Petition for Writ of Certiorari — Dolenz v. Stuart Yacht Builders, Inc.

88-1407

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upreme Court, U.S.

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JOSEPH

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upreme Court of the nited States

BERNARD J. DOLENZ,

V.

Appellant,

STUART YACHT BUILDERS, INC.,

Appellee.

PETITION

FOR CERTIORARI

Bernard J. Dolenz

6102 Swiss Avenue

Dallas, Texas 75214

Pro Se

>

PREFACE

A Petition for Writ of Mandamus or a Writ

of Prohibition was docketed in this Court

on May 2, 1988 as No. 88-971. No ruling

has been rendered. Associate Justice

Byron R. White gave an Order Extending

Time to File a Petition for Writ of

Certiorari to February 26, 1989, dated

January 11, 19

QUESTIONS PRESENTED

I. THE TRIAL COURT LACKS JURISDICTION

AND THE CASE SHOULD BE DISMISSED.

II. THE TRIAL 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.

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Iil. THE TRIAL COURT ABUSED ITS

DISCRETION IN DENYING THE MOTION TO

EXTEND TIME TO APPEAL.

IV. THE APPEALS COURT ERRED AS IT HAD

JURISDICTION, EVEN THOUGH THE TRIAL COURT

DENIED THE MOTION FOR EXTENTION TO

APPEAL.

V. THE APPEALS COURT ERRED IN HOLDING

THAT THE NOTICE OF THE APPEAL WAS

UNTIMELY AS THERE WERE CIRCUMSTANCES THAT

PREVENTED THE TIMELY APPEAL UNDER THE

CIRCUMSTANCES.

VI.THE TRIAL COURT ABUSED ITS DISCRETION

IN NOT RELEASING THE DEFENDANT AIRES STAR

TREK AS FUNDS HAVE BEEN TENDERED TO THE

COURT FOR ITS RELEASE.

TABLE OF AUTHORITIES

BANKER'S MORTGAGE CO. V. UNITED STATES,

428 F2d 73 (5th Cir. 1970),

cert denied, 399 U.S. 927..App 126

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

App 127

CHRISTHILF V. ANNAPOLIS EMERGENCY

HOSPITAL ASS'N INC., 496 F2d 174

appeal after remand, 552 F2d 1070

a ek a are -App 127

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

Re 6 ea eeee#es. ree ee of |

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

8 Tt eee ee eee eeeee App 127

TESSMER V. WALKER, 833 F2d 934, (llth

nn 7

VILLEGAS V. CARTER, 711 SW 2d 624

DTPA Ce ee eees es eeeeeeoeas 21

Miscellaneous

17 Am. Jur 2da 730. e*eeeeee#ee#eerseeeseee#€e¢e . saan

Magna Re ee -_ oe om se eS e

U. S. Constitution, Amend 5, co ae

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a i a cc cncncnvecescuvell

eel cee he enccccevicccssveke, 23

a oe ae.

