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HomeMy WebLinkAbout1988 09 29 - Court HearingSTEPHEN L. GOOK Attorney & C000eelor At L.. TEL. (407) 471.8805 POST OFFICE BOX 3532 WEST PALM BEACH, FLORIDA 33402-3532 VIA FAX (407) 676-3298 Charles Nash, Esquire 930 So. Harbor City Blvd. Melbourne, FL 32901-1983 RE: Lake Dolores Utilities & Cable Television Systems, Inc. Dear Mr. Nash: I represent the above referenced entity which holds a Utility Franchise granted by the City of Sebastian, Florida under City Ordinance 08512. I am writing to inform you and the City of Sebastian, that my Client has not abandoned its Franchise to or in any way transferred control or ownership of the Lake Dolores Utilities & Cable Television Systems, Inc., to Nelson C. Hyatt or any affiliate entity owned or controlled by him, Should there be any questions concerning this or any of the matters regarding the ownership status of the Utility Company, please notify me at once at the above mentioned number. STEPHEN L. COOK, ESQ. Enclosure STEPHEN L. COOK Allorvel & At Lew TEL, (407) 471-8805 POST OFFICE BOX 3532 WEST PALM BEACH, FLORIDA 33402-3532 VIA FAX (407) 461-0725 Mr. M. Aten Florida Power & Light Fort Pierce, FL RE: Utility Accounts Dear Mr. Aten: Please be advised that I represent VLD Management, Inc. and Lake Dolores Utilites & Cable Television Systems, Inc. My clients presently have the following accounts: 4602 60 2000 103 4602 60 2000 153 4602 60 2000 203 4602 60 2013 152 The above accounts provide the power to the Utilities Water System and Sewage Treatment lift stations. Lake Dolores Utilities & Cable Television Systems, Inc., as the franchise holder for this public utility, DOES NOT AUTHORIZE any change or transfer its above referenced account and will use all legal means to prevent any hostile conversion or changeover of the accounts by one, Nelson C. Hyatt or any other unauthorized entity. PLEASE GOVERN YOURSELF ACCORDINGLY. Very truly yours, �G ST P COOK, ESQ. cc: Charles Nash, Esquire City of Sebastian .�N NELSON C. HYATT, ) ) Plaintiff, ) VS. ) R. STEPHEN MILES, JR., as ) Trustee, et al., ) Defendants. ) --- ---------------------- A'MV4, Y/1 40W IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA CASE NO. 88-0180 CA -09 JUDGE PAIII, D KANAREK FLORIDA DAR 110. 217931 MOT 11I, RiPPE R s_ A2'TEMPT_ TO_ 011't'AiN_.I' I IL CEI�TIFICATG_.OF__TXTI.G_ FOR LlICK_OF_ 1Ui;1SPICTION COMES NOW, the Defendants, VLD MANAGEMENT, INC., VI.U, INC, and LAKE DOLORES UTILITIES AND CABLE SYSTEMS, 1110., act.i.n through undersigned counsel and Moves this Honorable Court. to Quash Plaintiffs/Successful Bidders Attempt to Obtain t'he Certificate of Title for Lack of Jurisdiction, and would state as follows: ( 1 ) On September 29, 1988, this Court. Entered an Order Requiring Defendants to Pay Monies into the Registry of the Court., Exbibit A. (2) On October 14, 1988, Defendants Filed a Non -Final Appzsl Under Rule 9.130(a)(3)(C)(ii), Immediate Pn s.ession f 11rnpi!rt.y, Exbibi>:-B. (3) F.S.A. 697.07 states as fo.l.lows: "...upon application by the mortgagee, a court of competent jurisdiction may require the mortgagor to deposit such rents in the registry of the court pending adjudication of the mortgagees right to Aoft., i'1 the rents, any payments therefrom to be made solely to protect the mortgaged property and meet the mortgagor's lawful obligations in connection with the property." (4) While Defendants NON -FINAL APPEAL TS PENDTNG, f.h`.:c Cr,urt Lacks Jurisdiction to Issue the Certificate of Title bc•ecui:ie IJ, i;. would Dispose of One of the Issues on Apperl., NAMELY, wh,ri.hc.r• any monies deposited in the Registry of the Court. is to be ;,ppj ied the Redemption figure, which keeps the Certificate of 'rifle fro!i Passing, see So. 2d 510 (Fla 4th DCA 19811) and L,;ps,31�'�_1'«_.1!itilit)L', 416 So. 2d 896 (Fla 4th DCA 1982). (5) Rule of Appellate Procedure 9.130(f) states as follows: "(f) . In the absence of a stay, during the pendency of a review of a non - final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review." (6) If more authority is necessary, in this mat.trr•, it Triz.i Court Order by the HONORABLE WILLIAM C. OWEN, JR., is attached for this Court perusal, discussing the Jurisdiction of the Trial Court to Enter a Order Disposing of a Cause, when a Non -Fina] Appeal i,. Pending, See Exbibit_C. WHEREFORE, Defendants Request this Honoral,ir• Court, I.r Quash Plaintiffs/Successful Bidders Attempt to Obtain t.hv Certificate of Title for Lack of Jurisdict.inn. I HEREBY CERTIFY that: a true and correct ,,,:Iry of I he for•e.going has been furnished by U.S. Mail or by hand drl;very thi. 7 day of October, 1988, to I. he att•ar,hed rnai i i rid ST . 1, 11 E� 14Q, -i-, �-- . Attorney for VLD MANAGEMENT, ! 