FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 12, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-10371

Non-Argument Calendar

________________________

D. C. Docket No. 04-01822-CV-ORL-19-DAB

RAYMOND J. CASCELLA, 

MANOS INC., 

A Florida Corporation, 

ROLAND CARLSON, 

Plaintiffs-Appellants, 

versus 

CANAVERAL PORT DISTRICT, 

as provided by Florida Senate Bill No. 3040 

CHAPTER 95-465, LAWS OF FLORIDA doing business 

as Canaveral Port Authority, 

RODNEY S. KETCHAM, 

RAYMOND P. SHARKEY, 

DONALD N. MOLITOR, 

RALPH J. KENNEDY, 

Commissioners in their individual and official 

capacities, et al., 

Defendants-Appellees. 
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________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(September 12, 2006)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:

Proceeding pro se, Raymond J. Cascella and Roland Carlson, along with

Manos, Inc., through counsel, appeal from the district court’s dismissal of

Cascella’s claims of bankruptcy fraud and fraud, and the grant of summary

judgment in favor of the defendants as to the plaintiffs’ claims under 42 U.S.C.

§ 1983 and their state law claims of replevin, ejectment and conversion. 

The present dispute arose after Cascella leased property located in Cape

Canaveral, Florida, from Canaveral Port Authority (“CPA”) in 1991. Manos, Inc.

and Carlson later became subtenants of Cascella. The lease between CPA and

Cascella specified that Cascella would pay all ad valorem taxes levied on the

premises for the duration of his lease. It also stated that Cascella was not to

“remove any personal property or fixtures from the leased premises if there is any

monetary amount due [CPA] from [Cascella] upon expiration or termination of the

[l]ease” because “[s]uch property and fixtures shall be security to [CPA] for
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payment of any monies due [CPA].” 

Cascella ultimately failed to pay ad valorem taxes on the property and CPA

filed suit. In Cascella v. Canaveral Port Authority, 827 So.2d 308, 309-10 (Fla. 5th

DCA 2002), an order of eviction in the matter was affirmed. Previously, while the

eviction proceedings were pending, Cascella was also in federal bankruptcy

proceedings, first under Chapter 13 and then under Chapter 7. However, the

bankruptcy stay was lifted and the state court eviction proceeded to final judgment

and affirmance on appeal. Cascella’s appeal of the bankruptcy order was denied

and the district court affirmed the bankruptcy court order. Thereafter, Cascella

filed approximately seven actions with various state and federal courts raising

issues related to the matters litigated in both the eviction and bankruptcy

proceedings. 

In the present action, the district court dismissed Cascella’s claims of

bankruptcy fraud and fraud, and granted summary judgment in favor of the

defendants as to the plaintiffs’ claims under § 1983, and as to their state law claims

of replevin, ejectment and conversion.

On appeal, the plaintiffs raise numerous arguments. The plaintiffs contend

that the district court’s dismissal of the bankruptcy fraud and fraud claims was in
In dismissing Cascella’s fraud and bankruptcy fraud claims, the district court construed 1

them as a motion for relief from a final judgment under Fed.R.Civ.P. 60(b)(3), and determined

that the motion should be brought in the court where the alleged fraud occurred. Cascella cited

no specific legal basis for his fraud claims, and does not dispute the characterization of these

claims as a motion for relief from a final judgment under Fed.R.Civ.P. 60(b)(3) based upon

fraud. See Fed.R.Civ.P. 60(b)(3). 

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error. They also argue that the district court erred in granting the defendants’ 1

motion for summary judgment based upon the determination that Cascella's

eviction action was not illegally removed from federal bankruptcy court to state

court without an order of remand, citing 28 U.S.C. §§ 1452, 1446 and 1447. They

also contend that the district court erred in granting summary judgment as to their

§ 1983 claim because CPA violated their equal protection and due process rights

by seizing their property. 

Cascella and Manos, Inc. contend that the district court erroneously

determined that they failed to comply with Fla. Statute 768.28(6), which required

that they present their state law claims in writing to the Department of Financial

Services before they could maintain them in court. Apparently in connection with

the district court’s dismissal of the replevin claim, Carlson and Manos, Inc.

contend that they were “not in privity of contract” with Cascella, and that CPA had

“no right to seize their removable property” because there was not a judgment

issued against them. 

In connection with the district court’s grant of summary judgment as to his
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claim for conversion, Cascella argues that the court’s determination that a metal

building on the leased property was a “fixture” was erroneous because the building

was removable. Finally, Cascella argues that the district court abused its discretion

by not “considering the rights of the debtor and the estate during bankruptcy.” 

