# Opposition Brief — Kelly v. Tree Farm Development Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1094

## Text

) 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0887%3A2. Public record. Not legal advice.