Supreme Court of Florida
Saturday August 7,2010
CASENO,:SC10-599
Lower Tribunal No(s).: 4D09-1662, 03-
881CA09
LEWIS BARTON vs. CITY FIRST MORTGAGE
CORPORATION
Petitioners) Respondents)
JURISDICTIONAL INITIAL BRIEF AND APPENDIX
As ordered by this court on July 15, 2010
TABLE OF CONTENTS and
APPENDIX
ITEM PAGE
TABLE OF CONTENTS 2
STATEMENT 3
STATEMENT OF HISTORY 4
STATEMENT OF FACTS 7
ARGUMENTS AND CASE LAW 10
CONCLUSION 12
APPENDIX
#1 CPA Michael L. Kmetz Affidavit
#2 4DCA December 8,2009 order
#3 December 11,2009 filing amended Appellant's Initial Briefand
Appendix
#4 4DCA December 18,2009 Order
#5 4DCA February 1,2010 Order
#6 4DCA February 25, 2010 Order
#7 4DCA March 22, 2010 Notice ofAppeal
#8 4DCA Kaifalla V. MacArthur Foundation, 534 So.2d 774 (Fla. App. 4
Dist.1988)
#9 4DCA Stokes v. Florida Dept., 948 So.2d 75 (Fla. App.l Dist. 2007)
#10 Altaian v. State, 2D09-3871 (Fla. App. 2 Dist. 8-6-2010)
#11 Haines v. Kerner, 404 U.S. 519 (1972)
STATEMENT
The Petitioner, Lewis Barton pro-se is a Vietnam Disabled Veteran
that had open-heart surgery complicated by sugar diabetes and high blood
pressure, in May of2010 at the Miami VA hospital.
Lewis Barton is presently not in good health.
The doctors have not been able to regulate, Lewis Barton blood.
Lewis Barton's blood should be between 2.0 to 2.5 up until July 23 his blood
was 1.7 on July 23 the Doctor increased his Warfarinna (Blood Thinner
medication) and on July 30 blood was over 100% higher to 3.8, on August
6 his blood was 3.7 with this high blood. Lewis is fatigue, sleepy,
headaches, dizziness, weakness all over, and heart and chest pains.
Lewis is being treated for depression with citalopram Hydro bromide,
Tenton with Alprazolam and Anxiety with Lorazepam and also blood
pressure and sugar diabetes medications.
Petitioner Lewis Barton pro-se only income is a small VA disabled
pension and his wife (who has Crohn's Disease and is being treated for
Colon Cancer) social security.
Petitioner and wife had there money (173,414.12) taken in April of
2009 by the 19th Judicial Circuit in Indian River County and given to the
Respondent City First Mortgage Corp in Judge Kanarek March 30, 2009
Order with in three dav before Petitioner could ask for rehearing. The
March 30,2009 was amended on April 13,2009. Both orders are appeals as
part ofthis case 4D09-1662 that was dismissed by the 4th DCA.
The Petitioner Lewis Barton has no funds or assets to hire an attorney.
Petitioner asked many Attorneys, Florida Rural Legal Services and FL Bar
for help on a Pro-Bono services and was turned down by everyone.
The Petitioner only has a high school education with no legal
background, and suffers from dyslexia and has never had any experience
with the Supreme Court ofFlorida.
This case is narrow and simple and the Jurisdictional Initial Briefand
Appendix will be short because ofthe mental and physical health ofthe
Petitioner, Lewis Barton prose. Please execute any error in this
Jurisdictional Initial Briefand Appendix.
STATEMENT OF HISTORY
In September of2003 Petitioner, Lewis Barton closed a $900,000.00
short-term bridge loan from Respondent, City First Mortgage a small family
owned (by Steven and Andy Fiske) Mortgage Company in the Miami FL
Area.