Each argument is considered in turn.

I. Fraud and Bankruptcy Fraud

We review the grant of a motion to dismiss de novo, taking the facts alleged

in the complaint as true and construing them in favor of the plaintiff. Williams v.

Bd. of Regents of Univ. Sys. of Ga., 441 F.3d 1287, 1295 (11th Cir. 2006). 

Under Fed.R.Civ.P. 60(b)(3) a party may be relieved from a final judgment

if that judgment was obtained by fraud, misrepresentation, or other misconduct. 

Fed.R.Civ.P. 60(b)(3). “A motion [under Rule 60(b)] for relief from final

judgment must be filed in the district court and in the action in which the original

judgment was entered.” Bankers Mortg. Co. v. United States, 423 F.2d 73, 78

(5th Cir. 1970). 

 Because the alleged fraud and bankruptcy fraud took place during

bankruptcy proceedings, and Cascella’s claim was in effect a challenge to the

bankruptcy court’s judgment, such a Rule 60(b) motion should have been filed in

the bankruptcy court. The district court’s dismissal of Cascella’s claims of fraud
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and bankruptcy fraud was appropriate. See Bankers Mortg. Co., 423 F.2d at 78.

II. Section 1983 Claim

We review a district court’s grant of summary judgment de novo, applying

the same legal standards used by the district court. Harris v. Coweta County, 433

F.3d 807, 811 (11th Cir. 2005). Summary judgment is appropriate if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex

v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). 

We view the evidence and all factual inferences therefrom in the light most

favorable to the party opposing the motion, and all reasonable doubts about the

facts are resolved in favor of the nonmovant. Burton v. City of Belle Glade, 178

F.3d 1175, 1187 (11th Cir. 1999).

In relevant part, 42 U.S.C. § 1983 states:

Every person who, under color of [state law] . . . subjects, or

causes to be subjected, any citizen of the United States . . . 

to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other

proper proceeding for redress.

42 U.S.C. § 1983. 

We also review de novo whether a lawsuit is barred by the doctrine of
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res judicata. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999). 

Res judicata bars a plaintiff from bringing a subsequent lawsuit when four

requirements are met: (1) there was a final judgment on the merits; (2) the decision

was rendered by a court of competent jurisdiction; (3) the parties, or those in

privity with them, are identical in both suits; and (4) the same cause of action is

involved in both cases. Ragsdale, 193 F.3d at 1238. As to the fourth prong, if a

case arises out of the same nucleus of operative fact or is based upon the same

factual predicate as a former action, the two cases are considered to be the same

cause of action. Id. at 1239. 

Here, the district court cited three bases in granting summary judgment as to

the § 1983 claim. First, it determined that the alleged constitutional violations

were barred by the doctrine of res judicata because the plaintiffs “had ample

opportunity to raise these issues . . . before the Bankruptcy Court and state trial

court,” but chose not to do so. Second, it found that the defendants were legally

entitled to hold the plaintiffs’ personal property if there was any monetary amount

due. Third, it found no authority to support a finding that the actions alleged by

the plaintiffs gave rise to a cause of action under § 1983. 

First, the district court’s determination that the issues raised in the §1983

claim were barred by the doctrine of res judicata was correct given the ruling in
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Cascella v. Canaveral Port Authority, 827 So.2d 308, 309-10 (Fla. 5th DCA 2002).

See Ragsdale, 193 F.3d at 1238. Though not relied upon by the district court, we

also note that Cascella raised similar or related claims in approximately seven 

subsequent filings as well. 

Second, even assuming that the claim was not barred, the district court was

correct that the plaintiffs’ constitutional rights were not violated by the defendants’

seizure of the property and termination of the leasehold interest in light of the

terms of the lease and the order of eviction affirmed in Cascella, 827 So.2d at

309-10. 

Third, the plaintiffs failed to specify in the district court or on appeal any

basis for their argument that the defendants’ actions gave rise to a cause of action

under § 1983, and no such basis is apparent. Based upon the foregoing, the district

court did not err in granting the defendants’ motion for summary judgment as to

this claim.

