UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JENNIFER FRANKLIN PRESCOTT, DR. JORG BUSSE,

Plaintiffs,

versus Case # 2:08-CV-364-FtM-JES-SPC [BOTH RECUSED]

60(b) MOTION FOR RELIEF FROM

EXTRINSIC FRAUD & FRAUD ON COURTS

STATE OF FLORIDA, et al.,

Defendants.
__________________________________________________________________________/

PLAINTIFFS’ MOTIONS FOR RELIEF FROM JUDGMENTS,

FRAUD ON THE COURT AND EXTRINSIC FRAUD
[FED.R.CIV.P. 60(b) & FLA.R.CIV.P. 1.540]

NOTICE OF CORRUPTION AND “FRIVOLITY” & “TITLE FRAUD” SCAMS

RES JUDICATA CANNOT PRECLUDE PLAINTIFFS’ DIRECT ATTACK

1. It is a hackneyed truism that res judicata does not preclude a litigant from making a direct

attack upon the judgment before the court which renders it. 1B J. Moore, Federal Practice, §

0.407, at 282 (2d ed. 1991). In other words, a party may introduce fraud evidence

"with the direct and primary objective of modifying, setting aside, canceling or
vacating, or enjoining the enforcement of the judgment."

C. Wright & A. Miller, Federal Practice and Procedure at § 4406 (citing Intermill v. Nash, 94

Utah 271, 75 P.2d 157 (1938)). Here, the Defendants concealed and conspired to conceal

conclusive extrinsic fraud and fraud on the Court evidence. Here in particular, the

Defendants concealed and conspired to conceal that no interest and/or estate was ever
 created or transferred to Lee County by virtue of prima facie fraud and extortion scheme

“O.R. 569/875”. The Defendants knew that the purported “resolution” [counterfeit “claim”

“O.R. 569/875”] never legally existed and was never legally recorded.

MEMORANDUM:

PLAINTIFFS’ DIRECT ATTACK ON FRAUD & FRAUD ON COURT UNDER R. 60(b)

2. The practical effect of Fed.R.Civ.P. 60(b) is to lift the bar of res judicata in, e.g., fraud cases.

See Woodrum v. Southern Ry. Co., 750 F.2d 876, 883 (11th Cir. 1985). Res judicata does

not bar direct attacks on final judgments. See Watts v. Pinckney, 752 F.2d 406, 410 (9th Cir.

1985).

3. Here, Plaintiffs’ Rule 60(b) Motion represents a direct attack on the prior fraudulent

Judgment(s) of this Court. The jurisdiction in which relief from judgment is available is the

Middle District of Florida. See C. Wright & A. Miller, Federal Practice and Procedure at §

2865. Therefore, nothing can possibly preclude the Plaintiff record owners from making a

direct attack upon the judgment of this court in the form of their Rule 60(b) Motion. See

Watts v. Pinckney, 752 F.2d at 410.

U.S. SUPREME COURT PRECEDENT

4. Similarly, the Defendants cannot rely on the preclusive effect of any Eleventh Circuit

decision to bar Plaintiff record owners Rule 60(b) Motion and/or claim. The Supreme Court

has held that a Federal District Court can hear a Rule 60(b) motion without leave from the

appellate court. See Standard Oil Co. of California v. United States, 429 U.S. 17, 97 S. Ct.

31, 50 L. Ed. 2d 21 (1976) Therefore, an appellate court's mandate does not bar this trial

court from disturbing judgment fraudulently entered in accordance with a fraudulent

mandate. See also, Lairsey v. Advance Abrasives Co., 542 F.2d 928, 932 (5th Cir. 1976).

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 Here, Defendants’ “frivolity” and purported “title-transfer-by-forged-resolution” scams were

fraud on the Courts.

LAW OF THE CASE DOCTRINE: PLAINTIFFS ARE DECLARED RECORD OWNERS

5. Here, the 11th Circuit had expressly considered the private easement and land ownership

issue on appeal and dispositively declared and adjudged the prevailing Plaintiffs the

unimpeachable record owners of their riparian Gulf front Parcel # 12-44-20-01-00015.015A

and Plaintiffs’ private unencumbered implied street and alley easements in the undedicated

private residential Cayo Costa Subdivision, PB 3, PG 25. See 12/29/2000 LEE COUNTY

MEMORANDUM; see PRESCOTT, No. 08-14846, 2009 U.S. App. LEXIS 8678, 2009 WL

1059631; see JOHN LAY AND JANET LAY v. STATE OF FLORIDA DEPARTMENT OF

ENVIRONMENTAL PROTECTION, OGC CASE NOs. 01-0203, 01-0204, DOAH CASE

NOs. 01-1541, 01-1542, CASE NOs. DEP01-0860, DEP01-0876. See West Peninsular Title

Co. v. Palm Beach County, 41 F.3d 1490, 1492 n.4 (11th Cir.), cert. denied, 516 U.S. 932,

116 S. Ct. 338, 133 L. Ed. 2d 237 (1995). Here, the District Court is free to hear Plaintiff

record owners’ 60(b) Motion.

FEDERAL JURISDICTION

6. This Court has jurisdiction to consider the Plaintiff record owners' Motion under the

applicable principles of Federal law. Here, the District Court retained jurisdiction to consider

Plaintiff unimpeachable record owners’ Rule 60(b) Motion filed after the appeal of the

original fraudulent decision. See Wilson v. Thompson, 638 F.2d 801, 803 (5th Cir. Unit B

Mar. 1981). Here, the District Court shall grant the Plaintiff record owners relief from the

fraudulent Judgment(s) of the Circuit Court pursuant to Rule 60(b)). See Ope Shipping Ltd.

v. Underwriters at Lloyds, 100 F.R.D. 428, 435 (S.D.N.Y. 1983).

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 FEDERAL LAW CONTROLS

7. Federal law controls the disposition of these issues. The "grounds and the procedure for

setting aside a Federal judgment are a matter of Federal law. See C. Wright & A. Miller,

Federal Practice and Procedure § 2853 (1973).

MANDATORY RELIEF FROM FRAUD & FRAUD ON COURT

8. Federal Rule of Civil Procedure 60(b) sets forth bases for relief from a judgment or order.

Grounds for relief include fraud, mistake, and newly discovered evidence. Rule 60(b)(6) is a

catch-all ground: "any other reason justifying relief from the operation of the judgment."

Rule 60(b)(6) is within the District Court's discretion in order to do justice. See Klapprott v.

United States, 335 U.S. 601, 93 L. Ed. 266, 69 S. Ct. 384 (1949).

PLAINTIFFS DEMAND REMEDY FROM DELIBERATE MISAPPLICATION OF LAW

9. The Eleventh Circuit has also recognized that Rule 60(b) can be used to remedy a mistake in

the application of the law. See Parks v. U.S. Life & Credit Corp., 677 F.2d 838 (11th Cir.

1982). Such reasoning was also implicit in said Court’s decision in Wisecup v. James, 790

F.2d 841 (11th Cir. 1986), where the 11th Circuit remanded a case in order to allow the

petitioner to file a Rule 60(b) motion. See also Corn v. Kemp, 772 F.2d 681 (11th Cir. 1985)

(Eleventh Circuit mandate recalled pending disposition of three similar cases which were

pending before the en banc court), vacated on other grounds, 478 U.S. 1016,106 S. Ct. 3326,

92 L. Ed. 2d 732 (1986); see Wilson v. Fenton, 684 F.2d 249, 251 (3d Cir. 1982) (A decision

of the Supreme Court of the United States or a Court of Appeals may provide the

circumstances for granting a Rule 60(b)(6) motion.); see Fackelman v. Bell, 564 F.2d

734, 736 (5th Cir. 1977) ("the law of this circuit permits a trial judge, in his discretion, to

reopen a judgment on the basis of an error of law.").