28 USCA Section 1254..... ce eee *e 6408068

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TABLE OF CONTENTS

PMs 6h COREE DESER OSES REOORECOHR OEE y |

TABLE OF CORTE E occ eseeeeeesresesoes ii

TABLE OF AUTHORITIES... eeeeeeeeceees i

QUESTIONS PRESENTED

I. THE TRIAL COURT LACKS JURISDICTION AND

THE CASE SHOULD BE DISMISSED.......... 1

II. THE TRIAL 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. .cccccccccccccsccsesccccccess J

Iil. THE TRIAL COURT ABUSED ITS

DISCRETION IN DENYING THE MOTION TO

EXTEND TIME TO APPEAL ...eeeeeeeeseee 2

IV. THE APPEALS COURT ERRED AS IT HAD

JURISDICTION, EVEN THOUGH THE TRAIL COURT

DENIED THE MOTION FOR EXTENTION TO

APPEAL. ccccccccccccccccscccccscsccsess &

V. THE APPEALS COURT ERKED IN HOLDING

THAT THE NOTICE OF THE APPEAL WAS

UNTIMELY AS THERE WERE CIRCUMSTANCES THAT

PREVENTED THE TIMELY APPEAL’ UNDER THE

CIRCUMSTANCES... cccccccrccccccesese 2

VI. THE TRIAL COURT ABUSED ITS

DISCRETION IN NOT RELEASING THE DEFENDANT

AIRES STAR TREK AS FUNDS HAVE BEEN

TENDERED TO THE COURT FOR ITS RELEASE. 2

LIST OF lie rer rs eseese#ee#s e*eee#es 3

Il

CER NS ies i dd ore awbbesécnane 4

Sd euteneee 7

STATUTES INVOLVED........ ceocsccccscsee FY

Camas OF CRGR secs ceccisicizivnrcs 10

REASONS FOR GRANTING THE WRIT........ 16

OGD 6h beds beendekh be bwenein ik 24

CERTIFICATE OF SERVICE.......cccccece 24

III

es

LIST OF PARTIES

The parties to the proceedings below was

the unfinished vessel "Aries Star Trek",

enrollment No. 555798 as Defendant, and

Stuart Yacht Builders, Inc. was the

Plaintiff. This was an in rem

proceeding. Melissa Keyes was part owner

in the vessel and transferred all of her

interests to Bernard Dolenz. The Court

and counsel for Stuart Yacht Builders,

Ins. knew on March 16, 1987 through sworn

testimony that Bernard Dolenz was’ the

owner of the vessel, and yet the Court

refused Bernard Dolenz, as owner, the

right to defend the vessel, and failed to

send notices of activity regarding the

defendant vessel, even though repeatedly

requested to do so. The Court has never

allowed even a hearing before the Court,

even though repeatedly requested.

OPINIONS BELOW

This unfinished vessel was arrested on

July 10, 1986, and was tried on March 16,

1987 in a default posture. The Court had

allowed the vessel's attorney to withdraw

from the case on the morning of trial,

refusing a Continuance, even though the

Court a couple of days earlier had denied

the Defendant's counsel his Motion to

Withdraw as counsel for the Defendant.

Jurisdiction was challenged by Bernard

Dolenz on March 18, 1987 when the Court

refused to return his phone calls. on

March 16, 1987 when the Defendant's

attorney abandoned the representation of

the vessel. Eventually, after many

Motions were before the Court, the Court

denied Dolenz's Motion to Dismiss for

Lack of Jurisdiction, for Intervention,

and for Reconsideration on September 25,

1987.

A Mandamus action was initiated to the

Eleventh Circuit primarily regarding the

jurisdictional issue and the Eleventh

Circuit denied the Petition for the Writ

and denied its Rehearing January 27,

1988.

Wren the Mandamus action failed, the

Trial Court entered a final judgment

February 16, 1988 with the Clerk not

circulating that notice of judgment to

Bernard Dolenz. Dolenz had made many

phone calls to the Clerk, and had made

many trips regarding the file, and had

assurances from the Clerk because of his

almost seeming nuisance behavior that he

would be kept informed of any activity by

the Clerk.

U1

_Upon inquiry, Dolenz was shocked to learn

that a Judgment had been entered February

16, 1988, and filed papers to vacate that

judgment on April 11, 1988, and filed a

Motion to Extend Time to Appeal, which

was denied by the Court April 22, 1988.

An appeal was made to the Eleventh

Circuit regarding the District Court's

abuse of discretion in not granting the

extention of time for atimely appeal

because of the circumstances of receiving

no notice and other factors for

excuseable neglect. The Eleventh Circuit

denied jurisdiction of the case even on

rehearing September 29, 1988.

It is from the unnoticed judgment, the

denial of a Writ of Mandamus and a Writ

of Prohibition and the denial of a full

appeal to the Eleventh Circuit that the

owner of the Defendant vessel is

appealing and trying to perfect his Writ

of Certiorari.

JURISDICTION

This Court has jurisdiction pursuant to

28 USCA fection 1254.

The Plaintiff came to the Admiralty in

the District Court for the Southern

District of Florida pursuant to 28 USC

Section 1333 and 46 ''SC Section 971. The

owner contends that the Plaintiff invoked

the jurisdiction improperly as the vessel

was never finished, commissioned, and was

still under construction.

The decrees to be reviewed include the

Order of the District Court denying the

Motion to Dismiss for Lack of

Jurisdiction, for tatervention. for

Reconsideration on September 25, 1987;

the Eleventh Circuit decision Denying

Motion for Rehearing on Petition for Writ

of Prohibition and/or Writ of Mandamus on

January 27, 1988; the Judgment rendered

by the District Court on February 16,

1988; the Order of the District Court

Denying petitioner's Motion to Substitute

Parties and Motion to Extend Time to

Appeal on April 22, 1988; and the

Decision of the Eleventh Circuit Denying

the Motion for Rehearing regarding

perfecting the appeal on September 29,

1988.

