Opposition Brief — Kelly v. Tree Farm Development Corp.

) Supreme Coort, US .

rPiitealw

No. 95-882

~ 444417

In The | CLERK

Supreme Court of the UnitedStatés

October Term, 1995

o

JACK DAVID KELLY, individually and

JACK DAVID KELLY, as President/Shareholder of

MAPLE LEAF DEVELOPMENT CORPORATION,

- mee STAT

; Petitioner,

VS.

TREE FARM DEVELOPMENT CORPORATION;

EMORY O. WILLIAMS, JR.; THE ESTATE OF GEORGE

G. PHILLIPS, JR.; E. D. “BOB” PIERCE; and THE

ESTATE OF ABRAHAM L. PIERCE,

Responden ts.

+

On Petition For Writ Of Certiorari

To The District Court Of Appeal, First District

For The State Of Florida

&

BRIEF OF RESPONDENTS

TREE FARM DEVELOPMENT CORPORATION

AND E. D. “BOB” PIERCE

IN OPPOSITION TO CERTIORARI

+

DeNNis K. LARRY

Counsel of Record

Puiuie A. BaTEs

MARGARET C. RODGERS

CLARK PARTINGTON Hart

LARRY BOND STACKHOUSE & STON!

125 West Romana Street, Suite 800

POB 13010

Pensacola, FL 32591-3010

? 904/434-9200

Counsel for Tree Farm Development

Corporation and E. D. “Bob” Pierce,

Respondents

January 4, 1996

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

In accordance with Rule 15.2, Rules of the Supreme

Court of the United States, Respondents, Tree Farm

Development Corporation (Tree Farm) and E. D. “Bob”

Pierce (Pierce) respectfully submit that the following

questions more accurately reflect the issues which would

be reviewed by this Court should certiorari be granted

than do the questions posed by the Petitioner.

A. WHETHER THE SUPREME COURT OF

THE STATE OF FLORIDA, AS A MATTER

OF FLORIDA CONSTITUTIONAL LAW,

HAD JURISDICTION TO REVIEW A PER

CURIAM AFFIRMANCE BY THE FIRST

DISTRICT COURT OF APPEAL OF THE

ORDER OF THE CIRCUIT COURT IN AND

FOR ESCAMBIA COUNTY, FLORIDA,

GRANTING SUMMARY JUDGMENT IN

FAVOR OF THE RESPONDENTS ON AN

ISSUE OF STATE COMMON LAW.

B. WHETHER THE DECISION OF THE

SUPREME COURT OF THE STATE OF

FLORIDA THAT IT LACKED JURISDIC-

TION OVER PETITIONER’S PETITION

, FOR REVIEW OF THE PER CURIAM

AFFIRMANCE BY THE FIRST DISTRICT

COURT OF APPEAL OF THE ORDER OF

THE CIRCUIT COURT IN AND FOR

ESCAMBIA COUNTY, FLORIDA, GRANT-

ING SUMMARY JUDGMENT IN FAVOR

OF RESPONDENTS ON AN ISSUE OF

STATE COMMON LAW VIOLATED PETI-

TIONER’S CONSTITUTIONAL RIGHTS

UNDER EITHER THE FLORIDA CONSTI-

TUTION OR THE CONSTITUTION OF

THE UNITED STATES.

ii

QUESTIONS PRESENTED FOR REVIEW - Continued

C. WHETHER THE ORDER OF THE CIRCUIT

COURT IN AND FOR ESCAMBIA

COUNTY, FLORIDA, GRANTING

RESPONDENTS’ MOTION FOR SUM-

MARY JUDGMENT AND ENTERING

FINAL JUDGMENT IN FAVOR OF

RESPONDENTS DEPRIVED PETITIONER

OF HIS RIGHT TO TRIAL BY JURY AND

RIGHT OF ACCESS TO THE COURTS

UNDER THE FLORIDA CONSTITUTION.

WHETHER THE CONDUCT OF THE

DEFENSE ATTORNEY IN ALLEGEDLY

MAKING MISREPRESENTATIONS OF

FACT DURING THE SUMMARY JUDG-

MENT PROCEEDINGS BELOW AND THE

CONDUCT OF THE TRIAL COURT JUDGE

IN ALLEGEDLY APPLYING THE MISREP-

RESENTATIONS IN A MANNER PREJUDI-

CIAL TOWARDS PETITIONER WHEN

GRANTING RESPONDENTS’ MOTION

FOR SUMMARY JUDGMENT VIOLATED

PETITIONER’S CONSTITUTIONAL

RIGHTS UNDER EITHER THE FLORIDA

CONSTITUTION OR THE CONSTITUTION

OF THE UNITED STATES.

WHETHER THE ORDER OF THE CIRCUIT

COURT IN AND FOR LEON COUNTY,

FLORIDA, TRANSFERRING PETI-

TIONER’S DECLARATORY JUDGMENT

ACTION FROM LEON COUNTY, FLOR-

IDA, TO ESCAMBIA COUNTY, FLORIDA,

BASED ON THE STATE’S LOCAL

ili

QUESTIONS PRESENTED FOR REVIEW - Continued

ACTION RULE VIOLATED PETITIONER’S

DUE PROCESS RIGHTS UNDER THE FLORIDA

CONSTITUTION AND THE CONSTITUTION

OF THE UNITED STATES.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............ceeceeeees i

TABLE CH COC rere s aes a cas Cee ces RET eee as iv

TABLE OF AUTHORITIES .. 2... :ccccssedscccsesees v

U. S. Supreme Court Cases.............eeeeeeees Vv

Mosida Count Cage ii cdiis vcccccaucctectcbvedses vi

Constitutional Provisions, Statutes and Rules..... vi

PIR os cetdiicabialecewceesine oa, 1

CONSTITUTIONAL PROVISIONS, STATUTES AND

EFL aT 6 e0 caw dd i amcervenenruiiarses 1

STATEMENT OF THE CASE.........cccccccccccecee 5

ADA TRINCS 6.5 hd56 06 icc uies ce ahs ah eda conse ae 7

THE PETITION FOR WRIT OF CERTIORARI

WAS NOT TIMELY FILED, AND THEREFORE,

THIS COURT DOES NOT HAVE JURISDICTION

PURSUANT TO 28 U.S.C. § 2101(c) AND RULE 13

OF THE RULES OF THE SUPREME COURT OF

TES UPC? SEAR e cobs vcckcuctradabhauebeckns 7

Il.

