Opposition Brief — Gillispie v. Marina Club of Tampa, Homeowners Association Inc. (No. 07-1357)

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FILED

No. 07-1357

OFFICE CF THE Wie

In The SUP EW COUNT US.

Supreme Court of the Anited States

DWAYNE L. GILLISPIE,

Petitioner,

vs.

MARINA CLUB OF TAMPA

HOMEOWNERS ASSOCIATION, INC.,

Respondent.

On Petition For Writ Of Certiore~i

To The United States Cour’ Of Appeals

For The Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

NEIL C. SPECTOR

RONALD H. TRYBUS

Counsel of Record

Kass, SHULER, SOLOMON, SPECTOR,

FOYLE & SINGER, P.A.

1505 North Florida Avenue

Tampa, Florida 33602

Telephone: (813) 229-0900

Facsimile: (813) 229-3323

Counsel for Respondent

Marina Club of Tampa

Homeowners Association, Inc.

May 29, 2008

—-~--—_—.. ——

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

OR CALL COLLECT (402) 32-2831

TA6_LE OF CONTENTS

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I. Clarification of the Record........................++ 2

Reasons for Denying the Writ ...................2--.....0+- 10

I. Gillispie Has Not Articulated A Compelling

Reason To Justify Discretionary Review By

THOSE, cosa ceviiiintnntinvainnjecivpiaiiiiatiiiaiciiny: Te

II. The Lower Courts Did Not Err In Deciding

Tike CAs... ~1:55.~cn cone 17

A. The District Court Did Not Abuse Its

Discretion In Enforcing Its Final

Judgment Incorporating The Media-

tion Agreement By Enjoining Husein

Bhadelia And Gillispie From Allowing

Anyone Other Than A Condominium

Unit Owner From Occupying A Unit In

SOE DY aicesinivicsengectideasiammmndiiiis 17

B. Marina Club Met Its Burden For An

Award Of Injunctive Relief Against

Husein Bhadelia And Gillispie Even

Under The Traditional Requirements

For Injunctive Relief ............................. 20

C. The Eleventh Circuit Court Did Not

Err In Applying The Law Of The Case

Doctrine To Affirm The Ruling Of The

SITE Riss inccnvsciccatacabinatcaiaiiins 21

| SRR, Bake Lee ae ne SER NEN een Ra tmeneree ay ce”! 24

TABLE OF AUTHORITIES

Page

CASES

Autozone Stores, Inc. v. Northeast Plaza Ven-

ture, LLC, 934 So.2d 670 (Fla.2d DCA 2006)......... 21

Alphamed, Inc. v. B. Braun Medical, Inc., 367

Bee Fe ek Sar, orion ccc cecsvcosnicenesscvsciee 23

Bhadelia v. Marina Club of Tampa, 142 Fed.

Appx. 399 (11th Cir. 2005), cert. denied, 546

I I iia sooo ocv sesdsvcvsccbanistesucsoneeeuces 13, 23

Bhadelia v. Marina Club of Tampa, 2008 WL

311703, rehearing denied, ___s—xF.3d ___ (11th

yg wal pcg aceig ate 10

Burr & Forman v. Blair, 470 F.3d 1019 (11th

EEE ES ERAS ears REE Mean Dh Meee eS 18

Department of Business Regulation, Div. of

Land Sales v. Siegel, 479 So.2d 112 (Fla.

NN eae wc acca ee gan ois cs uue ene Sua emiguas 14

Ex parte Leaf Tobacco Bd. of Trade, 222 U.S.

RY ERS atte are RecN Bune gare aM Sa RS re 12

Frisby v. Schultz, 487 U.S. 474 (1988)..............ccccc000 15

Klay v. United Healthgroup, 376 F.3d 1092

schol co waters anh mnie 18, 20

Marino v. Ortiz, 484 U.S. 301 (1988), rehearing

denied, 484 U.S. 1082 (1988)...........................cceeee 12

Mohammed Husein Bhadelia v. Marina Club of

Tampa Homeowners Ass’n, Inc., 546 U.S.

ill

TABLE OF AUTHORITIES — Continued

Page

STATUTES

- All Writs Act, 25 U.S.C.A. § 1651(a) «0.0.0.0... 17, 18, 20

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RULE

ee oe a ee 11, 24

STATEMENT OF THE CASE

Non-party, pro se petitioner, Dwayne Gillispie

(“Gillispie”) has petitioned this Court for a discretion-

ary review of the final order entered by the United

States District Court for the Middle District of Flor-

ida on September 7, 2007 that enjoined Mohammed

Husein Bhadelia (“Husein Bhadelia”) and those

acting in concert with him including Gillispie from

violating the trial court’s final judgment in favor of

Marina Club of Tampa Homeowners Association, Inc.

