Raymond J. Cascella v. Canaveral Port District

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 12, 2006
No. 06-10371 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-01822-CV-ORL-19-DAB
RAYMOND J. CASCELLA,
MANOS INC.,
A Florida Corporation,
ROLAND CARLSON,
Plaintiffs-Appellants,
versus
CANAVERAL PORT DISTRICT,
as provided by Florida Senate Bill No. 3040
CHAPTER 95-465, LAWS OF FLORIDA doing business
as Canaveral Port Authority,
RODNEY S. KETCHAM,
RAYMOND P. SHARKEY,
DONALD N. MOLITOR,
RALPH J. KENNEDY,
Commissioners in their individual and official
capacities, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 12, 2006)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Proceeding pro se, Raymond J. Cascella and Roland Carlson, along with
Manos, Inc., through counsel, appeal from the district court’s dismissal of
Cascella’s claims of bankruptcy fraud and fraud, and the grant of summary
judgment in favor of the defendants as to the plaintiffs’ claims under 42 U.S.C.
§ 1983 and their state law claims of replevin, ejectment and conversion.
The present dispute arose after Cascella leased property located in Cape
Canaveral, Florida, from Canaveral Port Authority (“CPA”) in 1991. Manos, Inc.
and Carlson later became subtenants of Cascella. The lease between CPA and
Cascella specified that Cascella would pay all ad valorem taxes levied on the
premises for the duration of his lease. It also stated that Cascella was not to
“remove any personal property or fixtures from the leased premises if there is any
monetary amount due [CPA] from [Cascella] upon expiration or termination of the
[l]ease” because “[s]uch property and fixtures shall be security to [CPA] for
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payment of any monies due [CPA].”
Cascella ultimately failed to pay ad valorem taxes on the property and CPA
filed suit. In Cascella v. Canaveral Port Authority, 827 So. 2d 308, 309-10 (Fla. 5th
DCA 2002), an order of eviction in the matter was affirmed. Previously, while the
eviction proceedings were pending, Cascella was also in federal bankruptcy
proceedings, first under Chapter 13 and then under Chapter 7. However, the
bankruptcy stay was lifted and the state court eviction proceeded to final judgment
and affirmance on appeal. Cascella’s appeal of the bankruptcy order was denied
and the district court affirmed the bankruptcy court order. Thereafter, Cascella
filed approximately seven actions with various state and federal courts raising
issues related to the matters litigated in both the eviction and bankruptcy
proceedings.
In the present action, the district court dismissed Cascella’s claims of
bankruptcy fraud and fraud, and granted summary judgment in favor of the
defendants as to the plaintiffs’ claims under § 1983, and as to their state law claims
of replevin, ejectment and conversion.
On appeal, the plaintiffs raise numerous arguments. The plaintiffs contend
that the district court’s dismissal of the bankruptcy fraud and fraud claims was in
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error.1 They also argue that the district court erred in granting the defendants’
motion for summary judgment based upon the determination that Cascella's
eviction action was not illegally removed from federal bankruptcy court to state
court without an order of remand, citing 28 U.S.C. §§ 1452, 1446 and 1447. They
also contend that the district court erred in granting summary judgment as to their
§ 1983 claim because CPA violated their equal protection and due process rights
by seizing their property.
Cascella and Manos, Inc. contend that the district court erroneously
determined that they failed to comply with Fla. Statute 768.28(6), which required
that they present their state law claims in writing to the Department of Financial
Services before they could maintain them in court. Apparently in connection with
the district court’s dismissal of the replevin claim, Carlson and Manos, Inc.
contend that they were “not in privity of contract” with Cascella, and that CPA had
“no right to seize their removable property” because there was not a judgment
issued against them.
In connection with the district court’s grant of summary judgment as to his
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In dismissing Cascella’s fraud and bankruptcy fraud claims, the district court construed
them as a motion for relief from a final judgment under Fed.R.Civ.P. 60(b)(3), and determined
that the motion should be brought in the court where the alleged fraud occurred. Cascella cited
no specific legal basis for his fraud claims, and does not dispute the characterization of these
claims as a motion for relief from a final judgment under Fed.R.Civ.P. 60(b)(3) based upon
fraud. See Fed.R.Civ.P. 60(b)(3).
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claim for conversion, Cascella argues that the court’s determination that a metal
building on the leased property was a “fixture” was erroneous because the building
was removable. Finally, Cascella argues that the district court abused its discretion
by not “considering the rights of the debtor and the estate during bankruptcy.”