THE PETITIONER HAS FAILED TO PRESENT

ANY SUBSTANTIAL FEDERAL QUESTION

RAISED IN THE PROCEEDINGS BELOW AND

DECIDED BY THE STATE COURTS WHICH

WOULD WARRANT THE EXERCISE OF THIS

COURT’S CERTIORARI JURISDICTION .......... 9

CAPR BASS 0d odes puss raoawteenocrterienek 14

Vv

TABLE OF AUTHORITIES

Page

Unitep States Supreme Court Cases

Bailey v. Anderson, 326 U.S. 203 (1945)............... 11

Beck v. Washington, 369 U.S. 541 (1962).............. 10

owe & Scott, 233 US. G56 (1904) 2... cc ccc ccnccce. 11

Brady v. Maryland, 373 U.S. 83 (1963)................ 11

Braxton v. United States, 111 S.Ct. 1854, 114

ee MUU MME, s 56-95 eee alewhs ohbak cbs ohne de 10

Cardinale v. Louisiana, 394 U.S. 437 (1969) ........... 11

Crowell v. Randell, 10 Pet. 368 (1836) ................ 11

Godchaux Co. v. Estopinal, 251 U.S. 179 (1919)........ 11

Herb v. Pitcairn, 324 U.S. 117 (1945)................. 10

Hiawassee \River Power Co. v. Carolina-Tennessee

ee Gag ee EES SOE COD Son oc occ ceeidveccekk 12

Illinois v. Gates, 462 U.S. 213 (1983) ................. 11

Minnesota v. National Tea Co., 309 U.S. 551 (1940).... 11

Mutual Life Ins. Co. v. McGrew, 188 U.S. 291 (1903) .... 11

NLRB v. Hendricks County Rural Electric Co., 454

ee Me REE os pk oe swaps aod he wad dad Oe ko krone> or 14

Palmore v. Sidoti, 466 U.S. 429 (1984)................. 8

Street v. New York, 394 U.S. 576 (1969) .............. 11

Thomas v. Iowa, 209 U.S. 258 (1908).................. 12

United States v. Johnston, 268 U.S. 220 (1925)......... 14

vi

TABLE OF AUTHORITIES —- Continued

Page

White River Lumber Co. v. Arkansas, Ex Rel. Apple-

gate, 279 US. 682 (19ZG) oc cccccccvessescsecscccves 11

Whitney v. California, 274 U.S. 357 (1927) ............ 12

Williams v. Florida, 399 U.S. 78 (1970) .......005ee00es 8

FLoripa Court Cases

Dodi Publishing Company v. Editorial America, S. A.,

SOS SO. Ze TOGe Arts SOMO) cecvevecvcvvetesetéchocs 8

Georgia Casualty Company v. O'Donnell, 109 Fla.

290, 147 So, 267 (1983) occ cccccccvsccvedvonccceves 13

Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)........... 8

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

Section 1, Amendment XIV to the United States

Ce. fs ba Leas ade dae Chad hele vcd Ok ‘45

Fla. Const., Art. I, Section 9 (1968).............4.. 1, 13

Fla. Const., Art. I, Section 21 (1968)............... 5, 13

Fla. Const., Art. I, Section 22 (1968)............... 5, 13

Fla. Const., Art. V, Section 3(b) (1968).............. 2, 8

Fla. Const., Art. V, Section 4(b) (1968).............. 4,8

Fe ee eels Oe RE Chic ons ones cens vacances 1

BRU en, TE EID CRIED cid nconeuss tasccectears 7

Rule 9.330(a), Florida Rules of Appellate Pro-

I CTE. oe i ec bbb atte eivbeh old c bb ike ok 5,7

Vii

TABLE OF AUTHORITIES ~- Continued

Page

Rule 10 of the Rules of the Supreme Court of the

ila hacker e renee hs ghia but ac 1, 10, 14

Rule 13 of the Rules of the Supreme Court of the

ENG crab ba ive dy suild hed Kieu ccd ites o's oor 7

Rule 14(1)(g)(i) of the Rules of the Supreme Court

et I occ cc oc oo gene ie 9, 10

RESPONDENTS’ BRIEF IN OPPOSITION

TO CERTIORARI

JURISDICTION

Petitioner’s Motion For Rehearing in the First District

Court of Appeal was denied on April 24, 1995 (R.App. 3).

Petitioner apparently seeks to invoke the jurisdiction of

this Court pursuant to 28 U.S.C. § 1257(3) and Rule 10(b)

of the Rules of the Supreme Court of the United States.

+

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED

Section 1, Amendment XIV to the United States Con-

stitution, sets forth the “due process” rights of the citi-

zens of the United States. It reads as follows:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Article 1, Section 9 of the Constitution of the State of

Florida (19£8), as amended, sets forth the “due process”

rights of citizens of the State of Florida. It reads as

follows:

Section 9. Due Process. - No person shall be

deprived of life, liberty or property without due

process of law, or be twice put in jeopardy for

the same offense, or be compelled in any crimi-

nal matter to be a witness against himself.

Article V, Section 3(b) of the Constitution of the State

of Florida (1968), as amended, sets forth the jurisdiction

of the Supreme Court of the State of Florida. Its provi-

sions are set forth below:

(b) JURISDICTION. — The supreme court:

(1) Shall hear appeals from final judg-

ments of trial courts imposing the death

penalty and from decisions of the district

courts of appeals declaring invalid a state

statute of a provision of the state constitu-

tion.

(2) When provided by general law, shall

hear appeals and final judgments entered

in proceedings for the validation of bonds

or certificates of indebtedness and shall

review actions of statewide agencies relat-

ing to rates or service of utilities providing

electric, gas or telephone service.

(3) May review any decision of a district

court of appeal that expressly declares

valid a state statute, or that expressly con-

strues a provision of the state or federal

constitution or that expressly affects a class

of constitutional or state officers, or that

expressly and directly conflicts with the

decision of another district court of appeal

or of the supreme court on the same ques-

tion of law.

(4) May review any decision of a district

court of appeal that passes upon a question

certified by it to be of great public impor-

tance, or that is certified by it to be in direct

conflict with the decision of another district

court of appeal.

(5) May review any order or judgment of

a trial court certified by the district court of

appeal in which an appeal is pending to be

of great public importance, or to have a

great effect upon the proper administration

of justice throughout the state, and certi-

fied to require immediate resolution by the

supreme court.

(6) May review a question of law certified

by the Supreme Court of the United States

or a United States Court of Appeals which

is determinative of the cause and for which

there is no controlling precedent of the

supreme court of Florida.

(7) May issue writs of prohibition to

courts and all writs necessary to the com-

plete exercise of its jurisdiction.

(8) May issue writs of mandamus and quo

warranto to state officers and state agen-

cies.