(“Marina Club”) by allowing non-condominium unit

owners to occupy units in Husein Bhadelia’s Building

N at the Marina Club of Tampa Complex.

Gillispie’s petition arises from a_ protracted

dispute between Husein Bhadelia and Marina Club

that has been waged in both federal and state court

and has included four appeals by Bhadelia to the

Eleventh Circuit Court of Appeals, this Court’s previ-

ous denial of his petition for writ of certiorari to

review the District Court of Florida’s final judgment

enforcing a mediation agreement that was affirmed

by the Eleventh Circuit, and an appeal by Bhadelia’s

mortgage holder and brother, Abdul Razak (“Razak”)

of a summary judgment entered in favor of Marina

Club and holding that Razak’s mortgage lien had

expired on the common areas and undeveloped land

owned by Marina Club. Razak’s appeal finally con-

cluded on February 19, 2008 when the Supreme

Court of Florida denied his request for jurisdiction to

review the summary judgment entered in favor of

Marina Club and affirmed by Florida’s Second Dis-

trict Court of Appeals.

I. CLARIFICATION OF THE RECORD

The facts set forth in the Petitioner’s Statc ment

of the Case do not accurately reflect the record and

include matters that have never been part of the

record of the courts below. Husein Bhadelia and his

brother, Farooq filed an amended complaint against

Marina Club on August 1, 2003. In their amended

complaint, they alleged: in count I — that Marina Club

retaliated against them in violation of the Americans

With Disabilities Act (“ADA”) and Fair Housing

Amendment Act (““FHAA”) after they sent their letter

(by Gillispie) demanding that Marina Club recognize

the rights of HUD Section 811 future tenants of

Building N and that Marina Club make the Condo-

minium Complex handicap accessible; in count II —

that Marina Club was liable for racial and national

origin discrimination due to alleged remarks made by

its agents to the Bhadelias after the September 11,

2001 attack on America; in count III — for declaratory

relief stemming from the notice of lis pendens that

Marina Club filed against Husein Bhadelia’s property

in Marina Club’s state court declaratory judgment

action concerning title to the common areas and

amenities that were supposed to be transferred to

Marina Club under the recorded Declaration of

Covenants, Restrictions and Easements (“CRE’s”) and

in count IV — the Bhadelias’ claimed that Marina

Club allegedly committed fraud in representing that

it had the authority to manage the common areas.

Marina Club filed its answer, affirmative de-

fenses and counterclaim against the Bhadelias on

October 14, 2003. In its counterclaim against the

Bhadelias, Marina Club sought to quiet title in its

name to the common areas and amenities that should

have been conveyed to Marina Club before December

31, 1992 as required by the CRE’s. Marina Club

further alleged that Building N and other non-

developed land was included within the legal descrip-

tion of the committed common properties to which

title should have been conveyed to Marina Club.

On July 7, 2004, the district court referred the

parties to court ordered mediation before the trial

scheduled upon the November 2004 trial docket.

Husein Bhadelia, a citizen and resident of Pakistan,

did not appear at the mediation held on August 23,

2004. Nevertheless, the mediation proceeded due to

representations from his brother, Farooq Bhadelia

and the Bhadelias’ attorneys to Marina Club’s repre-

sentatives, its attorneys and to the mediator, that

Husein Bhadelia had given his brother, Faroog

Bhadelia, full authority to settle all claims on Husein

Bhadelia’s behalf. At the conclusion of the mediation,

the Bhadelias and Marina Club reached a settlement

agreement that allowed the Bhadelias to complete

and sell Building N as condominiums subject to

deadlines for completion of construction and fines in

the event the deadlines were not met. In addition,

title to the amenities, common properties and two

additional parcels upon which the original developer

had reserved the right to build additionai buildings

were to be quieted in Marina Club’s name by a final

judgment to be entered by the district court.

Marina Club obtained financing to pay Husein

Bhadelia the $675,000.00 required by the terms of the

mediation agreement and repeatedly attempted to

schedule a closing in order to pay him and to obtain a

deed from him to the property described in the me-

diation agreement free and clear of all liens. After the

Bhadelias repudiated the mediation agreement, the

district court held an evidentiary hearing and found

that Farooq had his brother’s unequivocal authority

to enter into the mediation agreement. Therefore, the

district court granted Marina Club’s motion to enforce

the mediation agreement, entered final judgment in

its favor, and reserved jurisdiction to enforce the

remaining terms of the mediation agreement.