The Bridge Loan was negotiated through a well know broker. At the
time Petitioner, Lewis Barton did not Know the Fiske brother were a
crooked, dishonest, lying, hard money lender who made there business of
stealing properties by legal means. Generally by retaining very high profile
law firms that will stay anything TRUE OR NOT TRUE sometimes just out
right lying to win for large fees then beating the person into the ground and
forcing them to run out ofmoney, then take their property.
Respondent, City First Mortgage Corp has alleged Petitioner, Lewis
Barton pro-se has "repeatedly made misrepresentation to difference courts
"intentionally violated the trial court's order", misrepresented to the 4DCA
court the position ofthe clerk ofthe circuit court, "has a pattern of
misrepresentation and obfuscation"
Reference to fifteen year old order ofJune 14,1995 ofUS District
Court for Eastern Virginia order.
The Respondent City First reference to Lewis P. Barton as "Stuart Lee
Prescott and to his wife, Mary Barton, as Mary Cecil Lawson. This was
because both Lewis and Mary Barton changed their names and appropriated
the social security number of other people"
These person outrageous allegations made by Respondent City First
against Petitioner, Lewis Barton MUST be and will be clarified and
answered in the brief and appendix.
Respondent, City First and the Fiske Brothers inflated the pay offand
filed a les-pendeance, which they refused to release so Petitioner, Lewis
Barton could refinance in March/April of 2004.
Judge Hawley ofthe 19* Judicial Circuit found in his order ofMay
25,2006 that Plaintiff, City First had come to court with Unclean Hands and
couldn't foreclose on Petitioner Lewis Barton Homestead beachfront
property if Petitioner Lewis Barton paid $900,000.00, which was done on
June 30,2006.
The Unclean Hand was appealed by Respondent City First and was
upheld by the 4th DCA in their July 6,2008 order.
Violation ofthe Florida Deceptive and unfair Trade Practices Act and
offset of $312,009.46 in favor of Petitioner Lewis Barton, also in Judge
Hawley Mary 25, 2006 order was also appealed by City First and over
turned by the 4th DCA in there July 16,2008 order case 4D06-4419.
The case was sent down to the Indian River County 19th Judicial
Circuit to review any interest that might owed by Petitioner Lewis Barton
and responsibility of legal fees.
Respondent City First 19th Judicial Circuit Court lawyer Attorney Fred
Krestchmer resigned on a conflict of interest.
Respondent, City First then hired 30 year Indian River County "Good
OLD BOY" Attorney Calvin Brown.
Indian River County 19th Judicial Circuit Court assigned "Good old
boy" Judge Paul B. Kanarek who dislikes pro-se's and hated Respondent,
Lewis Barton.
Petitioner, Lewis Barton filed a sworn Motion for disqualification of
Judge Kanarek "create an objective fear of bias", and prejudiced against me.
In hearings Judge Kanarek limited time for Petitioner Lewis Barton letting,
Respondent, City First Attorney Brown to have as much as he wants.
Forcing Petitioner, Lewis Barton the Defendant to put his case on first
instead ofthe Plaintiff, then allowing Attorney Fred Krestchmer who had
resigned with a conflict of interest testify against Defendant Lewis Barton,
one time when Attorney Brown was just out right lying about PlaintiffLewis
Barton. Lewis Barton raised question to Judge Kanarack. Judge Kanarack
turn to Attorney Brown and said " just tell, I trust you" In one hearing Judge
Kanarack sustained 70 times for the Plaintiff(Respondent) City First and
over ruled only 6 times with Lewis Barton's only witness. Judge Kanareck
refused to disqualification himselfand only ruled harder against Plaintiff,
Lewis Barton.
March 30,2009 Judge Kanareck order (made incredible mistakes) in
his first Amended Final Judgment, Judge Kanareck entered a Judgment of
$1,238,584.90 at 25% interest for $850,895.05 total of $2,142,925.00 by
affidavit June 10, 2009 Michael L. Kmetz CPA1PFS (exl) against the
PlaintiffLewis Barton for attorneys fees and interest on an $900,000.00 loan
that had been paid for two year and 9 months.