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 GOVERNMENTAL CORRUPTION AND OBJECTIVE PARTIALITY

10. Here, the Courts deliberately deprived the prevailing Plaintiff unimpeachable record owners

of the critical distinction between governmental police power and eminent domain power.

Here, Lee County had neither any police nor eminent domain power.

11. The Fifth Amendment to the United States Constitution contains two discrete protections of

property rights:

"No person shall . . . be deprived of . . . property, without due process of law; nor
shall private property be taken for public use, without just compensation." U.S.
Const. Amend. V.

12. The Takings Clause of the Florida Constitution expressly prohibits:

"No private property shall be taken except for a public purpose and with full
compensation therefor. . . ." Art. X, § 6(a), Fla. Const.

Here in the prima facie absence of any platted “park”, Lee County PB 3, PG 25, the

purported confiscation and/or condemnation of Plaintiffs’ riparian Gulf front Parcel # 12-44-

20-01-00015.015A under non-existent Lee County police and/or eminent domain power was

factually and legally absolutely impossible. See 12/29/2000 LEE COUNTY

MEMORANDUM; see PRESCOTT, No. 08-14846, 2009 U.S. App. LEXIS 8678, 2009 WL

1059631; see JOHN LAY AND JANET LAY v. STATE OF FLORIDA DEPARTMENT OF

ENVIRONMENTAL PROTECTION, OGC CASE NOs. 01-0203, 01-0204, DOAH CASE

NOs. 01-1541, 01-1542, CASE NOs. DEP01-0860, DEP01-0876. See West Peninsular Title

Co. v. Palm Beach County, 41 F.3d 1490, 1492 n.4 (11th Cir.), cert. denied, 516 U.S. 932,

116 S. Ct. 338, 133 L. Ed. 2d 237 (1995).

LEE COUNTY FRAUD SCHEME “O.R. 569/875” WAS “SIMPLY INVALID”

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13. The first of these provisions involves what is commonly referred to as the "police power,"

while the second concerns the power of eminent domain. See Tampa Hillsborough

Expressway Auth. v. A.G.W.S., 640 So.2d 54, 57 (Fla. 1994). As recognized by the Florida

Supreme Court, in considering claims of a regulatory taking, courts are required to deal with

the interplay of these two doctrines:

One of the problems in the area of regulatory takings law is that:

"Courts frequently fail to make the distinction between two ways in

which government may abuse its power: first, government may act arbitrarily,
in violation of due process; second, government may so intrusively regulate the
use of property in pursuit of legitimate police power objectives as to take the
property without compensation, in violation of the just compensation clause. In
the first case, the government action is simply invalid;

in the second case, the government action is invalid absent compensation, and so
government may either abandon its regulation or validate its action by payment
of appropriate compensation, i.e., by exercising its power of eminent domain."

Id. at 57 (quoting Department of Transportation v. Weisenfeld, 617 So.2d 1071, 1080 (Fla.

5th DCA 1993)(Griffin, J., concurring) quoting P. Wiseman, When the End Justifies the

Means: Understanding Takings Jurisprudence In a Legal System With Integrity, 63 St. John's

L. Rev. 433, 438 (1988)).

ANY PERMANENT CONFISCATION WAS IMPOSSIBLE

14. Here, no government, exercised any power of eminent domain or instituted any proceeding to

condemn Plaintiff unimpeachable record landowners’ Constitutionally protected easements

and property, Lee County Parcel # 12-44-20-01-00015.015A, in the private undedicated

residential Cayo Costa Subdivision for a public use.

TEMPORARY CONFISCATION UNDER FRAUD/EXTORTION SCHEME O.R. 569/875

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15. “Lee County” facially forged “claim” and scam “O.R. 569/875” never legally existed and

was never legally recorded. Here, Lee County never exercised any police power, and/or

enacted any measure, land use regulation, resolution, legislative act, and /or law. The

Defendants knew, concealed, and conspired to conceal that no purported law, resolution,

and/or legislative act could have possibly created and or transferred any estate and/or

interest to “Lee County”. Here, “Lee County” scam “O.R. 569/875” was a facial fraud and

extortion scheme. Fraudulently and falsely, Lee County pretended that said prima facie

forgery “O.R. 569/875” effectively condemned Plaintiff record landowners’ property [without

any due process, equal protection, and just compensation].

CRIMINAL COERCION

16. Here in the prima facie absence of any police power regulation, Lee County and the State of

Florida criminally coerced the prevailing Plaintiffs to plead “inverse condemnation” for the

unlawful purpose of defrauding and deliberately depriving the Plaintiff unimpeachable record

owners of riparian Parcel # 12-44-20-01-00015.015A “on the Gulf of Mexico”. See

12/29/2000 LEE COUNTY MEMORANDUM; see PRESCOTT, No. 08-14846, 2009 U.S.

App. LEXIS 8678, 2009 WL 1059631; see JOHN LAY AND JANET LAY v. STATE OF

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, OGC CASE NOs.

01-0203, 01-0204, DOAH CASE NOs. 01-1541, 01-1542, CASE NOs. DEP01-0860,

DEP01-0876. See West Peninsular Title Co. v. Palm Beach County, 41 F.3d 1490, 1492 n.4

(11th Cir.), cert. denied, 516 U.S. 932, 116 S. Ct. 338, 133 L. Ed. 2d 237 (1995).

17. Here, Lee County and State of Florida concealed and conspired to conceal that Plaintiffs’

said Parcel cannot be developed as a residential subdivision lot, if there is effectively no

access to a roadway and/or street.

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 LEE COUNTY STIPULATED TO PRIVATE ALLEY AND STREET EASEMENTS

18. Lee County stipulated to the private platted and subdivided alley and street easements in the

private undedicated residential Cayo Costa Subdivision, PB 3, PG 25, and did not dispute,

that a residential subdivision lot must have at least one means of ingress and egress.

STATE OF FLORIDA ACQUISITIONS WERE LIMITED

19. Defendant Government's, State of Florida, acquisition of residential property and/or

subdivided lots in the prima facie private undedicated residential Cayo Costa Subdivision,

PB 3, PG 25, was limited to the uses indicated on said 1912 Subdivision Plat of Survey and

covenants.

20. In particular, the use of the subdivided residential lots was limited to the platted residential

lot use. No fraudulently pretended “park” was ever platted and/or subdivided, PB 3, PG 25.

ONE SET OF RULES GOVERNED STATE’S & PLAINTIFFS’ LOT OWNERSHIP(S)

21. Property and/or subdivided lots acquired by the government are subject to the same

covenants prohibiting certain uses. Here, any “park” use was prohibited, PB 3, PG 25. Only

one set of rules existed and governed subdivided lot ownership by the Plaintiffs and State of

Florida. The State of Florida has the very same rights as the prevailing Plaintiff

unimpeachable record owners. See 12/29/2000 LEE COUNTY MEMORANDUM; see

PRESCOTT, No. 08-14846, 2009 U.S. App. LEXIS 8678, 2009 WL 1059631; see JOHN

LAY AND JANET LAY v. STATE OF FLORIDA DEPARTMENT OF

ENVIRONMENTAL PROTECTION, OGC CASE NOs. 01-0203, 01-0204, DOAH CASE

NOs. 01-1541, 01-1542, CASE NOs. DEP01-0860, DEP01-0876. See West Peninsular Title

Co. v. Palm Beach County, 41 F.3d 1490, 1492 n.4 (11th Cir.), cert. denied, 516 U.S. 932,

116 S. Ct. 338, 133 L. Ed. 2d 237 (1995).

8
 ANY “PARK” USE IN CAYO COSTA, PB 3, PG 25, WAS PROHIBITED

22. The government's, State of Florida, intended fraudulent “park” use of the subdivided lots

and/or property is inconsistent with the restrictions on the use of property in the prima facie

private undedicated residential Cayo Costa Subdivision, PB 3, PG 25.