1w. , VLD, INC., ;wd LAK-: D0I0BGS LIT7 LT'1'J liS AND CiJIIA: SYSTEMS, Post. Ofrice Bo;' X532 West. Paha Eetif:it, FL 3340? (1107 ) 471-8805 rl RE: Nelson C. Hyatt V. R. Stephen Miles, Jr., as Trustee, et al./Case No. 88-0180 CA -09 MAILING LIST FRED T. GALLAGHER, ESQUIRE Post Office Box 1900 Vero Beach, Florida 32961 R. STEPHEN MILES, JR. 4305 Neptune Road St. Cloud, Florida 32769 ROBIN A. LLOYT), SR., ESQUIRE Post Office Box 3406 Vero Beach, Florida 32964-3406 MR, JAMES S. PARKHILL 11200 Westheimer Suite 900 Houston, Texas 77069 O. G. PARKHILL Candlewood Estates Rural Route 2 Mahomet, Illinois 61583 PAUL M. GILLIGAN Coldwell Banker Hallmark Realty 1817 South.Neil Champaign,: Illinois 61820 LEROY CULTON, ESQUIRE. 200 South Biscayne Boulevard Miami, Florida 33131-2384 DIAMOND R. HORNE, ESQUIRE 101 C. Seaway Drive Fort Pierce, Florida 34950 STEPHEN L. COOK, ESQUIRE Post Office Box 3532 West Palm Beach, Florida 33402 JAW el I ICE Uf I) I tlAt ACl1EH 1 .n. �*.l 1111 Al .' a 11011106 IN THE CIRCUIT COURT, NINETSENTII JUDICIAL CIRCUIT, IN AND FOR INDIAN RIVER COUNTY, FLORIDA. CASE NO. 88-0180 CA -09 Judge Paul R. Kanarek NELSON C. RYATT, Plaintiff, ✓�\�\ Q �, �I � { n U R. STEPHEN MILES, JR., as Trustee, et al., _. .. co Defendants. / rn ORDER FOR ASSIGNMENTS OF RENTS THIS MATTER coming on this day to be heard upon the Plaintiff's Motion for Assignment of Rents pursuant to Florida Statute 697.07, and all interested parties having been given due notice thereof, and the Court having considered said Motion and finding that the Mortgage heretofore introduced into evidence specifically provided for the assignment of rents and that clue demand was made by Mortgagee, and having further considered the Statute heretofore cited and being otherwise fully advised in rh premises, it is thereupon ORDERED and ADJUDGED as follows: 1. That all rentals received by the Mortgagor, R. Stephen Miles, Jr. and/or his' grantees or assigns, either VLD, Inc. or VLD Management Corporation, for the rental of lot spaces in the mobile home park located on the real property described in the Final Judgment heretofore entered in this cause shall be deposited into the registry of this Court pending adjudication of the rights of the Mortgagee pertaining to said rents. A list of the names, addresses and the amount of monthly rentals currently being received by Defendants in the operation of the mobile home park shall be filed herein within ten (10) days from the date hereof. 2. That any payments to be made from the rentals so deposited shall be made solely to protect the mortgaged property and to meet the Mortgagor's lawful obligations in conngction with said property, and only upon further order of this Court.. EXi Ei.1Iry ,�1 I DONE AND ORDERED in Chambers at West Palm Deach, Palm 'feat!. County, Florida this 16th day of June 1987. WILLIAM C. OWEi CIRCUIT COURT JUDGE Copies furnished to: Stephen L. Cook, Esquire, Post Office -Box 3532, West Palm Florida 33402 Curtis Witters, Esquire, 1870 Forest 11111 Boulevard, 1Suite Z03, west Palm Beach, Florida 33,106-6094 Pa trick Garrity, Esquire, post Office Box 3888, West Palm Deac'!:, Florida 33402 Lisa Miller, Esqurie, Post Office Dox 3888, West Palm Beac", Florida 33402' n 3. That all rentals so collected shall be deposited in the registry ofthis urt on or before tlieiLday of October, 1988, and on the day of each monthly period thereafter until further Order of this Court. 4. That any undisbursed portions of the rentals so collected and deposited with the registry of this Court shall thereafter be disbursed in accordance with, and upon further Order of this Court. DONE and ORDERED in Ch berf-s at Vero reach, Indian River County, Florida, this o2 �1 day of September, 1988. Copies furnished tot R. Stephen Miles, Jr., Esq. Robin A. Lloyd, Sr., Esq. James S. Parkhill O: G. Parkhill Paul M. Gilligan Leroy Culton, Esq. Fred T. Gallagher, Esq. LAW Of FILE Of .U7 GALLAGHER •p NU HW N081.C1I gppiUA C%1 I'M -2- . KanareK, IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA CASE NO. 88-0180 CA -09 JUDGE PAUL B KANAREK FLORIDA BAR NO. 217931 NELSON C. HYATT, ) Plaintiff, ) Vs. ) R. STEPHEN MILES, JR., as ) 'trustee, et al., ) Defendants. ) NO119E-OE-APPEAL PLEASE TAKE NOTICE, that the Defendants, VLD MANAGEMENT, INC., VLD, INC. and LAKE DOLORES UTILITIES AND CABLE SYSTEMS, INC., acting through undersigned counsel, Files this Non -Final Appeal Under Rule 9.130(a)(3)(C)(ii) to the FOURTH DISTRICT COURT OF APPEAL. THIS APPEAL is taken from the Order of the HONORABLE JUDGE PAUL B. KANAREK, dated September 29, 1988, •E bib -it -A. I HEREBY CERTIFY that a true and correct copy of the for-.eg,oing has been furnished by U.S. Mail or by hand delivery this :- may of October, 1988, to the attached mailing list.. STEPIE N' L. K, ESQUIRE Attorney for Defendants VLD MANAGEMENT, INC., VLD, INC., and LAKE DOLORES UTILITIES AND CABLE SYSTEMS, INC. Post Office Boz 3532 West Palm Beach, FL 33402 (407) 471-8805 41 Y it TIE: Nelson C. Hyatt- v. R. Stephen Miles, Jr., as Trustee, et- al./Case No. 00-0180 CA -09 MAILING LIST FRED T. GALLAGHER, ESQUIRE Post Office Dox 1900 Vero Beach, Florida 32961 R. STEPHEN MILES, JR. 4305 Neptune Road St. Cloud, Florida 32769 ROBIN A. LLOYD, SR., ESQUIRE Post Office Box 3406 Vero Beach, Florida 32964-3406 MR, JAMES S. PARKHILL 11200 Westheimer Suite 900 Houston, Texas 77069 O. G. PARKHILL Candlewood Estates Rural Route 2 Mahomet, Illinois 61583 PAUL M. GILLIGAN Coldwell Danker Hallmark Realty 1817 South.Neil Champaign~ Illin6is 61820 LEROY CULTON, ESQUIRE. 