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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
SECOND DISTRICT ____________________
APPEAL NO.: 2D14-1511CASE NO.: 00- 005682-CI-78
____________________
KENNAN G. DANDARand DANDAR & DANDAR, P.A.,
Appellants,
versus
CHURCH OF SCIENTOLOGYFLAG SERVICE ORGANIZATION, INC.,
Appellee. __________________________________
Appeal from the Circuit Court in and for Pinellas County, Floridato the Second District Court of Appeal
__________________________________
AMENDED INITIAL BRIEF OF APPELLANTS ____________________________
THOMAS JOHN DANDAR, ESQ.
Florida Bar No. 434825DANDAR & DANDAR, P.A.
5509 West Gray Street, Suite 201Tampa, Florida 33609 (813) 289-3858
Attorney for Appellants
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The Global Settlement Agreement specifically provides that the sum paid by Scientology3
is only for the wrongful death damages of Lisa McPherson. (App.4).
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The claimed damages are allegedly incurred due to an alleged breach of a
Global Confidential Settlement Agreement involving a multitude of failed litigation
brought by Scientology against the Estate, its Personal Representative, or Dandar. Thecourt determined after the federal Brennan suit was filed, that the Global Confidential
Settlement Agreement included a restriction on the practice of law.
The judgment awards Scientology for imposing an illegal and unethical
restriction on the practice of law, directly contrary to Rule 4-5.6(b), R. Reg. Fla. B .,
and an unlawful restraint of trade in violation of 542.18 and 542.33. Fla. Stat .,
which should subject Scientology and its counsel to civil and criminal penalties. The
circuit court chose not to enforce Florida law, Florida Bar Rules, Florida Rules of
Civil Procedure, or black-letter case law of the U.S. Supreme Court, the Florida
Supreme Court, and all of the Florida District Courts. Instead, the court predicated
subject matter jurisdiction wholly on the Global Settlement Agreement, and the desire
for Scientology to reap the benefit of its bargain for its payment of wrongful death
damages to the Estate of Lisa McPherson in justifying the restriction on the practice3
of law, the violation of civil and criminal Florida statutes, and the utilization of Rule
1.730( c), Fla. R. Civ. P , where it clearly does not apply.
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QUESTIONS PRESENTED
1. WHETHER THERE IS COMPLETE ABSENCE OF JURISDICTION IN THECIRCUIT COURT WHERE:
a. State Court Jurisdiction is Preempted by the Supremacy Clause of the
U.S. Constitution, as Mandated by the U.S. Supreme Court.
b. The Circuit Court Based its Jurisdiction on the Settlement Agreement,
Which is Specifically Untenable.
c. No Pleading was Filed to Invoke the Jurisdiction of the Circuit Court.
d. The Motion upon which the Final Judgment is Based was Not Filed with
the Clerk of Court.
e. There was No Process or Service of Process to Invoke the Jurisdiction of
the Circuit Court.
f. A Joint Dismissal With Prejudice Divested the Circuit Court of
Continuing Jurisdiction to Consider the Motion and Enter Orders.
2. WHETHER THE CIRCUIT COURTS IMPOSITION OF A RESTRICTIONON THE PRACTICE OF LAW IS UNLAWFUL AND UNETHICALPURSUANT TO:
a. Rule 4-5.6(b), R. Reg. Fla. Bar , which provides that any restriction on a
lawyers right to practice as part of a settlement agreement is void and
unenforceable.
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b. 542.18 and 542.33, Fla. Stat., which provides that any contract,
combination, or conspiracy in restraint of trade or profession is unlawful.
3. WHETHER THE CIRCUIT COURT ERRED IN IMPOSING SANCTIONSPURSUANT TO RULE 1.730( C ), FLA. R. CIV. P ., WHERE:
a. The Rule only applies to a party, as recognized by this Court
b. The party must be court-ordered to mediation
c. The case must be a pending case.
d. The court is required to make specific findings of bad faith by the party
for not fulfilling the executory requirements of a mediation agreement.
e. Sanctions cannot be imposed for actions occurring outside of the
litigation.
f. The mediation agreement must be signed by the party to be enforceable
g. Sanctions for breaching a mediation agreement must be reasonable, not
excessive.
4. WHETHER THE DOCTRINE OF ELECTION OF REMEDIES PRECLUDEDTHE CIRCUIT COURT FROM AWARDING DAMAGES TOSCIENTOLOGY AFTER IT ELECTED AN EQUITABLE REMEDY.
5. WHETHER DUE PROCESS RIGHTS, PROPERTY RIGHTS, AND RIGHT
TO TRIAL BY JURY WERE VIOLATED.