A TEMPORARY CONFISCATION OCCURRED

23. Accordingly, a temporary confiscation occurred here.

LEE COUNTY CONCEALED REAL COVENANTS

24. Covenants are loosely defined as "promises in conveyances or other instruments pertaining to

real estate." 19 Fla. Jur. 2d Deeds § 168 (1998).

25. A real covenant creates a servitude upon the reality for the benefit of another parcel of land

and binds the heirs and assigns of the original covenantor. Id. § 174, at 325. See also Maule

Industries, Inc. v. Sheffield Steel Products, Inc., 105 So. 2d 798 (Fla. 3d DCA 1958). A

covenant running with the land concerns the property conveyed and the occupation and

enjoyment thereof. Here, Lee County and the State of Florida concealed and conspired to

conceal the real covenants and Plaintiffs’ Constitutionally protected vested private street and

alley easements as platted in Lee County PB 3, PG 25.

COVENANT RUNS WITH THE SUBDIVIDED LANDS, PB 3, PG 25

26. Here, the performance of the covenant, which runs with Plaintiffs’ Parcel # 12-44-20-01-

00015.015A, touched and involved the land or some right or easement annexed and

appurtenant thereto, and necessarily enhanced the value of the property and rendered it more

convenient and beneficial to the prevailing Plaintiff unimpeachable record owners. Id. at 801.

EMINENT DOMAIN WAS UNAUTHORIZED

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27. Here, Lee County never had any eminent domain authority and/or purpose, and no eminent

domain court proceedings ever took place. Here, Plaintiffs’ Lee County Parcel # 12-44-20-

01-00015.015A was not subject to any government's exercise of eminent domain. See also 21

Fla. Jur. 2d Eminent Domain §§ 14, 15 (1998).

28. The Florida Constitution guarantees that

"[n]o private property shall be taken except for a public purpose and with full
compensation therefor paid to each owner." Art. X, § 6(a), Fla. Const.

29. Under said Constitution, every person holding an interest in private property is entitled to

reasonable compensation in the event the property is confiscated. See State Road Dep't v.

Chicone, 158 So. 2d 753, 756 (Fla. 1963).

"The whole purpose of and reason for the Constitutional provisions, both state
and federal, relating to compensation for property condemned is to insure that
the property owner will be adequately and fairly compensated in money for that
property which is taken from him. These provisions and the statutes
implementing them are designed to protect the owner against confiscation of his
property." Id.

HERE CONDEMNATION WAS EXPRESSLY PROHIBITED

30. Over the years, the class of compensable property interests has been enlarged to broadly

encompass, e.g., easements, and personal property, as well as incorporeal herediments. See

21 Fla. Jur. 2d § 71, at 370. As a general rule of law, Florida’s Constitution expressly

prohibits any governmental confiscation and condemnation.

31. The Takings Clause of the Fifth Amendment prohibits government from condemning

"private property . . . for public use, without just compensation." The clause applies in any

case, in which government action renders private property worthless. Here, prima facie

forgery “O.R. 569/875” could not have possibly rendered Plaintiffs’ property permanently

worthless, because said scam never legally existed and was never legally recorded. Here,

10
 there was a temporary taking under fraudulent and false pretenses of said scam and extortion

scheme “O.R. 569/875”. Patently clearly, the District Court had, e.g., jurisdiction over the

Federal agents and subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343 to entertain

Plaintiffs’ Federal and Florida Constitutional claims and the State-law claims under its

supplemental jurisdiction. Under fraudulent and false pretenses of purported “frivolity”, the

Federal Courts obstructed and conspired to obstruct justice and Plaintiffs’ court access to

which the Plaintiffs-Appellants were patently clearly entitled.

32. The Fifth Amendment's prohibition on takings for public use without just compensation is

applied to the states through the Fourteenth Amendment. See Chicago, B. & Q. R.R. v.

Chicago, 166 U.S. 226, 239, 17 S. Ct. 581, 585, 41 L. Ed. 979 (1897). Here, the Plaintiff

unimpeachable record owners had set forth and conclusively proven Constitutional violations

directly under the Fourth, Fifth, Fourteenth, First, and Seventh Constitutional Amendments.

See 12/29/2000 LEE COUNTY MEMORANDUM; see PRESCOTT, No. 08-14846, 2009

U.S. App. LEXIS 8678, 2009 WL 1059631; see JOHN LAY AND JANET LAY v. STATE

OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, OGC CASE

NOs. 01-0203, 01-0204, DOAH CASE NOs. 01-1541, 01-1542, CASE NOs. DEP01-0860,

DEP01-0876. See West Peninsular Title Co. v. Palm Beach County, 41 F.3d 1490, 1492 n.4

(11th Cir.), cert. denied, 516 U.S. 932, 116 S. Ct. 338, 133 L. Ed. 2d 237 (1995).

11TH CIRCUIT HAD PATENTLY CLEAR JURISDICTION

33. Following multiple incidents and counts of FRAUD ON THE COURT and EXTRINSIC

FRAUD the prevailing Plaintiff unimpeachable record owners took interlocutory appeals.

The U.S. Court of Appeals had jurisdiction under, e.g., 28 U.S.C. § 1292 (1994).

11
34. The 11th Circuit failed to review the District Court's factual findings for clear error. Fed. R.

Civ. P. 52(a). Questions of law and mixed questions of law and fact are to be reviewed de

novo. See Nadler v. Mann, 951 F.2d 301, 305 (11th Cir. 1992). The acts of the judicial

Defendants were for the illegal purpose of keeping the pro se Plaintiffs away from the

Federal Courts and obstructing justice. Here, there was brazen EXTRINSIC FRAUD.

EQUITABLE ESTOPPEL

35. The doctrine of vested rights, which the Federal Courts must apply in this case, is derived

from the principle of equitable estoppel. The doctrine applies when a "landowner, relying in

good faith, upon some act or omission of the government, has made a substantial change in

position or incurred such extensive obligation and expenses that it would be highly

inequitable and unjust to destroy the rights he has acquired."

36. Here, Lee County never accepted any dedication of the prima facie private undedicated

residential Cayo Costa Subdivision, PB 3, PG 25. Here, since 1912, said facially private

undedicated residential Subdivision has never been in the public domain. No “Lee County”

interest and/or estate was ever created and/or transferred by virtue of prima facie forgery

“O.R. 569/875”. See 12/29/2000 LEE COUNTY MEMORANDUM; see PRESCOTT, No.

08-14846, 2009 U.S. App. LEXIS 8678, 2009 WL 1059631; see JOHN LAY AND JANET

LAY v. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,

OGC CASE NOs. 01-0203, 01-0204, DOAH CASE NOs. 01-1541, 01-1542, CASE NOs.

DEP01-0860, DEP01-0876. See West Peninsular Title Co. v. Palm Beach County, 41

F.3d 1490, 1492 n.4 (11th Cir.), cert. denied, 516 U.S. 932, 116 S. Ct. 338, 133 L. Ed. 2d

237 (1995).

11TH CIRCUIT CONCLUSIVELY DECLARED PLAINTIFFS’ RECORD OWNERSHIP

12
37. Plaintiffs’ unimpeachable record ownership and perfected marketable record title to, e.g.,

their private implied street and alley easements in the private undedicated Cayo Costa

Subdivision (1912), PB 3, PG 25, pursuant to Florida’s Marketable Record Title Act has

been un-rebutted and conclusively evidenced. See PRESCOTT, No. 08-14846, 2009 U.S.