On March 4, 2005, the Bhadelias appealed the

district court’s final judgment enforcing the mediation

agreement to the Eleventh Circuit Court of Appeals.

The Eleventh Circuit affirmed the district court’s

final judgment on July 27, 2005, and after the Bhade-

lias motion for rehearing was denied, the Eleventh

Circuit issued its mandate on August 31, 2005. While

his motion for rehearing was pending, Husein Bhade-

lia executed and delivered a deed to his brother,

Razak, a citizen of Pakistan. In doing so, Husein

Bhadelia attempted to convey to Razak all of the

property at the Marina Club of Tampa Complex

described in the deed that Husein Bhadelia had

received from the Resolution Trust Corporation

(“RTC”) including the common areas, amenities and

undeveloped parcels that the district court’s judgment

had quieted in favor of Marina Club and that Husein

Bhadelia was required to deed to Marina Club free

and clear of all liens.

Husein Bhadelia purportedly conveyed the

aforementioned property to Razak by a deed in lieu of

foreclosure of a mortgage that Husein Bhadelia had

previously executed and delivered to Razak in Hills-

borough County, Florida. Husein Bhadelia subse-

quently filed a pro se Petition for Writ of Certiorari to

this Court on September 12, 2005 challenging that

the district court had jurisdiction to enter its final

judgment, as well as the validity of the mediation

agreement. This Court subsequently denied Husein

Bhadelia’s Petition for Writ of Certiorari on January

9, 2006. See Mohammed Husein Bhadelia v. Marina

Club of Tampa Homeowners Ass’n, Inc., 546 U.S. 1090

(2006).

After Husein Bhadelia’s Petition was denied and

because he had deeded Marina Club’s property to his

brother in an attempt to circumvent the district

court’s final judgment, Marina Club filed a motion on

January 26, 2006 requesting the district court to

enforce its final judgment, to hold Husein Bhadelia

and his brother, non-party, Razak in contempt and to

award sanctions against Husein Bhadelia and in

favor of Marina Club for the expenses it had incurred

as a result of his conduct in failing to obey the final

judgment.

During an order to show cause hearing held

before the district court on February 27, 2006,

Razak’s attorneys stipulated that the deed in lieu of

- foreclosure given to Razak was void and the district

court denied Marina Club’s motions for sanctions

against Razak. However, the district court found that

Husein Bhadelia’s refusal to obey its final judgment

was willful and ruled that it would sanction him for

his willful refusal to obey the district court’s final

judgment by awarding Marina Club the attorneys’

fees it had incurred. The district court also refused to

grant Marina Club the relief it requested as to

Razak’s mortgage and informed Marina Club that it

would have to seek to quiet title against Razak’s

mortgage interest on Marina Club’s property in

Florida’s state court. The state court thereafter

entered a final judgment quieting title in favor of

Marina Club after ruling that Razak’s mortgage lien

on Marina Club’s property had expired under Florida

Statute § 95.281.

After a certificate of occupancy was issued for

Building N in July of 2007, Gillispie and his sister,

Sunni Bhadelia, as agents for Husein Bhadelia,

informed Marina Club that they were moving home-

less, non-condominium unit owners into Building N

on a temporary basis. Marina Club then moved the

district court for a temporary restraining order and

for a preliminary injunction. Marina Club argued

that Husein Bhadelia, Gillispie and Sunni Bhadelia

were violating the terms of the final judgment which

had incorporated the mediation settlement agree-

ment and required that Husein Bhadelia sell his

units in Building N as condominiums and not hold

them as rental property.

In its affidavits filed in support of its motions,

Marina Club stated that it was being irreparably

harmed because Husein Bhadelia and his agents

were not only violating the district court’s final judg-

ment, but by moving in residents without first sub-

mitting them to Marina Club for screening as

required by the CRE’s and the Rules promulgated by

the Marina Club, Husein Bhadelia and his agents

were violating the CRE’s.