(9) May, or any justice may, issue writs of

habeas corpus returnable before the

supreme court or any justice, a district

court of appeal or any judge thereof, or any

circuit judge.

(10) Shall, when requested by the attor-

ney general pursuant to the provisions of

Section 10 of Article IV, render an advisory

opinion of the justices, addressing issues as

provided by general law.

Article V, Section 4(b) of the Constitution of the State

of Florida (1968), as amended, sets forth the jurisdiction

of the Districts Courts of Appeal of the State of Florida.

Its provisions are set forth below:

(b) JURISDICTION. -

(1) District courts of appeal shall have

jurisdiction to hear appeals, that may be

taken as a matter of right, from final judg-

ments or orders of trial courts, including

those entered on review of administrative

action, not directly appealable to the

supreme court or a circuit court. They may

review interlocutory orders in such cases to

the extent provided by rules adopted by

the supreme court.

(2) District courts of appeal shall have the

power of direct review of administrative

action, as prescribed by general law.

(3) A district court of appeal or any judge

thereof may issue writs of habeas corpus

returnable before the court or any judge

thereof or before any circuit judge within

the territorial jurisdiction of the court. A

district court of appeal may issue writs of

mandamus, certiorari, prohibition, quo

warranto, and other writs necessary to the

complete exercise of its jurisdiction. To the

extent necessary to dispose of all of the

issues in a cause properly before it, a dis-

trict court of appeal may exercise any of

the appellate jurisdiction of the circuit

courts.

Article I, Section 21 of the Constitution of the State of

Florida (1968), as amended, sets forth Florida citizens’

right of access to courts and provides as follows:

The courts shall be open to every person for

redress of any injury, and justice shall be admin-

istered without sale, denial or delay.

Article I, Section 22 of the Constitution of the State of

Florida (1968), as amended, sets forth Florida citizens’

right of trial by jury and provides as follows:

The right of trial by jury shall be secure to

all and remain inviolate. The qualifications and

the number of jurors, not fewer than six, shall be

fixed by law.

Rule 9.330(a), Florida Rules of Appellate Procedure

governs the time for filing motions for rehearing of an

appellate court decision and provides as follows:

(a) Time for Filing: Contents; Reply. A motion

for rehearing, clarification, or certification may

be filed within 15 days of an order or within

such other time set by the court... .

+

STATEMENT OF THE CASE

The Petition for Writ of Certiorari does not contain a

Statement of the Case. Accordingly, Respondents respect-

fully submit a brief description of the material proceed-

ings which resulted in this Petition for Certiorari.

On June 3, 1994, the Circuit Court in and for Escam-

bia County, Florida, entered an order granting Respon-

dents’ motion for summary judgment and quieting title to

certain real property situate in Escambia County, Florida,

to the Respondents (R.App. 12). Final judgment was then

entered in favor of Respondents (R.App. 5). The essence

of the case involved the propriety of a merger between

Petitioner’s former corporation and the Respondents

which resulted in the Respondents acquiring title to the

subject property. Petitioner objected to the merger on the

grounds of fraud and deceit and insisted title to the

subject real property never lawfully passed to Respon-

dents.!

Petitioner appealed the circuit court’s decision to the

First District Court of Appeal, and on March 10, 1995, the

District Court of Appeal entered a per curiam (without

opinion) affirmance of the circuit court’s ruling (R.App.

4). On March 29, 1995, Petitioner filed a motion for

rehearing in the District Court of Appeal, which was

denied by the court on April 24, 1995 (R.App. 3). Peti-

tioner then petitioned the Supreme Court of Florida for

review of the District Court of Appeal’s per curiam deci-

sion, and on May 3, 1995, the Supreme Court of Florida

dismissed the petition (R.App. 2). Petitioner then filed a

motion for reinstatement of the appeal, which was denied

by the Supreme Court of Florida on September 6, 1995

(R.App. 1). On December 5, 1995, Petitioner filed the

instant Petition For Writ of Certiorari in this Court.

¢

1 The facts of the case are set forth more fully in the circuit

court’s Order (R.App. 13).

\

ARGUMENT

I,

THE PETITION FOR WRIT OF CERTIORARI WAS

NOT TIMELY FILED, AND THEREFORE, THIS COURT

DOES NOT HAVE JURISDICTION PURSUANT TO 28

U.S.C. § 2101(c) AND RULE 13 OF THE RULES OF THE

SUPREME COURT OF THE UNITED STATES.

Title 28, United States Code, § 2101(c) and Rule 13 of

the Rules of the Supreme Court of the United States

require that petitions for writs of certiorari to review a

judgment entered by a state court of last resort must be

filed with the Clerk of the Court within 90 days of the

entry of judgment. The question then becomes one of

determining precisely what “judgment” is sought to be

reviewed.

Respondents Tree Farm and Pierce respectfully sub-

mit that the operative order in this case is the District

Court of Appeal’s March 10, 1995, per curiam affirmance

of the circuit court’s order and entry of final judgment in

favor of Respondents on their motion for summary judg-

ment (R.App. 4). Pursuant to Rule 9.330(a) of the Florida

Rules of Appellate Procedure, Petitioner’s time for filing

a motion for rehearing of the District Court of Appeal’s

per curiam decision expired on March 25, 1995. Petitioner

did not file his motion for rehearing until March 29, 1995,

and the motion, which was untimely, was denied by the

District Court of Appeal on April 24, 1995 (R.App. 3).

Petitioner then petitioned the Supreme Court of Florida

for review, and on May 3, 1995, the Supreme Court of

Florida dismissed Petitioner’s petition, noting the

absence of jurisdiction over the appeal (R.App. 2).

Petitioner then filed a motion for reinstatement, which

was denied by the Supreme Court of Florida on Septem-

ber 6, 1995, with an award of attorney’s fees in Respon-

dents’ favor (R.App. 1). Petitioner filed his Petition For

Writ of Certiorari in this Court on December 5, 1995,

identifying the Supreme Court of Florida’s September 6,

1995, Order as the order appealed from.

The Florida Constitution, Article V, Section 3(b), was

amended in 1980, limiting the appellate jurisdiction of the

Florida Supreme Court. The 1980 Amendment made the

district courts of appeal the “court of last resort” for most

cases. Cf., Fla. Const. Art. V, Section 4(b) (1968), as

amended. This limited jurisdiction of the Florida

Supreme Court has been previously recognized by this

Court. See Palmore v. Sidoti, 466 U.S. 429, 431 (1984);

Williams v. Florida, 399 U.S. 78, 80 n.5 (1970). Further, the

Florida Supreme Court has held that it does not have

jurisdiction to review a “per curiam affirmed” decision

(without opinion) of a district court of appeal. Dodi Pub-

lishing Company v. Editorial America, S. A., 385 So. 2d 1369

(Fla. 1980); Jenkins v. State, 385 So. 2d 1356 (Fla. 1980).