App. LEXIS 8678, 2009 WL 1059631; see Lee County Plat Book 3, p. 25;

www.LeeClerk.org. See JOHN LAY AND JANET LAY v. STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION, OGC CASE NOs. 01-0203, 01-

0204, DOAH CASE NOs. 01-1541, 01-1542, CASE NOs. DEP01-0860, DEP01-0876. See

West Peninsular Title Co. v. Palm Beach County, 41 F.3d 1490, 1492 n.4 (11th Cir.), cert.

denied, 516 U.S. 932, 116 S. Ct. 338, 133 L. Ed. 2d 237 (1995). Here, the Defendants

fraudulently and falsely pretended and conspired with other Defendants to fraudulently

pretend “frivolity” for the unlawful purpose of ‘keeping the Plaintiff(s) away from the

Court(s)’.

EXTRINSIC FRAUD – KEEPING THE PLAINTIFF(S) AWAY FROM COURT

38. In DeClaire v. Yohanan, 453 So.2d 375 (Fla. 1984), the Supreme Court explained the

concept of extrinsic fraud that is not barred by the one-year provision of rule 1.540(b). It

quoted the following:

"Where the unsuccessful party has been prevented from exhibiting fully his case,
by fraud or deception practiced on him by his opponent, as by keeping him away
from court … these, and similar cases which show that there has never been a
real contest in the trial or hearing of the case, are reasons for which a new suit
may be sustained to set aside and annul the former judgment or decree, and
open the case for a fair hearing. [citing United States v. Throckmorton, 98 U.S.
61, 65-66, 25 L.Ed. 93 (1878).]

In other words, extrinsic fraud occurs where a party has somehow been prevented from

participating in a cause." See DeClaire, 453 So.2d at 377. The court also referred to one of its

13
 earlier decisions, Fair v. Tampa Electric Co., 158 Fla. 15, 18, 27 So.2d 514, 515 (1946),

where it defined extrinsic fraud as the:

"prevention of an unsuccessful party [from] presenting his case, by fraud or

deception practiced by his adversary; keeping the opponent away from court…”

DEFENDANTS’ FRAUD OF KEEPING THE PLAINTIFFS AWAY FROM COURT

UNDER FALSE PRETENSES OF FRIVOLITY & FACIAL SCAM “O.R. 569/875”

39. If one could distill the common element from all of these examples, it appears to be

intentional and wrongful conduct by one party to litigation that causes the adverse party

involuntarily to be blocked from judicial due process and access. This result is achieved in

such a way that the adverse party cannot present its claim or defense to a court for a

resolution. The means used to achieve that acquiescence or acceptance are not as important

as is the purpose for which the means are employed -- i.e. the deliberate interruption of the

free participation by the adverse party in the decision making process. Here, the the common

element of Defendants’ unlawful acts has been the deliberate interruption of Plaintiff(s)’ free

participation in the decision making process.

LYING AND TRICKERY – FALSE PRETENSES OF FRIVOLITY & RESOLUTION

40. The ingredients in many of the examples used by the court in DeClaire have been lying and

trickery, both entirely embraced by the concept of fraud. The essence of extrinsic fraud is the

deliberate use of some device to stop an adverse party's voluntary participation in the

litigation process. Extortion can prevent one from fully litigating one's case just as effectively

as deceiving the party. It does not much matter whether that prevention is accomplished by

lying and cheating or instead by force or extortion. In each, the end is the same. The fact that

14
 all are embraced under one term of art -- "extrinsic fraud" -- is but a convenience of

reference, not a boundary on the universe of devices which may be so employed.

DEFENDANTS CONSPIRED TO DEFRAUD UNDER PRIMA FACIE FORGERY

41. Here under fraudulent pretenses of purported “frivolity”, the Defendants stopped and

conspired to stop Plaintiff(s)’ voluntary participation in the litigation process. Here by

unlawful means of extrinsic prima facie forgery and fraud and extortion-scheme “O.R.

569/875”, the Defendants fraudulently and falsely pretended and conspired to pretend that

“Lee County” had an interest or estate in Plaintiffs’ implied street and alley easements and

Plaintiffs’ riparian Parcel # 12-44-20-01-00015.015A “on the Gulf of Mexico”.

THE DEFENDANTS THREATENED PLAINTIFF(S)

42. The Defendants threatened and conspired to threaten the Plaintiff(s) by illegal sanctions and

disallowing them to assert the truth. Defendants Peterson Bernard threatened, e.g.:

“Plaintiff shall have all filings reviewed by a licensed Florida attorney who shall
sign indicating that the filing is not frivolous and filed in good faith.”

With intent to compel the Plaintiffs so threatened to refrain from prosecuting the Defendants,

they fraudulently pretended “frivolity” to stop the Plaintiffs’ from voluntary participation in

the litigation process. Section 836.05, Florida Statutes (1991) provides:

“836.05 Threats; extortion. -- Whoever, either verbally or by a written or

printed communication, maliciously threatens to accuse another of any crime or
offense, or by such communication maliciously threatens an injury to the person,
property or reputation of another, or maliciously threatens to expose another to
disgrace, or to expose any secret affecting another, or to impute any deformity
or lack of chastity to another, with intent thereby to extort money or any
pecuniary advantage whatsoever, or with intent to compel the person so
threatened, or any other person, to do any act or refrain from doing any act
against his will, shall be guilty of a felony of the second degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.”

15
 CRIMINAL AND CIVIL PROSECUTION

43. The Plaintiffs seek Defendants’ criminal and civil prosecution for, e.g., deliberate

deprivations and conspiracy to deliberately deprive and defraud under 18 U.S.C. §§ 241, 242,

and 42 U.S.C. §§ 1983, 1985, 1988. Here patently clearly, the dispositively declared and

adjudged Plaintiff record owners were entitled to own their private Cayo Costa easements

and lands and exclude the public and Defendant Governments from the riparian Lee County

Parcel # 12-44-20-01-00015.015A “on the Gulf of Mexico”. See Kaiser Aetna v. U.S., 444

U.S. 164 (1979). See 12/29/2000 LEE COUNTY MEMORANDUM; see PRESCOTT, No.

08-14846, 2009 U.S. App. LEXIS 8678, 2009 WL 1059631; see JOHN LAY AND JANET

LAY v. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,

OGC CASE NOs. 01-0203, 01-0204, DOAH CASE NOs. 01-1541, 01-1542, CASE NOs.

DEP01-0860, DEP01-0876. See West Peninsular Title Co. v. Palm Beach County, 41

F.3d 1490, 1492 n.4 (11th Cir.), cert. denied, 516 U.S. 932, 116 S. Ct. 338, 133 L. Ed. 2d

237 (1995).

WHEREFORE, the Plaintiffs-Appellants demand

1. An Order relieving the prevailing unimpeachable record owners from any and all Judgments

& Orders in this and the related Case(s), because they were procured based on extrinsic

fraud, fraud on the courts, deceit, and trickery [Fed.R.Civ.P. 60(b); Fla.R.Civ.P. 1.540];

2. An Order relieving the prevailing unimpeachable record owners from any and all Judgments

& Orders in this and the related Case(s), because they were objectively corrupt and partial

and procured based on extrinsic fraud, fraud on the courts, deceit, and trickery [Fed.R.Civ.P.