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TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iiiTABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
STATEMENT OF THE CASE AND OF THE FACTS . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
THE STANDARD OF REVIEW IS DE NOVO . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
I. THE CIRCUIT COURT IS ACTING IN COMPLETEABSENCE OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A. Subject Matter Jurisdiction is Preempted by theU.S. Constitution as Donovan renders the State
Court Powerless . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
B. Subject Matter Jurisdiction was Not Invoked bya Pleading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
C. Subject Matter Jurisdiction was Not Invoked byProcess and Service of Process . . . . . . . . . . . . . . . . . . . . . . . 25
D. Voluntary Dismissal With Prejudice is a Complete
Divestiture of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
II. THE RESTRICTION ON THE PRACTICE OF LAWVIOLATES 542.18 AND 542.33, FLA. STAT ., ANDRULE 4-5.6(B), R. REG. FLA. BAR., RENDERING ITUNLAWFUL, VOID, AND UNETHICAL . . . . . . . . . . . . . . . . . . . 32
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III. RULE 1.730, FLA. R. CIV. P ., DOES NOTAUTHORIZE THE SANCTIONS IMPOSED . . . . . . . . . . . . . . . . . 36
1. The Rule only applies to a party, as recognized
by this Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372. The party must be court-ordered to mediation . . . . . . . . . . 37
3. The case must be a pending case. . . . . . . . . . . . . . . . . . . . . 38
4. The court is required to make specific findings of bad faith by the party for not fulfilling theexecutory requirements of a mediation agreement . . . . . . . 39
5. Sanctions cannot be imposed for actions occurringoutside of the litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6. The mediation agreement must be signed by the party to be enforceable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7. Sanctions for breaching a mediation agreement must bereasonable, not excessive. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
IV. THE DOCTRINE OF ELECTION OF REMEDIESPRECLUDES DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
V. THE FINAL JUDGMENT VIOLATESDUE PROCESS RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
APPENDIX IS SEPARATELY BOUND
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TABLE OF CITATIONSCASES PAGE
84 Lumber Co. v. Cooper,
656 So.2d 1297 (Fla. 2 DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd
27
Adams v. Bell South Communications, Inc., 2001 WL 34032759 (S.D. Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 40
Albert v. Albert ,36 So.3d 143 (Fla. 3 DCA 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .rd 31
Aldridge v. Peak Prop. & Cas. Ins. Corp., 873 So. 2d 499 (Fla. 2 DCA 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 22
Bartolucci v. McKay ,428 So.2d 378 (Fla. 5 DCA 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 25
B.G.H. Ins. Syndicate, Inc. v. Presidential Fire & Cas. Co. ,549 So.2d 197 (Fla. 3 DCA 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .rd 44
Board of Regents of State Colleges v. Roth ,408 U.S. 564, 577 92 S.Ct. 2701(1972) . . . . . . . . . . . . . . . . . . . . . . . . . 14,45
Boca Burger, Inc. v. Forum ,912 So.2d 561(Fla. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Borden v. EastEuropean Ins. Co. ,921 So.2d 587 (Fla. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Brumby v. City of Clearwater,108 Fla. 633, 149 So. 203 (Fla. 1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Burke v. Esposito ,972 So.2d 1024 (Fla. 2 DCA 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 20
Carroll & Assocs., P.A. v. Galindo ,864 So.2d 24 (Fla. 3 DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .rd 21
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Cesaire v. State ,811 So.2d 816 (Fla. 4 DCA 2002)th . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Chairs v. Burgess,
143 F.3d. 1432 (11 Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th
19Chandris v. Yanakakis ,
668 So.2d 180 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co. ,450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981) . . . . . . . . . . . . . . . . 19
City of Delray Beach v. Keiser ,699 So.2d 855 (Fla. 4 DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 41
Coastal Caisson Drill Company, Inc.v American Casualty Company of Redding, PA, 523 So.2d 791 (Fla. 2 DCA 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 34
Cole v. State ,714 So.2d 479 (Fla. 2 DCA 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 32
Cortina v. Cortina ,
98 So. 2d 334 (Fla. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Corvette Shop & Supplies, Inc. v. Coggins ,779 So.2d 529 (Fla. 2 DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 34
Cox v. Great American Insurance Co.,88 So.3d 1048 (Fla. 4 DCA 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 39
Cox v. Louisiana ,
348 F.2d 750 (5 Cir. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th
18
Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179 (Fla.1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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Dandar v. Church of Scientology Flag Service Organization, Inc ,59 So.3d 144 (Fla. 2 DCA 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 7
Davidson v. Stringer ,
147 So. 228 (Fla. 1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Dean v. Rutherford Mulhall, P.A. ,
16 So.3d 284 (Fla. 4 DCA 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 42
Defreitas v. Defreitas ,398 So.2d 991 (Fla. 4 DCA 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 25
Donovan v. Dallas ,377 U.S. 408 (1964) . . . . . . . . . . . . . . . . . 10,11,12,13,14,15,16,17,18,44,45
Edwards v. Trullis ,212 So.2d 893 (Fla. 1 DCA 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .st 34
Elliott v. Peirsol's Lessee ,26 U.S. 328 (1828) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Elser v. Law Office of James Russ, P.A. ,679 So.2d 309 (Fla. 5 DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 34,40
Estate of Brennan ex rel. Brittonv. Church of Scientology Flag Service Organization, Inc .,645 F.3d 1267 (11 Cir. 2011),th
pet. denied , 132 S.Ct. 1557 (2012) . . . . . . . . . . ii,2,7,8,10,15,32,33,34,35,39
Fiocchi v. Trainello ,566 So.2d 904 (Fla. 4 DCA 1990) . . . . . . . . . . . . . . . . . . . . . . . . .th 12,14,19
Finkelstein v. North Broward Hospital Dist. ,484 So. 2d 1241 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Fisher v. State ,840 So.2d 325 (Fla. 5 DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 31
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In re Estate of Hatcher ,439 So.2d 977 (Fla. 3 DCA 1983) . . . . . . . . . . . . . . . . . . . . . . . . .rd 22, 23,24
Instituto Patriotico Y Docente San Carlos v. Cuban Am. Nat'l Found. ,
667 So. 2d 490 (Fla. 3 DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .rd
22 Insua v. World Wide Air, Inc.,
582 So.2d 102 (Fla. 2 DCA 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 43
Izaak Walton investors, LLC v. Oesterle,51 So.3d 612 (Fla. 1 DCA 2011)st . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Jesse v. State, Dept of Revenue ,711 So.2d 1179 (Fla. 2 DCA 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 30
