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