Reply Brief — In re Dolenz

In Tre FER 14 lh

F. SPANIOL, JR,

Supreme Court of the ited Stes” ne

No. 88-971

IN RE: BERNARD J]. DOLENZ

Petitioner,

REPLY BRIEF TO RESPONDENT'S REPONSE TO PETITION

FOR A WRIT OF PROHIBITON, WRIT OF MANDAMUS, OR BOTH

SUPPLEMENTAL _ APP

Bernard J. Dolenz

' 6102 Swiss Avenue

Dallas, Texas 75214

Pro Se

PREFACE

The Respondents! appendix does not comply

with Rule 33. The Respondents give many

distortions in their Brief, such as no

telephone communication had been received

(P-6), a “dead ship" straw man argument

when this was plead ALTERNATIVELY to an

unfinished vessel defense (P-9), failure

to send documents such as motions before

the court and the judgment even though

the Court and the Plaintiff knew that

Dolenz was the owner of the boat from

Court testimony and documents before the

Court evidencing such ownershio. This

brief and supplemental appendix is given

to correct the Respondents!’ distortions.

Even a pancake has two sides.

TABLE OF CONTENTS

), Ly FE nr ees eer ee a |

TABLE OF CONTENTS. .cccccccccsescescseeena

TABLE OF AUTHORITIES eeeseee#esrerteteeteeeeeeese iii

I. THE TRIAL COURT LACKS JURISDICTION AND

THE CASE SHOULD BE DISMISSED...........2

II. THE ZLOCH COURT ERRED IN ALLOWING THE

DEFENDANT ARIES STAR TREK TO BE WITHOUT

COUNSEL BY DISMISSING COUNSEL AND

REFUSING TO CONTINUE THE CASE, PLACING

THE DEFENDANT VESSEL IN A DEFAULT

POSITION... ceccccccccscescscscscsccsesee 3

Itt. THE ZLOCH COURT ABUSED ITS

DISCRETION IN DENYING THE MOTION TO

EXTEND TIME TO APPEAL ....-ccccccesee 8

IV. THE ZLOCH COURT ABUSES ITS DISCRETION

IN NOT RELEASING THE DEFENDANT AIRES STAR

TREK AS FUNDS HAVE BEEN TENDERED TO THE

COURT FOR ITS RELEASE... .ccecccccecece 12

8 errr re yr Ty a ee Te ee ae ee eee ee

SUPPLEMENTAL APPENDIX CONTENTS........15

II

TABLE OF AUTHORITIES

BANKER'S MORRTAGE CO. V. UNITED STATES,

428 F2d 73 (5th Cir. 1970),

cert denied, 399 U.S. 927......10

BURNLEY V. THOMPSON, 524 F2d, 1233..11

CHRISTHILF V. ANNAPOLIS EMERGENCY

HOSPITAL ASS'N INC., 496 F2d 174

appeal after remand, 552 F2d 1070

EE ei ee are © |

MILLS V. MILLS, 232 Va 94, 348 SE2d 250,

3 VLR ES ee re

RODGERS V. WATT, 722 F2d 456, (9th Cir.

BOBS pc ccc ccc seccesececcscccccesesO

TESSMER V. WALKER, 833 F2d 934, (11th

“Cir. EOGT) cccccesnseccccscsccccere cS

VILLEGAS V. CARTER, 711 SW 2d 624

(Tex. J rr rTererr errr eee ee eee

Miscellaneous

RT EE ED SOc dese cecacccescesecsccel

MAGMA CALETA. cccccccccccccccccccccccscceed

U. S. Constitution, Amend 5, 14..... weed

EE ee

EE Oe re |

ie Ci hs 6 Guwn ee see w eee dee ee cee oon

A EAS. ee eee ee ee Eee

III

No. 88-971

IN THE SUPREME COURT OF THE UNITED STATES

In re BERNARD J. DOLENZ, Petitioner

REPLY BRIEF TO RESPONDENT'S RESPONSE TO

PETITION FOR A WRIT OF PROHIBITON, WRIT

OF MANDAMUS, OR BOTH

TO THE HONORABLE JUSTICES OF THE SUPREME

COURT:

Bernard Dolenz, owner of the Defendant

Aries Star Trek, gives this his Reply

Brief to Respondent's Reponse to the

Petition for a Writ of Prohobition, Writ

of Mandamus, or Both, and would show the

Court as follows:

I. THE TRIAL COURT LACKS JURISDICTION AND

THE CASE SHOULD BE DISMISSED

Lack of jurisdiction is plain, and it is

indeed strange that with this evidence,

the Zloch Court gave Findings that were

contrary to these facts:

(1) The U. S. Marshall upon arresting the

vessel 7/10/86 stated: ",..Vessel is

incomplete, under construction, and empty

of equipment..." P-10, Appendix.

(2) Ray Seese, Plaintiff's expert and

Marine surveyer states that the vessel

has never been completely finished or

commissioned... P-43, Appendix.

(3) Statements of Burdick in a local

newspaper article that the Boat is abut

70% completed. P-44, Appendix.

These facts were pointed out to the Court

with Motions to dismiss because of plain

lack of an underpinning for a maritime

contract March 18, April 4, April 18, and

April 9, 1988. This makes one wonder who

authored the judgment.

The boat was never launched. The

infrastructure was built in Taipei in

1968 and freightered to this country,

with the intent to finish it here. The

owner died, with the unfinished boat

being moored in a river for over a dozen

years while in an estate. The boat was

moved to Stuart Yacht for work to begin

its completion and launching. P-44,

Appendix.