200 South Biscayne Boulevard Miami, Florida 33131-2384 DIAMOND R. HORNE, ESQUIRE 101 C. Seaway Drive Fort Pierce, Florida 34950 STEPHEN L. COOK, ESQUIRE Post Office Box 3532 West Palm Beach, Florida 33402 1 IN THE CIRCUIT COURT 01' 1'I1'fL'131J'1'll JUDICIAL C111C'UIT •FLOR.IUA, IN AND 1'U': BEACH COUNTY. CIVIL DIVISION "N" CASE N0. 85-6733 CA(L) N BARNETT BANKS TRUST COMPANY, N.A., etc., Plaintiff, vs. GLADES HEALTH CARE, INC., etc., et a1, Defendants. ORDER DENYING PLAINTIFFS' MOTION OR EN'!'RY UP- FINAL JUllG11iN'f UP F011L'CLUSUItE THIS COURT, the Ilonorable'1larold J. Cohen presiding, some time ago made findings of fact and rulings of.:law but felt precluded from entering a final judgment because there was then pendia; in the Fourth District Court of Appeal a non. -final appeal flied by the defendants. I'laintiff•s linve now moved for entry of a fina_ judgment on the findings of fact, and rulings of law on the Groun.!s that the District Court of Appeal has now disposed of that non -final appeal (4th DCA Case, 1.10. 4-G6-2440). Ilowever, interim defendants iinve taken an appeal from nnothcr rron �'•" '• order and that case (4th DCA Case No. 4-67-0995) is still NO - before the District Court of Appeal. In vicii of Rule 9.130 Ru1es of• Appellaof a revier: te Procedure, the pendency ^� non -final order precludes t1lis Court from rendering a rill, l o:"''`' , Disposing of tiro cause ponding such review. See Ilirschhorn_'r,_. Sf eri0r Ren1ty of F.1or.1da Inc., 450 So.2d'510 (F1ar IDCii Fs�sito V. Ilorninf., 1.16 So.2d 896 (Fla. 4UCA 1982). Accordingly, it is ORDERED AND ADJUDGED that plaintiffs' motion [Or . ell try : I:ina1 judgment be and the same hereby is denied until such Lire the District Court of: Appeal has disposed of the�ypendin"I.no arpcal Ca;e No. 4-8'1-098;).. i2 6 IN THE FOURTH DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT CASE NO. 88-2824 FLORIDA BAR NO. 217931 VLD, INC., VLD MANAGEMENT, INC. and LAKE DOLORES UTILITIES & CABLE SYSTEMS, INC., formerly known as, (UNKNOWN), Appellant, Vs. NELSON C. HYATT, Appellee. MOTION_ FOR REHEARING_ UNDER_ RULE_ OF AML—LATE_PRO CEDU R E-9,33 DS Al— TO VACATE_THE_OCTOBER_26}_3988_DISMIssAL AS_ VOID_A�1D_,�EQUEST_FOR_EN= BANC CONSIDERATION_ UNDGR_RULE_3s33111;1 I1�1' �?_ GERT3E I E D_ QUA ST I O N S COMES NOW, Appellants, VLD, INC., VLD MANAGEMENT, INC. and LAKE DOLORES UTTLITIES & CABLE SYSTEMS, INC. f/k/a (UNKNOWN), by and through undersigned counsel and Moves this Honorable Court for a Motion for Rehearing Under Rule of Appellate Procedure 9.330(a) to Declare the October 26, 1988 Dismissal as Void and Request. for En—Banc Consideration Under Rule 9.331(c) with Certified Questions and would therefore state: (1) On October 26, 1988, this Court GRANTED a Motion to L)i:a:.iss, ExbibiE__A, Rased on Appellees Motion that Appellant's 01;1-,,Uer 7, 1988, Appeal was UNTIMELY, and Therefore, the COURT OF' Api r•;pL HAD NO JURISDTCTION, Lxbibi><_11. (2) The Dismissal of thi.; Action by the COURT OF APPEAL, be bS �:ed On a IITSAPPRELIENSION of Lack of Jurisdiction of the N',';I,APFLED August 25, 1988 Final Judgment, EX.Li E_C. The Apl:•eal. t,aben On October 7, 1988 from the August 25, 1988 and September 13, 19"8 Order were PROPER AND CORRECT. (3) The Appellees Motion for Dismissal has Overlooked :tat:ut:e 45.031(1) which states: "(1) SALE BY CLERK. final judgment, the the clerk to sell public sale on a shall be not less In the order for court shall direct the property at specified day that than 20 days after the date thereof, on terms and conditions specified in the order or judgment." and the SUPRE14E COUPT OF FLORIDA holding in S2i;1-'a1tY_Yb_YIg�4, 304 So. 2d 97 (Fla 1974) which states the General Rule: "Generally, the test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected." Further, the MISLABELED Final Judgment of August 253 1988; Exlibit C, at Paragraph 12, states: "...and at such time that the Bankruptcy Court shall have released the real property described herein from the proceedings now pending in Case No. 88-2097 and 88-2098, thereby allowing a judicial sale to be conducted by this Court, then upon further Order of this Court setting a time therefore, the Clerk of the Court shall proceed to a sale as provided