60(b); Fla.R.Civ.P. 1.540];

16
3. An Order relieving the prevailing unimpeachable record owners from any and all Judgments

in these Cases, and granting the Plaintiff declared record owners Summary Judgments on all

counts against all Defendants [See 12/29/2000 LEE COUNTY MEMORANDUM; see

PRESCOTT, No. 08-14846, 2009 U.S. App. LEXIS 8678, 2009 WL 1059631; see JOHN

LAY AND JANET LAY v. STATE OF FLORIDA DEPARTMENT OF

ENVIRONMENTAL PROTECTION, OGC CASE NOs. 01-0203, 01-0204, DOAH CASE

NOs. 01-1541, 01-1542, CASE NOs. DEP01-0860, DEP01-0876. See West Peninsular Title

Co. v. Palm Beach County, 41 F.3d 1490, 1492 n.4 (11th Cir.), cert. denied, 516 U.S. 932,

116 S. Ct. 338, 133 L. Ed. 2d 237 (1995)];

4. An Order permanently enjoining the Defendants from extrinsic fraud and fraudulently and

falsely pretending “frivolity” for the unlawful purpose of obstructing justice and Plaintiffs’

court access;

5. An Order permanently enjoining the Defendants from falsely pretending that facially

forged “claim” “O.R. 569/875” purportedly transferred any interest and/or estate to Lee

County, Florida;

6. An Order permanently enjoining the Defendants from falsely and fraudulently pretending

frivolity of Plaintiffs’ claims for relief, because said 11th Circuit had dispositively declared

the prevailing Plaintiffs the unimpeachable record owners of their Constitutionally protected

riparian property as legally described in reference to Plat Book 3, p. 25 (Lee County Parcel #

12-44-20-01-00015.015A) [See PRESCOTT, No. 08-14846, 2009 U.S. App. LEXIS 8678,

2009 WL 1059631; see Lee County Plat Book 3, p. 25; www.LeeClerk.org. See JOHN LAY

AND JANET LAY v. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL

PROTECTION, OGC CASE NOs. 01-0203, 01-0204, DOAH CASE NOs. 01-1541, 01-

17
 1542, CASE NOs. DEP01-0860, DEP01-0876. See West Peninsular Title Co. v. Palm Beach

County, 41 F.3d 1490, 1492 n.4 (11th Cir.), cert. denied, 516 U.S. 932, 116 S. Ct. 338, 133

L. Ed. 2d 237 (1995)];

7. An Order permanently enjoining the Defendants from falsely and fraudulently pretending

res judicata, which was superseded by the express Florida and Federal Constitutional

prohibitions against Fraud on the Courts, and because said 11th Circuit had dispositively

declared the prevailing Plaintiffs the unimpeachable record owners of their Constitutionally

protected riparian property as legally described in reference to Plat Book 3, p. 25 (Lee

County Parcel # 12-44-20-01-00015.015A) [See PRESCOTT, No. 08-14846, 2009 U.S. App.

LEXIS 8678, 2009 WL 1059631; see Lee County Plat Book 3, p. 25; www.LeeClerk.org;

see JOHN LAY AND JANET LAY v. STATE OF FLORIDA DEPARTMENT OF

ENVIRONMENTAL PROTECTION, OGC CASE NOs. 01-0203, 01-0204, DOAH CASE

NOs. 01-1541, 01-1542, CASE NOs. DEP01-0860, DEP01-0876; see West Peninsular Title

Co. v. Palm Beach County, 41 F.3d 1490, 1492 n.4 (11th Cir.), cert. denied, 516 U.S. 932,

116 S. Ct. 338, 133 L. Ed. 2d 237 (1995)];

Respectfully submitted,
_________________________________
/S/JENNIFER FRANKLIN PRESCOTT
Plaintiff, pro se
P.O. BOX 845, Palm Beach, FL 33480
T: 561-400-3295
______________________________________
/S/JORG BUSSE, M.D., M.M., M.B.A., C.P.M.
State Certified Res.Appraiser, Licensed Real Estate Broker, Mortgage Broker
Plaintiff, pro se
P.O. Box 11124, Naples, FL 34101-11124;
JRBU@aol.com; T: 239-595-7074

EXHIBITS
PRIMA FACIE FORGERY “O.R. 569/875”

18
FRAUDULENT “OPINION & ORDER” IN EXCHANGE FOR DEFENDANTS’ BRIBES
1912 CAYO COSTA SUBDIVISION PLAT
2000 LEE COUNTY MEMORANDUM

CC: U.S. Department of Justice

Eric H. Holder, J.R, U.S. Attorney General
William Jefferson Clinton
Florida State Attorney
Governor Charlie Crist
I. Sterling, Governor’s Press Office
The Florida Bar
United Nations
Federal Bureau of Investigation
Florida Department of Law Enforcement
Lee County Value Adjustment Board

19
 STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION

JOHN LAY AND JANET LAY,

Petitioners, OGC CASE NOs. 01-0203

01-0204
VS. DOAH CASE NOs. 01-1541
01-1542
DEPARTMENT OF ENVIRONMENTAL DEP01-0860; DEP01-0876
PROTECTION,

Respondent.

_____________________________________/

FINAL ORDER

On August 14, 2001, an Administrative Law Judge with the Division of Administrative Hearings (hereafter
"DOAH") submitted his Recommended Order to the Department of Environmental Protection (hereafter "Department"). A
copy of the Recommended Order was also furnished to pro se Petitioners, John and Janet Lay (hereafter the "Lays").' A
copy of the Recommended Order is attached hereto as Exhibit A. Exceptions to the Recommended Order were timely
filed on behalf of the Department. The Recommended Order and the Exceptions are now before the Secretary of the
Department for final agency action.

