James F. Lapinski v. St. Croix Condominium Association, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 21, 2018
• Docket: 17-12872
• Status: Unpublished

Opinion

Case: 17-12872 Date Filed: 06/21/2018 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12872 Non-Argument Calendar ________________________

D.C. Docket No. 6:16-cv-01418-PGB-GJK

JAMES F. LAPINSKI,

Plaintiff-Appellant,

versus

ST. CROIX CONDOMINIUM ASSOCIATION, INC., ESTATE OF DOUGLAS COOK, FIFTH DISTRICT COURT OF APPEALS OF FLORIDA, FLORIDA SEVENTH CIRCUIT COURT, STATE OF FLORIDA, VOLUSIA COUNTY, DAYTONA BEACH SHORES, FL, ESTATE OF MICHEAL KENNEDY, et al.,

Defendants-Appellees,

STEPHEN J. GUARDINO, et al.,

Defendants. Case: 17-12872 Date Filed: 06/21/2018 Page: 2 of 11

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(June 21, 2018)

Before WILSON, WILLIAM PRYOR and JORDAN, Circuit Judges.

PER CURIAM:

James Lapinski appeals pro se the dismissal with prejudice of his amended

complaint. Lapinski complained about adverse rulings by judges of the Seventh

Circuit Court of Florida and of the Fifth District Court of Appeals; state court

judgments in favor of the St. Croix Condominium Association, Inc., its manager

and board members, its contractors, and the developer (“the Association”); and

violations of the Racketeer Influenced and Corrupt Organizations Act by the

Association, the State of Florida, its judges, Volusia County, Daytona Beach

Shores, and attorney Steven Guardiano, 18 U.S.C. § 1962(c). The district court

dismissed Lapinski’s complaint for lack of subject matter jurisdiction based on

judicial immunity, sovereign immunity, and the Rooker-Feldman doctrine and for

failure to state a claim under the Racketeer Act. The district court also sanctioned

Lapinski for filing his complaint in bad faith and awarded the Association more

than $5,000 in attorney’s fees. We affirm, sanction Lipinski for this frivolous

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appeal, and remand for the district court to determine a reasonable attorney’s fee

for the defense of this appeal.

I. BACKGROUND

In his amended complaint, Lapinski collaterally attacked judgments of the

Florida courts. Lapinski complained that, in 2015, he sued the Association,

attorney Guardiano, Daytona Beach, the County, and the State for allegedly

stealing from condominium owners more than $76,000 to repaint a small parking

lot and for allegedly giving kickbacks to contractors. Lapinski alleged that Judge

William A. Parsons of the Seventh Judicial Circuit “denied or illegally ignored”

the lawsuit for several months, issued “very erroneous orders,” and held hearings

that constituted “racketeering and corruption of Justice in violation of U.S. Code

470, RICO.” According to Lipinski, Judge Parsons dismissed the action and

declared Lipinski and his wife vexatious litigants because they filed “several

serious causes of action . . . [involving] the illegal foreclosure of [his] condo” and

$2 million in construction defects in the St. Croix condominiums. Lapinski alleged

that the Association, the County, the “5[th] D[istrict] C[ourt] and 7th Circuit Court

refused illegally . . . to litigate [the] major construction defects” and instead

“collected a[] ‘Special Assessment’ of . . . $236,000.00, some of which [they]

stole[]” and that Daytona Beach and the State issued a “premature, illegal

Certificate of Occupancy” for the condominiums.

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Lapinski also alleged that the Association, the County, and “individuals . . .

crippled and disabled [him] permanently in the Volusia County Jail” and that the

“D[istrict] C[ourt] refused to litigate this,” which amounted to “a RICO violation.”

Lapinski further alleged that “there was corruption between [the] 5[th] D[istrict]

C[ourt] and Circuit Court and Florida Attorneys”; the “Circuit Court refused all of

Lapinski’s many legal discovery motions . . . [but] always granted

Defendants/Appellees ‘fact information sheets’”; “dishonest judges in Circuit

[Court] awarded $80,000 in fees [and] costs”; and the state courts “HATE Pro se

litigants” and “collude to deny access to the Florida Courts” in violation of the

Racketeer Act “and other Federal Statutes and Law.”