This lack of jurisdiction was also recognized in this very

case by the Supreme Court of Florida in its order of May

3, 1995, dismissing Petitioner’s petition for review of the

District Court of Appeal’s per curiam decision (R.App. 2).

Consequently, in this case, the District Court of

Appeal was the “court of last resort” for the Petitioner,

and Petitioner had, at the very latest, 90 days from the

date of its April 24, 1995, Order denying his motion for

rehearing in which to file his Petition For Writ of Cer-

tiorari in this Court.? Petitioner did not file his Petition in

this Court until 125 days after the District Court of

Appeal’s April 24, 1995, Order, and, therefore, the Peti-

tion For Writ of Certiorari in this case is untimely and

should be dismissed for want of jurisdiction.

Il.

THE PETITIONER HAS FAILED TO PRESENT ANY

SUBSTANTIAL FEDERAL QUESTION RAISED IN

THE PROCEEDINGS BELOW AND DECIDED BY THE

STATE COURTS WHICH WOULD WARRANT THE

EXERCISE OF THIS COURT’S CERTIORARI JURIS-

DICTION.

As an initial matter, Rule 14(1)(g)(i) of the Rules of

the Supreme Court of the United States requires a Peti-

tioner seeking to invoke the Court’s powers of discretion-

ary review over a state court judgment to specify in the

Statement of the Case

the stage in the proceedings, both in the court of

first instance and in the appellate courts, when

the federal questions sought to be reviewed

were raised; the method or manner of raising

them and the way in which they were passed on

by those courts; and pertinent quotations of

specific portions of the record or summary

2 Respondents submit that because Petitioner’s motion for

rehearing in the District Court of Appeal was untimely, the

actual time for filing the Petition for Writ of Certiorari in this

Court commenced on March 10, 1995, the date on which the

District Court of Appeal entered its per curiam affirmance of the

circuit court’s order.

10

thereof, with specific reference to the places in

the record where the matter appears . . . , sO as

to show that the federal question was timely

and properly raised and that this Court has

jurisdiction to review the judgment on a writ of

certiorari. . .

Sup. Ct. R. 14(1)(g)(i). The Petitioner in this case has

made no effort whatsoever to comply with Rule 14, and

instead has submitted a rambling recitation of numerous

state and federal constitutional and statutory provisions

with no identifiable connection to the proceedings below.

Notwithstanding Petitioner’s failure to comply with

the technical dictates of Rule 14, the Petition for Writ of

Certiorari is fundamentally flawed and fails to confer

jurisdiction on this Court. Rule 10 of the Rules of the

Supreme Court of the United States, requires a “compel-

ling reason” for the invocation of the Court’s certiorari

jurisdiction. Sup. Ct. R. 10. The existence of a federal

question is a jurisdictional prerequisite to the granting of

a petition for certiorari. Herb v. Pitcairn, 324 U.S. 117,

1125-26 (1945). Further, this Court has recognized that the

principal purpose of certiorari jurisdiction is to resolve

conflicts among circuit courts of appeals and state courts

concerning the meaning of provisions of federal law.

Braxton v. United States, 111 S. Ct. 1854, 114 L.Ed.2d 385

(1991).

Not only must_the issue at stake before this Court

involve federal law, it must also have been properly

raised in a prior state court proceeding. This Court has

long held that the federal question must have been

raised, presented and pursued in a timely and proper

manner at the appropriate point or points in the state

court proceedings. Beck v. Washington, 369 U.S. 541,

11

550-554 (1962); Godchaux Company v. Estopinal, 251 U.S.

179, 181 (1919). Absent this having occurred, this Court is

without jurisdiction to review the state court judgment.

See Crowell v. Randell, 10 Pet. 368, 391-98 (1836). See also,

Illinois v. Gates, 462 U.S. 213, 218-20 (1983); Cardinale v.

Louisiana, 394 U.S. 437, 439 (1969). If “the highest state

court has failed to pass upon a federal question, it will be

assumed that the omission was due to want of proper

presentation in the state courts, unless the aggrieved

party in this Court can affirmatively show the contrary.”

Street v. New York, 394 U.S. 576, 582 (1969). If the highest

state court is silent on the asserted federal question, the

Court will assume, unless it can be affirmatively shown

otherwise, that the state court’s silence is due to the

procedural deficiency of the assertion of the federal ques-

tion. Bailey v. Anderson, 326 U.S. 203, 206-07 (1945);

Mutual Life Insurance Company v. McGrew, 188 U.S. 291,

309 (1903). Further, this Court has held that a petitioner

may very well have waived a federal issue that has not

been asserted and argued before the highest state court.

Beck v. Washington, 369 U.S. at 553.

This Court has also held in the past that merely

referring to “due process of law” is insufficient to prop-

erly frame a federal question for the Court’s exercise of

jurisdiction. Bowe v. Scott, 233 U.S. 658, 664-65 (1914). See

also Brady v. Maryland, 373 U.S. 83, 91 (1963) (opinion of

White, J.); Minnesota v. National Tea Company, 309 U.S. 551,

559 (1940) (Hughes, C. J. dissenting). Finally, if the peti-

tioner does not raise the federal question until the Peti-

tion for Writ of Certiorari, as has happened in this case,

the assertion of the federal question comes too late. See

White River Lumber Company v. Arkansas, Ex Rel. Applegate,

12

279 U.S. 692, 700 (1929); Whitney v. California, 274 U.S.

357, 362-63 (1927); Hiawassee River Power Company v. Caro-

lina-Tennessee Power Company, 252 U.S. 341, 344 (1920);

Thomas v. Iowa, 209 U.S. 258 (1908).

Petitioner argues in his petition that he has been

deprived of his constitutional rights by the actions of the

attorneys and judicial officers in the state court proceed-

ings below. More specifically, he claims that he has been

denied his right to a jury trial and right of access to the

courts based on the Respondents’ attorney’s alleged mis-

representation of facts to the trial court during the sum-

mary judgment proceedings below, and the trial court’s

alleged acceptance and application of the allegedly miss-

tated facts in a manner prejudicial towards him when it

granted Respondents’ motion for summary judgment.