On August 14, 2007, the district court entered a

temporary restraining order which restrained Husein

Bhadelia, Gillispie, and Sunni Bhadelia from allow-

ing anyone other than a buyer of a condominium unit

from occupying a unit in Building N. In its order

granting Marina Club’s motion for a temporary

restraining order, the district court found that Husein

Bhadelia through his agents, Gillispie and Sunni

Bhadelia, had moved a non-condominium unit owner

into Building N in violation of its final judgment and

that they intended to move additional individuals

into Building N who were not owners and who had

not been screened as required by Marina Club’s

CRE’s that govern the use of the Marina Club of

Tampa Complex. After concluding that there was

imminent, irreparable harm to Marina Club caused

by the conduct of Husein Bhadelia’s agents that could

not be remedied by a money judgment, the district

court entered its restraining order, ordered Husein

Bhadelia and Gillispie to file responses to Marina

Club’s motion for preliminary injunction and set a

hearing on Marina Club’s motion.

Husein Bhadelia and Gillispie filed their respec-

tive responses to Marina Club’s motion for prelimi-

nary injunction on September 4, 2007. In his

response, Husein Bhadelia acknowledged that under

the final judgment incorporating the mediation

agreement, the units in Building N had to be submit-

ted to a declaration of condominiums and that they

could not be held as rental property. However, Husein

Bhadelia claimed that he was moving homeless

people into his units in Building N on a temporary

basis pending the outcome of his brother, Razak’s

appeal to the State of Florida’s Second District Court

of Appeals of the state court’s final summary judg-

ment which held that Razak’s mortgage lien on

Marina Club’s property had expired under Florida

Statute § 95.281. Husein Bhadelia argued that he

could not file a declaration of condominium required

by the mediation agreement because Razak, as the

mortgage holder, would not join in the execution of

the declaration of condominium as required by Flor-

ida Statute § 718.104(3). Husein Bhadelia further

argued that since he could not comply with the final

judgment by filing a declaration of condominium, he

should be permitted to use his property for charitable

purposes in the interim. Husein Bhadelia also

adopted the arguments made by Gillispie in his

response.

In his response, Gillispie asserted that the dis-

trict court never had proper jurisdiction over Marina

Club’s original counterclaim against Husein Bhade-

lia, and as a result, the district court never had

jurisdiction to issue its final judgment enforcing the

mediation settlement agreement or to issue the

temporary restraining order and the preliminary

injunction requiring Husein Bhadelia and Gillispie to

abide by the terms of the final judgment.

In reply to Gillispie’s response, Marina Club filed

the Eleventh Circuit Court of Appeals’ Mandate and

Opinion issued on July 27, 2005 and abstracts from

Husein Bhadelia’s and Marina Club’s respective

appellate briefs filed in Case No. 05-11292-II which

established that the issues raised by Gillispie had

already been decided by the Eleventh Circuit Court of

Appeals during Husein Bhadelia’s second appeal. The

district court held a hearing on Marina Club’s motion

for preliminary injunction on September 7, 2007.

During the hearing, the district court advised Husein

Bhadelia’s counsel that the Eleventh Circuit in its

earlier appeal had already rejected the argument

made by Gillispie that the district court lacked sub-

ject matter jurisdiction in a footnote to its July 27,

2005 opinion.

After hearing the arguments by Gillispie and the

attorneys for the parties and after viewing the

lengthy criminal record of the only person whom

Husein Bhadelia and Gillispie had moved into Build-

ing N, the district court granted Marina Club’s mo-

tion for preliminary injunction after ruling that the

mediation agreement incorporated into the district

court’s final judgment contemplated that Building N

would be used as a condominium and not as a home-

less shelter. The district court entered its order

granting Marina Club’s motion for preliminary in-

junction immediately after the September 7, 2007

hearing.

Gillispie subsequently filed his notice of appeal of

the district court’s September 7, 2007 order to the

Eleventh Circuit Court of Appeals on September 18,

2007. The Eleventh Circuit Court of Appeals issued

its opinion affirming the district court’s final order

granting an injunction against Husein Bhadelia and

Gillispie on February 5, 2008 and further denied

Gillispie’s motion for rehearing and for rehearing en

banc on March 18, 2008. Bhadelia v. Marina Club of

Tampa, 2008 WL 311703, rehearing denied, __—s—«~F.3d

___ (11th Cir. 2008). Gillispie subsequently filed his

Petition for Writ of Certiorari to this Court on April

19, 2008. Husein Bhadelia did not personally appeal

the final order of the district court granting an in-

junction and enjoining him from moving non-

condominium unit owners into Building N.