BACKGROUND

The Lays are the owners of Lots 16 and 17, Cayo Costa Subdivision, located on Cayo Costa Island in Lee
County, Florida. On July 12, 2000, the Lays filed a consolidated application for exemption from the need to obtain an
environmental resource permit and for a consent of use for a 208 square foot single-family dock. A portion of the
proposed dock project would be built on sovereign submerged lands owned by the State of Florida underlying a lagoon
west of Pelican Bay. Due to the Department's focus on minimizing adverse impacts on mangroves bordering the lagoon,
the Lays eventually agreed to submit additional information and to reduce the size of their proposed dock to 58 square
feet. The revised application was granted by the Department on August 21, 2000, in DEP File No. 36-0172390-001.
The consent of use included General Consent Conditions. Among other things, they stated: "The Letter of
Consent associated with these General Consent Conditions as well as these conditions themselves are subject to
modification after five (5) years in order to reflect any applicable changes in statutes, rule or policies of the Board [of
Trustees of the Internal Improvement Trust Fund] or its designated agent [DEP] .,, 2 There were no other conditions or
statements regarding modification or revocation of the consent of use.
After obtaining their exemption and consent of use in DEP File No. 36-0172390-001, the Lays determined that
they needed a larger dock. On September 11, 2000, the Lays applied for another exemption and consent of use for a 114
square foot single family dock. This application was granted by the Department on October 14, 2000 in DEP File No.
36-0172390-002. This consent of use contained the same General Consent Conditions as the first consent of use for the
proposed 58 square foot dock. Like the original consent of use issued to the Lays, no provisions were set forth in the
consent of use issued in DEP File No. 36-0172390-002 regarding modification or revocation.
In January of 2001, the County Attorney for Lee County sent the Department a copy of a boundary survey of Lots
16 and 17 prepared by Ted B. Urban, a professional land surveyor. See, the Lays' "Exhibit A" admitted into evidence at
the DOM final hearing. This boundary survey reflects that the Lays' proposed dock facility would have to traverse a strip of
land above mean high water ("MHW') approximately 10-15 feet in width. This strip of land east of the boundaries of Lots
16 and 17 and above the MHW is designated as a "road easement" on the boundary survey.
Based primarily on its review of this boundary survey, the Department concluded that the Lays were not "upland
riparian" landowners within the purview of Rule 1821.004(3)(b), Florida Administrative Code ("F.A.C."). Accordingly, the
Department issued a letter dated January 18, 2001, notifying the Lays that the prior consents of use of sovereign
submerged lands issued in DEP File Nos. 36-0172390-001 and 360172390-002 "are hereby revoked." See "DEP Ex. 15"
admitted into evidence at the DOM final hearing. The Lays then filed a petition contesting the Department's agency action
proposing to revoke the two prior consents of use.
DOAH PROCEEDING
 The Department's contention that the road easement constitutes a separate parcel of property
between Lots 16 and 17 and the MWH was rejected by the ALJ. Instead, the AU concluded that, due to the
absence of any proof in this case to the contrary, the Lays own to the centerline of the 60-foot road easement
shown on the boundary survey as a matter of established real property law. See, e.g., Smith v. Horn, 70 Fla.
484, 70 So. 435, 436 (Fla. 1915); Joseph v. Duran, 436 So.2d 316, 317 (Fla. 1st DCA 1983); Feig v. Graves, 100
So.2d 192, 196 (Fla. 2d DCA 1958). 1 agree with the ALJ's application of this settled rule of real property law to the
facts of this case.
In his Recommended Order, the AU asserted that there was no evidence presented at the DOM final
hearing that the road easement in question was ever officially dedicated to the public and/or that dedication
of the road easement was ever officially accepted by Lee County. The AU also asserted that no evidence was
presented at the final hearing that the developer of the Cayo Costa Subdivision retained any reversionary
interest in the road easement. Neither of these assertions of the AU was challenged by the Department in its
Exceptions.
I further agree with the ALJ's related finding that the Lays' ownership to the centerline of the 60-foot wide road
easement would place the MHW adjacent to property owned by the Lays at the point where the proposed dock is to
be built. Therefore, contrary to the Department's claim, the boundary survey does not establish that there is a
separate upland parcel of land not owned by the Lays between the eastern boundaries of Lots 16 and 17 and
the MHW at the dock site.
Consequently, even when the boundary survey relied upon by the Department is taken into
consideration, it still fails to establish that the Lays are not "upland riparian" landowners under Rule
18-21.004(3)(b), F.A.C. I thus reject the Department's suggestion that the matters reflected in the boundary
survey constitute "critical newly discovered evidence" rendering the doctrine of administrative finality
inapplicable to the final action of this agency granting the two consents of use to the Lays in the year 2000.
I acknowledge that there is Florida case law concluding that, notwithstanding the administrative finality
doctrine, a state agency may revoke or modify a prior final action under "extraordinary circumstances." See, e.g.,
Russell v. Dept. of Business & Professional Regulation, 645 So.2d 117, 119 (Fla. 1st DCA 1994); Richter v. Florida
Power Corp., 366 So.2d 798, 800 (Fla. 2d DCA 1994). However, for the reasons stated above, I do not view the
boundary survey received by the Department in January of 2001 to be the source of such "extraordinary
circumstances" as to warrant the revocation of the two consents of use granted to the Lays in the year 2000.
I also recognize that, notwithstanding the administrative finality doctrine, a state agency may be expressly
authorized by statute or rule to revoke or modify a prior final action under certain conditions. For instance, the
Department is expressly authorized to suspend and/or revoke regulatory "permits" under stated conditions pursuant to
Rules 62-4.100 and 62-343.140, F.A.C. However, the courts have ruled that the term "permit," within the context of
environmental regulation provisions, does not include a lease, license, easement, or other form of consent to use
sovereign submerged lands granted pursuant to Chapter 253, Florida Statutes, and Chapter 18-21, F.A.C. Graham v.
Edwards, 472 So.2d 803, 807 (Fla. 3d DCA 1985).
Accordingly, the Department's Exception No. 1 is denied.

Exception No. 2

In its second Exception, the Department objects to the ALJ's Conclusions of Law 13, 14, 15, and 21. The
challenged legal conclusions of the AU deal with the apparent lack of any express statutory or rule authority for the
Department to revoke a prior final agency action granting a consent of use of sovereign submerged lands on behalf of
the Trustees. In my preceding ruling, I determined that the Department's attempted revocation of the two consents of
use granted to the Lays in the year 2000 is precluded by the doctrine of administrative finality. The Department's
second Exception is also denied for the same reason. I would also note that the Department's second Exception fails
to cite to any statute or administrative rule expressly authorizing the Department to revoke, on behalf of the Trustees,
a prior final agency action granting a consent of use of sovereign submerged lands.
I agree that when the Department is exercising its delegated authority from the Trustees, it is acting in a
proprietary capacity that is different from this agency's regulatory capacity. Accord Graham, 472 So.2d at 807. 1 am
also aware that there is case law suggesting that a prior consent of use of sovereign submerged lands may be subject
to revocation under some conditions, provided that there is compliance with the provisions of the Florida
Administrative Procedure Act ("APA"). See Trustees v. Barnett, 533 So.2d 1202, 1206 (Fla. 3d DCA 1988). In any
event, I conclude that the boundary survey relied upon by the Department does not reflect the existence of conditions
that are sufficient to warrant revocation of the two consents of use previously granted to the Lays, even though the
requirements of the APA were met in this case.
The Department's Exception No. 2 is thus denied.

Exception No. 3

The Department's third Exception objects to the ALJ's Conclusions of Law 19 and 20. The Department
contends that these legal conclusions of the AU should be rejected because both the AU and the Department lack
 STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )
PROTECTION, )
)
Petitioner, )
) Case Nos. 01-1541
vs. ) 01-1542
)
JOHN LAY and JANET LAY, )
)
Respondents.
)
)
use.

7. The Lays next approached Lee County for a permit for their dock. They showed Lee County their DEP

exemption and consent of use and their boundary survey. On November 13, 2000, Lee County informed the Lays that the

County permit could not be issued due to County setback requirements from the road easement shown on the boundary

survey. The Lays then asked for consideration of a variance from the setback requirements or vacation of the road

easement (which clearly could serve no purpose or be of any use as a road).

8. At that point, the County referred the matter to the County Attorney's office for a legal opinion. On

December 29, 2000, a memorandum opinion was prepared to the effect that the road easement, if implicitly

offered for dedication by filing of the Second Revised Plat of Cayo Costa Subdivision in the early 1910's, was

never accepted by the County. The County surmised that the road easement belonged to the State of Florida. For that

reason, no setback requirements from a road easement applied, and the County permit could be issued.

9. The Lays were informed of the County's legal opinion in early January 2001. They were told that the County

informed DEP of the legal opinion and the boundary survey and that the Lays could expect to receive their County permit

shortly.

10. When DEP was informed about the County's legal opinion, DEP had a copy faxed to its Office of General

Counsel in Tallahassee on January 12, 2001, along with a copy of the boundary survey. Upon review of the

documentation, DEP came to the conclusion that the Lays were not riparian owners at the point of their proposed dock (at

the southeast corner of Lot 16 and northeast corner of Lot 17) as a result of the road easement. On January 18, 2001,

DEP gave the Lays notice of DEP's intent to revoke both consents of use (for the 58 and 114 square-foot docks).

11. DEP takes the position not only that it did not have the benefit of the boundary survey in either application for

exemption and consent of use but also that it accepted at face value the representations in the applications that the Lays

were riparian owners where they proposed to build their dock. Actually, the Lays' applications did not contain explicit

representations to riparian ownership. But they did state that the Lays owned "the property described," or had "legal

authority to allow access to the property," and did list only "Florida Department of Parks and Recreation" as the only

adjoining property owner. In addition, they implicitly represented entitlement to the exemptions and consent of use

applied for.