Petitioner also argues that the Florida Supreme Court's

failure to exercise jurisdiction over his appeal from the

District Court of Appeal violated his constitutional right

of access to the courts. Finally, Petitioner continues to

argue, as he did in his previous Petition For Writ of

Certiorari filed in this Court in 1992, that his due process

rights were violated by an order entered early on in this

case by the Circuit Court in and for Leon County, Florida,

which transferred his declaratory judgment action from

Leon County, Florida to Escambia County, Florida pur-

suant to the state’s Local Action Rule.

3 This petition was denied by this Court on October 13,

1992 (R.App. 18).

13

First, with the possible exception of Petitioner’s lin-

gering due process claim,* no federal claim has been

raised in any of the state court proceedings below.

Accordingly, there is no state court decision on a federal

question currently facing this Court. Next, even if the

Petitioner had properly presented and argued his claims

as federal questions in the state courts below, which

Respondents submit he did not, the issues implicated in

the instant case are not federal; they are rooted exclu-

sively in state law.

Specifically, Petitioner’s due process claim arises

solely in the context of the circuit court’s construction of

the Florida “Local Action Rule.” See Georgia Casualty Com-

pany v. O'Donnell, 109 Fla. 290, 147 So. 267 (1933). Federal

concerns are in no way implicated by this decision. Like-

wise, Petitioner’s present claims of having been deprived

of his right to a trial by a jury and his right of access to

the courts by the decisions of the Florida courts below are

based exclusively on state law. The Petition expressly

refers to Sections 22 and 23 of the Florida Constitution for

the assertion of these rights, and Petitioner’s oblique

reference to 42 U.S.C. § 1983 cannot alter the basic state

law character of these claims. See Art. 1, Sections 22 and

23 of the Constitution of the State of Florida (1968), as

amended. Consequently, none of the issues raised by

Petitioner in the instant petition encompasses a “compel-

ling” consideration for the exercise of this Court's cer-

tiorari jurisdiction.

* It is unclear whether Petitioner bases his due process

argument on Article 1, Section 9 of the Florida Constitution or

the Fourteenth Amendment to the United States Constitution.

14

Moreover, any inquiry by this Court into the circuit

court’s order granting Respondents’ motion for summary

judgment would necessarily involve review of the trial

court’s finding that no genuine issue of material fact

existed, a rare function of this Court’s discretionary

powers. See Sup. Ct. R. 10 (1995); NLRB v. Hendricks

County Rural Electric Co., 454 U.S. 170, 176 n.8 (1981);

United States v. Johnston, 268 U.S. 220, 227 (1925).

In summary, Petitioner has failed to timely and prop-

erly raise any federal question at any level of the state

court proceedings below, let alone a substantial one.

Accordingly, there has not been a decision on an impor-

tant question of federal law by any court in this case that

warrants review by this Court.

*

CONCLUSION

This Court should not grant the Petition For Writ of

Certiorari in this case for two reasons. First, and fore-

most, the Court lacks jurisdiction over the Petition based

on the Petitioner’s untimely filing. Second, Petitioner has

failed to raise an important federal question decided by a

court below which warrants review and consideration by

this Court. Based on the foregoing, Respondents Tree

Farm and Pierce respectfully submit that this Court

should decline to exercise its discretionary power to

ee

15

review the state court’s decision in this case by writ of

certiorari.

Respectfully submitted,

Dennis K. LARRY

Counsel of Record

Puiu A. Bates

Marcaret C. RopGERS

CLARK PARTINGTON Hart Larry

BonD STACKHOUSE & STONE

125 West Romana Street, Suite 800

POB 13010

Pensacola, FL 32591-3010

904/434-9200

Counsel for Respondents

No. 95-882

*

In The

Supreme Court of the United States

October Term, 1995

+

JACK DAVID KELLY, individually and

JACK DAVID KELLY, as President/Shareholder of

MAPLE LEAF DEVELOPMENT CORPORATION,

Petitioner,

vs.

TREE FARM DEVELOPMENT CORPORATION;

EMORY O. WILLIAMS, JR.; THE ESTATE OF GEORGE

G. PHILLIPS, JR.; E. D. “BOB” PIERCE; and THE

ESTATE OF ABRAHAM L. PIERCE,

Respondents.

.

On Petition For Writ Of Certiorari

To The District Court Of Appeal, First District

For The State Of Florida

+

APPENDIX TO

BRIEF OF RESPONDENTS

TREE FARM DEVELOPMENT CORPORATION

AND E. D. “BOB” PIERCE

IN OPPOSITION TO CERTIORARI

S

App. 1

SUPREME COURT OF FLORIDA

WEDNESDAY, SEPTEMBER 6, 1995

JACK KELLY,

Appellant, CASE NO. 85,600

District Court of

Appeal, 1st District

— No. 94-2167

Vv.

TREE FARM DEVELOPMENT

CORPORATION, etc.,

Appellee.

SESE EE EAE EEAE EASE EA EEASE EERE EAEE EEE EEE

oo ©@ @ 2 | 4-2 ©

Appellant’s Motion for Reinstatement filed in the

above cause is hereby denied.

Appellant’s Motion to Strike Motion is hereby

denied.

Appellee’s Motion for Attorney’s Fees is granted; and

said attorney is hereby allowed a fee of one thousand

dollars ($1,000.00) for services in this Court, said sum to

be paid to said attorney by appellant after final disposi-

tion of this cause. SHAW, KOGAN, HARDING, WELLS

and ANSTEAD, JJ., concur

~

A True Copy cc: Hon. Jon S. Wheeler,

Clerk

TEST: (SEAL) Hon. Ernie Lee Magaha,

By: /s/ T. Carroll Clerk

Deputy Clerk Hon. Joseph O. Tarbuck,

Sid J. White Judge

Clerk, Supreme Court Mr. Jack David Kelly

Mr. Stephen Moorhead

Mr. E. D. “Bob” Pierce

Mr. Carl R. Pennington, Jr.

Mr. Emory O. Williams

Mr. Phillip A. Bates

App. 2

SUPREME COURT OF FLORIDA

WEDNESDAY, MAY 3, 1995

JACK KELLY,

Appellant/Petitioner,

v.

TREE FARM DEVELOPMENT

CORPORATION, ETC.,

Appellee / Respondent.

**

=

CASE NO. 85,600

DISTRICT COURT

OF APPEAL,

1ST DISTRICT -

NO. 94-2167

**

It appearing to the Court that it is without jurisdic-

tion, the Petition for Review is hereby dismissed and no

motion for rehearing will be entertained by the Court.

