Deauville Associates v. Murrell, 13660.

• Decision Date: 20 May 1952
• Docket Number: No. 13660.,13660.
• Citation: 197 F.2d 91
• Parties: DEAUVILLE ASSOCIATES, Inc., v. MURRELL et al.
• Court: U.S. Court of Appeals — Fifth Circuit

197 F.2d 91 (1952)

DEAUVILLE ASSOCIATES, Inc., v. MURRELL et al.

No. 13660.

United States Court of Appeals Fifth Circuit.

May 20, 1952.

Samuel J. Kanner, Stuart W. Patton, Miami, Fla., for appellant.

D. H. Redfearn, R. H. Ferrell, John M. Murrell, Miami, Fla., Colby Stilson, Edward J. Ross, New York City, Richard M. White, Frederick J. Ward, Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and STRUM, Circuit Judges.

HUTCHESON, Chief Judge.

This is another effort by appellant, petitioner below, a lis pendens purchaser, whose intervention was specifically allowed by this court, as of a named date,¹ April 4, 1949, to litigate anew matters which had been finally determined against its vendor before that date in cause No 1148 M Civil in the United States District Court for the Southern District of Florida.

The choice of means this time to attain the desired end is a petition filed January 17, 1951, seeking among other things the relief, under Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. on the grounds of fraud, of a partial vacation of the final decree of December 10, 1948, "being only that part which required a sale of the assets of Deauville Corporation."

In addition to this relief, the petition seeks, but not under Rule 60(b) or for claimed fraud, to vacate and set aside an order of June 15, 1950, in the same cause. ordering a private sale of described property, and one of June 30, 1950, from which no appeal was taken, confirming the sale to Loew, one of the appellees.

Lengthy, discursive, and prolix, a kind of shot gun motion, the petition purports to review, not only all the prior proceedings, which have taken place in and in respect to the cause while for many years it has dragged its slow length along, but also the dealings and arrangements between the parties to this litigation, and the controversies that have arisen thereout. Included in this detail is the statement that, while an appeal was taken from the December 10th judgment, this appeal was dismissed on August 27, 1949, for want of prosecution.

Admitting that an intervenor must take the cause as he finds it upon intervention, the movant seeks avoidance of that result as to the decree of 1948, by allegations that fraud was perpetrated on it and upon the court by Lasser and Winkel and Danton, from whom petitioner acquired its interest, in that they withheld from the court and from its receivers knowledge of the fact that movant was the real party in interest and thus permitted the litigation to be conducted in a manner to violate its interests.

Proceeding, then, to the real purpose of the motion, to induce the court to set aside the sale already made to Loew and in turn to sell the property to it, movant makes an offer of $750,000 for the property, and closes its petition with a lengthy prayer.²

On January 20, 1951, appellant filed a brief supplemental petition in which it reaverred the allegations of the original petition, offered to reimburse Loew for expenses incurred, claimed that disbursements had been made by petitioner and its predecessors, Loew and Winkel, for which petitioner was entitled to reimbursement, and repeated its offer to purchase the property for $750,000.

On January 20, 1951, the receiver moved to dismiss "the petition for partial vacation of final decree pursuant to Rule 60(b), for vacation of order confirming sale, and for other affirmative relief." Deauville Realty Co., purchaser of the property, as assignee of Loew, against whom the relief was sought, intervened and moved also to dismiss it.

After a lengthy hearing on the petition, including its reading in full in open court and full argument thereon, the district judge entered an order³ sustaining the receiver's motion to dismiss. Whereupon, petitioner, filing its petition for reimbursement of advances and for subrogation, as permitted in the order, which dismissed its motion to vacate and for other relief, gave notice of appeal and is here assigning two errors in its brief.

Error Number One is that, in dismissing its petition for partial vacation of the decree of December 10, 1951, the court erred in concluding in effect that as matter of law the petition set up no ground for Rule 60(b) relief.

Error Number Two is that the court erred in allowing Deauville Realty Co., Inc. to intervene notwithstanding its knowledge of the perpetration of fraud upon the court.

The receivers and Deauville Realty Company have filed answering briefs and, the questions having been fully argued orally and by brief, the matters are before us for decision.

We have considered the questions raised, in the light thrown upon them by the excellent brief of Deauville Realty Co., appellee, in its analysis of the voluminous record made in this needlessly protracted and fiercely contested litigation, with the deadly parallel it draws between the motion of April 7, 1950, and this one of January 17, 1951. That consideration makes clear: that there is nothing of legal substance in appellant's petition; that it is, indeed, a mere variation in form of its determined and persistent efforts, as a ...