by Section 45.031 Florida Statutes." THE JUDGMENT COULD NOT BE FINAL UNTIL IT WAS RELEASED AND A DATE, TIME AND PLACE WAS SET, BASED ON THE BANKRUPTCY ORDER OF SEPTEMBER 81 1988. (4) In 13rinklQl_Y;_Fin��n��_L��S�ral__��L��1tY__�Qmi�x, 199 So. 2d 1190 (Fla 3rd DCA 1967), the Court discussed Final Decrees and at Footnote (1) stated: 1. Though entitled a final decree, order or decree appealed from was interlocutory, due to the reservations of jurisdiction for further proceedings necessary to fully dispose of the case. The judicial labor required in the cause was not ended. See F1a.1949, 40 Sold, 776; >eY_YySi��_gx_rgls_�Qr�or, Fla. 1951, 50 Sold 179, 186; BQzk1n,9z_Y1zs_JackzQn Gr13ir_CQ., Fla 1952, 59 So. 2d 24; WQQij_y-a. sLQ�Br_RQfaning_cQ., Fla 1954, 73 So2d 226. The August, 25, 1988 "Final Judgment" was ONLY INTERLOCUTORY 9N3�I� the September 13, 198, Order was Entered, Exbibit D. (5) It :is not unusual for a COURT OF APPEAL to apply a Cursory Review of a Dismissal Motion because a "FINAL JUDG1,1EIFT" was tal-l-en after 30 days. In,�kY_LISs_�rSl�1�5_kg�i��15217a_3DS1_Y�� 511 So. 2d 293 (Fla 1937), the Third Diatrict Count of Appeal, believed that a Dismi—ssal was proper because 30 days had Elapsed from a date of a Final Judgment wlen the Appeal was taken, BUT FAILED TO RECOGNIZE that a Prover 14o'i.ion for Rehearing !a a: Pending. The FLORIDA SUPREME COURT, RQSQrsQd, ander a W1l!iBEbD_WBL1'_oE_lfANDA.L4US- (6) Anthorit.y for, this Motion to Declare the October 26, 19117;, DTSMSSnAf., VOID, is based upon the Case of LD.ClivDn__y:i� liilg; 1113 So. 2d 150 (Fla 4th DCA 1982), citing �1s112ySr_Y;� cJgjhi.ggbg1�, 160 So. 357 (Fla 1935) which states: "Even though a judgment is void, it may be reviewed on writ of error and reversed. cQ3lambi�__N�xl�__S;�nd DrQsl�in�_�Qa_Y��__MQr�Qn, 28 App.Case (D.C.) 288, 7 L.R.A. (if.S.) 1214, 8 Ann. Case. 512. But the better practice in cases where a judgment is claimed to be void is to move to vacate such void judgment in the court wherein the alleged void judgment was rendered. This practice is permissable because every court, whether possessed of original or appellate jurisdiction, is vested with inherent power to vacate its own orders, judgments, or decrees, if void, and indeed, every such court is in duty bound to do so when appropriate procedure is invoked for that purpose." (7) Appellant believes this i.8 an Issue of GREAT PUBLIC POLICY and Suggests these two (2) Questions be Certified to the UFRF1iF COURT OF FLORIDA, under the holding of 1�b11�kEr_YSs_J�x kr�ylp1_4S?$b9fj�Y� 131 So. 2d 22 (Fla 1st DCA 1961) which states: "We wish to observe that it is not amiss and that this court will welcome the filing by any interested party, at any time prior to the expiration of the period of the time allowed for filing a petition for rehearing, of a suggestion to that effect, fortifying it with the factors that make it so; bearing in mind that such pleading has no legal effect." The Two (2) Certified Questions are: (1) IN A FORECLOSURE ACTION, IS A FINAL JUDGMENT "FINAL", FOR PURPOSES OF APPEAL WHEN IT DOES NOT CONTAIN A TIME, DATE AND PLACE FOR SALE? (2) MUST F.S.A. 45.031(1), BE COMPLIED WITH, (i.e., terms, time, date, place) IN THE ORDER FOR A FINAL JUDGMENT TO BE CONSIDERED "FINAL" FOR PURPOSES OF APPEAL? ( G) A sl.cqtem,erit frorii this Attorney is Expressed Under Rube 9. 331 , Exliib�i t.. E. (9) Appellant Requests, this Court Issue an Opinion in these Notions as Appellant and Justice would be better Served by an OPTNT.ON on WHY THIS APPEAL IS OR IS NOT, "UNTIMELY, based on the Facts of this Case. (10) Appellants have a Constitutional Right- to Procedural Due Process and Failure of the FOURTH DISTRICT COURT OF APPEAL, to Accept Jurisdiction, which is their Ministerial Duty, in a Constitutional Violation of Appellants Due Process Rights. WHL:REFORE, Appellants Moves this Honorable Court for a Motion for Rehearing Under Rule of Appellate Procedure 9.330(x) to Vacate the October 26, 1988, Dismissal as Void and Request. for En -Banc Consideration Under Rule 9.331(c) with Certified Questions. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnis!•,ed this 11M day of November, 1988, to the attached list of parties. n �Q STEP H L. CO0 , ESQUIRE Attorney for Appellants VLD, INC., VLD MANAGEMENT, INC. and LAKE DOLORES UTILITIES & CABLE SYSTEMS, INC. Post Office Box 3532 West Palm Beach, Florida 33402 (407) 471-8805 RE: Nelson C. Hyatt v. R. Stephen Miles, Jr., as Trustee, et al./Case No. 08-0180 CA -09 4TH DCA CASE NO. 4-88-02823 MAILING LIST FRED T. GALLAGHER, ESQUIRE Post Office Dox 1900 Vero Deach, Florida 32961 R. STEPHEN MILES, JR. 4305 Neptune Road St. Cloud, Florida 32769 RODIN A. LLOYD, SR., ESQUIRE Post Office Dox 3406 Vero Beach, Florida 32964-3406 MR. JAMES S. PARKHILL . 