Johnson v. Bezner, 910 So. 2d 398 (Fla. 4 DCA 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 39
Krivitsky v. Nye ,155 Fla. 45, 19 So.2d 563 (Fla. 1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Kokkonen v. Guardian Life Ins. Co. of Am. ,511 U.S. 375 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Lazy Flamingo, USA, Inc. v. Greenfield ,834 So. 2d 413 (Fla. 2 DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 37,38
Levine v. Gonzalez, 901 So. 2d 969 (Fla. 4 DCA 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 31
Lockwood v. Pierce ,730 So.2d 1281 (Fla. 4 DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 23
Lovett v. Lovett ,93 Fla. 611, 112 So. 768 (1927) . . . . . . . . . . . . . . . . . . 21,22,23,24,25,29,32
Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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Mayor's Jewelers, Inc. v. State of Cal. Public Employees' Retirement System ,685 So.2d 904, 908 (Fla. 4 DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . .th 44
Miller v. Fortune Ins. Co. ,
484 So. 2d 1221 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Miller v. Eatmon ,
177 So.2d 523 (Fla. 1st DCA 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Miller v. Preefer ,1 So.3d 1278 (Fla. 4 DCA 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 36
Milliken v. Meyer, 311 U.S. 457 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 n7
N.W.T. v. L.H.D. (In re D.N.H.W.) ,955 So.2d 1236 (Fla. 2 DCA 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 20
ONeal v. Florida A&M University ex rel. Bd. of Trustees for Florida A&M University,
989 So.2d 6 (Fla. 1 DCA 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .st 45
Paulucci v. Gen. Dynamics Corp .,
842 So.2d 797 (Fla. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Pettijohn v. Dade County, 446 So.2d 1143 (Fla. 3d DCA 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 n7
Phillips v. Citibank, N.A.,63 So.3d 21(Fla. 2 DCA 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 27
Pino v. Bank of New York ,
121 So.3d 23 (Fla. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,27,28,29,30
Piper Aircraft Corp. v. Prescott ,445 So. 2d 591 (Fla. 1 DCA 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .st 31
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Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P. ,143 So.3d 1182 (Fla. 4 DCA 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 28
Pro-Art Dental Lab, Inc v. V-Strategic Group, LLC,
986 So. 2d 1244 (Fla. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Randle-Eastern Ambulance Service, Inc. v. Vasta ,
360 So. 2d 68 (Fla. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29,31
Robinson v. Malik ,135 So.2d 445 (Fla. 3 DCA 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .rd 22
Sabine v. Sabine ,834 So.2d 959 (Fla. 2 DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 22
Shurman v. Atlantic Mortg. & Inv. Corp., 795 So.2d 952 (Fla.2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Snider v. Snider ,686 So. 2d 802 (Fla. 4th DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Solimando v. International Medical Centers, H.M.O. ,544 So.2d 1031 (Fla. 2 DCA 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 20,21
Spencer Pest Control Co. of Fla., Inc. v. Smith, 637 So.2d 292 (Fla. 5th DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Sprague v. P.I.A. of Sarasota, Inc. ,611 So.2d 1336 (Fla. 2 DCA 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 27
State v. Chillingworth ,132 Fla. 587, 181 So. 346 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
State v. S.M.G. ,313 So.2d 761 (Fla.1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
State ex rel. Campbell v. Chapman ,145 Fla. 647, 1 So.2d 278 1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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State ex rel. Everette v. Petteway ,131 Fla. 516, 179 So. 666 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
State ex rel. Merritt v. Heffernan,
142 Fla. 496, 195 So. 145 (Fla.1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26State Dep't of Health and Rehabilitative Servs. v. Schreiber,
561 So.2d 1236 (Fla. 4th DCA 1990),rev. denied, 581 So.2d 1310 (Fla.1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Steffens v. Steffens ,593 So.2d 1156 (Fla. 2 DCA 1992)nd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Stone v. Stone,873 So.2d 628 (Fla. 2 DCA 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 21,25
Synchron, Inc. v. Kogan ,757 So. 2d 564 (Fla. 2 DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 21,31
Syvrud v. Today Real Estate, Inc.858 So.2d 1125 (Fla. 2 DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 14
The Florida Bar v. St. Louis ,
967 So.2d 108 (Fla. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Tiede v. Satterfield ,870 So.2d 225 (Fla. 2 DCA 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 14
Warren v. Southeastern Leisure Systems, Inc .,522 So.2d 979 (Fla. 1 DCA 1988) . . . . . . . . . . . . . . . . . . . . . . . . . .st 12,14,19
White Sands, Inc. v. Sea Club V. Condominium Ass'n, Inc .,
591 So.2d 286 (Fla. 2 DCA 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd
14
Williams v. Starnes ,522 So.2d 469 (Fla. 2 DCA 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .nd 20
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-xv-
STATUTES
U.S. Const. art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,45
28 U.S.C. 2253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157.105, Fla. Stat ., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,29
542.18, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii,iv,13,32,34,35,40,45
542.33, Fla. Stat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii,iv,13,32,34,35,36,45
OTHER AUTHORITIES
Florida Bar Ethics Opinion, No. 04-2, 2005 WL 4692972 . . . . . . . . . . . . . 33,35,40
Rule 1.100(a), Fla.R.Civ.P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Rule 1.140(h), Fla.R.Civ.P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,30
Rule 1.420(a)(1) , Fla.R.Civ.P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i,28,30,45
Rule 1.430(a), Fla.R.Civ.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Rule 1.730( c ), Fla.R.Civ.P ., . . . . . . . . . . . . . . i,ii,iv,8,12,15,36,37,38,39,42,45,46
Rule 9.030(b)(1)(A), Fla. R. App. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Rule 4-5.6(b), R. Reg. Fla. Bar , . . . . . . . . . . . . . . . . . . . . . . . ii,iii,3,32,33,35,39,45
Rule 4-5.8(b), R. Reg. Fla. Bar , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32,38
Florida's Third Species of Jurisdiction ,82 Mar Fla.B.J. 10 (J. Scott Stevens) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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The other lawyer was Luke Lirot, who represented the McPherson Estate, Dell Liebreich,4
the Personal Representative, and the Estates lawyers, Kennan Dandar and Dandar & Dandar,P.A., in a case Scientology filed in the Circuit Court in Clearwater, seeking 4 million dollars in
punitive damages for the Estate testing the validity of a stipulation not to add additional partydefendants to the McPherson case. After a two week jury trial, Scientology lost.