It appearing to the Court that the District Court of

Appeal, First District, did not declare invalid a State Stat-

ute or a provision of the State Constitution, and that,

therefore, it is without jurisdiction, this appeal is hereby

dismissed subject to reinstatement if jurisdiction is estab-

lished on proper motion filed within fifteen (15) days

from the date of this order. See Article V, Section 3(b)(1),

Florida Constitution.

A True Copy

TEST: (SEAL)

By: /s/ : id ; White

id }. ite

Clerk Supreme

Court

H

ce:

Hon. Jon S. Wheeler,

Clerk

Hon. Ernie Lee Magaha,

Clerk

Hon. Joseph O. Tarbuck,

Judge

Mr. Jack David Kelly

Mr. Stephen Moorhead

Mr. E. D. “Bob” Pierce

Mr. Carl R. Pennington, Jr.

Mr. Emory O. Williams

Mr. Phillip A. Bates

App. 3

DISTRICT COURT OF APPEAL, FIRST DISTRICT

Tallahassee, Florida 32399

Telephone No. (904) 488-6151

April 24, 1995

CASE NO.: 94-02167

L.T. CASE NO. 91-0309

Jack Kelly v. Tree Farm Development

Corporation

Appellant(s), Appellee(s).

BY ORDER OF THE COURT:

Motion for rehearing, filed March 29, 1995, is DENIED.

Motion to accept, filed March 29, 1995, is DENIED.

1 HEREBY CERTIFY that the foregoing is (a true copy of)

the original court order.

/s/ Jon S. Wheeler (SEAL)

JON S. WHEELER, CLERK

By: /s/ Sondra Joyner

Deputy Clerk

Jack D. Kelly

Copies:

Sherry Grant Hall

Philip A. Bates

App. 4

IN THE DISTRICT COURT

OF APPEAL,

FIRST DISTRICT, STATE

OF FLORIDA

JACK KELLY, NOT FINAL UNTIL TIME

EXPIRES TO FILE

MOTION FOR REHEAR-

v. ING AND DISPOSITION

TREE FARM DEVELOP- ‘THEREOF IF FILED.

MENT CORPORATION, CASE NO. 94-2167

a foreign corporation,

Appellant,

Appellee.

Opinion filed March 10, 1995.

An appeal from the Circuit Court for Escambia County.

Joseph Q. Tarbuck, Judge.

Sherry Grant Hall of The Hall Law Firm, P.A., Destin, for

Appellant.

Philip A. Bates of Clark, Partington, Hart, Larry, Bond,

Stackhouse & Stone, Pensacola, for Appellee.

PER CURIAM.

AFFIRMED.

WEBSTER, MICKLE and BENTON, JJ., CONCUR.

App. 5

IN THE CIRCUIT COURT IN AND FOR

ESCAMBIA COUNTY, FLORIDA

TREE FARM

DEVELOPMENT Case No. 93-181 and No.

CORPORATION, 91-4119 consolidated into

vi CASE. NO. 91-0309-CA-01

Plaintiff, Aart? wpe

Division “C

v.

JACK D. KELLY,

Defendant.

FINAL JUDGMENT

THIS CAUSE having come on to [sic] heard before

the Court upon the Motion of Tree Farm Development

Corporation for Summary Final Judgment, and the Court

having reviewed all of the pleadings and papers in this

case, which includes Case No. 93-181 in the Circuit Court

in and for Escambia County, Florida, transferred from the

Circuit Court, Second Judicial Circuit in and for Leon

County, Florida, and consolidated into Case No. 91-0309

in the Circuit Court in and for Escambia County, Florida;

as well as Case No. 91-4119 in the Circuit Court in and for

Escambia County, Florida, consolidated into this Case No.

91-0309, and the proofs submitted by the Plaintiff, the

discovery and other papers in the consolidated court file,

and having heard the argument of counsel and being

otherwise fully advised in the premises, finds and

decides that there is no genuine issue of material fact and

the Plaintiff is entitled to judgment as a matter of law. It

is thereupon

App. 6

CONSIDERED, ORDERED AND ADJUDGED as fol-

lows:

1. The title of the Plaintiff, Tree Farm Development

Corporation, to the following described real property in

Escambia County, Florida:

Parcel 1:

Commencing at the Northwest corner of Section

9, Township 1 South, Range 31 West, Escambia

County, Florida; thence run South along the

West line of said Section 9 for 89.95 feet to the

South right of way line of State Highway No. 10

(200' R/W Nine Mile Road) and the Point of

Beginning: Thence continue South and along the

West line of Section 9 for 2544.21 feet; thence

90°18'33" left for 2653.89 feet; thence 89°43'42"

left for 2548.40 feet to the South right of way

line of State Highway No. 10; thence 90°21'15"

and along said right of way line for 2651.91 feet

to the Point of Beginning, containing 155.08

acres.

Parcel 2:

Commencing at the Southwest corner of Section

9, Township 1 South, Range 31 West, Escambia

County, Florida; thence run East along the South

line of Section 9 for 2655.94 feet; thence

89°51'33" left for 2640.65 feet; thence 90°16'18"

left for 2653.89 feet to the West line of Section 9;

thence 89°41'27" left and along the West line of

said Section 9 for 2634.16 feet to the Point of

Beginning, containing 160.74 acres.

Parcel 3:

Commencing at the Northwest corner or Section

16, Township 1 South, Range 31 West, Escambia

App. 7

County, Florida; thence run South along the

West line of said Section 16 for 1980.82 feet;

thence 91°09'39" left for 1318.90 feet; thence

90°12'59" right for 672.70 feet; thence 90°02'54"

left for 1337.33 feet; thence 89°46'43" left for

2640.31 feet to the North line of Section 16;

thence 90°08'27” left and along the North line of

said Section 16 for 2655.94 feet to the Point of

Beginning, containing 141.31 acres.

Parcel 4-A

Commencing at the Southeast corner of Section

8, Township 1 South, Range 31 West, Escambia

County, Florida; thence run West along the

South line of said Section 8 for 1992.16 feet;

thence 90°27'09" right for 2639.37 feet; thence

89°41'50" right for 1941.42 feet to the East line of

Section 8, thence 90°17'24" right and along the

East line of said Section 8 for 2634.16 feet to the

Point of Beginning, containing 120.57 acres.

Parcel 4-B

Commencing at the Southeast corner of Section

8, Township 1 South, Range 31 West, Escambia

County, Florida; thence run West along the

South line of said Section 8 for 1992.16 feet to

the Point of Beginning: Thence continue West

along same line for 1992.16 feet; thence 90°27'55"

right for 2644.59 feet; thence 89°41'04" right for

1991.42 feet; thence 90°18'10" right for 2639.37

feet to the Point of Beginning, containing 120.81

acres.