11200 Westheimar Suite 900 Houston, Texas 77069 O. G. PARKHILL Candlewood Estates Rural Route 2 Mahomet, Illinois 61583 PAUL M. GILLIGAN Coldwell Danker Hallmark Realty 1817 South.Neil Champaignp Illinois 61820 LEROY CULTON, ESQUIRE 200 South Biscayne Boulevard Miami, Florida 33131-2384 DIAMOND R. HORNE, ESQUIRE 101 C. Seaway Drive Fort Pierce, Florida 34950 STEPHEN L. COOK, ESQUIRE Post Office Box 3532 West Palm Beach, Florida 33402 JOHN BERANEK, ESQUIRE Klein 6 Beranek, P.A. Suite 503, Flagler Center 501 South Flagler Drive West Palm Beach, FL 33401 ' IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH. DISTRICT, P.O. BOX A, WEST PALM BEACH, FL 33402 VLD MANAGEMENT, INC., et al., Appellant, V. CASE NO. 88-2824 NELSON C. HYATT Appellee. OCTOBER 26, 1988 BY ORDER OF THE COURT: ORDERED that Appellee's October 18,. 1988 motion to dismiss is granted and -the above -styled appeal is dismissed. I hereby certify the foregoing is a true cony of the original court order. CLYDE L. HEATH, CLERK. cc: John Beranek, Esq. Stephen L. Cook, Esq. Robin A. Lloyd, Sr., Esq. 0. G. Parkhill Leroy Culton, Esq. R. Stephen Miles, Jr., James S. Parkhill Paul M. Gilligan Fred T. Gallagher, Esq. EX H I B I wl Honorable Freda Wright, Clerk (88-0180 CA 09) cros IN THE FOURTH DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT. CASE NO. (Unknown), Appellant, V. NELSON C. HYATT, Appellee. MOTION TO DISMISS APPEAL Nelson C. Hyatt moves to dismiss the appeal which was filed in the Circuit Court on October 7, 1988. This Motion to Dismiss is accompanied by an appendix containing the relevant pleadings. The Notice of Appeal is untimely because it was filed more than thirty (30) days after the Circuit Court's Summary Final Judgment of Foreclosure rendered August 25, 1988. The last day to file an appeal directed to this Final Judgment was September 26, 1988, and the present notice was not filed until October 7, 1988. The Notice of Appeal is not filed by counsel previously appearing in the case and the Notice itself does not disclose who might have taken the appeal. 1 This is a foreclosure proceeding on a second mortgage. The property went to foreclosure sale on October 7, 1988, and the Notice of Appeal was filed the same day. The notice states that two orders are being appealed; (1) the August 25, 1988, Summary Final Judgment of Foreclosure and (2) an order entered on September 13, 1988, which merely sets the date on which a foreclosure sale will occur. The Notice of Appeal incorrectly states that the United States Bankruptcy Court stayed the case until September 9, 1988. The Notice recites that Exhibit D "tolled the time for the taking of the appeal". This statement is plainly wrong because the Bankruptcy Court has specifically allowed this case to proceed to final judgment by two earlier orders. (See Appendix p. 8 and 11). Even if a Federal Bankruptcy Court order had stayed enforcement and sale under the foreclosure judgment, this would have had no effect on the rendition and finality of the judgment for purposes of taking an appeal in the Florida courts. The Relevant Bankruptcv Court Orders There are two corporations (VLD Management Corporation and VLD, Inc.) involved in this mortgage foreclosure proceeding which sought protection under the Federal Bankruptcy Code. By orders of September 8 and 9, 1988, the 2 bankruptcy court granted full relief from the automatic bankruptcy stay and allowed the mortgagee to proceed through sale of the property. However in an earlier order on July 1, 1988, the bankruptcy court lifted the stay stating as follows: Hyatt is granted relief from the automatic stay to proceed with the foreclosure action pending in Indian River County up to and including final. judgment. No sale shall be set without further order of the court. Further, on July 28, 1988, the bankruptcy court granted partial relief from the automatic stay in an order which provided as follows: The Motion for Relief from Stay filed by Nelson Hyatt is hereby granted to allow Nelson Hyatt to pursue the mortgage foreclosure proceeding in the state court through the point of final judgment, but not sale. The earlier order related to VLD Management, Inc. and the later order related to VLD, Inc. These two orders are attached in the appendix to this motion. (Appendix p. 7-12). Thus the present appeal is untimely and should be dismissed. Further, the notice is technically defective because it does not state who the appellant is. An appellant must have been a party in the trial court in order to appeal. See King v. Brown, 55 So.2d (Fla. 1951), and Estate of Maltie v. State, 404 So.2d 384 (Fla. 4th DCA 3 1981). By specific orders the bankruptcy stay was lifted so the case could proceed to final judgment. The final judgment was rendered August 25, 1988, and the appeal comes too late. The appeal should be dismissed. I CERTIFY that a copy of the foregoing has been furnished, by mail, this day of October, 1988, to: STEPHEN L. COOK R. STEPHEN MILES, JR. P. O. Box 3532 4305 Neptune Road West Palm Beach, FL 33402 St. Cloud, FL 32769 ROBIN A. LLOYD, SR. JAMES S. PARKHILL P. O. Box 3406 11200 Westheimer, Suite 900 Vero Beach, FL 32964-3406 Houston, Texas 77069 O. G. PARKHILL PAUL M. GILLIGAN Candlewood Estates Coldwell Banker Hallmark Rlty. Rural Route 2 1817 South Neil Mahomet, Illinois 61583 Champaign, Illinois 61820 LEROY CULTON FRED T. GALLAGHER 200 South Biscayne Blvd. P. 0. Box 1900 Miami, FL 33131-2384 Vero Beach, FL 32961 JOHN BERANEK, of KLEIN & BERANEK, P.A. Suite 503 - Flagler Center 501 South Flagler Drive West Palm Beach, FL 33401 (407) 659-5455 By 4 LAW OFFICE OF FRED T. GALLAGHER R O R'1. 