Page 1 of 47
STATEMENT OF THE CASE AND OF THE FACTS
In 1997, Dandar was retained by the mother of a dead Scientologist, Lisa
McPherson, to open the estate and file a wrongful death case against the Church of Scientology. After more than seven years of intense litigation, including multiple
suits filed by Scientology, one of which was a state law claim filed against Dandar
and his client in Clearwater, the case was ordered to be mediated for the fifth time.
However, before the court made that order, it inquired as to why the case had not
settled, to which Scientology replied that it would never settle as long as Dandar was
the Estates attorney. The presiding judge, Hon. Robert E. Beach, then removed
Dandar as the Estates leading attorney, without the clients permission, and
appointed another lawyer to represent the Estate. (R.1061-64)(App. 2).4
Although Dandar was not ordered to appear for the McPherson mediation,
since he was no longer lead counsel, he appeared at his clients insistence. At the
beginning of the mediation, F. Wally Pope, counsel for Scientology, announced that
Scientology would not mediate the death case. It insisted on a global settlement,
since it had filed multiple suits and claims in Florida, and one in Texas, against the
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See Docket, (App. 1), showing no filing of this initial motion.5
Page 2 of 47
Estate, including multiple claims in probate court to remove the personal
representative, all of which Scientology lost. Mr. Pope demanded that Dandar sign
an agreement containing a practice restriction. Dandar refused. (R.1402-03)(App.3). Then Mr. Pope substituted that practice restriction with paragraph 5, which
Dandar would only sign as counsel for the estate. (R.1051-53 )(App.4). Thereafter,
releases were signed and voluntary dismissals were filed in all related litigation,
including the McPherson death case, where no order for reservation of jurisdiction
was included. (R. 1-3,568-60; 923-27)(App.5).
Five years later, Dandar was retained by the mother of a dead 20 year old, Kyle
Brennan, both of whom were never Scientologists, to file a wrongful death case
against Scientology and other responsible parties, which he did in the U.S. District
Court, Middle District of Florida, Tampa Division: Estate of Kyle Brennan v. Church
of Scientology Flag Service Organization, Inc ., et al., Case No.:8:09-cv-00264.
In response to this federal filing by Dandar, Scientology sought out the retired
judge who last presided over the McPherson case, Hon. Robert E. Beach, and handed
him the motion for sanctions and damages for Dandar filing the federal case. The
motion, never filed with the clerk of court, not only sought sanctions and damages5
in the form of attorney fees and costs, but also specific performance of paragraph 5
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Page 3 of 47
of the Global Settlement Agreement, alleging that the filing of the federal suit was
a breach of paragraph 5 of the Global Settlement Agreement. (App.4). It reads as
follows:5. The McPherson parties agree to full, permanent disengagement fromthe Scientology parties, including no further anti-Scientology activity,and no involvement in any adversarial proceedings of any descriptionagainst the Scientology parties under any circumstances at any time.The Scientology parties agree to full, permanent disengagement from theMcPherson parties, including no further anti-McPherson party activity,and no involvement in any adversarial proceedings of any descriptionagainst the McPherson parties under any circumstances at any time.
Dandar countered that this paragraph is not a restriction on his practice of law , but
simply a clause to ensure that the McPherson Parties would not sue any responsible
Scientology entity for claims they had at the time the Global Settlement Agreement
was executed, which included causes of action Dandar then had as a person, not as
a lawyer. Dandar also argued that any agreement to restrict a lawyers practice of law
is illegal and not enforceable under Rule 4-5.6(b) of the Rules Regulating the Florida
Bar, and that counsel for Scientology, in advancing this argument is guilty of
violating this very serious Bar Rule. (App.6).
Judge Beach agreed with Scientology and entered the June 10, 2009 Order,
requiring Dandar to cease representation in the federal case. (R. 5-11)(App.7).
Dandar appealed this non-final order, and Judge Beach stayed the order pending
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Page 4 of 47
appeal. (R.16). The order was per curiam affirmed on November 13, 2009. (R.529).
Rehearing and En Banc were denied on December 30, 2009.
Dandar searched for substitute counsel and also obtained a stay in the federalcourt while he searched. However the federal court ended its stay, issuing a schedule
for discovery and trial.
On March 16, 2010, Dandar filed a Notice of Lack of Subject Matter
Jurisdiction. (R.201-03)(App.8). At a hearing on March 24, 2010, Judge Beach
stated that the basis for my invoking jurisdiction is paragraph 8 of the settlement
agreement of May 26, 2004. (R.225, p.29:1-3)(App.9).
On April 12, 2010, the circuit court entered an order denying the Notice of
Lack of Jurisdiction and finding Dandar willfully breached the Global Settlement
Agreement due to his willful failure to withdraw from the federal case, and awarded
Scientology $50,000 as liquidated damages. (R.204-06)(App.10). In that order the
court also awarded a continuing civil penalty of $1,000 per day from April 24, 2010
and continuing for each day thereafter until withdrawal is accomplished as a result
of finding Dandar in willful contempt of the courts prior orders of June 10, 2009, and
February 19, 2010. That same day, Dandar filed his motion to withdraw from
representing the plaintiff in the federal court, informing the court of the true reasons
for the motion. (R.793-800)(App.11).