CONCLUSIONS OF LAW

12. Since DEP seeks revocation of exemptions and consents of use issued to the Lays, DEP has the burden to
prove legal grounds for revocation by preponderance of the evidence. See Balino v. Dept. of Health & Rehabilitative

Servs., 348 So. 2d 349 (Fla. 1st DCA 1977).

13. DEP cites no statutory or even rule authority for revocation of a consent of use issued under Rules Chapter

18-21. (Rule citations are to the current Florida Administrative Code. Statute citations are to sections of the 2000

codification of Florida Statutes.) Contrast Walker v. Dept. of Business and Prof. Reg., 705 So. 2d 652 (Fla. 5th DCA

1998); Libby Investigations v. Dept. of State, Div. of Licensing, 685 So. 2d 69 (Fla. 1st DCA 1986); Bill Salter Outdoor

Advertising, Inc. v. Dept. of Transp., 492 So. 2d 408 (Fla. 1st DCA 1996); Farzad v. Dept. of Prof. Reg., 443 So. 2d 373

(Fla. 1st DCA 1983).

14. DEP's PRO implies that Rule 62-343.140(1) states grounds for revocation of the Lays' consents of use. It

provides: "The Department shall revoke or suspend a permit when necessary to protect the public health, safety or

welfare." But Rules Chapter 62-343 applies to environmental resource permits, not to consents of use of sovereign

submerged lands. Although (in accordance with Sections 373.427 and 253.77(2) and Rules 62-110.106 and 62-312.065)

DEP combined the processing and review of applications for both exemptions under Rules Chapter 62-343 and consents

of use under Rules Chapter 18-21, this was done for administrative convenience and efficiency. It did not make

exemption rules apply to consent of use applications (or vice versa).

15. Assuming Rule 62-343.140(1) applied and established the grounds for revocation of consents of use,

DEP failed to prove that revocation of the Lays' consents of use is "necessary to protect the public health, safety

or welfare."

16. In DEP v. Brotherton and Sportsman's Lodge Development Corp., DEP OGC Case No. 96-2581, DOAH

Case No. 96-6070 1997 WL 594059, (Fla. Dept. Env. Prot. 1997), DEP addressed the authority of an agency to modify

final orders under somewhat analogous circumstances. There, DEP's predecessor agency, the Department of

Environmental Regulation (DER), issued Brotherton an exemption to repair a dock. Brotherton claimed ownership based

on a warranty deed to a condominium unit, together with an undivided share in the common elements of the

Condominium, including "items of personal property . . . including the private dock located thereon." In giving this

warranty deed, Brotherton's seller relied on a letter from the seller's predecessor in title that "[y]our boat dock will remain

permanently assigned to your unit as a limited common element reserved for use by your unit" in consideration of

execution of amended Condominium documents. In exempting the dock, DER notified Brotherton that "the exemption

determination may be revoked 'if the basis for the exemption is determined to be materially incorrect.'" Id. at page 2.

When the effectiveness of the conveyance of the dock to Brotherton was questioned, DEP sent Brotherton a letter

revoking Brotherton's exemption. But in the Final Order, DEP rejected the letter based on the doctrine of "administrative
 exemption/consent of use determination.
The Department's legal position throughout these proceedings implies that DER
did not conduct an adequate review of Brotherton's application in 1993 with respect to his
consent of use request. The Department's contention suggests that DER either
overlooked or misconstrued the provisions of Rule 18-21.004(3)(b), Florida
Administrative Code, in granting the consent of use to Brotherton. I decline to rule on the
merits of such a proposition based on the "administrative finality" doctrine discussed
above.

18. Comparing this case to the Brotherton case, DEP contends essentially that the Lays' applications were

"materially incorrect." While the alleged defects in the applications were not "readily apparent on the face of" the

applications, neither is there any evidence that the Lays "willfully falsified any representations in the application forms and

supporting documents" or "willfully concealed from DEP relevant information adverse to [their] exemption application[s]."

While the facts in this case are not identical to those in Brotherton, it is concluded that the consents of use in this case,

like the exemption in Brotherton, should not be revoked, based on the "administrative finality" doctrine discussed above.

19. Beyond the doctrine of "administrative finality," it is concluded that DEP did not prove that the representations

in the Lays' applications were false. Under Florida law, "in the absence of a contrary showing," conveyance of Lots

16 and 17 included title to the centerline of the road east of the Lays' property, subject to the easement dedicated

to Lee County by platting of the Cayo Costa Subdivision in the early 1910's; and, since the County either did not

accept or has abandoned the road easement, the Lays own to the centerline of the road easement free and clear

of any easement. See Smith v. Horn, 70 Fla. 484, 489, 70 So. 435, 436 (1915); Calvert v. Morgan, 436 So. 2d 314

(Fla. 1st DCA 1983). DEP did not prove that MHW is to the west of the centerline of the platted road easement at

the point of the Lays' proposed dock.

20. As suggested by Smith v. Horn, it was possible for the conveyance of Lots 16 and 17 from the owner

who platted the Cayo Costa Subdivision to have excluded title to the road easement (or to have retained a

reversionary interest). If so, the Lays would not own to the centerline of the road easement. See Servando Bldg.

Co. v. Zimmerman, 91 So. 2d 289, 291-292 (Fla. 1956); Peninsula Point, Inc. v. South Georgia Dairy Co-op, Inc.,

251 So. 2d 690, 692-693 (Fla. 1st DCA 1971). But DEP did not prove that the deeds to Lots 16 and 17 included

such a provision. For that reason, DEP did not prove that the Lays do not own to the centerline of the platted

road easement and did not prove any misrepresentations in the Lays' applications for consent of use.

21. Finally, in Bd. Of Trustees of Internal Improvement Trust Fund v. Barnett, 533 So. 2d 1202, 1206-1207 (Fla.

3d DCA 1988), the court approved a lower court conclusion of law rejecting a contention that "rights acquired from the

State in its proprietary capacity may be revoked at any time before the holder changes his position in reliance on the

right." DEP properly has not taken such a position in this case. (Nor did DEP prove that the Lays did not change position
8/20/2009 JENNIFER FRANKLIN PRESCOTT, JOR…

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AFFIRMED.

COUNSEL: Jennifer Franklin Prescott, Appellant, Pro se, PALM BEACH, FL.

Jorg Busse, Appellant, Pro se, NAPLES, FL.

For Board of Trustees of the Internal Improvement Trust, State of Florida Department of
Environmental Protection, Division of Recreation and parks, Appellees: Reagan Kathleen
Russell, FL Dept. of Environmental Protection, TALLAHASSEE, FL.

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41 F.3d 1490
WEST PENINSULAR TITLE CO., Absolute, Inc., Marion H.
Cooper,
for Estate of Alfred R. Cooper, Plaintiffs-Appellees,
v.
PALM BEACH COUNTY, Carol A. Roberts, Chair of Board of
County Commissioners of Palm Beach County,
Defendants-Appellants.
Nos. 93-4104, 93-4449.
United States Court of Appeals,
Eleventh Circuit.
Jan. 10, 1995.

Patti A. Velasquez, Asst. County Atty., West Palm Beach, FL, Robert S. Hackleman, Ft.
Lauderdale, FL, for appellants in No. 93-4104.

Sharon M. Pitts, Patti A. Velasquez, Asst. County Atty., West Palm Beach, FL, Robert S.
Hackleman, Ft. Lauderdale, FL, for appellants in No. 93-4449.