Parcel 5:

Commencing at the Northwest corner of Section

9, Township 1 South, Range 31 West, Escambia

County, Florida; thence run South along the East

line of said Section 9 for 94.46 feet to the South

App. 8

right of way line of State Highway No. 10 (200'

R/W Nine Mile Road) and the Point of Begin-

ning: Thence continue South and along the East

line of said Section 9 for 2552.68 feet; thence

89°45'56" right for 2653.88 feet; thence 90°16'18"

right for 2548.40 feet to the South right of way

line of State Highway No. 10; thence 89°38'45"

right and along said right of way line for 2651.90

feet to the Point of Beginning, containing 155.31

acres.

Parcel 6:

All of Rosemont Subdivision, a subdivision of a

portion of Section 9, Township 1 South, Range

31 West, according to plat recorded in Plat Book

1 at Page 4 of the public records of Escambia

County, Florida;

AND

All of first Addition to Rosemont Subdivision, a

subdivision of a portion of Section 9, Township

1 South, Range 31 West, according to plat

recorded in Plat Book 1 at Page 9 of the public

records of Escambia County, Florida.

Parcel 7:

Commencing at the Northeast corner of Section

16, Township 1 South, Range 31 West, Escambia

County, Florida; thence run South along the East

line of said Section 16 for 2643.09 feet; thence

90°00'59" right for 2667.38 feet; thence 90°13'17"

right for 2640.31 feet; thence 89°51'33" right for

2655.93 feet to the Point of Beginning, contain-

ing 161.42 acres.

Parcel 8:

Commencing at the Northeast corner of Section

16, Township 1 South, Range 31 West, Escambia

App. 9

County, Florida; thence run South along the East

line of said Section 16 for 2643.09 feet; thence

90°00'59" right for 1333.69 feet to the Point of

Beginning; thence continue along same line for

2671.02 feet; thence 89°57'06" left for 1312.16

feet; thence 1°26'06" right for 351.44 feet to the

Northerly right of way line of U. S. Highway

No. 90 (200' R/W Mobile Highway); thence

62°07'00" left and along said right of way for

524.35 feet; thence 119°01'00" left for 605.29 feet;

thence 90°09'00" right for 370.75 feet; thence

89°28'58" left for 645.85 feet; thence 89°46'53"

right for 1335.40 feet; thence 89°54'34" left for

660.43 feet to the Point of Beginning, containing

65.18 acres.

is a good title as against the claims or purported claims of

the Defendant, Jack D. Kelly, and all other parties claim-

ing by, through, under, or against him; and all other

parties having or claiming to have any right, title, or

interest in that property; and of all persons claiming by,

through, or under Defendant since the filing of the Notice

of Lis Pendens; and those claims or purported claims are

canceled; and title to the property is forever quieted in

the Plaintiff, Tree Farm Development Corporation.

2. All of the claims, counterclaims, and defenses of

the Defendant, Jack D. Kelly, in each of the several con-

solidated cases, shall be and the same are hereby dis-

missed with prejudice.

3. This Court reserves jurisdiction for purposes of

awarding costs and such attorneys’ fees as may be appro-

priate.

App. 10

DONE AND ORDERED in chambers at Pensacola,

Escambia County, Florida, this 16th day of June, 1994.

/s/ Joseph Q. Tarbuck

JOSEPH Q. TARBUCK

CIRCUIT COURT JUDGE

Conformed Copy to:

(6) Philip A. Bates

P.O. Box 13010

Pensacola, FL 32501

John Kevin Griffin

P.O. Box 1030

Pensacola, FL 32595-1030

Emory O. Williams

Florida Department of Transportation

605 Suwannee Street

Tallahassee, FL 32399-0458

Stephen Moorhead

4300 Bayou Blvd.

Suite 12-13

Pensacola, FL 32503

Carl R. Pennington

3375 Capitol Circle

P.O. Box 13527

Tallahassee, FL 32317

E.D. “Bob” Pierce

1401 North “B” Street

Pensacola, FL

App. 11

Plaintiff’s address:

Tree Farm Development Corporation

23 Lexington Avenue

Cambridge, MA 02138

Defendant’s address:

Jack D. Kelly

3331 Summit Blvd.

Apt. 87

Pensacola, FL 3250322

App. 12

IN THE CIRCUIT COURT IN AND FOR

ESCAMBIA COUNTY, FLORIDA

TREE FARM DEVELOPMENT

CORPORATION, a foreign

corporation,

Plaintiff,

vs. CASE NO. 91-0309

JACK KELLY,

Defendant.

/

ORDER ON PLAINTIFF’S MOTION

FOR SUMMARY FINAL JUDGMENT

Maple Leaf Development Corporation, hereinafter

referred to as “Maple Leaf” was incorporated as a Florida

corporation in April of 1970. On July 1, 1971, Maple Leaf

acquired title to approximately 1080.42 acres as well as

Rosemont Subdivision and the First Addition thereto.

On or about December 3, 1971, Maple Leaf entered

into an agreement entitled “Agreement and Plan of Reor-

ganization” with Tree Farm Development Corporation, a

Delaware corporation, hereinafter referred to as “Tree

Farm” and five individuals, Jack D. Kelly, Abraham L.

Pierce, Emory O. Williams, Jr., George G. Phillips, Jr., and

E. D. Bob Pierce. The agreement basically provides for the

merger of Maple Leaf into Tree Farm. About January 18,

1972, Tree Farm and Maple Leaf entered into an Agree-

ment of Merger. Item Four of the Agreement of Merger

provides as follows:

This Agreement and Plan of Merger shall be

filed with the Secretary of State of Delaware and

App. 13

with the Department of State of Florida and the

merger provided for herein shall become effec-

tive on the date on which the last act required to

complete said merger under the respective laws

of Delaware and Florida is performed.

The Agreement of Merger was signed by the President of

each entity, Kelly signing as President of Maple Leaf, and

each was attested to by each Secretary. The Agreement of

Merger was filed with the Office of the Secretary of State

of the State of Florida on February 1, 1972, and the same

was also filed in the Offices of the Department of State of

the State of Delaware on February 2, 1972, and a Certifi-

cate as to the merger was filed in the public records of

Escambia County, Florida, on February 11, 1972, and said

Agreement was also filed with the Recorder of Deeds in

Delaware on February 2, 1972.

In connection with the Agreement of Merger, each of

the Maple Leaf shareholders, including Jack D. Kelly,

executed, sealed and delivered a General Release dated

January 28, 1972.