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This motion is also not filed with the clerk of court.6
Page 5 of 47
After the federal court denied Dandars motion to withdraw on April 22, 2010,
(R.801-03)(App.12), in the state court, Scientology moved for criminal contempt
against Dandar, which resulted in a May 6, 2010 order by Judge Beach to show cause6
why Dandar should not be held in criminal contempt. (R.214-16)(App.13). On May
6, 2010, Dandar appealed the April 12, 2010 non-final order.
On August 25, 2010, the Estate of Brennan filed an Emergency Motion for
Injunction against Scientology and the state court to protect Dandar from his inability
to withdraw as counsel in the federal court. Judge Merryday denied the motion on
August 30, 2010, stating that no unlawful interference had occurred in the federal
court by state action, and it was unlikely to occur given the governing law and Rule
4-5.6(b), which would render the state order unlawful. (R.929-30)(App.14).
On September 2, 2010, the Estate of Brennan filed a second emergency motion
for injunction as Dandar was being sanctioned in state court for informing the federal
court the true reason he sought to withdraw. (R.1412-15 )(App.15). The federal
court held a hearing on September 3, and Scientologys counsel, Robert Potter, Jr.,
informed the court that Scientologys counsel and Judge Beach wanted Dandar to
take any action necessary to withdraw from the federal case, such as using a plain
vanilla motion, even if he had to lie to the court.
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Page 6 of 47
The federal court issued an injunction against the state court and Scientology
on September 28, 2010. (R.2816-44)(App.16). On October 7, 2010, Judge Beach
filed a motion to dissolve the permanent injunction.On October 12, 2010, the federal court denied Judge Beachs motion, and
recognized that Scientology was a surrogate to Judge Beach, making Scientology
state actors. (R.1416-43)(App.17). The next day, Judge Beach entered an Order of
Recusal of any matter involving Dandar. (R.951). Unbeknownst to Dandar and
Judge Merryday, Judge Beach was an active co-conspirator with Scientology and its
counsel, Wally Pope, from when this case was active. The sworn statement of Marty
Rathbun, former Number 2 worldwide in all of Scientology, revealed and confirmed
the conspiracy and his culpability as a co-conspirator before his escape from
Scientology in 2004. His statement was filed in the circuit court on November 19,
2012. (R. 2162-2217)(App.22). Subsequently, by random rotation, the clerk of court
reassigned the closed McPherson case to an active circuit judge, Section 11. On
October 17, 2010, an order was entered reassigning the case back to Section 78, the
retired judge section. (R.952). The record is silent as to why the matter was
reassigned to Section 78. On August 12, 2011, the case was assigned to Hon.
Crockett Farnell, (Ret.) (R.957).
The federal injunction was ultimately reversed on appeal because the injunction
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Page 7 of 47
did not fit within the exception to the Anti-Injunction Act, i.e, an injunction in aid of
the courts jurisdiction. Estate of Brennan v. Church of Scientology, 645 F.3d 167
(11 Cir. 2011).th
After the federal injunction was reversed, on October 3, 2011, Judge Merryday
issued an order granting Dandars motion to withdraw nunc pro tunc to the date
Dandar filed the motion to withdraw, April 12, 2010, and found that the state court
order was a punitive enforcement of an unlawful and unethical restriction on the
practice of law. (R.986-89)(App.18). Scientology did not appeal that order.
To avoid dismissal, Luke Lirot, the lawyer who referred the Estate of Brennan
to Dandar, then filed his appearance on behalf of the Brennan Estate, to avoid
dismissal of the case. Judge Merryday later granted Scientologys motion for
summary judgment. Mr. Pope filed a Bill of Costs in Brennan on behalf of his
clients, which included Judge Beach. (R.1446-47)(App.19).
On February 11, 2011, this court affirmed per curiam the April 12, 2010 non-
final order. Dandar v. Church of Scientology Flag Service Organization, Inc , 59
So.3d 144 (Fla. 2 DCA 2011). The mandate issued on May 23, 2011.nd
On July 16, 2012, the lower court found Scientology was entitled to attorney
fees and costs under Rule 1.730( c ). The lower court recognized that it must give full
faith and credit to the federal order granting Dandars motion to withdraw nunc pro
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Judge Farnell correctly relied on Pettijohn v. Dade County, 446 So.2d 1143, 145 (Fla. 3d7
DCA 1984) citing Milliken v. Meyer, 311 U.S. 457, 462 (1940).
Page 8 of 47
tunc to April 12, 2010. (R.1622-32). This eliminated the $1,000 per day fine7
imposed in the April 12, 2010 order. However, Judge Farnell did not give the entire
order full faith and credit, such as the federal courts finding that paragraph 5 asinterpreted as a practice restriction is unethical and illegal.
On Dandars motion for rehearing and clarification of the July 16, 2012 order,
Judge Farnell, did not make his own specific findings of bad faith as required by Rule
1.730 ( c ), but ruled that Dandars filing the federal Brennan case, and everything
which occurred thereafter in the federal courts and the state courts were done in bad
faith in violation of the Confidential Settlement Agreement between the parties. The
bad faith actions of Dandar in federal court and state court are fully detailed in the
opinion of the Unites States Court of Appeals, Eleventh Circuit, in Estate of Kyle
Brennan ex rel. Britton v . Church of Scientology Flag Service Organization, Inc , 645
F.3d 1267, 1269-77 (11 Cir. 2011)... Based on this reference to bad faith,th
Scientology was held to be entitled to all attorney fees and costs as sanctions under
Rule 1.730( c) from February 12, 2009 to October 3, 2011. (R.1688-90)(App.21).