REASONS FOR DENYING THE WRIT

I. GILLISPIE HAS NOT ARTICULATED A

COMPELLING REASON TO JUSTIFY DIS-

CRETIONARY REVIEW BY THIS COURT

The opinions and rulings of the courts below do

not conflict with a decision of this Court or any Court

of Appeals nor do they implicate a federal question

that has not been decided by this Court. “Review on a

writ of certiorari is not a matter of right, but of judi-

cial discretion.” Sup. Ct. R. 10. “A petition for writ of

certiorari will be granted only for compelling rea-

sons.” Id. Gillispie has not presented a compelling

reason to justify this Court’s discretionary review of

the opinion of the Eleventh Circuit Court of Appeals’

affirming the final order entered by the district court

enjoining Bhadelia, and those acting in concert with

him, including Gillispie, from violating the district

court’s final judgment by permitting non-condominium

unit owners from residing in Building N.

Being unable to argue conflict or the implication

of an undecided federal question, Gillispie has at-

tempted to argue in his Petition that this Court

should exercise its supervisory powers because the

Eleventh Circuit Court of Appeals approved the

district court’s departure from the accepted and usual

course of judicial proceedings by affirming the district

court’s injunction against him. In actuality, Gillispie’s

petition to this Court is nothing more than a veiled

attempt as Bhadelia’s agent to re-argue the enforce-

ability of the mediation agreement that has already

been determined by the district court’s final judgment

against Bhadelia, that was subsequently affirmed by

the Eleventh Circuit Court of Appeals and passed

upon by this Court when it previously denied Bhade-

lia’s petition for certiorari review of the final judg-

ment.

In his Petition, Gillispie did not address the final

order that he appealed which granted an injunction

against him for acting in concert with Husein Bhade-

lia to violate the district court’s final judgment. Nor

did Gillispie discuss the opinion of the Eleventh

Circuit Court of Appeals affirming the district court’s

final order after finding that it did not abuse its

discretion in gran.ving its injunction. Since the final

order granting the injunction specifically named

Gillispie, he has standing to appeal that final order.

However. rather than arguing that the district court,

with the approval of the Eleventh Circuit, deviated

from the accepted and usual course of judicial pro-

ceedings in entering its injunction, Gillispie has

instead attacked the validity of the mediation agree-

ment and the final judgment from a case in which he

was not a party.

Gillispie, as a non-party to the proceedings that

gave rise to the district court’s final judgment, simply

has no standing or right to seek certiorari review of

that final judgment. This Court has consistently

adhered to the well established basic rule that a

nonparty cannot appeal the judgment in an action

between others. Marino v. Ortiz, 484 U.S. 301, 303

(1988), rehearing denied, 484 U.S. 1082 (1988); Ex

parte Leaf Tobacco Bd. of Trade, 222 U.S. 578, 581

(1911).

In attempting to support his claim that the

district court departed too far from the accepted and

usual course of judicial proceedings, Gillispie argues

that the district court ignored Husein Bhadelia’s

request for declaratory relief set forth in Count III of

the Bhadelias’ amended complaint. Gillispie further

argues that Razak as the mortgagee should have

been included as a party to the litigation and that he

should have been a party participating at mediation.

(Pet. at p.5-6). Gillispie’s argument is without merit.

The Bhadelias chose not to include Razak as a party

to their amended complaint. Although Marina Club

initially named Razak as a party to its counterclaim,

it could not perfect service upon him because he was

at all times a citizen and resident of Pakistan. More

importantly, however, as the Eleventh Circuit Court

of Appeals explained in footnote 2 to its July 27, 2005

Opinion, by entering into the mediation agreement

with Marina Club, the Bhadelias and Marina Club

resolved the entire case including the matters arising

under the declaratory judgment count in the Bhade-

lias’ Amended Complaint. Bhadelia v. Marina Club of

Tampa, 142 Fed. Appx. 399, 402 (11th Cir. 2005).

Gillispie also argues that the district court and

the Eleventh Circuit failed to determine whether

“Florida Statutes 718 et seq. rendered the [mediation]

agreement unenforceable as written.” (Pet. at p.16-

19). Even if Gillispie as a non-party has standing to

challenge the district court’s final judgment following

Husein Bhadelia’s prior appeal to the Eleventh Cir-

cuit and this Court’s previous denial of certiorari

review, Gillispie’s contention is wrong and does not

justify review pursuant to this Court’s supervisory

powers.

During the evidentiary hearing held on February

24, 2005, the district court heard arguments regard-

ing the validity of the mediation agreement under

Chapter 718 of the Florida Statutes. Marina Club’s

counsel explained to the district court that Marina

Club is a homeowners association that was created by

the original developer of the Marina Club of Tampa

Complex under Chapter 720 of the Florida Statutes

pursuant to the CRE’s recorded in the public records

of Hillsborough County, Florida.