Then on April 13,2009 Judge Kanarek entered second amended final
judgment and reduced the Judgment Against PlaintiffLewis Barton by $
850,859.05 to $1,292,030.95 (ex.1) and forgetting to credit Plaintiff Lewis
Barton the $173,414.12 ordered to paid from Plaintiff, Lewis Barton court
escrowed account. Judge Kanareck March 30,2009 order that $173,414.12
to be paid to the Respondent City First in 3 days. This was paid April 3,
2009 from a account Judge Kanaraek controlled.
PlaintiffLewis Barton appeals first and second judgments entered
March 30 and April 13,2009 for case 4D09-1662.
PlaintiffLewis Barton filed an appeal to this court, acknowledgment
ofNew Case April 7,2010 when the 4DCA made a mistake.
STATEMENT OF FACTS
The 4 DCA Error when they dismissed the case 4D09-1662 on a small-
unknown error by Petitioner Lewis Barton.
The December 8,2009 order from this Court states, "Appellant's Lewis
Barton's initial brief filed on November 25, 2009 is deemed timely filed."
Ex-H
Appellee's City First Motion filed December 2,2009 states Appellant Lewis
Barton pro-se filed the unofficial transcript instead ofthe official transcript,
both taken at the same time at the same hearing in the lower court.
Appellant's transcript was transcribed and filed with the lower court.
Petitioner Lewis Barton pro-se know, because of financial problems and his
US Bankruptcy filed July 7, 2009 discharged November 30, 2009
Appellant, Lewis Barton pro-se had in June of2009 Appellant Attorney
Robin Bresky who filed emergency motion to stay judicial sale of
homesteaded property June 1,2009 with Appellant's transcript ofMay, 2009
by Vero Beach Court reporters and used Appellant's March 13,2009
transcript also by Vero Beach Court reporters as reference.
When Petitioners attorney Robin Bresky withdrew because ofPetitioner
Lewis Barton financial problems attorney Robin Bresky returned Petitioners
files with transcript that had been used in this case with the 4DCA.
Petitioner didn't realize that he couldn't use the same transcript in the initial
brief and appendix.
Within day's after Petitioner Lewis Barton pro-se was informed ofhis
unknown mistake Petitioner paid $780 to Indian River Court Reporting to
transcribe the other official transcript and corrected any mistakes in the
initial brief and appendix and filed amended initial brief and amended
appendix on December 11,2009 (ex 3).
December 18,2009 4DCA Order dismissing case (ex 4)
February 1, 2010 4DCA order denying Petitioner Lewis Barton January 8,
2010 amended motion for reconsideration and case law filed December 18,
2009. (ex 5)
February 25,2010 4DCA order denying Petitioner Lewis Barton's Motion
filed February 8, 2010 for reconsideration ofthe February 1, 2010 order, (ex
6)
Mary 22,2010 Notice ofAppeal (ex 7)
This appeal is on the Barton's homesteaded property, which the
principal on the mortgage was paid in full June 30, 2006.
May 25,2006 Judge Hawley in the lower court found the Appellee City First
Mortgage had come to court with UNCLEAN HANDS and had violated the
Florida Deceptive and Unfair Trade Practices Act.
July 16,2008 4DCA court upheld the unclean hands, and overturned the
FDUTP.
4DCA referred the case back to the lower court to hear attorney's fee and
interest.
Judge Kanarek made major mistakes and didn't follow 4DCA courts July
16, 2008 order. Judge Kanarek's final judgment was over 1.2 million dollars
for only interest and attorneys fee. As well as Judge Kanarek took all ofthe
Petitioner funds of $173,000 and granted to the Appellee City First without
crediting the Petitioner in the second amended judgment and at the
foreclosure sale.
Petitioner Lewis Barton pro-se made a unknown mistake and spent almost a
thousand dollars (on transcribing the other official transcript and preparing
amended initial brief and amended appendix) oftheir family funds, that they
couldn't afford only to have his due process rights taken away by dismissing
this case and not allowing Appellant, Lewis Barton pro-se to put before the
4DCA court Judge Kanarek gross mistakes, not to mention Judge Kanarek
prejudice and or bias during the court proceedings ofMarch 13,2009.