On November 26, 2012, Dandar filed a renewed motion to void the settlement
agreement due to fraud on the court or deem the agreement unenforceable based on
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Page 9 of 47
Marty Rathbuns sworn statement and the Declaration of the Sue Rudd, the judicial
assistant to the former presiding judge, Hon. Susan Schaeffer. This Declaration
confirms that the leader of Scientology, David Miscavige, came to Judge Schaeffersoffice, ex parte , to discuss the McPherson case while she was the presiding judge,
which is part of the conspiracy described by co-conspirator, Rathbun, in his sworn
statement. Judge Schaeffer was never part of this conspiracy, and had recused herself
during the summer of 2003, after presiding over 15 motions filed by Scientology to
dismiss the case or remove Dandar. Judge Schaeffer concluded that Scientology had
suborned perjury. Per Rathbun, Miscavige was a co-conspirator with Rathbun and
others. (R.2221-26)(App.23). Judge Farnell denied the motion to void the agreement.
On November 26, 2012, in a closed-to-the-public Clearwater courtroom at the
insistence of Scientology, and over the objections of Dandar of having a secret
hearing with paper over the windows, doors locked, and no jury trial, a non-jury trial
on damages was conducted before Judge Farnell. (R.3352-3634 ).
During cross-examination of Wally Pope, he conceded that only the
McPherson death case was ordered to mediation; Dandar was counsel for the Estate,
not a party; Scientology refused to mediate, and insisted on a global settlement
conference to include all claims of all the parties, including non-parties not present,
such as the beneficiaries of the McPherson Estate, Thomas Dandar, and other
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The contract is the Global Settlement Agreement, which Dandar adamantly stresses does9
not contain an illegal and unethical practice restriction.
Page 11 of 47
SUMMARY OF ARGUMENT
This case presents the spectacle of a circuit court reopening a long-closed case
and interpreting a settlement agreement as creating a valid practice restriction to preclude an attorney from representing an unrelated client in federal court. The
circuit court was initially enjoined from interfering with the federal court
proceedings, but the Eleventh Circuit (rightly or wrongly) interpreted the Anti-
Injunction Act, 28 U.S.C. 2253, as precluding an injunction. The circuit court
thereafter, decided to mulct Dandar for over $1 Million in attorneys fees, effectively
punishing Dandar for representing his new client in federal court proceedings and
obeying federal court orders, rules, and ethical obligations.
The Supremacy Clause deprives a state court of jurisdiction from interfering
with federal court proceedings, as does Florida law on the facts presented here.
1. Under the Supremacy Clause of the United States Constitution, the state
court is absolutely powerless to sanction Dandar, a federal litigator, for filing a
federal case, obeying federal court orders, and representing his client in the appeal by
Scientology, even if the federal filing is a breach of a contract. Donovan v. Dallas ,9
377 U.S. 408 (1964), and its progeny, viz, General Atomic Company v. Felter , 434
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Page 12 of 47
U.S. 12 (1977) , i.e., the Donovan mandate . Thus, the state court had no power to
sanction Dandar nor enter the Final Judgment. This court must follow the Donovan
mandate and declare that the Final Judgment is void and these proceedings arewithout jurisdiction.
2. Notwithstanding the Donovan mandate, the recent decision of the Florida
Supreme Court decisively holds as a matter of law that there is without question no
jurisdiction once there has been the entry of a voluntary dismissal with prejudice.
Pino v. Bank of New York , 121 So.3d 23 (Fla. 2013). The objection to the invocation
of subject matter jurisdiction is not reviewable by an appellate court until a final
judgment is entered. Warren v. Southeastern Leisure Systems, Inc ., 522 So.2d 979
(Fla. 1 DCA 1988). The final judgment was entered March 17, 2014, and the circuitst
court did not have jurisdiction. Thus, the issue of the lack of subject matter
jurisdiction is now properly before this court, and in the previous appeals in this
matter, this court lacked jurisdiction to consider this issue on non-final orders.
Fiocchi v. Trainello , 566 So.2d 904 (Fla. 4 DCA 1990). As Judge Merrydayth
discussed at the hearing on September 3, 2010, in order to enforce a settlement
agreement after the McPherson case was dismissed, a new suit was required to be
filed, citing Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 378
(1994)(Enforcement of the settlement agreement, however, whether through award
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Page 13 of 47
of damages or decree of specific performance, is more than just a continuation or
renewal of the dismissed suit, and hence requires its own basis for jurisdiction.). A
court does not have perpetual jurisdiction.3. Sanctions and damages under Rule 1.730( c ), Fla.R.Civ.P ., do not apply
to Dandar because (1) Dandar was never a party court ordered to mediation in the
McPherson case; (2) the settlement conference from which the Global Settlement
Agreement arose was not the McPherson court-ordered mediation because
Scientology refused to mediate this case alone; (3) the settlement agreement never
contained an illegal and unethical practice restriction, but if it did, its
unenforceable; (4) there must be a pending case, not one dismissed five years earlier;
(5) the court must list the bad faith actions of the breaching party; (6) the sanctions
must be reasonable, not excessive, related to only procuring the specific executory
performance required under the agreement; and (7) an agreement in restraint of trade
or profession is illegal and enforceable under 542.18 and 542.33, Fla. Stat .
4. The amount of damages exceeds the effective order of withdrawal of
April 12, 2010, if sanctions are appropriate at all.