According to the CRE’s, Marina Club was incor-

porated to own and manage the Marina Club of

Tampa Complex’s common areas and amenities which

were to be deeded by the original developer to Marina

Club and included both condominium and non-

condominium property. Marina Club’s attorneys

explained to the district court that under Florida case

law interpreting the applicable Florida Statutes, a

homeowners’ association, such as Marina Club, which

might eventually be partially comprised of non-

condominium dwellers, and which presently had the

authority to impose assessments upon properties

which were not condominium property within scope of

Florida’s Condominium Act [West’s F.S.A. § 718.101 et

seq.] was not a “condominium association” under the

Act. Department of Business Regulation, Div. of Land

Sales v. Siegel, 479 So.2d 112 (Fla. 1985).

The above issues were also addressed by both the

Bhadelias and Marina Club in their respective briefs

to the Eleventh Circuit in the Bhadelias’ appeal of

the district court’s final judgment. Accordingly, the

district court and the Eleventh Circuit did not so far

depart from the accepted and usual course of judicial

proceedings by entering or affirming the final judg-

ment enforcing the mediation agreement to justify

review under this Court’s supervisory power. More-

over, the Supreme Court normally defers to the

construction of a state statute given to it by the lower

federal courts, in the belief that the district court and

the Court of Appeals are better schooled in, and more

able to interpret, the laws of their respective states.

Frisby v. Schultz, 487 U.S. 474, 482 (1988).

Gillispie has also attempted to justify his request

for certiorari review under this Court’s supervisory

powers by arguing that the questions presented for

review affect the rights of all citizens of foreign coun-

tries purchasing property within the United States

while utilizing banking services of their native coun-

tries. The Petitioner further contends that the impact

upon the international banking world in relation to

mortgages granted to citizens of foreign countries in

the purchase of land within the United States re-

quires the exercise of this Court’s supervisory juris-

diction. (Pet. at p.1). Gillispie further claims that

Husein Bhadelia purchased his property at the

Marina Club of Tampa Complex through a mortgage

executed and delivered in Pakistan to Razak and that

Pakistan law has no statute of repose for its mort-

gages. (Pet. at p.3-4, 12-13).

Although Gillispie is requesting this Court to

exercise supervisory review based upon the impact

that the decisions of the courts below have upon the

rights of citizens of foreign countries to purchase

property in the United States using foreign mort-

gages, nothing in the record below indicates that

Gillispie ever purchased land in the United States

using a foreign mortgage. Therefore, the Petitioner

has no standing to make this argument. Moreover,

there is nothing in the record below establishing that

a Pakistani mortgage was even used by Husein

Bhadelia to purchase his property at the Marina Club

of Tampa from the RTC. The only evidence of a mort-

gage was the mortgage that Husein Bhadelia suppos-

edly executed and delivered in Hillsborough County,

Florida to Razak.

The argument made by the Petitioner regarding

the impact upon the international banking world was

never presented to a court below. Consequently, no

court below could have had an opportunity to depart

from the accepted and usual course of judicial pro-

ceedings with regard to Petitioner’s argument con-

cerning the impact of the district court’s final

judgment upon the international banking community

to warrant supervisory review by this Court. The

burden that the Petitioner proposes to place upon

American citizens to protect the rights of foreign

citizens who purchase property in the United States is

untenable. Since the “Pakistani mortgage” supposedly

used to purchase property in the United States was

not recorded in the county where that land is located,

how could anyone having any dealing with that

property have knowledge of the existence of a Paki-

stani mortgage? Does the Petitioner really contend

that lenders and buyers of American real property

must now search the registers and records of every

country in the world to determine whether a foreign

mortgage may somehow encumber property located in

the United States? Clearly, the Petitioner’s argument

in favor of supervisory review has no merit.

Il THE LOWER COURTS DID NOT ERR IN

DECIDING THIS CASE

A. The District Court Did Not Abuse Its

Discretion In Enforcing Its Final

Judgment Incorporating The Media-

tion Agreement By Enjoining Husein

Bhadelia And Gillispie From Allowing

Anyone Other Than A Condominium

Unit Owner From Occupying A Unit In

Building N

The district court properly enforced its final

judgment incorporating the mediation agreement by

entering an order granting Marina Club’s motions for

a temporary restraining order and preliminary in-

junction and prohibiting Husein Bhadelia and his

agent, Gillispie from allowing anyone other than a

condominium unit owner to occupy a unit within

Building N.

