IN THE DISTRICT COURT OF APPEL OF THE STATE OF FLORIDA

FOURTH DISTRICT 110 SOUTH TAMARIND AVENUE, WETS PALM

BEACH, FL 33401

CASE NO .: 4D21-2974
LT NO .: CACE 19013276

JOY MACK V. WILMINGTOG TRUST NATIONAL

ASSOCIATION
_____________________________________________________
Appelant / Petitioner (s) Appelee / Respondet (s)

Corrected Amended APPELLANT`S BRIEF STATEMENT

TABLE OF AUTHORITIES
Cases:
City of Ditroit v. Michigan, 262 Mich App 542; 686 NW2d 514 (2004)
Hollingsworth v. Brown, 788 So. 2d 1078 (Fla. 1 st DCA 2001)
Markwood Invs. Ltd. V. Latam Invs., LLC, 40 Fla. L. Weekly D2488 (Fla.
DCA Nov. 4, 2015)
Nat`l City Golf Fin. V. Scott, 899 F 3d 412, 415 n 3 (5th Cir. 2018)
Peterson Homes, Inc v. Johnson 691 So. 2d 563 (Fla 5th DCA 1997)
Wickings v. Arctic Enterprises, Inc, 244 Mich App 125, 136; 624 NW2d
197 (2000)
Rooyaker and Sitz. PCCL v. Plante Moran, PCCL, 276 Mich App146,
742 NW2d 409 (2007)
Ryan v. Occidental Petroleum Corp., 577 F 2d 298, 302 (5th Cir. 1978)
Semtek Intern. Inc. v. Lockheed Martin Corp. 531 US 497 (2001)
Shields v. Flinn, 528 So. 2d 967, 968 (Fla. 3d DCA 1988)
Williams v. Taylor-Seidenbach, Inc (WilliamsI) 748 F App`x 584, 587-
88
Statutes
28 USC § 1291
________________________________________________________
TABLE OF CONTENTS

TABLE OF AUTHORITIES ________________________________________________________ 3

PRELIMINARY STATEMENT ______________________________________________________ 6

ANSWER_____________________________________________________________________
7

I. THE CIVIL CODE 669 IS INAPPLICABLE____________________________________ __7

II. THE APPEALER MAY CHALLENGE THE JURISDICTION OVER MARIAN_____________ 9

III. THERE IS NO JURISDICTION OVER MARIAN________________________________

10

IV. NONE OF THE PROPERTIES IS COMMUNITY PROPERTY ______________________13

V. NON-BREACH OF THE FIDUCIARY DUTY___________________________________16

SAW. THE SPECIAL TEACHER______________________________________________17

VII. THE JUDGMENT AGAINST THE APPEALANT IS A COMMUNITY DEBT THAT MUST BE
ASSIGNED____________________________________________________________17

VIII. IRRELEVANT IMPLIED

RESULTS_________________________________________18

CONCLUSION _________________________________________________________ 18

CERTIFICATE OF WORD
COUNT____________________________________________20
 STATEMENT OF JURISDICTION
Distric court may opt to dismiss whitout prejudice for a variety of reasons. A court may allow a
plaintiff to voluntarily withdraw from the suit through a Rule 41(a) dismissal without prejudice
if the plaintiff would suffer hardship from continuing the suit. In Semtek Intern. Inc. v.
Lockheed Martin Corp., 531 U.S. 497 (2001) the Supreme Court pointed out that one of the
main features of dismissal without prejudice is that it does not prevent refiling of the claim in
the same court. The Court of Appeals has jurisdiction of this appeal pursuant to 28 U.S.C. §
1291. So long as the dismissal order was not stipulated to, and the trial court did not retain
jurisdiction, there is an argument that the order is final and may be appealed. In this instance
the dismissal was after Summary Judgement.

STATEMENT OF QUESTIONS
Whether Florida 4th DCA would have Jurisdiction over the Order Appealed when the Court
later entered an Order to Vacate and Dismiss the Summary Judgement (Appealed Order) ?

STATEMENTS OF FACTS
Appellant takes issue with due process, applied procedural and legal errors occurring before
the Summary Judgement adjudication. The Judge, and Covid-19 related constraints restricted
the Appellant's ability to question whitnesses fundamental to the case. Apellant doubts the
sincerity of de law.

Firm Tromberg which allegedly tricked the Broward Clerk of Courts by reopening the 2010
Foreclosure Case and alleged they were Wachovia Mortgage (which is defunct); and received
the Note & Mortgage. Appellant objected and appealed because the law firm new to the
Appellant. Within three months, Tromberg Law Group had filed this current case and currently
operating under the name, Wilmington Trust, without any admissible evidence of legal rights
to the note. Besides filing the June 20, 2019 claim, Tromberg Law Group attached an undated
allonge that was not on the note while it was in the possession of the Broward Clerk of Courts.
Also, Tromberg Law Group attached a totally different assignment of the mortgage not
previously introduced in their February 28, 2020 affidavit in support of Summary Judgement.
The Appellant remains unconvinced on the actual identity of Tromberg Law Group and who
they represent. These are voidable orders. Appellant feels Tromberg Law Group is committing
a fraud on the Court, and subsequently seeks appellate consideration.