1990 VI411 tl141 I1. 110111(IR ]:961 19W NELSON C. HYATT, Plaintiff, VS. R. STEPHEN MILES, JR., As Trustee, et al., Defendants. n 564716 IN THE CIRCUIT COURT, NINETEENT11 JUDICIAL CIRCUIT, IN AND FOR INDIAN RIVER COUNTY, FLORIDA. CASE NO. 88-0180 CA -09 Judge Paul D. Kanarek _ L 1 SUMMARY FINAL JUDGMENT OF FORECLOSURE THIS CAUSE having come on to be heard this2 day of 1 1988, upon Plaintiff's Motion for Summary Final Judgme , and the Court having reviewed the pleadings and Affidavits filed herein and having heard argument of counsel, and being otherwise fully advised in the premises, it is ORDERED and ADJUDGED as follows: 1. That this Court has jurisdiction of all parties to this action and the subject matter thereof. 2. That the Plaintiff's Motion for Summary"Final Judgment be and the same is hereby granted as to all of the Defendants. 3. That the Defaults previously entered by the Clerk of the Court against the Defendants, FIRST UNION NATIONAL BANK OF FLORIDA and FIRST NATIONAL BANK IN CHAMPAIGN, be and the same are hereby ratified and confirmed. 4. That the Mortgage sued upon is and constitutes a valid second mortgage lien on the following described real property situate in Indian River County, Florida, to -wit: Legal Description is attached hereto and made a part hereof as Exhibit A. 5. That the utility and water system, lines, plant and all facilities relating thereto are located on and being incor- porated in the real property and are declared to be a part thereof and shall be deemed included in the Legal Description attached hereto as Exhibit A. X807 PG ? 0 F =1 LAW OFFICE OF IED T. GALLAGHER . 0 91,. 190N [ NO 91.111 1 wIIM MAI 19W 6. That First Citizens Federal Savings and Loan Association has a first mortgage on the real property being foreclosed herein, and Plaintiff has been required to keep all payments due thereunder current to protect his security position all of which sums so expended by Plaintiff are recoverable in these proceedings, together with interest thereon at the highest rate allowed by Florida law. 7. That the Defendants,•VLD MANAGEMENT CORPORATION and VLD, INC., have filed bankruptcy proceedings in the United States Bankruptcy Court, Southern District of Florida, being Case Nos. 88-2097 and 88-2098, whereby Plaintiff has been required to obtain the services of an attorney to protect his interests in said proceedings and has obligated himself to pay a reasonable fee therefor, which expense he will continue to incur until the completion or termination thereof, and accordingly, said expense is recoverable in these proceedings. 8. That there is now due and owing to Plaintiff upon the note and Mortgage herein the following sums: Total $ 2,000,000.00 429,041.00 84.00 60.00 198.18 84.00 16.00 180,003.18 8,681.26 1,442.96 y S IOU L) n � / 9. That the amounts set forth in Paragraph 8 above are in addition to such further sums that may be paid by Plaintiff for payments due under the first mortgage, together with interest thereon at the highest rate allowed by Floridan additional expenses incurred in bankruptcy proceedings Nos. 88-2097 and 88-2098; court costs, plus interest on the above stated total -2 0. G. 807 PG 2065 Principal ------------------------ 1 C3 Interest from 4/7/86 and including August 25, 1988 ---------------- __�:; Filing fee------------ r.71-ti =�U U:1: Title search expense------------- ="o.la1 Publication of Notice of suit ---- I Y.F Service of process --------------- Certified copies & mail ---------- m Payments to First Citizens Federal S&L Association -------- Interest to August 25/88 ------- Expenses incurred in bankruptcy proceedings to August 25/88 ---- Attorney's fees ------------------ Total $ 2,000,000.00 429,041.00 84.00 60.00 198.18 84.00 16.00 180,003.18 8,681.26 1,442.96 y S IOU L) n � / 9. That the amounts set forth in Paragraph 8 above are in addition to such further sums that may be paid by Plaintiff for payments due under the first mortgage, together with interest thereon at the highest rate allowed by Floridan additional expenses incurred in bankruptcy proceedings Nos. 88-2097 and 88-2098; court costs, plus interest on the above stated total -2 0. G. 807 PG 2065 LAV OFFICE OF FRED E. GALLAGHER 1 0 B[u 19W VI1111 11UI'U III1111111 at the rate of nine percent (98) per annum from the -date of the Summary Final Judgment of Foreclosure until paid, and any furth sums which the Plaintiff may pay in connection with this suit, all secured by the Mortgage constituting a valid lien on the real property described in Paragraphs 4 and 5 hereof. 