III. State Law Claims

In granting summary judgment as to the plaintiffs’ state law claims of

replevin, ejectment, and conversion, the district court determined that even if they

met the requirements of Fla. Statute 768.28(6), they still would not have been

entitled to relief because they had no legally cognizable interest in the claimed
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property. The plaintiffs do not dispute this determination on appeal. Indeed, the

district court correctly determined that (1) the lease provided that CPA could retain

any personal property of Cascella for amounts due to it, as lessor, (2) the Fifth

District Court of Appeal found in Cascella, 827 So.2d at 309-10, that ad valorem

taxes were part of the rent, and (3) CPA was owed $80,000 in ad valorem taxes. It

also correctly noted that the plaintiffs failed to show that the $80,000 in ad valorem

taxes due had been paid. Because the grant of summary judgment was proper on

this ground, we decline to specifically consider whether the plaintiffs met state

procedural filing requirements.

IV. Sublessees’ No-Privity Claim

Under Florida landlord-tenant law a sublessee can take no greater rights in

the property than its sublessor. Bobo v. Vanguard Bank and Trust Co., Inc., 512

So.2d 246, 247 (Fla. 1st DCA 1987). For example, where a “master lease [is]

cancelled as a result of the default of the lessee in not paying the property taxes . . .

the sublease [falls] as a matter of law, and the sublessee should [be] evicted.” Thal

v. S.G.D. Corp., 625 So.2d 852, 853 (Fla. 3d DCA 1993). 

As an initial matter, we note that the district court granted summary

judgment as to the replevin claim, first, based upon a finding that it was barred by

the doctrine of res judicata. For the same reasons as set forth, supra, and because,
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as set forth more fully below, Carlson and Manos, Inc. were in privity of contract

with Cascella, this claim is also barred by res judicata. See Ragsdale, 193 F.3d at

1238. 

Even assuming arguendo that the replevin claim was not barred by the

doctrine of res judicata, there was no error as the determination that CPA did not

wrongfully seize Carlson and Manos, Inc.’s property. Specifically, because

Cascella’s property was subject to seizure under the contract, there was no error in

CPA’s seizure of the property of the sublessees as well. See Bobo, 512 So.2d at

247. 

V. Conversion Claim – Fixture Argument

Under Florida law, a “fixture” is chattel that has been physically annexed to

realty with the intent of making it part thereof, and that is not removable without

injuring the freehold. Greenwald v. Graham, 130 So. 608, 610 (Fla. 1930).

For the same reasons set forth previously, Cascella’s claim of conversion

was barred by the doctrine of res judicata. See Ragsdale, 193 F.3d at 1238. 

Even assuming arguendo that this claim were not barred, the district court

did not err in its determination as to the characterization of the building at issue. 

Specifically, Cascella testified that the building was two stories tall, made of metal,

and bolted to a concrete slab. He also testified that the building was present on the

property when he entered into the lease agreement. Based upon these facts, there
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was no error as to the district court’s determination that the building had been

physically annexed to realty with the intent of making it part thereof. See Graham,

130 So. at 610. 

VI. Cascella’s Rights of Debtor

Cascella argues for the first time on appeal that the district court ignored his

rights as a debtor in bankruptcy by failing to recognize a bankruptcy discharge of

debts.

We do not consider arguments raised for the first time on appeal unless one

of five exceptions is met. Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994). 

The exceptions are: (1) the issue involves a pure question of law and refusal to

consider it would result in a miscarriage of justice; (2) the appellant is raising an

objection to an order which he had no opportunity to raise at the district court

level; (3) the interest of substantial justice is at stake; (4) the proper resolution is

beyond any doubt; or (5) the issue presents significant questions of general impact

or of great public concern. Narey, 32 F.3d at 1526-27. 

As an initial matter, for the same reasons set forth above, this argument

appears to have been barred by the doctrine of res judicata. See Ragsdale, 193

F.3d at 1238. In any event, Cascella did not raise this argument in the district

court. Because none of the exceptions are met, we decline to consider this

argument as an initial matter. See Narey, 32 F.3d at 1526-27.
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Alternatively, to the extent that the district court impliedly rejected this

argument, there was no error. Specifically, the record shows that, under the terms

of the lease, CPA was entitled to retain “personal property or fixtures from the

leased premises if there is any monetary amount due [CPA] from [Cascella] upon

expiration or termination of the [l]ease.” Further, a Florida court ordered

Cascella’s eviction, and he failed to allege in the district court that he thereafter

had discharged the $80,000 debt. Accordingly, the district court did not err in this

respect.

Based upon the foregoing, we affirm the district court’s dismissal of

Cascella’s bankruptcy fraud and fraud claims, and its grant of summary judgment

as to the plaintiffs’ remaining claims.

AFFIRMED.