On or about November 14, 1977, the Barnett Bank of

Pensacola, formerly the First Bank & Trust Company of

Pensacola, executed and delivered a Special Warranty

Deed to Tree Farm as to the property therein described

which purports to be the Rosemont Subdivision and the

First Addition thereto. Defendant, Jack D. Kelly, has filed

numerous documents in the public records of Escambia

County, Florida, wherein he claims to be the owner of

some or all of the acreage and subdivision property. Tree

Farm filed this suit on January 22, 1991, seeking to quiet

title to all of the acreage and subdivision property owned

by Tree Farm.

App. 14

Prior to the quiet title suit being filed, Kelly filed suit

in Leon County, Florida, in September of 1990, wherein

the relief sought was vacation of the merger. An order

was entered in Leon County transferring the case to

Escambia County, which order was appealed by Kelly to

the First District Court of Appeal, the Florida Supreme

Court, and the United States Supreme Court, each court

ruling against Kelly. In 1990, Kelly also filed suit against

Tree Farm in the form of a “Petition to Implement Protec-

tive Measures”. An order was entered in September 30,

1992, consolidating said action with this quiet title action,

which order was also appealed by Kelly to the First

District Court of Appeal and the Florida Supreme Court,

resulting in decisions adverse to Kelly. On September 29,

1993, an order was entered consolidating the two suits

instituted by Kelly with the quiet title suit instituted by

Tree Farm, which order Kelly also appealed to the First

District Court of Appeal which dismissed the same and

the Florida Supreme Court denied Kelly’s petition for

review. The issues presented in all three cases are identi-

cal in nature and the decision made herein shall be dis-

positive of all such issues.

Kelly, individually, and as President of Maple Leaf,

along with the other stockholders of Maple Leaf signed

the Agreement and Plan of Reorganization and Kelly, as

president of Maple Leaf, along with the Secretary, Emory

O. Williams, Jr., also signed the Agreement of Merger.

Further, Defendant released any claim he had to his

shares or any other interest he may have in and to Maple

Leaf to Tree Farm.

According to the corporation laws of both Delaware

and Florida, the merger became effective on February 2,

App. 15

1972, and Maple Leaf ceased to exist and Tree Farm was

the owner of all property previously owned by Maple

Leaf. The numerous documents or claims filed by Kelly in

the public records of Escambia County might be con-

strued to be clouds on the title of the real property now

owned by Tree Farm and therefore Tree Farm is entitled

to bring this quiet title action.

There is no contention that Kelly claims adverse pos-

session inasmuch as he is not in possession of the prop-

erty nor has he ever been in possession of the property

nor has Kelly paid the ad valorem taxes on said property

since said property was acquired by Tree Farm in Febru-

ary of 1972. The Notice of Lis Pendens dated May 7, 1979,

and the numerous affidavits or documents do not cite any

legal or factual basis upon which Kelly can properly

assert any claim of title to the property in question and,

furthermore, all of the aforesaid have now become moot

and unenforceable as a matter of law inasmuch as Kelly

did not institute any action within one year of filing of

each of the aforesaid documents.

Further, Kelly should not now be permitted to insti-

tute a claim that the merger was never completed inas-

much as he has received the fruits thereof. Further, Kelly

should be barred by the equitable doctrines of estoppel

and laches since he waited over eighteen and one-half

years before instituting suit to vacate or have declared

illegal the merger. Further, pursuant to FS. 95.11(3)(p)

any suit with regard to matters surrounding the merger

should have been brought within five years of discovery

by Kelly of facts giving rise to a defective merger. In this

regard, Kelly himself has documented his knowledge of

the existence of such a prospective claim inasmuch as it is

App. 16

clear that as of January 17, 1979, Kelly was advised by the

Honorable Curtis Golden, State Attorney, First Judicial

Circuit of Florida, that a grand jury has considered his

various allegations and had determined that there was no

basis for any kind of criminal action arising out of the

merger. In said correspondence from Mr. Golden, Kelly

was further advised that his grievances, if any, were civil

and not criminal in nature.

It appears further that Kelly has made claim that a

fraud was practiced upon him by the other shareholders

of Maple Leaf, particularly Emory O. Williams, Jr. and

George G. Phillips, Jr. F.S. 95.11 provides that a legal or

equitable action founded on fraud shall be commenced

within four years. Because of some changes in 1975 with

respect to the statute of limitations in existence in 1972, it

appears that actions grounded upon fraud must be, in

any event, instituted within twelve years after the date of

the commission of alleged fraud, regardless of the date

the fraud was or should have been discovered. Initially, it

should be noted that Kelly has not plead claims of mis-

representation and fraud with the particularity required

by Florida law. However, even if properly plead, any

action on fraud is barred if filed later than February 3,

1984. As indicated, Kelly’s action was first commenced in

1990.

In summary, Kelly’s claim is barred because he was

not seized or possessed of the property within seven

years prior to the commencement of his action. Any liens

or claims filed by Kelly prior to the filing of his first suit

in 1990 have been time-barred. The doctrines of laches

and estoppel are a bar to Kelly’s claim inasmuch as he

did not act promptly in judicially asserting the invalidity

App. 17

of the merger. Also, an examination of all of the agree-

ments entered into between Maple Leaf and Tree Farm

clearly indicate that Kelly was in agreement therewith,

signed all of the necessary documents, and realized the

fruits of the merger. An examination of Kelly’s counter-

claim and affirmative defense will readily show that the

claims made therein are insufficient as a matter of law. It

is therefore

ORDERED AND ADJUDGED that motion of Plaintiff,

TREE FARM DEVELOPMENT CORPORATION, for sum-

mary judgment, be, and the same is hereby granted. That

Kelly’s counterclaim and affirmative defenses be, and the

same are hereby dismissed. That counsel for Plaintiff

shall prepare an appropriate summary final judgment

quieting title in Plaintiff in and to the property described

in the complaint filed herein.

DONE AND ORDERED at Pensacola, Escambia

County, Florida, this 3rd day of June, 1994.

/s/ Joseph Q. Tarbuck

JOSEPH Q. TARBUCK,

CIRCUIT JUDGE

Conformed copies to:

Philip A. Bates, Esq.

John Kevin Griffin, Esq.

App. 18

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

October 13, 1992

Mr. Dennis K. Larry

125 West Romana St.

P.O. Box 13010

Pensecola [sic], FL 32591-3010

Re: Jack David Kelly, etc.

v. Tree Farm Development Corporation, et al.

No. 92-327

Dear Mr. Larry:

The Court today entered the following order in the

above entitled case:

The petition for a writ of certiorari is denied.

Very truly yours,

/s/ William K. Suter

William K. Suter, Clerk