10. That the lien of the Plaintiff's Mortgage upon the aforesaid real property is prior, paramount and superior to all rights, claims, liens, interests, encumbrances, titles and equities of the Defendants, R. STEPHEN MILES, JR., As Trustee, VLD MANAGEMENT CORPORATION, VLD, INC., LAKE DOLORES UTILITIES AND CABLE TELEVISION SYSTEMS, INC.: FIRST NATIONAL BANK IN CHAMPAIGN, 0. G. PARKHILL, JR., PAUL M. GILLIGAN, JAMES S. PARKEIILL, SUN DANK/TREASURE COAST, NATIONAL ASSOCIATION and FIRST UNION NATIONAL BANK OF FLORIDA, and each of them, and all persons, firms or corporations claiming by, through, under or against said Defendants, and all parties having or claiming to have any right, title or interest in the property described in this action. 11. That the Lease dated April 7, 1986 and Addendums thereto dated April 7, 1986 and August 5, 1986, between the Plaintiff and the Defendant, R. Stephen Miles, Jr., As Trustee, are hereby terminated, cancelled and of no further force nor effect. 12. That if the total sum set forth in Paragraph 8 hereof, with interest at the rate prescribed by law and all costs of this action accruing subsequent to this Summary Final Judgment, is not paid, and at such time that the Bankruptcy Court shall have released the real property described herein from the proceedings now pending in Case Nos. 88-2097 and 88-2098, thereby allowing a judicial sale to be conducted by this Court, then upon further Order of this Court setting a time therefor, the Clerk of the Court shall proceed to a sale as provided by Section 45.031, Florida Statutes. 13. That the Plaintiff shall advance all subsequent costs of this action and shall be reimbursed for them by the -3- 0. R. 807 Pr ?n r, r, LAW OFFICE OF FRHI F GAtInGllEn 1 11 W— 191.1 VI OU 111 n! 11 11 OIIIIIA 1:981 19M .-t. Clerk of the Court if Plaintiff is not the purchaser of the property at the sale, and if Plaintiff is the purchaser, the Clerk shall credit Plaintiff's bid with the total sum set forth in Paragraph 8 hereof with interest and costs accruing subsequen to the Summary Final Judgment, or such part of it as is necessar to pay the bid in full. 14. That out of the proceeds arising from the sale of said real property pursuant to this Summary Final Judgment, the Clerk shall retain his fee. Thereafter, from the remainder of the proceeds, as far as they apply, the Clerk shall pay Plaintiff or its attorney the amounts provided in Paragraphs 8 and 9 hereof. If the real property herein shall sell for more than enough to pay Plaintiff the amount set forth in Paragraphs 8 and 9 hereof, the Clerk shall report the surplus to this Court for its further order. If the amount realized at the sale is insufficient to pay the total of the amounts set forth in said Paragraphs 8 and 9, the Clerk shall report the deficiency to the Court for such further Order as this Court may deem proper. 15. Upon filing the Certificate of Title, the Clerk shall distribute the proceeds of the sale, insofar as they are sufficient, by paying: First, all of Plaintiff's costs; Second, documentary stamps affixed to the Certificate of Title; Third, Plaintiff's attorney's fees; Fourth, the total sum due Plaintiff, less the items paid, plus interest at the rate prescribed by law from the date of this Summary Final Judgment to the date of the sale; and Fifth, by retaining any amount remaining, pending further Order of this Court. 16. That Plaintiff may bid at said sale, and if Plaintiff is the successful bidder, he shall be entitled to a credit on his bid up to the full amount due him as set forth in Paragraphs 8 and 9 hereof. 17. That upon the sale being held in accordance with Chapter 45, Florida Statutes, and upon the Clerk filing a Certificate of Title as provided by Section 45,031, Flordia Statutes, the sale shall stand confirmed, and the Defendants, -4- O.R. 807 PG 2067 LAW OFFICE OF FREE) T. GALLAGHER . 