Associate Justice Byron R. White gave an

Order Extending Time to File a Petition

for Writ of Certiorari to February 26,

1989, dated January 11, 1989

The Appellant herein seeks to invoke the

jurisdiction of this Court pursuant to 28

USC Section 165l(a) for the review of

some or all of the above stated orders

and decisions.

STATUTES INVOLVED

28 U.S.C. §1333.Admiralty, Maritime and

Prize Cases

The district court shall have original

jurisdiction, exclusive of the courts

of the states, of:

(1) Any civil case of admiralty or

maritime jurisdiction, saving to

suitors in all cases all other

remedies to which they are otherwise

entitled. .

46 U.S.C. §971. Persons entitled to lien

Any person furnishing repairs,

Supplies, towage, use of dry dock or

marine railway, or other necessaries,

to any vessel, whether foreign or

domestic, upon the order of the owner

of such vessel, or of a person

authorized by the owner, shall have a

maritime lien on the vessel, which may

be enforced by suit in rem, and it

Shall not be necessary to allege or

prove that credit was given to the

vessel.

The Appellant contends these Statutes relied

upon by Appellee do ae reer the Defendant

vessel was never finished, was under construc- -|

tion, and-was never finished.

See Appendix 101 - 10/7.

STATEMENT OF CASE

The Defendant Aries Star Trek had its

wood infrastructure built in Tai Pai in

1968, being freightered to this country

to have it finished. The boat owner

died, and it remained inane estate for

many years being moored ina river. It

was hauled from the river after many

years to have it finished and

commissioned. Stuart Yacht Builders,

Inc. dry-docked the vessel, and when work

was not done satisfactorily and with

exorbitant charges, the Plaintiff sued in

Admiralty | in rem. : The vessel was

arrested July 10, 1986 with a notation

er vessel is incomplete, under

constuction, and empty of equipment".

Because of a threat, the Plaintiff's

owner (Greg Burdick) imputed this

unsubstantiated and purported threat to

10

the owners of the vessel. This alarmed

the attorney who was’ hired to defend the

vessel to where he wanted to withdraw as

counsel for the Defendant, which was

denied March 12, 1987. On March 16,

1987, the attorney was granted his Motion

to Withdraw as Counsel anda desire to

continue the case was denied placing the

vessel in a default posture. Melissa

Keyes represented to the Court that

Bernard Dolenz had an ownership interest

in the vessel prior to March 16, 1987,

and indicated that she had transferred

her remaining interest to Bernard Dolenz,

although such interest had not been

formally delivered to Dolenz. The Court

would not allow a continuance, and

refused to return calls — Dolenz on

March 16, 1987 when counsel for the Aries

Star Trek had abandoned its defense.

Subsequentiy, Dolenz filed notices on

11

i

Intervention, his claim of ownership to

the vessel, and his Motion to Dismiss for

Lack of Jurisdiction. The Court remained

insensitive to these Motions for over six

(6) months, and then denied the Motions

to Dismiss for Lack of Jurisdiction, for

Intervention, and for Reconsideration on

September 25, 1987.

A Petition for Writ of Prohibition and/or

Writ of Mandamus was’ taken to the

Eleventh Circuit, which was denied at

rehearing on January 27, 1988. The Trial

Court then entered a Final Judgment on

February 16, 1988. The Clerk did not

send a copy of this to Bernard Dolenz,

even though the Court knew that he was

the owner through testimony and

documentation. The Clerk had assured

Dolenz that she would keep him posted

following several phone calls and trips

regarding this case. Inquiry on April 6,

12

1988 revealed that a judgment had been

entered. A Motion to Extend Time for

Appeal was sent April 7, 1988 pursuant to

FRAP 4(a) and case law dealing with Rule

77(da) and 60(b) before the 60 days would

run. A Notice to Appeal was filed April

14, 1988. The Trial Court judge denied

the Motion to Extend Time to Appeal on

April 22, 1988.

Dolenz filed a Notice of Appeal with the

Eleventh Circuit, which was dismissed for

lack of jurisdiction because the notice

was untimely filed, and a rehearing was

denied on September 29, 1988. Dolenz

contends’ that he complied with the

Eleventh Circuit's case, TESSMER Vv.