Jeffrey A. Aman, Smith, Williams & Bowles, P.A., Tampa, FL, Joan E. O'Dell, Gregory L.
Williams, Smith, Williams & Bowles, P.A., Washington, DC, for appellees in both cases.

Appeals from the United States District Court for the Southern District of Florida.

Before HATCHETT and EDMONDSON, Circuit Judges, MELTON* , Senior District Judge.

PER CURIAM:

1 After a jury trial, the district court entered judgment for plaintiffs. Defendants
raise several arguments, hoping mainly to void concessions made in district court in
the joint pretrial stipulation. The district court is affirmed.

2 The controversy concerns the ownership of strip parcels (roads and ditches)
offered by Palm Beach Farms for dedication to Palm Beach County in 1912. A 1976
instrument entitled "Notice of Withdrawal of Platted Roads, Streets, and Other
Unexercised Rights" revoked the offer of dedication. In 1986, pursuant to local
Ordinance No. 86-18 (the "Ordinance"), defendant Palm Beach County (the

http://74.125.47.132/search?q=cache:xHNX0cXI3CoJ:bulk.resource.org/courts.gov/c/F3/4... 4/30/2009
41 F.3d 1490 Page 2 of 4

"County"), began a practice of selling easement and right of way interests in

property originally acquired through dedication. In return for a "privilege fee," the
County issued an abandonment resolution, which, when recorded, transferred
ownership of the parcel to the payor of the fee. This dispute began when the County
attempted to collect fees in exchange for abandonment resolutions for parcels that,
according to plaintiffs, had never been accepted by the County.

3 Plaintiffs, claiming that they were successors in interest to Palm Beach Farms
(and thus owners of the strip parcels), challenged the County's practice as an
unconstitutional taking--under the Fifth and Fourteenth Amendments--of their
property.1 The County conceded that it never expressly accepted the dedication;
but, at trial, the County attempted to show that it had impliedly accepted the
dedication by using the strip parcels. The jury found for plaintiffs, deciding that the
County had not accepted the 1912 offer of dedication within a reasonable time. The
district court entered judgment for plaintiffs: plaintiffs were judged the fee simple
owners of the pertinent strip parcels; defendants were enjoined from applying the
Ordinance to plaintiffs' property; and plaintiffs were awarded attorney's fees.
Defendants appeal.

4 The County now contests plaintiffs' standing, arguing that plaintiffs could not
possibly own the strip parcels (and thus have no interest at stake). But given
plaintiffs' allegations and the County's stipulations in the district court, the record
supports both standing and jurisdiction. A "case or controversy" exists in this case
because the parties genuinely disputed ownership of the strip parcels in the district
court. The County stipulated to plaintiffs' chain of title, agreeing that plaintiffs were
successors in interest to Palm Beach Farms. The controversy was thus limited to a
decision about whether the offer of dedication was accepted.2 Plaintiffs have
standing to challenge the application of the Ordinance to what they assert is their
property.

5 But the County insists that adjoining landowners own the strip parcels, citing
Murrell v. United States, 269 F.2d 458 (5th Cir.1959), as an alternative to 16.33
Acres. This decision is not about standing: what the County is really arguing is that
plaintiffs failed to join indispensable parties. Amicus Boywic Farms agrees, arguing
that it was harmed by the entry of judgment in favor of plaintiffs. Because the
district court could only determine who, as between plaintiffs and the County, had
the better claim to the strip parcels, amicus is not bound by the district court's
order. It was no abuse of discretion for the district court to refuse to dismiss this
case for failure to join indispensable parties. The County, as movant, had the
burden "to show the nature of the unprotected interests of the absent parties," 5A
Wright & Miller, Federal Practice and Procedure Sec. 1359; yet, the County's
citation to the record reveals only that it established the existence of adjoining
landowners (not the nature of allegedly unprotected interests).

6 And, plaintiffs' "arbitrary and capricious" due process claim is ripe.3 Plaintiffs
accused the County of applying an arbitrary and capricious action (asserting
ownership to the strip parcels and recording abandonment resolutions which
transferred title) to their property. Plaintiffs' claim was ripe as soon as the County
applied the ordinance and the petition process (including a $400 nonrefundable
application fee) to the undedicated strip parcels. See Eide v. Sarasota County, 908
F.2d 716, 724 n. 13 (11th Cir.1990).

7 The County argues that no subject matter jurisdiction exists because plaintiffs'
claims are so frivolous. But the course of litigation and stance of the County in

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district court undercuts its claim of frivolousness. We also note that the pretrial
stipulation plainly reads that "[n]either party contests subject matter ...
jurisdiction."4 If the County actually thought plaintiffs' claims were frivolous, it
should not have so willingly conceded facts giving rise to jurisdiction in the
stipulation. Because the district court had subject matter jurisdiction over plaintiffs'
federal claims, the court did not err by including plaintiffs' state claims for
declaratory relief--pendent jurisdiction was proper.

8 The County also argues that the district court erred by interpreting the stipulation
as a "winner-take-all" proposition. That is, the County says it reserved a right to
make several arguments, after the jury's fact finding, by referring to "undisposed of
motions" in the stipulation. We disagree. The parties agreed that the jury's
conclusion would "be outcome determinative of all of the federal and state claims."
The County does not argue that it was unfairly duped into signing the stipulation.
And, we owe great deference to the trial judge's interpretation and enforcement of
pretrial stipulations. See Morrison v. Genuine Parts Co., 828 F.2d 708 (11th
Cir.1987); Hill v. Nelson, 676 F.2d 1371, 1373 n. 8 (11th Cir.1982). In the light of the
stipulations, the district court did not err when it refused to entertain the County's
post-verdict motions.

9 Defendants raise other arguments, none of which present grounds for reversal.
The district court's judgment is AFFIRMED.

Honorable Howell W. Melton, Senior U.S. District Judge for the Middle District of
Florida, sitting by designation

Application of the Ordinance, according to plaintiffs, put a "cloud" on plaintiffs' title

because title to the strip parcels was transferred to the payor of the privilege fee.
Plaintiffs' property was, in other words, not transferable so long as the County continued
to demand fees for the "abandonment" of property it never owned

"[S]tanding cannot be waived and may be asserted at any stage of litigation." Harris v.
Evans, 20 F.3d 1118, 1121 n. 4 (11th Cir.1994) (en banc). We disagree with the County's
argument that plaintiffs' ownership claim is so obviously frivolous that standing could
not possibly exist, regardless of stipulated facts pointing to standing. In support of this
claim, the County cites the allegedly "remarkably similar" case of United States v.
16.33 Acres of Land, 342 So.2d 476 (Fla.1977), as binding precedent denying plaintiffs'
ownership claim. But 16.33 Acres is distinguishable because in that case the government
expressly accepted the offer of dedication. Id. at 479

Because we conclude that plaintiffs' arbitrary and capricious due process claim was ripe,
we say nothing about whether plaintiffs' additional constitutional claims were ripe. We
do note, however, that plaintiffs were not granted relief pursuant to a specific claim.
Instead, the County stipulated that plaintiffs would be entitled to the remedies requested
if plaintiffs prevailed on any of the disputed fact issues

Parties may not stipulate jurisdiction. Bush v. United States, 703 F.2d 491, 494 (11th
Cir.1983). And we do not say that jurisdiction was proper because jurisdiction was
stipulated. Instead, we look to the record; we affirm the district court's conclusion that

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the stipulated facts give rise to jurisdiction. For example, the County argues
frivolousness by pointing to purported transfers--by plaintiffs' predecessors in interest--
that the County says are null and void. But the County stipulated to plaintiffs' chain of
title; and, the County agreed that it was undisputed that "plaintiffs are the successors in
interest to the Palm Beach Farms Company." The record was set in district court
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