5. The doctrine of election of remedies precluded the circuit court from
awarding damages to Scientology after it elected an equitable remedy; the restriction
on the practice of law. Irreparable harm and lack of adequate remedy at law are both
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Page 14 of 47
prerequisites to injunctive relief, and irreparable harm is not established where
potential loss can be adequately compensated by a monetary award.
6. Dandar has a property interest in Florida statutes, rules, procedures, andFlorida Bar Rules, Board of Regents of State Colleges v. Roth , 408 U.S. 564, 577 92
S.Ct. 2701(1972); and federal rights such as provided by the Constitution, Donovan ,
and federal court rules such as the Local Rules of the Middle District of Florida.
Dandars due process rights and right to trial by jury were violated.
THE STANDARD OF REVIEW IS DE NOVO
Although there were two prior appeals of non-final orders, this appeal involves
for the very first time the appeal of a Final Judgment. This appeal presents issues of
law subject to review by the de novo standard. Syvrud v. Today Real Estate, Inc. 858
So.2d 1125, 1129 (Fla. 2 DCA 2003). The prior non-final orders previouslynd
appealed and affirmed must be reviewed first under the doctrine of manifest injustice.
Tiede v. Satterfield , 870 So.2d 225 (Fla. 2 DCA 2004); White Sands, Inc. v. Seand
Club V. Condominium Ass'n, Inc ., 591 So.2d 286 (Fla. 2 DCA 1991). Secondly, thend
prior appeals of non-final orders would not permit review of the lack of subject matter
jurisdiction until a final judgment had been rendered. Warren v. Southeastern Leisure
Systems, Inc ., 522 So.2d 979 (Fla. 1 DCA 1988); Fiocchi v. Trainello , 566 So.2d 904st
(Fla. 4 DCA 1990).th
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General Atomic actually extends the rule in Donovan. Id. at 20 [dissent by Rehnquist,10
J.].
Page 15 of 47
ARGUMENT
I. THE CIRCUIT COURT IS ACTING IN COMPLETE ABSENCE OFJURISDICTION
A. Subject Matter Jurisdiction is Preempted by the U.S. Constitutionas Donovan renders the State Court Powerless
The Supremacy Clause, as utilized in Donovan v. Dallas , 377 U.S. 408 (1964),
and its progeny, viz, General Atomic Company v. Felter , 434 U.S. 12 (1977), renders
the actions of the circuit court void for lack of the power to proceed. This is due to the
fact that under Donovan and General Atomic , the circuit court is absolutely without any
power to impose sanctions for filing and participating in a federal action. Therefore, no
sanctions of any kind can be imposed against Dandar, including the sanctions imposed
pursuant to Rule 1.730, Fla. R. Civ. P ., because:
state courts are completely without power to RESTRAIN FEDERAL-COURT PROCEEDINGS IN IN PERSONAM ACTIONS... Id., at 413, 84S.Ct , at 1582. Our holding was premised on the fact that the right tolitigate in federal court is granted by Congress and, consequently, cannot
be taken away by the State.General Atomic , at 16 . [emphasis in original].
It is therefore clear from Donovan that the rights conferred by Congressto bring in personam actions in federal courts are not subject toabridgment by state-court injunctions, regardless of whether the federal
litigation is pending or prospective.General Atomic , at 17. 10
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The Donovan mandate applies even if there had been a prior state court order 11
prohibiting Dandar from filing any action.
It was not known then by Dandar that judge Robert E. Beach, was a co-conspirator with12
Scientology and its counsel to make McPherson go away. See transcript of the statementunder oath of Mark Marty Rathbun, formerly Number 2 worldwide in all of Scientology. [App.22][R. 2162-2217].
Page 16 of 47
Dandars federal rights attached as soon as he filed Brennan . In response to11
filing of the federal suit, Scientology handed its motion for injunction and damages
to the retired judge Robert Beach, who last presided over the McPherson case beforedismissal. The substantive right to participate in federal court and the federal rights12
which protect a federal litigants lawyer in federal court, including that lawyer
obeying the federal courts orders, cannot result in sanctions imposed by a state court
under Donovan and General Atomic .
Donovan was the attorney representing property owners . His filing and
continuation of a federal case after he lost the state case violated the state court
injunction which resulted in 20 days in jail. The orders were affirmed on the first
appeal, and by the state supreme court, but the U.S. Supreme Court reversed. In
Donovan , all orders of conviction for contempt, sanctions, writs, and injunction
were reversed against plaintiffs counsel because the Supreme Court held that the
state court had no power. Likewise, the circuit court here has no such power and the
final judgment is required to be reversed or declared void by this court.
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Page 17 of 47
The circuit court was also required to follow Flagship National Bank of Miami
v. Gray Distribution Systems, 432 So.2d 660 (Fla. 3 DCA 1983), which recognizedrd
the Donovan mandate. We reverse the above injunctive order upon a holding that it is notwithin the power of state courts to bar litigants from filing and
prosecuting in personam actions in the federal courts. General AtomicCo. v. Felter, 434 U.S. 12, 98 S.Ct. 76, 54 L.Ed.2d 199, 200 (1977).
General Atomic , concerned a breach of contract to supply uranium to utilities.
When the price of uranium increased fivefold, UNC stopped delivery under the old
price and filed suit in state court to declare the supply contracts void. The utilities
filed federal suits against UNC in three different states. UNC then obtained a state
court injunction to prohibit the utilities from filing or prosecuting any suits, which
was affirmed by the New Mexico Supreme Court based on state law. On appeal to
the U.S. Supreme Court, where it was presented that the state supreme court affirmed
the injunction based on the state courts inherent equity jurisdiction, and also
determined that the injunction was not prohibited by Donovan, the U.S. Supreme
Court reversed, holding that the New Mexico Supreme Courts interpretation of
Donovan is untenable and that the injunction is in direct conflict with that decision
and the Supremacy Clause of the Constitution. Id., at 15.