ARGUMENTS (I & II) PRESERVATION OF ERROR, STANDARD OF

REVIEW, CLEAR ERROR, ABUSE OF DISCRETION
When a plaintiff sues a defendant, counsel have to establish the plaintiff's right to appeal given
that courts of appeals have jurisdiction to review only certain types of decisions by district
courts. Under 28 U.S.C. § 1291, courts of appeals may review only “final decisions” of the
district courts. Hence there is no final decisions if a plaintiff voluntarily dismisses a defendant
Without prejudice, because the plaintiff is “entitled to bring a later suite on the same cause of
action” Ryan v. Occidental Petroleum Corp. 577 F.2d 298, 302(5th Cir. 1978). In Shields v. Flinn,
528 So. 2d 867. 968 (Fla. 3d DCA 1988), it was held that rule 1.540 “provides for the review of
final judgments, orders, and decrees only. For want of a "final decision", a court of appeal may
dismiss a claim under 28 U.S.C. § 1291. Williams v. Taylor-Seidenbach, Inc. (Williams I), 748 F.
App'x 584, 587-88 (5th Cir. 2018). Rule 41(a) allows plaintiffs to voluntarily dismiss "an action."
Nat'l City Golf Fin. v. Scott, 899 F.3d 412, 415 n.3 (5th Cir. 2018).

Dismissing a case "without prejudice" does not necessarily prevent an order from being
appealed as a matter of right. So long as the dismissal order was not stipulated to, and the trial
court did not retain jurisdiction, there is an argument that the order is final and may be
appealed. An order that dismisses an action without prejudice to the party refiling the
complaint after exhausting all available administrative remedies may be considered a final
order where it appears that the trial court intended the plaintiff to pursue his or her claim in a
different forum or proceeding. Hollingsworth v. Brown, 788 So. 2d 1078 (Fla. 1st DCA 2001). An
order dismissing without prejudice may also be considered a final order where the dismissal
was based on a legal flaw that cannot be corrected by an amended complaint, such as a
determination in a breach of contract action that the agreement lacked the consideration
necessary to create a binding contract, Peterson Homes, Inc. v. Johnson, 691 So. 2d 563 (Fla.
5th DCA 1997), or where the court determines that the claim is barred by collateral estoppel
principles, Markwood Invs. Ltd. v. Latam Invs., LLC, 40 Fla. L. Weekly D2488 (Fla. 3d DCA Nov.
4, 2015).

In Michigan
In City of Detroit v Michigan, 262 Mich App 542; 686 NW2d 514 (2004). The Court explained
that dismissing claims without prejudice creates the possibility of "piecemeal" appeals, which
the court rules are designed to prevent:

The parties' stipulation to dismiss the remaining claims without prejudice is not a final order
that may be appealed as of right; it does not resolve the merits of the remaining claims and, as
such, those claims are "not barred from being resurrected on that docket at some future
date." In Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 136; 624 NW2d 197 (2000). The
parties' stipulation to dismiss the remaining claims was clearly designed to circumvent trial
procedures and court rules and obtain appellate review of one of the trial court's initial
determinations without precluding further substantive proceedings on the remaining claims.
This method of appealing trial court decisions piecemeal is exactly what our Supreme Court
attempted to eliminate through the "final judgment" rule

The Court of Appeals has reached a similar result in cases involving dismissals without
prejudice in favor of arbitration, so long as the trial court does not retain jurisdiction. See
Rooyaker & Sitz, PLLC v Plante & Moran, PLLC, 276 Mich App 146,; 742 NW2d 409 (2007)
("Because there was nothing left for the trial court to decide and it did not state that it was
retaining jurisdiction [when it dismissed the case in favor of arbitration, we conclude that the
trial court's order was a final order appealable as of right.").

RELIEF REQUESTED
Pursuant to Fla. R. App. P. 9.110 (a)(2)(A); Art. V, sec. 3 (b)(3) Fla Const.; jurisdiction of the
Court may be sought to review orders of a lower Court that consist of error or need for
appellate action. For the foregoing reasons, Appellant respectfully states this Court has
jurisdiction over the orders appealed in determination of the trial Courts jurisdiction and
denied due process which created prejudice in the ability to defend the case; the ability to
finish discovery, depose essential witnesses relating to the issue of standing; to even allow
Hearing on cost, fees allege expenses, reasonable Attorney fees; and reverse the trial court's
ruling and dismiss with prejudice; and to return Appellant back to the position Plaintiff was in
before the Judgement or the proper remedy this Court deems just.

CERTIFICATE OF SERVICE
I CERTIFY that a true copy of the foregoing has been emailed
this__________________________________________________________________________
_________________________________________________________________

CERTIFICATE OF WORD COUNT

The text of this abstract, including footnotes, consists of 1.515 words, counted by Word
Perfect 2020, the word processing program used to generate the abstract.

Date: January 06, 2021

CELLI MARCOS ARIEL

ATTORNEY