A boat that has never been completely

finished or commissioned, as Ray Seese

points out in his survey, lacks Admiralty

jurisdiction. See Memorandum of Law,

P-77 et seq.

II. THE ZLOCH COURT ERRED IN ALLOWING THE

DEFENDANT ARIES STAR TREK TO BE WITHOUT

COUNSEL BY DISMISSING COUNSEL AND

REFUSING TO CONTINUE THE CASE, PLACING

THE DEFENDANT VESSEL IN A DEFAULT

POSITIION.

3

iiiainiiiitaiiitciicattidianaiieidiace il al

When the boat was arrested, Attorney

Lyman Reynolds was hired to defend the

vessel. Melissa Keyes told the Court

that Bernard Dolenz was a partner with

her in the boat, had an interest in it

while Lyman Reynolds was defending the

vessel. (Res. App. P-41). Reynolds

tried to withdraw as counsel upon

learning that Burdick received a

unsubstantiated purported threat, which

Burdick was imputing to the vessel.

Docket P-45 Appendix. Motion to withdraw

as counsel and Motion to continue were

both denied March 12. On the 16th, the

Court allowed Reynolds to withdraw as

counsel, and refused to continue the case

or even a suggestion to continue (P-52,

Respon. Appendix).

Several phone calls were placed to Judge

Zloch that morning by Bernard Dolenz

(Affidavit of Bernard Dolenz attached to

Motion to Dismiss; Motion to Reconsider

March 18, 1987; P-43 of Resp. Appendix;

Affidavit, P-62), Why the Court refused

to return phone calls to Dolenz and with

Lyman Reynolds being allowed to abandon a

case for which he was hired without a

continuance seems abhorant to any system

of justice, particularly when

communications were made to the Court.

Contrary to the statement on P-53 by the

Court, there were contacts with the

Judge's clerk about wanting a continance

and a conversation with the judge. This

request was not honored. Melissa Keyes,

not being an attorney, told the Court

that Dolenz was trying to call you

(Zloch) this morning (P-43), was in Court

in Texas (P-43), and was hoping for a

continuance so that he could properly

prepare the case (P-46) because Reynolds

wanted to abandon the case, and did.

From an interest standpoint, the Court

— ar aos

knew Dolenz had part interest several

months earlier, and Reynolds was denied

his motion to withdraw as counsel a

couple days earlier. Reynolds was hired

to represent the Aries Star Trek, the

Defendant. When Melissa Keyes asssigned

the remaining interest in the boat,

giving full ownership to Dolenz, what

difference did this make on defending the

vessel? Furthermore, Melissa Keyes still

had title to her remaining interest until

such time as the assignment was

DELIVERED. She had standing to continue,

and Mr. Perry misrepresented to the Court

that she lacked standing (P-47). The

Court should either have allowed Mr.

Reynolds to defend the vessel with the

purported threat that Mr. Burdick

alleged, or continue the case so that the

defendant vessel could get substitute

counsel.

The issue of Assignments is covered on

P-71.

In VILLEGAS V. CARTER, 711 SW2d 624 (Tex

1986) the trial court abused its

discretion in denying a motion to

continuance after allowing the attorney

to voluntarily withdraw two days before

trial where the client was not negligenet

or at fault in causing his attorney's

withdrawal, the client had too short a

time in which to find a new attorney and

to have that attorney investigate the

case and prepare for trial.

Similarly a trial court abused its

discretion by denying continuance, and

client was prejudiced thereby, where

client had little or no advance notice

that her counsel would withdraw on

morning of trial of a complex matter.

MILLS V MILLS, 232 Va 94, 348 SE2d 250, 3

VLR 549. Most jurisdictions have similar

case law. 17 Am. Jur 2d 130.

III. THE ZLOCK COURT ABUSED ITS

DISCRETION IN DENYING THE MOTION TO

EXTEND TIME TO APPEAL

Argument is given on P-77 et seg and will

not repeated here.

While the Clerk did not send notice of

the judgment to the Owner, Bernard J.

Dolenz, per FRCP 77(a), Bernard J.

Dolenz complied with the efforts

outlined in Tessmer v. Walker, 833 F2ad

934 (llth Cir. Dec. 1987), and it was an

abuse of discretion at the Trial Court

to deny his Motion for an Extension of

Time to Appeal.

In this regard, Bernard J. Dolenz made

repeated inquiries by phone, as well as

a couple of visits to review the file,

requesting repeatedly of Judge Zloch's

clerks and staff to expedite the Motions

before the Court and to keep Bernard J.

Dolenz posted. These inquiries were

made repeatedly of the Clerk as well as

Judge Zloch's secretary. Because of the

multiple calls to Ms. Greenberg, she

indicated that the Clerk's office would

keep me informed.

I was unable to have even a hearing

before Judge Zloch even in spite of a

Motion For Hearing, even though the

Court file reflects that I was the owner

of the vessel. I never saw the Judge,

and even though repeated requests were

made by Motion, he would not grant a

hearing, and seemingly conducted this

case like a "Star Chamber proceeding",

which was obviated in 1215 by the

signing of the Magna Carta, which

principles of due process have _ been

adopted in Amendments 5 and 14 of the

U.S. Constitution.

Bernard J. Dolenz believes that he did

everything reasonable under the

circumstances to be kept informed short

of groveling and living at the Ft.

Lauderdale Federal Courthouse. Bernard

J. Dolenz asks of this Court what else

he could have done under the

circumstances.

Rodgers v. Watt, 722 Fd2 456, (9th Cir.

1983), holds that Rule 60(b) should be

liberally construed, and that the

provisions of the Rule must be carefully

interpreted to preserve the delicate

balance between the sanctity of final

judgments and the "incessant command of

the Court's conscience that justice be

done in light of ALL the _ facts".