Each argument is considered in turn.
I. Fraud and Bankruptcy Fraud
We review the grant of a motion to dismiss de novo, taking the facts alleged
in the complaint as true and construing them in favor of the plaintiff. Williams v.
Bd. of Regents of Univ. Sys. of Ga., 441 F.3d 1287, 1295 (11th Cir. 2006).
Under Fed.R.Civ.P. 60(b)(3) a party may be relieved from a final judgment
if that judgment was obtained by fraud, misrepresentation, or other misconduct.
Fed.R.Civ.P. 60(b)(3). “A motion [under Rule 60(b)] for relief from final
judgment must be filed in the district court and in the action in which the original
judgment was entered.” Bankers Mortg. Co. v. United States, 423 F.2d 73, 78
(5th Cir. 1970).
Because the alleged fraud and bankruptcy fraud took place during
bankruptcy proceedings, and Cascella’s claim was in effect a challenge to the
bankruptcy court’s judgment, such a Rule 60(b) motion should have been filed in
the bankruptcy court. The district court’s dismissal of Cascella’s claims of fraud
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and bankruptcy fraud was appropriate. See Bankers Mortg. Co., 423 F.2d at 78.
II. Section 1983 Claim
We review a district court’s grant of summary judgment de novo, applying
the same legal standards used by the district court. Harris v. Coweta County, 433
F.3d 807, 811 (11th Cir. 2005). Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex
v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).
We view the evidence and all factual inferences therefrom in the light most
favorable to the party opposing the motion, and all reasonable doubts about the
facts are resolved in favor of the nonmovant. Burton v. City of Belle Glade, 178
F.3d 1175, 1187 (11th Cir. 1999).
In relevant part, 42 U.S.C. § 1983 states:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . .
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress.
42 U.S.C. § 1983.
We also review de novo whether a lawsuit is barred by the doctrine of
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res judicata. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999).
Res judicata bars a plaintiff from bringing a subsequent lawsuit when four
requirements are met: (1) there was a final judgment on the merits; (2) the decision
was rendered by a court of competent jurisdiction; (3) the parties, or those in
privity with them, are identical in both suits; and (4) the same cause of action is
involved in both cases. Ragsdale, 193 F.3d at 1238. As to the fourth prong, if a
case arises out of the same nucleus of operative fact or is based upon the same
factual predicate as a former action, the two cases are considered to be the same
cause of action. Id. at 1239.
Here, the district court cited three bases in granting summary judgment as to
the § 1983 claim. First, it determined that the alleged constitutional violations
were barred by the doctrine of res judicata because the plaintiffs “had ample
opportunity to raise these issues . . . before the Bankruptcy Court and state trial
court,” but chose not to do so. Second, it found that the defendants were legally
entitled to hold the plaintiffs’ personal property if there was any monetary amount
due. Third, it found no authority to support a finding that the actions alleged by
the plaintiffs gave rise to a cause of action under § 1983.
First, the district court’s determination that the issues raised in the §1983
claim were barred by the doctrine of res judicata was correct given the ruling in
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Cascella v. Canaveral Port Authority, 827 So. 2d 308, 309-10 (Fla. 5th DCA 2002).
See Ragsdale, 193 F.3d at 1238. Though not relied upon by the district court, we
also note that Cascella raised similar or related claims in approximately seven
subsequent filings as well.
Second, even assuming that the claim was not barred, the district court was
correct that the plaintiffs’ constitutional rights were not violated by the defendants’
seizure of the property and termination of the leasehold interest in light of the
terms of the lease and the order of eviction affirmed in Cascella, 827 So. 2d at
309-10.
Third, the plaintiffs failed to specify in the district court or on appeal any
basis for their argument that the defendants’ actions gave rise to a cause of action
under § 1983, and no such basis is apparent. Based upon the foregoing, the district
court did not err in granting the defendants’ motion for summary judgment as to
this claim.