According to the All Writs Act, 28 U.S.C.A.

§ 165l(a), a district court is authorized to issue an

injunction to protect and enforce its final judgment.

Moreover, the district court may issue an injunction

under the All Writs Act without first requiring the

movant to meet the traditional four prong test for the

issuance of an injunction. Klay v. United Health-

group, 376 F.3d 1092, 1100 (11th Cir. 2004).

The authority of the district court under the All

Writs Act is not even circumscribed by the identity of

the parties immediately before it; at the district

court’s discretion, writs may be issued to third parties

who are in a position to frustrate the district court’s

administration of its jurisdiction. Burr & Forman v.

Blair, 470 F.3d 1019, 1026-1027 (11th Cir. 2006).

Consequently, even though Gillispie and the individ-

ual he placed in possession of a unit in Building N

were not parties to the proceedings in the courts

below, the district court was authorized to issue an

injunction against them if it deemed that such an

action was necessary to enforce its final judgment.

In reviewing the district court’s decision to grant

an injunction, including an injunction under the All

Writs Act, an appellate court applies an abuse-of-

discretion standard. Klay, Id. at 1096. A district court

abuses its discretion if it applies an incorrect legal

standard, follows improper procedures in making the

determination, ur makes findings of fact that are

clearly erroneous. Klay, Id. at 1096. An abuse of

discretion occurs if a district court imposes some

harm, disadvantage, or restriction upon someone that

is unnecessarily broad or does not result in any

offsetting gain to anyone else or society at large. Klay,

Id. at 1096. The mediation agreement incorporated

into the district court’s final judgment specifically

required Husein Bhadelia to submit Building N to

condominium ownership by filing a declaration of

condominiums, it further provided that the units in

Building N shall be offered for sale and shall not be

held by Husein Bhadelia as rental units and that

Building N shall be deemed to be encumbered by the

CRE’s. Despite the requirements of the final judg-

ment, after the certificate of occupancy was issued for

Building N, Husein Bhadelia did not file a declaration

of condominium and he did not sell the units in

Building N as condominiums. Instead, Husein Bhade-

lia and his agents, Gillispie and Sunni Bhadelia

moved a non-condominium unit owner with a lengthy

criminal record into Building N.

In making its decision to grant Marina Club’s

motions for injunctive relief, the district court prop-

erly ruled that it was the intent of the mediation

agreement incorporated into its final judgment that

Building N be used as a condominium, and that it —

was clear to the court that the mediation agreement

did not authorize Gillispie to use Building N as a

homeless shelter. After interpreting the terms of the

mediation agreement incorporated into its final

judgment as construing the parties’ intent that Build-

ing N only be used as a condominium, the district

court did not abuse its discretion in making its tem-

porary restraining order permanent to maintain the

status quo until the issues remaining before the state

court are resolved.

The district court properly found that there was a

threat to the Marina Club’s unit owners’ families

after reviewing the lengthy criminal record of the

occupant Husein Bhadelia moved into Building N.

The district court then used its calculated sound

discretion to protect the Marina Club condominium

unit owners thereby achieving the ends of justice

entrusted to the district court. Consequently, the

Eleventh Circuit did not err in affirming the district

court’s order granting Marina Club’s motion for a

temporary restraining order under the authority of

the All Writs Act.

B. Marina Club Met Its Burden For An

Award Of Injunctive Relief Against

Husein Bhadelia And Gillispie Even

Under The Traditional Requirements

For Injunctive Relief

The district court’s order granting Marina Club’s

requested injunctive relief was also proper based

upon the application of the traditional requirements

for granting injunctive relief. A district court may

grant traditional injunctive relief provided the movant

can show: (1) a substantial likelihood of success on the

merits, (2) irreparable injury if the injunction does not

issue, (3) the threatened injury to the movant out-

weighs any damage an injunction may cause the

opposing party, and (4) the injunction would not be

adverse to the public interest. Klay, Id. at 1097.

Marina Club clearly demonstrated to the district

court that the Respondent’s request for an injunction

met the four traditional requirements necessary for

an award of injunctive relief based upon the evidence

in the record and the threat of imminent harm to the

families owning units at Marina Club of Tampa due

to Husein Bhadelia’s refusal to permit Marina Club to

screen occupants as required by the recorded restric-

tive covenants.