Banker's Mortgage Co. v. United States,

Sa5 2 a6: 7a, V2, CR. Civ.},; “Geed,

denied, 399 U.S. 927, 90 S. Ct. 2242, 26

L. Ed. 2d 783 #£4(1970) (emphasis in

original).

This Court should consider ALL the facts

and in particular, consideration that

the Trial Court had no business with

10

ia,

this case in the first place as it

lacked jurisdiction, and also because

the Trial Court would not even consider

the rights of the owner, Bernard J.

Dolenz, to the vessel, and would not

grant a_ hearing for its defense,

violating due process considerations.

In this regard, “Opportunity for a

hearing required by due process must be

given before the deprivation of a

property interest except for

extraordinary situations where some

valid governmental interest is at stake

which justifies postponing the hearing

until after the event". U.S.C.S. Const.

Amend. 14, Burnley v. Thompson, 524 F2d

1233.

"Right to a hearing embraces an adequate

opportunity to defend". Christhilf v.

Annapolis Emergency Hospital Ass'n, Inc.

496 F2d 174, appeal after remand 552 F2d

1070.

11 |

owner should be permitted to have a

counter-claim for these damages.

The Plaintiff also exhibited

misconduct by not sending documents, as

they had done in the past, regarding the

MOTION FOR AN AWARD OF COSTS filed March

4, 1988, and giving any notice of the

final judgment. The Clerk of the Court

at no time sent any notice to me of the

final judgment.

Additionally, the owner contends

that the judgment is void as this Court

does not have jurisdiction over the

"vessel" as it has never been finished

or commissioned according to statements

appended hereto given by Greg Burdick,

the U.S. Marshall who arrested the

vessel, and marine surveyor Ray Seese.

Bernard Dolenz, as owner, was

unable to defend the Defendant due to

forcible obstacles from the Court as it

would not grant a hearing, even though

requested, and would not return the

12

|

ruling from that Court.

PRAYER

Petitioner prays of this Honorable United

States Supreme Court that:

1. A Writ of Mandamus or a Writ of

Prohibition be issued by this Court

directed to the Honorable William J.

Zloch to dismiss the case as the Court

lacks jurisdiction;

2. The llth Circuit ruling on the Motion

for Re-Hearing on Petition for Writ of

Prohibition and/or Writ of Mandamus’. be

corrected affirmatively for the owner of

the Defendant vessel;

3. The Defendant vessel be released to

the Petitioner without impediment for its

placement into the water;

4. Alternatively, for immediately release

of the vessel pending appeals before this

Court;

13

. |

5. For Rule 11 sanctions against the

Plaintiff;

6. For General Relief.

Respectfully submitted,

Bernard Dolenz

CERTIFICATE OF SERVICE

Three copies of the foregoing instrument

were sent by regular mail to Judge

William J. Zloch, U.S. District Judge,

Room 202B, 299 East Broward Blvd., Fort

Lauderdale, FL 33301 and to Steven

Perry, Plaintiff's Attorney, P. O.

Drawer 24, Stuart, FL 33497-0024 on this

the th day of February, 1988.

14

rrr ees

SUPPLEMENTAL APPENDIX CONTENTS

DOCKET SHEET (PARTIAL) ..ccccccccceeee4D

NOTICE OF MOTION FOR INTERVENTION... .46

BRIEF TO SUPPORT THE MOTION TO DISMISS

PP ee er ee ee ee ree weer ee Te ee

MOTION TO VACATE JUDGMENT, MOTION TO

VACATE PLAINTIFF'S MOTION FOR AN AWARD OF

COSTS & MOTION FOR MODIFICATION CF THE

ORDER APPOINTING SUBSTITUTE CUSTODIAN &

ORDER *e*eeeereeseersesrersesfeeese#e#ee#ee#e# e*e0eee@ee@e#s#efefeee#e#e#8et8e#*? 59

AFFIDAVIT OF BERNARD DOLENZ.......... 62

MEMORANDUM OF LAW.......-. eocecesceccos 71

Issue of Assignment.............71

Ownership of Defendant Vessel...72.

Property subject to Jurisdiction73

Raising Lack of jurisdiction....76

Due Process Not Allowed to Bernard

OS eee a eae |

Motion to Vacate Judgment Should

be allowed......cccccceces 77

PUBLISHER'S NOTE:

The following pages are unavailable for filming:

AT Ree A

(DOCKET SHEET)

DATE /DOC.#/ PLEADING

1987

Feb 3

27

27

Mar 12

13

16

Mar 19

20

20

20

20

/19/

/20/

J21/

/22/

/23/

/24/

/25/

/26/

(27/

/28/

MOT. to widraw as counsel

for Def.

MOT. to cont. by Deft.

ORDER (WJZ-3-12-87) :

m/to/w/draw as counsel (dkt

#19) is DENIED, m/to cont

(dkt #20) is DENIED (EOD3-

13-87)

NOTICE of trial conflict by

deft.

MINUTES 3-16-87 hrg on ist

day of trial - trial

concluded

ORDER (WJZ-3-19-87) m/to

w/draw as counsel is GRANTED

(EOD3-20-87)

NOTICE of m/for

intervention, rule 24(a).,

by intervening pltf

COMPLAINT in personam

against Boatyard for

negligent performance of

repairs; wrongful arrest, by

intervening pltf.

MOTION to dismiss & MOTION

to reconsider., by

intervening pltf.

BRIEF in supp of DOC #27

45

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA - ADMIRALTY

DIVISION

STEWART YACHT BUILDERS, INC.,

Plaintiff

vs. NO.