ARGUMENT AND CASE LAW
This case is about the 4DCA circuit court dismissing an action
without following there own existing case law and departing from the
essential requirements ofthe law and denied Petitioner Lewis Barton his due
process.
4DCA case 4D09-1662 courts order ofFebruary 1, 2010 (ex 5.)
Dismissing an action with prejudice due to defective pleading is not
proper unless the Plaintiffhas been given an opportunity to amend. See
Kairalla V. JohnD. & Catherine T. MacArthur Found. 534 So.2d 774, 775
(Fla.4thDCA1988)(ex.8)
OTHER RELATED CASE LAW
Because appellant is proceeding pro-se, we can give him some
latitude in his handling ofthis case. Stokes v. Fla. Dep't o/Corr., 948 So. 2d
10
75, 77 (Fla. 1st DCA 2007) (Nothing that pro se litigants are given
substantial leeway in litigation, including favorable construction oftheir
pleadings). (Ex. 9)
Petitioner, Lewis Barton requests under his right to procedural due
process of law as guaranteed to him by the provisions ofthe due process
clause in Article I ofthe Florida constitution.
Altaian v. State, 2D09-3871 (Fla. App. 2 Dist. 8-6-2010) Sveltlana
Altaian, a/k/a Svetlana Altaian, Petitioner, v. State ofFlorida, Respondent.
Dismissing Ms. Altaian's appeal, the circuit court departed from the
essential requirements ofthe law and denied Ms. Altaian procedural due
process. Accordingly, we grant the petition and quash the circuit court's
order of dismissal, (ex 10)
Petitioner, Lewis Barton request under his right to procedural due
process oflaw as guaranteed to him by the provisions ofthe due process
clause ofthe 14th amendment to the constitution ofthe United States.
In the history ofjurisprudence, pro se litigants have frequently been
granted leniency in technical matters. See Haines v Kerner, 404 U.S. 519,
520 (1972) (Ex 11).
11
CONCLUSION
Petitioner Lewis Barton pro-se and family request, that this court
overturn the dismissal of case # DCA09-1662 and send the case back to the
4DCA to finalized briefing and to be heard.
Lewis Barton Pro-Se
P.O. Box 7080
Vero Beach, FL 32961
772-226-5570
A copy ofthe foregoing has been sent US First Class mail to Jane Kreusler-
Walsh on this 11 day of August 2010.
Sincerel
A% Barton Pro- Se
12
- IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL 33401
December 18, 2009
LEWIS BARTON
CASENO.:4D09-1662
L.T. No. : 03-881 CA 09
v. CITY FIRST MORTGAGE
Appellant / Petitioners), Appellee / Respondent(s).
BY ORDER OF THE COURT:
ORDERED that appellee's motion filed December 3, 2009, to strike
appellant's initial brief and appendix and motion for sanctions is granted. Accordingly,
appellant's initial brief and appendix filed November 25,2009, are stricken and the
above-styled appeal is hereby dismissed as a sanction; further,
ORDERED that appellant's motion filed December 8, 2009, for a 60 day
extension of time for the lower court to prepare and file record is hereby determined to
be moot; further,
ORDERED that appellant's motion filed December 11, 2009, for court to
accept amended initial brief is hereby determined to be moot.
I HEREBY CERTIFY that the foregoing is a true copy of the original court order.
Served:
Jeffrey K. Barton, Clerk
Jane Kreusler-Walsh
Louis B. Vocelle, Jr.
David A. Cairns
kb
Lewis Barton Calvin Brown
City First Mortgage Corp. William G. Collins
Michael Higer Fred L. Kretschmer, Jr.Eugene J. O'Neill
L-iTNBELrrTfcNMULLER, ClerkFourth District Courkof Appeal