The defendants moved to dismiss the complaint, and the Association also

moved for sanctions, Fed. R. Civ. P. 11. The Association argued that Lipinski’s

complaint was frivolous and sought to relitigate suits he had already lost, and the

Association requested that the district court sanction Lipinski, enjoin him from

filing future pleadings without prior permission, and reimburse the Association for

its attorney’s fees. Attachments to the motion established that, in 2011, Lapinski

filed a complaint in a Florida court alleging that the Association, the County, the

State, and others committed theft and failed to repair construction defects; a

Florida court dismissed the complaint with prejudice; and the state appellate court

affirmed per curiam. The attachments also established that, in 2015, Lapinski

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complained that attorney Guardiano, Daytona Beach, the Association, the County,

and others were liable for defects in construction in the St. Croix condominiums,

had collected illegal assessments, and had given kickbacks to contractors; that a

Florida court dismissed the complaint with prejudice and identified the Lapinskis

as “vexatious litigants”; and that the state appellate court affirmed. The

Association also attached copies of similar actions that Lapinski had filed against

another homeowners association and of a judgment of forfeiture in favor of that

association.

The district court adopted the recommendations of a magistrate judge to

dismiss Lapinski’s amended complaint with prejudice and to sanction him. The

district court ruled that Lapinski had filed his complaint in bad faith and gave the

Association 30 days to submit a motion for attorney’s fees. Lapinski filed a notice

of appeal challenging the dismissal of his amended complaint.

The district court also adopted the recommendation of the magistrate judge

to award the Association $5,365.75 in attorney’s fees. Lapinski moved to stay the

order awarding attorney’s fees and to sanction the Association, but the district

court denied the motion. Lapinski filed a similar motion to strike in this Court,

which we also denied.

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II. STANDARDS OF REVIEW

Two standards of review govern this appeal. We review de novo the

dismissal of a complaint for lack of jurisdiction based on the Rooker-Feldman

doctrine, Doe v. Fla. Bar, 630 F.3d 1336, 1340 (11th Cir. 2011), and the “dismissal

of [a] civil RICO claim for failure to state a claim,” Ambrosia Coal & Const. Co. v.

Pages Morales, 482 F.3d 1309, 1316 (11th Cir. 2007). We review the imposition

of sanctions for abuse of discretion. Peer v. Lewis, 606 F.3d 1306, 1311 (11th Cir.

2010). A district court abuses its discretion by imposing sanctions only if the ruling

is contrary to the law or involves a clearly erroneous finding of fact. Id.

III. DISCUSSION

Lapinski challenges the dismissal of his amended complaint based on the

Rooker-Feldman doctrine and argues that he alleged viable “causes of action [for]

negligence,” violations of section 718.671 of the Florida Statutes and the Racketeer

Act, and “breaches of warranties [and of the] St. Croix Condominium, Inc. . . .

Declaration of Condominium.” The State and the judges of the Seventh Circuit

Court and the Fifth District Court respond that the district court correctly dismissed

Lipinski’s complaint because they were immune from liability and because he

sought federal court review of state court judgments. And the Association and

Volusia County defend the dismissal of Lapinski’s claims against them based on

the Rooker-Feldman doctrine and for failure to state a claim under the Racketeer

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Act. We address in turn the parties’ arguments and the frivolity of Lipinski’s

appeal.

Lapinski has abandoned any challenge that he could have made to the

dismissal of his claims against the State, its courts, and its judges. “While we read

briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se

litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.

2008) (internal citations omitted). Lipinski does not dispute that the State and its

courts enjoy sovereign immunity under the Eleventh Amendment. See Regents of

the Univ. of Calif. v. Doe, 519 U.S. 425, 429 (1997). Lapinski also does not dispute

that the state court “[j]udges are entitled to absolute judicial immunity from

damages for those acts taken while they are acting in their judicial capacity.” See

Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000).

The district court lacked jurisdiction to adjudicate claims that Lapinski

litigated in the Florida courts. Under the Rooker–Feldman doctrine, a district court

lacks subject matter jurisdiction to review the final judgment of a state court.

Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16 (1923); D.C. Court of Appeals

v. Feldman, 460 U.S. 462, 476–82 (1983). Lipinski challenged the validity of the

state court judgment in 2015 that dismissed claims against the Association and

other defendants for the defective construction of the condominium, collecting

illegal assessments, and giving kickbacks to contractors. The judgment that

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rejected Lapinski’s claims became final, under Florida law, when affirmed in a per

curiam opinion issued by the District Court of Appeals. See Jenkins v. State, 385

So. 2d 1356, 1359 (Fla. 1980). And because the Supreme Court of Florida lacks

jurisdiction to review a per curiam decision, Wells v. State, 132 So. 3d 1110, 1112–

14 (Fla. 2014), the state proceeding had ended for purposes of determining

jurisdiction under the Rooker-Feldman doctrine because “the highest state court in

which review [was] available [had] affirmed . . . and nothing [was] left to be

resolved,” Nicholson v. Shafe, 558 F.3d 1266, 1275 (11th Cir. 2009). The claims

that Lapinski raised in his amended complaint were “actually adjudicated by a state

court” and could not be reviewed by the district court. See Target Media Partners

v. Specialty Mktg. Corp., 881 F.3d 1279, 1286 (11th Cir. 2018).