8668384-CIV-Zloch

ARIES STAR TREK, enrollment

#55798, together with all

tackle and apparel

NOTICE OF MOTION FOR INTERVENTION,

Rule24 (a)

TO THE HONORABLE JUDGE OF SAID COURT:

PLEASE TAKE NOTICE, that upon the

attached affidavit of Bernard Dolenz,

verified March 18, 1987, and upon the

annexed proposed complaint, the

undersigned moves this court to set a

date so Intervenor/attorney can be heard

for an order permitting Bernard Dolenz

to intervene as a plaintiff in this

action im order to assert his claim

against the defendant vessel, ARIES STAR

46

TREK, set forth in the proposed

complaint annexed hereto, pursuant to

the provisions of Rule 24(a) of the

Federal Rules of Civil Procedure, on

the ground that the proposed intervening

plaintiff claims an interest in the

defendant vessel, ARIES STAR TREK, and

its proceeds and the disposition of this

action might impair or impede said

proposed intervening plaintiff's ability

to protect his interest.

CERTIFICATE OF SERVICE

Copies of the foregoing instruments have

been sent by regular mail to:

Stephen Perry, Attorney

555 Colorado avenue, suite 1

P.O. Box 24

Stewart, Florida 33495-0024

Lyman Reynolds, Attorney

P.O. Box 709

West Palm Beach, Florida 33402

47

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORID

ADMIRALTY DIVISION

CASE NO. 86-8384-CIV-ZLOCH

STEWART YACHT BUILDERS, INC.,

Plaintiff

VS.

ARIES STAR TREK, enrollment

#55798, together with all

tackle and apparei

Defendant.

J

BRIEF TO SUPPORT THE MOTION TO DISMISS

TO THE HONORABLE JUDGE OF SAID COURT:

THE COURT LACKS JURISDICTION

The Plaintiff assumes that jurisdiction

exists choosing for his own reason to

have this case decided by an admiralty

court hoping that the jurisdictional

point may be easily over-looked by the

Court when it is dealing with the

contract having a nautical favor.

48

An inspection of the Plaintiff's

documents confirm that exploratory

carpentry, design and engineering, keel

fabrication, design engineering '- and

consultation, placing in aé_= stearing

system, and alterations to the vessel

all relate to the original construction

of the vessel. EXHIBIT "A"

This contract, being one for services of

a ship, does not furnish a basis for a

Claim within the admiralty jurisdiction

provided for in 28 USCS Section 1333(1).

In Bond v. F/V Mermaid (1970, DC Fla)

311 F. Supp 1013, a naval architect

filed a complaint in rem against a

vessel for alterations and additions to

its plans ordered by the owners of the

Defendant vessel, asserting admiralty

jurisdiction, but the Court found that

the extra work performed, that is,

drafting, conferences, calculations, and

the like, all related to the original

construction of the vessel, and that

49

NS

services furnished under the later

agreement for changes were supplied in

contemplation of completing the original

undertaking for the design and

supervision of the vessel's

construction. This contract, being one

for services furnished in the

construction of a ship, does not furnish

a basis for a claim within the admiralty

jurisdiction provided for in 28 USCS

Section 1333 (1), the Court concluded.

The Plaintiff's own invoices and

statements indicate that Mr. Burdick

knew that the boat was "only about 70%

completed". EXHIBIT "B". In EXHIBIT

"B" Burdick indicates that he is in the

process of re-designing the unfinished

boat. the bottom-side still required

interior finishing, installation of

wiring, plumbing, steering mechanisms,

engine fittings, desk fittings, masts

and riggings. The boat was never

50

completed because of lack of funds to

complete her by the previous owners.

Lack of jurisdiction may be raised at

any time, even upon a second appeal of

an action in which the point was never

raised in the trial court, and was not

advanced in a previous appeal (Flota

Maritima Browning de Cuba, Sociadad

Anonima v. Snobl (1966, CA4 Md) 363 F2d

733, cert den 385 US 837, 17L Ed 2d 71,

87 S Ct 82), and when raised must be

examined and decided (Armstrong Cork Co.

v. Farrell Line, Inc. (1948, DC Pa) 81 F

Supp 848). Or the court itself may

raise the issue, and, consequently,

Plaintiff's counsel must be prepared to

demonstrate admiralty jurisdiction to a

court's patinteiicton and his failure to

cary this burden when called upon by the

Court, even though Defendants’ counsel

also argues to the Court that there is

no problem as to jurisdiction, will

result in dismissal (Rhederei Actien

51

————ii

Gesellschaft Oceana v. Clutha Shipping

Co. (1915, DOC Ma 226 F 339).

Agreements for alterations and additions

to plans ordered by the owners are not

maritime contracts’~ and, hence, not

within the purview of admiralty

jurisdiction. This holding has been

repeated many times by decisions of the

United States Supreme Court beginning in

1857 with People's Perry Co. v. Beers

(1857) 61 US 393, 15 L Ed 961. People's

Ferry held that bisteie Courts of the

United States had no jurisdiction to

proceed in admiralty to enforce liens

for labor and materials furnished in

constructing vessels to be employed in

the navigation of waters to which the

admiralty jurisdiction extends, pointing

out that liens on vessels encumber

commerce.

The Court said that it would be a

strange doctrine to hold the ship bound

in a case where the owner made the

52

contract in writing, charging himself to

pay by installments for building the

vessel at a time when she was neither

registered nor licensed as a seagoing

ship, and that as to the contract being

purely maritime and touching rights and

duties appertaining to navigation, it

was a contract made on land, to be

performed on land, the wages of the

shipwrights having no reference to a

voyage to be performed, so that they

were bound to rely on their contract.