III. State Law Claims
In granting summary judgment as to the plaintiffs’ state law claims of
replevin, ejectment, and conversion, the district court determined that even if they
met the requirements of Fla. Statute 768.28(6), they still would not have been
entitled to relief because they had no legally cognizable interest in the claimed
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property. The plaintiffs do not dispute this determination on appeal. Indeed, the
district court correctly determined that (1) the lease provided that CPA could retain
any personal property of Cascella for amounts due to it, as lessor, (2) the Fifth
District Court of Appeal found in Cascella, 827 So. 2d at 309-10, that ad valorem
taxes were part of the rent, and (3) CPA was owed $80,000 in ad valorem taxes. It
also correctly noted that the plaintiffs failed to show that the $80,000 in ad valorem
taxes due had been paid. Because the grant of summary judgment was proper on
this ground, we decline to specifically consider whether the plaintiffs met state
procedural filing requirements.
IV. Sublessees’ No-Privity Claim
Under Florida landlord-tenant law a sublessee can take no greater rights in
the property than its sublessor. Bobo v. Vanguard Bank and Trust Co., Inc., 512
So. 2d 246, 247 (Fla. 1st DCA 1987). For example, where a “master lease [is]
cancelled as a result of the default of the lessee in not paying the property taxes . . .
the sublease [falls] as a matter of law, and the sublessee should [be] evicted.” Thal
v. S.G.D. Corp., 625 So. 2d 852, 853 (Fla. 3d DCA 1993).
As an initial matter, we note that the district court granted summary
judgment as to the replevin claim, first, based upon a finding that it was barred by
the doctrine of res judicata. For the same reasons as set forth, supra, and because,
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as set forth more fully below, Carlson and Manos, Inc. were in privity of contract
with Cascella, this claim is also barred by res judicata. See Ragsdale, 193 F.3d at
1238.
Even assuming arguendo that the replevin claim was not barred by the
doctrine of res judicata, there was no error as the determination that CPA did not
wrongfully seize Carlson and Manos, Inc.’s property. Specifically, because
Cascella’s property was subject to seizure under the contract, there was no error in
CPA’s seizure of the property of the sublessees as well. See Bobo, 512 So. 2d at
247.
V. Conversion Claim – Fixture Argument
Under Florida law, a “fixture” is chattel that has been physically annexed to
realty with the intent of making it part thereof, and that is not removable without
injuring the freehold. Greenwald v. Graham, 130 So. 608, 610 (Fla. 1930).
For the same reasons set forth previously, Cascella’s claim of conversion
was barred by the doctrine of res judicata. See Ragsdale, 193 F.3d at 1238.
Even assuming arguendo that this claim were not barred, the district court
did not err in its determination as to the characterization of the building at issue.
Specifically, Cascella testified that the building was two stories tall, made of metal,
and bolted to a concrete slab. He also testified that the building was present on the
property when he entered into the lease agreement. Based upon these facts, there
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was no error as to the district court’s determination that the building had been
physically annexed to realty with the intent of making it part thereof. See Graham,
130 So. at 610.
VI. Cascella’s Rights of Debtor
Cascella argues for the first time on appeal that the district court ignored his
rights as a debtor in bankruptcy by failing to recognize a bankruptcy discharge of
debts.
We do not consider arguments raised for the first time on appeal unless one
of five exceptions is met. Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994).
The exceptions are: (1) the issue involves a pure question of law and refusal to
consider it would result in a miscarriage of justice; (2) the appellant is raising an
objection to an order which he had no opportunity to raise at the district court
level; (3) the interest of substantial justice is at stake; (4) the proper resolution is
beyond any doubt; or (5) the issue presents significant questions of general impact
or of great public concern. Narey, 32 F.3d at 1526-27.
As an initial matter, for the same reasons set forth above, this argument
appears to have been barred by the doctrine of res judicata. See Ragsdale, 193
F.3d at 1238. In any event, Cascella did not raise this argument in the district
court. Because none of the exceptions are met, we decline to consider this
argument as an initial matter. See Narey, 32 F.3d at 1526-27.
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Alternatively, to the extent that the district court impliedly rejected this
argument, there was no error. Specifically, the record shows that, under the terms
of the lease, CPA was entitled to retain “personal property or fixtures from the
leased premises if there is any monetary amount due [CPA] from [Cascella] upon
expiration or termination of the [l]ease.” Further, a Florida court ordered
Cascella’s eviction, and he failed to allege in the district court that he thereafter
had discharged the $80,000 debt. Accordingly, the district court did not err in this
respect.
Based upon the foregoing, we affirm the district court’s dismissal of
Cascella’s bankruptcy fraud and fraud claims, and its grant of summary judgment
as to the plaintiffs’ remaining claims.
AFFIRMED.
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