Foreclosure Action of 2009". At the subsequent hearing filed by the Wilson-Simons Revocable Trust on March 8, 2011, Petitioner Douglas D. Stratton did raise the issue of the lack of Court's jurisdiction of the Trial Court's jurisdiction to act pursuant to the Final Judgment of Foreclosure, (A-1), rendered May 14, 2010, as thirty days had expired and no appeal had been filed. The parties to the Final Judgment included David 2
Lesman, but did not include Wilson-Simons Revocable Trust, as it was not the purchaser at the foreclosure sale. Accordingly, Petitioners contended that the Trial Court had no jurisdiction over Wilson-Simons Revocable Trust and could not grant any relief to it. The Trial Court rejected Petitioner's argument at the hearing on March 8, 2011 (A-5). Thereafter, at a hearing held on Wilson-Simons Revocable Trust's Motion for Attorneys Fees under 57.105, Florida Statutes, the Trial Court granted Wilson-Simons Revocable Trust's Motion for an Attorneys Fee (A-6). The Appeal ensued thereafter to the Third District Court of Appeals. 3
SUMMARY OF ARGUMENT This Court has jurisdiction to review a decision of the District Court of Appeal that "expressly and directly conflicts with a decision of another District Court of Appeal or of the Supreme Court on the same question of law." Pursuant to Article V, Section 3(b)(3) of the Florida Constitution and Rule 9.030(a)(2)(A)(iv), of Florida Rules of Appellate Procedure, the Third District Court of Appeals decision in the instant matter expressly and directly conflicts with Pro-Act Dental Lab Inc vs. Strategic Group LLC, 986 So.2d 1244 (Fla. 2008), and must be reviewed. 4
ARGUMENT The Third District Court of Appeals decision both expressly and directly conflicts with Pro-Act Dental Lab Inc vs. Strategic Group LLC, 986 So.2d 1244 (Fla. 2008) and those cases cited therein. While the Third District Court of Appeals classified the Wilson-Simons Revocable Trust as an "intervenor", the Third District Court of Appeal stated in its opinion that Wilson-Simons Revocable Trust never intervened as is required pursuant to Florida Rule of Civil Procedure 1.230 and mischaracterized the action as pending when the judicial labor had ceased. The case, thus, terminated on entry of the Final Judgment, which was not appealed. The Trial Court only retained jurisdiction to enforce the terms and conditions of the Final Judgment as it applied to (a) the Plaintiff for a deficiency judgment; and (b) the purchaser at the foreclosure sale as it relates to Writs of Possession. Wilson-Simons Revocable Trust was neither the Plaintiff in the Trial Court, nor the purchaser at the sale to this end. The Third District Court of Appeal's opinion further ignores this Court's determination that jurisdiction may be challenged at any time in a proceeding. The issue raised by Petitioners was not to the subject matter jurisdiction of the Circuit Court to hear foreclosure cases, but to the Trial Court's jurisdiction to grant relief to a non-party (in this case Wilson- 5
Simons Revocable Trust), an after-the-fact purchaser of the unit, whose purchase came after the Trial Court's Order became final. As Wilson-Simons Revocable Trust did not purchase the property at the foreclosure sale, it could not be a party to the case, and the Court had no jurisdiction to enter any Order granting Wilson- Simons Revocable Trust any relief. Wilson-Simons Revocable Trust could have filed for either an ejectment action or an eviction action in a case de novo, but could not seek relief from the Court in the present underlying matter. As set forth more particularly in Pro-Act Dental Lab Inc vs. Strategic Group LLC, 986 So.2d 1244 (Fla. 2008), Petitioner David Lesman had and still has the right to procedural due process. Procedural due process does not allow a third party to simply stroll into Court, and appear before a Judge in a case to which it is not a party; and, ask for relief from the Court to which he or she is not entitled. This is especially the case when said party did not properly intervene in the matter, thus, rendering any "reservation ofjurisdiction" unavailable to him or her, in this case, the Wilson-Simons Revocable Trust. 6
CONCLUSION Based on the foregoing authority, conflicts, and circumstances, Petitioners move this Honorable Court to accept jurisdiction in this matter. 7
CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Brie as e r ared in "Times New Roman" with font size 14, in compliance i. A P. 9.210(a). STRAT T & ASSOCIA, P.A. DOU A TTÒN;'ESQUIRE Flori Bar No. 240966 407 L neoln Road, Suite 2A Miami Beach, FL 33139 Phone: 305-672-7772 Fax: 305-672-1038 Email: douglas@srlawfirm.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy ofthe above and foregoing was mailed to Daniel B. Rogers, Esquire, Shook, Hardy & Bacon LLP, Miami Center, Suite 2400, 201 South Biscayne Boulevard, Miami, FL 33131-4332 and Ryan D. Gesten, P.A., attorney for Wilson-Simons Revoc ble Trust dated May 27, 1999, 6974 Griffin Road, Davie, FL 33314, on thi 2. da of October, 2012. Respectfu s ed, STRATT TEIN & ASSOCIATES, P.A. DOUGL, ESQUIRE Florida ar No. 240966 407 Lincoln Road, Suite 2A Miami Beach, FL 33139 Phone: 305-672-7772 Fax: 305-672-1038 Email: douglas@srlawfirm.com