In Thames Towboat C. v. The Schooner

"Francis McDonald" (1920) 254 US 242, 65

L Ed 245, 41 S C t 65, the United States

Supreme Court held that the Plaintiff's

contract to furnish materials, work, and

labor for her completion made after the

schooner was launched BUT WHILE NOT

SUFFICIENTLY ADVANCED TO DISCHARGE THE

FUNCTIONS FOR WHICH SHE WAS INTENDED,

was not within the admiralty and

maritime jurisdiction. (Emp. added).

x

THE DEFENDANT "ARIES STAR TREK" IS NOT A

VESSEL

"The word 'vessel' includes every

description of watercraft or other

artificial contrivance used, or capable

of being used, as a means of

transportation on water." Act of July

18, 18966 Ch 201 Section 1, 14 Stat 178,

incorporated into the Revised Statutes

as Section 3.

The “Aries Star Trek" has never been

seaworthy, and has never been capable of

being used as a means of transportation

on water. Basically, this is why the

"Aries Star Trek" was placed in the

Plaintiff's hands so that she could

become seaworthy. The Defendant never

had a crew or machinery in operation

that would make it navigable.

54

ALTERNATIVELY, DEFENDANT “ARIES STAR

TREK" WAS A "DEAD SHIP".

Assuming that the Plaintiff contends

f that the Defendant "Aries Star Trek" was

} launched, which is denied by the

Defendant, it should be clear that the

"dead ship" doctrine would apply as the

Defendant was withdrawn from any

maritime activity or navigation and

therefore would not fall within the

admiralty jurisdiction. "A ship is made

to plough the seas, and not to lie at

the walls." The Poznan (1925, CA2 NY) 9

F 2d 838, revd on other grounds New York

Dock Co. v. The Poznan, 274, US 117, 71

L Ed 955, 47 S Ct. 482.

In Nanna v. The Meteor (1950, DC NY) 92

F. Supp 530, affd (CA2) 184 F2da 439,

cert den 349 US 933, 95 L Ed 673, 71S

Ct 497, the Meteor had been part of a

reserve fleet which was purchased by the

Plaintiff from the US Maritime

55

Commission. The boat's Coast Guard

Certificate of Inspection had expired,

as had her Certificate of Enrollment and

license with the Bureau of Customs. The

vessel was towed to New York where

painting services were performed, and

during that period it had no crew,

light, heat, or power, and no machinery

in operation. The Court found that in

order for the Meteor to have been

returned in navigation and commerce,

there would have been required very

extensive repairs AND PROPER

DOCUMENTATION, and concluded that the

Meteor was a "dead" ship.

This is analagous to the Defendant

"Aries Star Trek" as it needs extensive

work before it can even be seaworthy,

and will require proper documentation

before it can be returned for navigation

and commerce.

The "dead ship" doctrine was considered

in Hercules Co. v. The Brigadier General

56

|

Absolom Baird (1954, CA3 NJ) 214 F2d 66,

where the District Court found as fact

that at the time of labor and services

for which a maritime lien was sought,

the vessel "was not in ccmmission and

she was unable to sail, " and concluded

that no maritime lien arose under 46 USC

Section 971.

The Defendant is not in commission and

is not able to sail as the top-side has

never been out-fitted with masts and

rigging.

PRAYER

WHEREFORE, PREMISES CONSIDERED, the

Defendant prays of the Court to dismiss

this action as it lacks jurisdiction,

there was no maritime contract the

Defendant "Aries Star Trek" is not a

vessel as defined in Admiralty Law; and

alternatively, that the Defendant is a

"dead ship", and for Rule 11 Sanctions

57

against the Plaintiff as the Court may

deem proper for’ the vexatious and

frivolous lawsuit brought into this

Court without jurisdiction; and for

costs of Court and attorney fees

expended in defending this case; and for

general relief.

Respectfully submitted,

Bernard J. Dolenz, J.D., M.D.

CERTIFICATE OF SERVICE

On the 4th day of April, a copy of the

foregoing instrument and Claim of

Bernard J. Dolenz was sent by regular

mail to Steven Perry, P.O. Drawer 24,

Stuart, FL 33495-0024.

58

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORID

ADMIRALTY DIVISION

CASE NO. 86-8384-CIV-ZLOCH

STEWART YACHT BUILDERS, INC.,

Plaintiff

vs.

ARIES STAR TREK, enrollment

#55798, together with all

tackle and apparel

Defendant.

/

MOTION TO VACATE JUDGMENT

MOTION TO VACATE PLAINTIFF'S MOTION FOR

AN AWARD OF COSTS &

MOTION FOR MODIFICATION OF THE ORDER

APPOINTING SUBSTITUTE CUSTODIAN & ORDER

Defendant moves the Court to vacate and

set aside the final Judgment entered

against Defendant in this cause on

February 16, 1988, and to grant leave to

Defendant to defend itself through its

owner, Bernard J. Dolenz, and to allow

the filing of the counter-claim for

damages against the Plaintiff or his

59

breach of bailment, on the grounds as

more fully appears from the affidavit of

Bernard J. Dolenz, attached as Exhibit

"A", and the memorandum of law attached.

Defendant also moves the Court to vacate

and set aside its order granting the

Motion for Modification of the Order

Appointing Substitute Custodian and to

Deny the Motion for an Award of Costs on

the grounds as more fully appears from

the affidavit of Bernard Dolenz,

attached hereto as Exhibit "A" and the

annexed Memorandum of Law.

Dated: 04/09/88

Respectfully submitted,

Bernard J. Dolenz, J.D., M.D.