WALKER 833 F2d 935, as he did everything

reasonable under the circumstances to be

kept informed of the case short of

groveling and living at the Ft.

Lauderdale Federal Courthouse. The Clerk

13

indicated that she would keep Dolenz

posted as he had made a nuisance by

making several phone calls and visits to

review the file.

Judge Zloch would never give a hearing

throughout all of this paperwork to

Dolenz; he even denied a Motion for

Hearing.

A check for $45,995.78 was tendered to

the Clerk to have the vessel released

June 30, 1988 pursuant to Rule 4 (4) (f).

Earlier repeated requests for the

judgment payoff amounts from Clerk and

U.S. Marshall remained unanswered.

Because repeated calls to the Clerk

regarding the release of the vessel since

money had been tendered and calls to

Judge Zloch's chambers resultd in no

action or order, a FRAP 8 Motion was

14

requested of the Fleventh Circuit on July

14, 1988. To date, neither Judge Zlioch

nor the Eleventh Circuit will give a

release of the vessel; nor can I obtain

information for its release. In the

meantime, the vessel is deteriorating,

which had been called to the Zloch Court

and Eleventh Circuit's attention on

several occasions. Neither Court have

given rulings even though requested.

REASONS FOR GRANTING THE WRIT

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-49, Appendix.

(2) Ray Seese, Plaintiff's expert and

Marine surveyer states that the vessel

has never been completely finished or

commissioned... P-42, Appendix.

(3) Statements of Burdick in a local

newspaper article that the Boat is about

70% completed. P-43, Appendix.

These facts were pointed out to the Court

with Motions to dismiss because of plain

lack of an underpinning for a maritime

16

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-43,

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-101 et seq.

II. THE ZLOCH COURT ERRED IN ALLOWING THE

DEFENDANT ARIES STAR TREK TO BE WITHOUT

COUNSEL BY DISMISSING COUNSEL AND

17

Et

REFUSING TO CONTINUE THE CASE, PLACING

THE DEFENDANT VESSEL IN A DEFAULT

POSITIION.

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. (Appendix P-77). Reynolds tried

to withdraw as counsel upon learning that

Burdick received a unsubstantiated

purported threat, which Burdick was

imputing to the vessel. In docket P-l,

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-1, docket).

Several phone calls were placed to Judge

18

Zloch that morning by Bernard Dolenz

(Affidavit of Bernard Dolenz attached to

Motion to Dismiss; Motion to Reconsider

March 18, 1987; P-10 Appendix; Affidavit,

P-93), 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-89 by the

Court, there was contact 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-79), was in Court

in Texas (P-79), and was hoping for a

continuance so that he could properly

prepare the case (P-82) because Reynolds

19

wanted to abandon the case, and did.

From an interest standpoint, the Court

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-83). 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

20

aaa

counsel.

The issue of Assignments is covered on

P-101.

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

Zt

case law. 17 Am. Jur 2d 130.

Iit. THE TRIAL COURT ABUSED ITS

DISCRETION IN DENYING THE MOTION TO

EXTEND TIME TO APPEAL

Argument is given on P-124 et seq and

will not be repeated here.

IV.THE APPEALS COURT ERRED AS IT HAD

JURISDICTION, EVEN THOUGH THE TRIAL COURT

DENIED THE MOTION FOR EXTENTION TO

APPEAL.

See page 128 for argument.

V. THE APPEALS COURT ERRED IN’ HOLDING

THAT THE NOTICE OF THE APPEAL WAS

UNTIMELY AS THERE WERE CIRCUMSTANCES THAT

PREVENTED THE TIMELY APPEAL UNDER THE

CIRCUMSTANCES.

See page 128 et seq for argument.

VI.THE TRIAL COURT ABUSED ITS DISCRETION

22

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

ruling from that Court.

CONCLUSION

Appellant prays that this Court grant the

Petition for Certiorari; that this case

be dismissed for lack of jurisdiction;

alternatively that this case be remanded

for trial; that Rule 11 Sanctions be

imposed on the Plaintiff as it persisted

in prosecuting this case, knowing that

the vessel was unfinished, under

construction, and never commissioned; and

for general relief.

Respectfully submitted,

Bernard J. Dolenz

CERTIFICATE OF SERVICE

Three copies of the foregoing instrument

were sent by regular mail to Steven

Perry, Plaintiff's Attorney, P. 6.

Drawer 24, Stuart, FL 33497-0024 on this

the th day of February, 1989.

24