0 en. lyra VL PO IH 4C 11 FI OOlO4 97961 19M R. and each of them, shall be forever barred and foreclosed from asserting any right, claims, lien, interest, encumbrances, title and equity or right of redemption in and to the above-described real property, and all other persons claiming under or against any of the Defendants since the filing of the Notice of Lis Pendens in this action are foreclosed of all estate or claim in said real property. The purchaser or purchasers at said sale, their heirs, representatives, successors and assigns, shall immediately be let into possession of said real property so sold and conveyed, and the title of said purchaser or purchasers shall be free and clear of all rights, claims, liens, interest, encumbrances, titles and equities or rights of any and all of the Defendants, and each of them, and all persons claiming by, through, under or against them. 18. That this Court retains jurisdiction of this cause for the purpose of making all further Orders and decrees as may be necessary and proper, including, without limitation, writs of assistance. DONE and ORDERED in Ch at Vero Beach, Indian River County, Florida, thi's'of August, 1988. Circuit Judge Copies furnished to: R. Stephen Miles, Jr., Esq. Leroy Culton, Esq. Robin A. Lloyd, Sr., Esq. The First National Bank in Champaign First Union National Bank of Florida Fred T. Gallagher, Esq. -5- O.R. 807 PG Pnr;a EXHIBIT "A" LEGAL DESCRIPTION Parcel 1: The South 3/4 of the Southwe"et 1/4 of the Southeast 1/4, Section 20, Township,31 South, Range 39 East. Parcel 2: The Southeast 1/4 of the Southeast 1/4, Section 20, Township 31 South, Range 39 East, LESS that portion lying East of the Florida East Coast Railroad right-of-way. Parcel 3: The West 1/2 of the Southeast 1/4 of the Northwest 1/4 and tile Northeast 1/4 of the Southeast 1/4 of the Northwest 1/4 of Section 29, Township 31 South, Range 39 Fast, EXCEPT the following three parcels of land: A. Beginning at a point 25 feet East of the Northwest corner of the Southeast.1/4 of the Northwest 1/4 of Section.29, Township 31 South, Range 39 East, run East 47 feet, thence South 150 feet, thence West 47 feet, thence North 150 feet to the Point of Beginning. D. Beginning at a point .72 feet East of the Northwest corner of the Southeast 1/4 of the Northwest 1/4 of Section 29, Township 31 South, Range 39 East, thence East 100 feet, thence South 150 feet, thence West 100 feet, thence North 150 feet to Point of Beginning. C. Beginning at a point 25 feet East of Southwest corner of Southeast 1/4 of Northwest 1/4 of Section 29, Township 31 South, Range 39 East, run North 50 feet thence East 100 feet, thence South 50 feet, thence West 100 feet to Point of Beginning. LESS road right-of-way. Parcel 4: The West 1/2 of the Northeast 1/4, Section 29, Township 31 South, Range 39 East. Parcel 5t That part of the NE 1/4 of SE 1/4 of Section 20, Township 31 South, Range 39 East, lying West of the West right-of-way of Florida East Coast Railroad, LESS AND EXCEPT the following two parcels of land: A. Tile North 6.5 acres of the NE 1/4 of the SE 1/4. D. The South 150 feet thereof. ,. U Ln7T}-y�7ily .1 �. lun03 iin:)4, 1 L1.11)1)1/A 0. R. 807 PG 2069 0 CO AW OFFICE OF I GAEIAGIIER I11<i „ III i11 i1�P L•, 1.1 Iv .1 NELSON C. HYATT, Plaintiff, -vs- IN THE CIRCUIT COURT OF TUE NINE- TEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA. CASE NO. 88-0180!CA-09 ,n Judge Paul B. Ka�narek J rn � o R. STEPHEN MILES, JR., as Trustee, et al., Defendants. / n ORDER DIRECTING FORECLOSURE SALE 1 THIS CAUSE coming before the Court this 13th day of September, 1988 upon Plaintiff's Motion to Set Foreclosure Sale pursuant to the Summary Final Judgment of Foreclosure heretofore entered on the 25th day of August, 1988, and all interested parties having received notice of said hearing, and the Court having considered same and being otherwise fully advised in the premises, it is thereupon ORDERED AND ADJUDGED as follows: 1. That the Clerk of the above Court shall sell the property described in the Summary Final Judgment to the highest and best bidder for cash, the full amount of which shall be paid on the date of sale as follows, to wit: That the sale of the property shall be conducted by the Clerk of the Court on the 7th day of October, 1988, at 11:00 a.m. at the front door of the Indian River County Courthouse, Vero Beach, Florida, all as provided by Section 45.031, Florida Statutes. 2. That all other provisions and conditions of said Summary Final Judgment of Foreclosure shall remain in full force and effect. DONE AND ORDERMCir(7 at Vero Beach, Indian River County, Florida, f Ser, 1988. uit Judge Cc: Counsel of Record /0% ^ VLD, _INC., VLD MANAGEMENT, INC. and LAKE DOLORES UTILITIES & CABLE SYSTEMS, INC., formerly known as, (UNKNOWN), Appellant, Vs. NELSON C. HYATT, Appellee. IN THE FOURTH DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT CASE NO. 88-2824 FLORIDA BAR NO. 217931 STATEMENT I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decisions, S,,L,.Ts_.VLrQbouse_fQIIlpaIly_Y;5,_VQI2i2m, 304 So. 2d 97 (Fla 1974) and SLY__L�k�__�rslQns__R��rQs3�isn+_3nsy y�� Ili:ilriy�_�sLrl�_sf_2R8Y�1+_ThirSLP��ri��, 511 So. 2d 293 (Fla 1987). STEP E L. KIPSQUIRE Attorney for Appellants VLD, INC., VLD MANAGEMENT, INC. and LAKE DOLORES UTILITIES & CABLE SYSTEMS, INC. Post Office Box 3532 West Palm Beach, Florida 33402 (1107 ) 471-8805