CERTIFICATE OF SERVICE

This is to certify that a copy of the

foregoing instrument has been sent by

regular mail to Steven Perry, P.O.

60

Drawer 24, Stuart, FL 33495-0024 on this

1ith day of April, 1988.

Bernard J. Dolenz

AFFIDAVIT

State of Texas

County of Dallas

Bernard J. Dolenz, being duly sworn,

deposes and says:

My name is Bernard J. Dolenz. I am

over 21 years of age, have never been

convicted of any felony, and am

competent to make this statement.

L am the owner of the Defendant

"vessel" Aries Star Trek, and the Claim

of Bernard J. Dolenz was filed April 6,

1987 in this Court. While there was an

oral agreement for an assignment of all

the rights of the defendant "vessel"

March 15, 1987, the written assignment

was not received by me until on or about

March 26, 1987 in Dallas, Texas. From

the time of March 15 to when I received

the written assignment, I viewed Melissa

Keyes as having equitable title to the

"vessel", and Mr. Lyman Reynolds was an

62

attorney representing the interests of

the Aries Star Trek.

Mr. Reynolds tried to abandon

Melissa Keyes when he heard that the

Plaintiff's owner, Greg Burdick, was

threatened and placed a "withdrawal"

motion before the Court, which the Court

denied, shortly before trial.

I learned that the Court denied Mr.

Reynold's Motion For Continuance March

16, 1988 and that the case was going to

trial. I tried to reach the Court

several times that morning because I

needed to explain, and wanted to explain

to the Court that I did not have any

writing reflecting my ownership

4 interest, and that Mr. Reynolds should

try his best to represent the Aires Star

Trek. The Court refused to accept my

several phone calls, or to even call me

back. Furthermore, to this date I have

never met the Judge involved in this

case, and have been denied hearings

63

ities

before this Court, even though

requested.

Additionally, I had a phone call in

for Mr. Reynolds, but he did not return

my calls to explain that Melissa Keyes

still had equitable title to the

"yessel" as I had never received the

assignment. Melissa Keyes says Mr.

Reynolds abandoned her during the trial

process. This placed the Defendant

"vessel" in a default posture, which was

suprising, since the Court would not

allow a continuance.

Melissa Keyes is not an attorney,

and could not be in ae_eposition to

understand the legal impact of her

attorney abandoning her at trial time.

The Plaintiff's attorney, Mr.

Perry, indicated to the Court that "Ms.

Keyes obviously no longer has standing

before this Court" on P. 13 of the Trial

Transcript. The Court on P. 17 of the

Transcript states "...Mr. Dolenz had

64

a

sufficient time to have made contact

with the Court's chambers and there has

been no such contact..." This is not

correct as I tried on several occasions

to reach the Judge of this Court to

obviate the very problems that has so

much turmoil. Ms. Keyes represented to

the Court that I was the owner. Even

though there have been numerous papers

filed with the Court reflecting my

involvement with this case, and with Mr.

Perry sending me copies of documents, I

have been the Real party in interest and

owner of the Defendant "vessel", and

have filed my claim of ownership, which

has never been controverted.

Mr. Perry has not sent me notices

of his Motion for Modification of the

Order Appointing Substitute Custodian

and no one, including the Clerk, has

ever sent me a copy of the Final

Judgment filed February 16, 1988. I

learned about it from "Cathy" who

informed me of same April 6, 1988.

During this entire case, as the

owner of the "vessel" it is my

contention that I have been deprived of

due process as the Final Judgment allows

for the sale of my "vessel" without my

ever being able to defend it. This has

deprived me of my property without due

process of law, and seems abhorrent to

any system of justice.

The owner has meritorious defense

as the boat was never commissioned or

finished, according to Ray Seese,

Plaintiff's marine surveyor. Mr.

Burdick said that the boat was only 70%

complete, and is so quoted in a

newspaper article which is attached. The

return from the U.S. Marshall, following

the arrest, also states that the

"vessel" was not complete. The attached

documents in support of these statements

are true and correct copies.

66

The owner has a meritorious claim

as neither Greg Burdick nor any

representative of the Plaintiff had any

documents in the Court's file to show

compliance with the Court's order filed

July 3, 1986 that "the Plaintiff shall

file with the Court on a monthly basis a

statement of condition of the vessel".

When I visited with Mr. Burdick and saw

the "vessel" for the second time, it had

deteriorated under his care as_ the

starboard side, facing the sun, —

board warpage with cracks between the

planks, which it did not have upon my

first inspection. Mr. Burdick also said

that he had not started the diesel

engines, which need to be run every

couple of weeks to keep the motor seals

from deteriorating. In this regard, I

believe that Mr. Burdick breached his

bailment responsibilities as bailee, and

custodian of the vessel, and that the

67

IV.THE ZLOCK COURT ABUSES ITS DISCRETION

IN NOT RELEASING THE DEFENDANT AIRES STAR

TREK AS FUNDS HAVE BEEN TENDERED TO THE

COURT FOR ITS RELEASE. ~—

Two motions are before this Court for the

release of the defendant. One sent June

30, 1988, and the second September 27,

1988. The Court has been tendered

$44,995.78 dated 6/30/88 and has

possession of the check. In spite of

authority of Rule E, 4(f) for the release

from arrest, the Court refuses to release

the boat or give a ruling on why not.

The llth Circuit has had a FRAP 8 Motion

sent July 14, 1988 because of the

insensitivity of the Zlock Court, and

likewise there has been no reponse or

68

phone calls on March 16, 1987 to Bernard

Dolenz, when the Court allowed Melissa

Keyes to be without counsel, would not

continue the case, and placed the

defendant vessel in a default posture.