Florida law has long recognized that injunctive

relief is available to remedy the violation of a restric-

tive covenant without a showing that the violation

has caused an irreparable injury — that is, an injury

for which there is no adequate remedy at law. Auto-

zone Stores, Inc. v. Northeast Plaza Venture, LLC, 934

So.2d 670, 673 (Fla.2d DCA 2006). Consequently,

even though Marina Club could establish irreparable

harm, it was not required to show proof of irreparable

injury or that a judgment for damages would be

inadequate before obtaining injunctive relief since the

conduct of Husein Bhadelia and his agents violated a

recorded restrictive covenant. Therefore, the Eleventh

Circuit did not err in affirming the district court’s

final order granting injunctive relief after finding

that the district court did not abuse its discretion.

C. The Eleventh Circuit Court Did Not

Err In Applying The Law Of The Case

Doctrine To Affirm The Ruling Of The

District Court

Every argument raised by Gillispie in his re-

sponse filed in the district court had previously been

asserted in the district court by Husein Bhadelia in

his motion to dismiss and in his eleven affirmative

defenses asserted in his answer to Marina Club’s

counterclaim. Moreover, most of the documents

Gillispie filed with his response in the district court

were also filed as exhibits to Husein Bhacelia’s motion

to dismiss. In his answer to Marina Club’s counter-

claim, Husein Bhadelia also alleged that the district

court lacked subject matter jurisdiction (second af-

firmative defense) and that Marina Club lacked stand-

ing (fourth and ninth affirmative defenses).

Contrary to Gillispie’s arguments made in his

response to Marina Club’s motion for injunctive relief

filed in the district court, and in his initial brief to the

Eleventh Circuit, the district court did consider his

arguments when they were made by Husein Bhadelia

and the district court previously rejected them when

it denied Husein Bhadelia’s motion to dismiss. More

importantly, however, Husein Bhadelia waived his

rights with regard to his affirmative defenses when

he settled with Marina Club at the court ordered

mediation and when the mediation agreement was

incorporated into the district court’s final judgment.

Both Husein Bhadelia, in his amended complaint

and Marina Club in its counterclaim, filed pleadings

requesting the district court to determine their re-

spective rights arising under the CRE’s and Florida

law. Accordingly, when Husein Bhadelia settled

with Marina Club at mediation, he waived his right

to continue to litigate those claims and defenses.

Therefore, when Husein Bhadelia again raised the

issues of jurisdiction and standing during his second

appeal (Case No. 05-11292-I), the Eleventh Circuit in

footnote 2 properly stated: “The Bhadelias’ remaining

issues on appeal, such as the district court’s initial

denial of their motion to dismiss before sending the

case to settlement, are without merit and are not

discussed further. The settlement agreement resolved

the entire case.” See Footnote 2, Bhadelia v. Marina

Club of Tampa, 142 Fed. Appx. 399 (11th Cir. 2005),

cert. denied, 546 U.S. 1090 (2006).

Prior to the hearing on Marina Club’s motion for

preliminary injunction, and after reviewing the

responses of Gillispie and Husein Bhadelia that

raised lack of jurisdiction and standing, Marina Club

filed excerpts from Husein Bhadelia’s initial brief and

Marina Club’s answer brief and the aforementioned

_ Eleventh Circuit Court opinion, Case No. 05-11292-I

to demonstrate to the district court that jurisdiction

and standing had previously been decided. The ex-

cerpts filed with the district court were included in

the Appendix to Marina Club’s Answer Brief filed

with the Eleventh Circuit. Therefore, the district

court was correct when it advised Gillispie and

Husein Bhadelia’s counsel at the September 7, 2007

hearing that it had jurisdiction and that Gillispie’s

arguments that were adopted by Husein Bhadelia

had already been rejected by the Eleventh Circuit in

its aforementioned opinion.

Under the law of the case doctrine, both the

district courts and the Circuit Courts of Appeal are

generally bound by a prior appellate decision in the

same case. Alphamed, Inc. v. B. Braun Medical, Inc.,

367 F.3d 1280, 1285-1286 (11th Cir. 2004). Consequently,

the Eleventh Circuit did not err by applying the law

of the case doctrine to refuse to again consider the

arguments previously made by Husein Bhadelia and

rejected by the Eleventh Circuit in its previous opin-

ion when they were presented by Gillispie in his

response to Marina Club’s motion for injunctive relief

filed in the district court. Therefore, the Petitioner

has not met his burden of demonstrating any “com-

pelling reasons” for his Petition to be granted. See

Sup. Ct. R.10.

CONCLUSION

For all of the foregoing reasons, Respondent,

Marina Club respectfully requests that this Honor-

able Court denies Petitioner, Gillispie’s Petition.

Respectfully submitted,