The Rooker-Feldman doctrine also deprived the district court of jurisdiction

to adjudicate Lapinski’s claims that the state courts “refused to litigate” his cases,

denied his motions for discovery, were corrupt, and “collude[d] to deny [him]

access to the Florida Courts.” Success on these claims “would effectively nullify

the state-court judgment[s]” or reveal “that the state court[s] wrongly decided the

issues” in Lapinski’s state court proceedings. See id. Lapinski’s attacks on the state

judiciary are subject to the Rooker-Feldman doctrine because they constitute

“complain[ts] of injuries caused by state-court judgments rendered before the

district court proceedings commenced and [an] invit[ation] . . . [to] review and

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reject[] . . . those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544

U.S. 280, 284 (2005).

To the extent that Lapinski alleged that the defendants violated the

Racketeer Act, his complaint failed “to state a claim to relief that [was] plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To state a claim under the

Act, a plaintiff must allege that the defendants operated or managed an enterprise

through a pattern of racketeering activity that included at least two racketeering

acts. Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1348 (11th Cir. 2016). Such a

claim must be plead with specificity, as required by Federal Rule of Civil

Procedure 9(b), and identify “(1) the precise statements, documents, or

misrepresentations made; (2) the time and place of and person responsible for the

statement; (3) the content and manner in which the statements misled the

Plaintiff[]; and (4) what the Defendants gained by the alleged fraud.” Ambrosia

Coal, 482 F.3d at 1316–17. Lapinski alleged no facts establishing that an enterprise

existed, that the defendants engaged in a pattern of misconduct, or that they

committed an act of racketeering. And Lapinski alleged no facts suggesting that he

was defrauded by any defendant. Lipkinski’s amended complaint, which contained

only “naked assertions [that the defendants had committed racketeering and

corruption and was otherwise] devoid of . . . factual enhancement,” Ashcroft, 556

U.S. at 678, failed to plead a claim under the Act.

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Lapinski argues, for the first time on appeal, that dismissal was inappropriate

because he alleged a “cause[] of action [for] negligence,” a violation of section

718.671 of the Florida Statutes, and “breaches of warranties” and of the

“Declaration of Condominium,” but we disagree. We will not consider new fact-

intensive theories of liability that Lipinski never presented to the district court. See

Blue Martini Kendall, LLC v. Miami Dade Cty. Fla., 816 F.3d 1343, 1349 (11th

Cir. 2016). Lapinski offers no excuse for failing to include the theories in his

amended complaint.

The Association requests that we sanction Lapinski for pursuing a frivolous

appeal. See Fed. R. App. P. 38. Rule 38 states, “If a court of appeals determines

that an appeal is frivolous, it may, after a separately filed motion or notice from the

court and reasonable opportunity to respond, award just damages and single or

double costs to the appellee.” Id. Because Lapinski’s challenges to the dismissal of

his amended complaint are “utterly devoid of merit,” Bonfiglio v. Nugent, 986 F.2d

1391, 1393 (11th Cir. 1993), and he was sanctioned by the district court for filing a

complaint that was “without warrant and frivolous” after the state court declared

him a “vexatious litigant,” we award to the Association double costs and

reasonable attorney’s fees incurred as a result of this appeal. We remand this action

for the district court to determine the amount of attorney’s fees reasonably incurred

by the Association and to assess that amount against Lipinski.

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Lipinski requests that we review the order awarding attorney’s fees to the

Association, but we lack jurisdiction to do so. Lipinski filed his notice of appeal

before the district court awarded attorney’s fees to the Association, so his notice of

appeal did not encompass the award. See LaChance v. Duffy’s Draft House, Inc.,

146 F.3d 832, 838 (11th Cir. 1998). Because Lipinski failed to file a notice of

appeal that mentioned the order awarding attorney’s fees or to amend his notice of

appeal to include the order, we cannot review the order. Id. To the extent Lipinski

requests by motion that we review the order, that motion is denied.

IV. CONCLUSION

We AFFIRM the dismissal of Lapinski’s amended complaint, we AWARD

SANCTIONS to the Association under Rule 38, and we REMAND for the district

court to determine a reasonable fee for the defense of this appeal.