It is the owner's contention that

the Court should allow, under these

circumstances, the vacation of the

judgment in the furtherance of justice,

as the Judgment is manifestly unjust.

the vacation of the Judgment should be

allowable, pursuant to Rule 60

(b) (1) (3) (4) (6).

Bernard J. Dolenz

Subscribed to and sworn to before

me on this 9th day of April, 1988.

Brenda J. Dolenz

Notary Public in and for

The State of Texas

i 69

My commission expires

12/06/89

[See page 10 for U.S. Marshall remarks upon arrest]

[See page 43 for Marine surveyor portions]

[See page 44 for statements heard by owner of Stuart Y

70

MEMORANDUM OF LAW

ISSUE OF ASSIGNMENT

On March 16, 1987, when the Court

forced the case to trial and allowed

Lyman Reynolds to withdraw, the transfer

of title from Melissa Keyes to Bernard

J. Dolenz, pursuant to assignment, had

not taken place because delivery of the

assignment did not occur until on or

about March 26, 1987. The delivery was

made in Dallas, Texas.

"Where the assignment is by a

written instrument, simply signing or

acknowledging the instrument is not

sufficient to transfer the property, and

delivery of the instrument is necessary

to complete the assignment". Heyman v.

Kline, D.C. Conn., 344 F. Supp. 1088,

affirmed in part and reversed in part on

other grounds, C.A., 456 F.2d 123,

certiorari denied 93 S.Ct. 53, 409 U.S.

847, 34 L. Ed. 2d 88.

"As a general rule, in every

transfer of title from one person to

another, there must be an actual or

constructive delivery of the thing, or

paper title thereto, with intention to

71

pass title, and an actual or

constructive acceptance, so as to end

dominion on the one side an create it on

the other'. 6 Am Jur 2d, 274, Section

91 dealing with Delivery.

The general rule is that in order

to make an assignment effective, there

must be in addition to a delivery of the

thing assigned, an actual or

constructive acceptance thereof by the

assignee". 6 Am Jur 2d, 276, Section 93

dealing with Acceptance by assignee.

Texas law should apply to the

assignment inasmuch as delivery was made

in Texas.

OWNERSHIP OF DEFENDANT VESSEL

When Bernard Dolenz received the

assignment in Texas, on or about March

26, 1987, title then passed to him and

he should be able to sue in his capacity

as the owner, or defend in his capacity

as the owner.

72

"An assignee may sue in his own

name and even for future interests. A

right or interest to be assignable at

common law, must have either an actual

or potential existence. A thing has

potential existence if it may actually

exist at some future time". 7 Tex. Jur

3rd 186-187.

PROPERTY SUBJECT TO JURISDICTION

The Defendant vessel was never

launched, but even if she was, she was

not sufficiently advanced, she was not

yet sufficiently advanced to discharge

the functions for which she was

designed, and the Melissa Keyes contract

was to make changes in the original

design, and have materials and labor

furnished to that effect. Therefore,

this Defendant vessel should not have

been sued in Admiralty.

",..a vessel in the process of

construction will become a vessel in

terms of Admiralty jurisdiction only

after its launching". 2 Am Jur 2d 73,

Section 30 dealing with Admiralty.

"Even after the vessel was launched

while she is not yet sufficiently

advanced to discharge the functions for

which she is designed, the materials,

work and labor for her completion are

not the subject matter of admiralty

73

jurisdiction". Thames Towboat Co. v.

The Francis McDenald, (1920) 254 U.S.

242, 65 L.ed. 245, 41 sup. Ct. Rep. 65.

Supplying materials for

construction of a vessel is not a

maritime contract. People's Ferry Co.

v. Beers, (1857) 61 U.S. (20 How.) 393,

15 L.ed, 961.

"A vessel is deemed to be still in

the process of construction if it is not

yet completed for the intended purpose,

though it may have been launched". 2 Am

Jur 2d, 756, Section 65 dealing with

construction of vessels.

roceedings in rem allow the owner

to defend it against claims.

"Although technically, in a

proceeding in rem, the res, not its

owner, is the party defendant, such a

proceeding nevertheless incidentally

affects the persons interested in the,

res, and they are entitled to defend it

against the claim. Accordingly, it has

been said that in a proceeding in rem,

by virtue of dominion over the thing,

persons interested in it are deemed to

be parties to the suit". 2 Am Jur 2d

807, Section 144 dealing with

Proceedings in ren.

THE MOTION FOR AN AWARD OF COSTS BY

PLAINTIFF IS INAPPROPRIATE

74

The defendant failed to send notice

regarding the Motion, and even if he

had, he waived his claim to it, as the

plaintiff, in accepting the appointment

as a substitute custodian for’ the

vessel, accepted the condition under 2a

of the Court Order, filed July 3, 1986

that the "Plaintiff shall not be

entitled to charge for storage as

substitute custodian". Also, in the

same order, under 2, the Plaintiff was

obliged to file with the Court on a

monthly basis a statement of condition

of the vessel. No such instrument€ are

shown to be filed in the Court record.

By waiver and laches, and acceptance of

the condition to be a_— substitute

custodian, the Plaintiff should not be

awarded costs.

af - must especially determine

whether there has been inexcusable delay

on the part of the one seeking the

remedy and whether substantial

prejudices may result to the opposite

party, although if the libel shows on

its face that it may be barred by laches

75

because of undue delay in instituting

it, prejudice to the respondent is

presumed until the contrary is made to

appear". 2 Am Jur 2d, 834, Section 190

dealing with Laches.

RAISING LACK OF JURISDICTION

"Jurisdictional objections may be

raised at any stage of the proceeding

before final adjudication, and may be

raised for the first time on appeal". 2

Am Jur 2d, 842, Section 202.

The record is repleat with cases

showing that the Court lacks

jurisdiction because the boat has not

been finished, and the cites will not be

repeated.

DUE PROCESS NOT ALLOWED

TO BERNARD DOLENZ

Bernard Dolenz, as owner, has been

deprived of due process, as he has not

had a hearing or been given-= an

opportunity to, defend the vessel, even

if the Court had jurisdiction.

"One incident of constitutional

protection against state deprivation of

a property interest is that, at some

point, notice and a hearing appropriate

to the particular circumstances must be

afforded". Collins v. Wolfson, 498, F2d

1100.

76

"Opportunity for a hearing required

by due process must be given before the

deprivation of a properly § interest

except for extraordinary situations

where some valid governmental interest

is at stake which justifies postponing

the hearing until after the event".

U.S.C.S. Const. Amend. 14, Burnley v.

Thompson, 524 F2d 1233.

"Right to a hearing embraces an

adequate opportunity to defend".

Christhilf ¥. Annapolis Emergency

Hospital Ass'n, Inc. 496 F2d 174, appeal

after remand 552 F2d 1070.

MOTION TO VACATE JUDGMENT

SHOULD BE ALLOWED

The Courts should and do give a

liberal construction to 60(b).

Klapprott v. United States (1949) 335 US

601, 609, 69 S.Ct. 384, 387, 93 L ed

266. Each order or judgment shall be

noticed by the clerk upon each party.

Rule 77(d). Here the Final Judgment and

the Order allowing the Motion For

Modification of the Order Appointing

Substitue Custodian were not sent to the

owner, Bernard J. Dolenz. Also the

Plaintiff did not send its Motion for

77

ee

Modification of the Order Appointing

Substitute Custodian or its Motion For

Award of Costs, and there is no

Certificate of Service to the owner,

Bernard Dolenz, as is required.

Therefore, all these should be

voided.

The owner, since he did not receive

notice, did not have the opportunity to

defend the claims against the defendant

"yessel", has a meritorious defense, and

has not received notices from the clerk

regarding the final judgment or copies

of the motions from the Plaintiff, rule

61(b)(1) comes into play because of

mistake, inadvertence, surprise, or

"excusable neglect". Foley v. United

States, 645 F.2a@ 155 (2d Circuit -

1981). United Coin Meter Co. v.

Seaboard Coastline R.R., 705 F 2d 839

(6th Circuit - 1983); Davis v. Musler,

713 F2ad 907 (2d Circuit - 1983).

78

‘

Lyman Reynolds was hired to defend

the vessel by Melissa Keyes, and should

not have been allowed to abandon

defending the vessel, certainly while

Melissa Keyes had equitable title.

Dolenz was led to believe that Lyman

Reynolds would defend the vessel until

such time as he received the assignment

to pass title. From a default judgment

where individual defendant erroneously

believed corporate defendant's counsel

would represent him, relief was granted

in Tickerton v. Record Museu, Inc., 92

F.R.D. 6 (E.D. Pa. 1981).

Rule 60(b) (3) comes into play

because of the misconduct of the

Plaintiff, wherein several motions have

not been sent the real party in

interest, the owner Bernard Dolenz as

required. This deliberate withholding

of relevant documents has prevented the

owner from fully and fairly presenting

his defense. See U.S. v. Undetermined

79

Quantity, 583 F2d 942 (7th Cir. 1978)

and Wilkin v. Sunbeam Corp., 466 F2d 614

(10th Cir. 1972).

Rule 60(b) (4) comes into play as a

party is allowed relief from a void

judgment because of lack of

jurisdiction. Such a judgment is

legally ineffective, or as sometimes

stated, a nullity. Willams v. North

Carolina 325 U.S. 226 (1945); Kalb v.

Feurestein, 308 U.S. 433 (1940)+ Jordon

v. Gilligan, 50 F2d 701 (6th Cir. 1974),

cert. denied, 241 U.S. 991 (1975).

: "Traditionally, a void judgment

could be set aside at any time." See 1

Freeman, JUDGMENTS, Section 322. Today,

because they are viewed as a legal

nullities from their inception, void

judgments may still be vacated at any

time by the courts which rendered them.

See Misco Leasing, Inc. v. Vaughn, 450

F2d 257 (10th Cir. 1971) where a default

judgment entered without personal

80

peat

SNE ASR RER aT AAA NE

et

|

jurisdiction vacated after a period of

over two years; and Crosby v. Bradstreet

Co., 312 F2d 483 (2nd Cir. 1963) where

relief from an invalid injunction

granted after 29 years.

Rule 60(b)(6) liberally applies to

Situations not covered by the other 5

clauses. The district court has power

to grant relief from a judgment

whenever, under all the surrounding

circumstances, such action is

appropriate in the furtherance of

justice. See Good Luck Nursing Home

Inc. v. Harris, 636 F2d 572 (D.c. Cir.

1980).

The Court should allow Dolenz as

Owner an opportunity to defend the

vessel, as the Court has evidence of his

ownership because of statements given by

Melissa Keyes in the Trial Transcript

that all rights to the vessel were

granted to Bernard Dolenz; Dolenz had

his statement of claim before the Court

81

April 6, 1987; and the assignment from

Melissa Keyes to Bernard Dolenz

delivered on or about March 26, in

Dallas, Texas to Bernard Dolenz. What

further proof oor notice could. the

Plaintiff or the Court require?

Accordingly, Bernard Dolenz

requests that the_judgment be vacated

and that he be allowed to defend the

vessel in the interest of justice.

82