When a state court punishes a party or her attorney for exercising constitutional
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Page 18 of 47
rights, the Supremacy Clause preempts the state court, and the state court must yield
to the federal rights, otherwise the federal system is imperiled. Cox v. Louisiana ,
348 F.2d 750 (5 Cir. 1965). It does not matter that the federal matter makes the stateth
court judgment ineffective. General Atomic , at 17, referring to Donovan .
A federal or state constitutional rule or pre-emptive federal law can deny the
Florida trial court judiciary authority over actions of a particular subject matter.
Arguing that no Florida court has subject matter jurisdiction over a given case
requires citation of an authority higher than (or at least equal to) the state constitution.
Boca Burger, Inc. v. Forum , 912 So.2d 561, 568 (Fla. 2005). The Supremacy Clause
is, of course, such a higher authority and controls here.
In general, any federal rule that prohibits a state court from proceeding in a
particular way, even if it is based on procedural considerations, has the same legal
effect as a deprivation of state court subject matter jurisdiction: Proceeding in
violation of an applicable federal rule renders an order void. For example, failure to
follow federal due process requirements can render an order subject to collateral
attack. Fuentes v. Shevin , 407 U.S. 67 (1972).
As stated in Boca Burger, Florida courts, including this Court, have held that
the issue of federal preemption is a question of subject matter jurisdiction. See also,
Hernandez v. Coopervision, Inc ., 661 So.2d 33 (Fla. 2 DCA 1995). Under thend
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Page 19 of 47
United States Constitution's Supremacy Clause, the state cannot assert jurisdiction
where Congress clearly intended to preempt a field of law. U.S. Const. art. VI, cl. 2;
Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co. , 450 U.S. 311, 101 S.Ct. 1124,67 L.Ed.2d 258 (1981).
The Supremacy Clause preempts the circuit court from sanctioning Dandar,
a federal litigator, for filing a federal case and obeying the orders of the federal court.
See, Chairs v. Burgess, 143 F.3d. 1432, 1438 (11 Cir. 1998)(finding no contemptth
when litigant was under conflicting court orders and compliance would cause
violation of other court orders.) At all times, Dandar, as counsel for the federal
plaintiff, Brennan, was under jurisdiction of the federal court, and not state court
jurisdiction. As a result, this court should vacate the judgment.
B. Subject Matter Jurisdiction was Not Invoked by a Pleading
Upon entry of the Final Judgment, the issue of subject matter jurisdiction
became ripe for review for the very first time. Warren v. Southeastern Leisure
Systems, Inc ., 522 So.2d 979 (Fla. 1 DCA 1988). Thus, the issue of the lack of st
subject matter jurisdiction is now properly before this court, and in the previous
appeals of non-final orders in this matter, this court lacked jurisdiction to consider
this issue. Fiocchi v. Trainello , 566 So.2d 904 (Fla. 4 DCA 1990).th
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Florida Rule of Civil Procedure 1.140(h) states that the defense of subject-matter jurisdiction may be raised at any time. It is commonlystated that subject matter jurisdiction cannot be waived or conferredupon a court by consent or agreement of the parties. Williams v.
Starnes , 522 So.2d 469, 471 (Fla. 2 DCA 1988). A judgment of a courtnd
without subject-matter jurisdiction is sometimes described as a void judgment. N.W.T. v. L.H.D. (In re D.N.H.W.) , 955 So.2d 1236, 1238(Fla. 2 DCA 2007).nd
Burke v. Esposito , 972 So.2d 1024 (Fla. 2 DCA 2008)( J. Altenbernd , concurringnd
specially).
When a court has subject matter jurisdiction and personal jurisdiction -- hence
the power to proceed -- the procedural equivalents of traffic signals which regulate
when it is permissible to proceed, - - a case must first be commenced by pleadings
before a court can enter an order. Until that occurs, the court is like a motorist facing
a red light: proceeding is physically possible, but is deterred by the prospect of
undesirable consequences. The light turns green once proper pleadings are filed, but
directional signals (rules confining actions to the scope of the pleadings) still limit
where the court may permissibly go. Florida's Third Species of Jurisdiction , 82 Mar
Fla.B.J. 10 (J. Scott Stevens).
The civil jurisdiction of a trial court is invoked by the filing of a well-pled
complaint which states a cause of action within the subject matter jurisdiction of that
court. Solimando v. International Medical Centers, H.M.O. , 544 So.2d 1031, 1033
(Fla. 2 DCA 1989); Fla. Power & Light v. Canal Auth., 423 So.2d 421, 423 (Fla. 5nd th
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DCA 1982) (a court's jurisdiction can only be lawfully invoked by the filing of a
proper pleading); Lovett v. Lovett, 93 Fla. 611, 112 So. 768, 77576
(1927)(pleadings sufficient to invoke a court's jurisdiction include a complaint, petition, counterclaim, crossclaim, and third-party complaint); Green v. Sun Harbor
Homeowners' Association, Inc., 730 So.2d 1261, 1263 (Fla.1998) (a motion is not a
pleading); Pro-Art Dental Lab, Inc v. V-Strategic Group, LLC, 986 So. 2d 1244
(Fla. 2008)(the action of a court must be called into exercise by pleading and process,
prescribed or recognized by law. Florida law clearly holds that a trial court lacks
jurisdiction to hear and to determine matters which are not the subject of proper
pleading and notice, and to allow a court to rule on a matter without proper pleadings
and notice is violative of a party's due process rights).
Scientology failed to file a pleading to invoke the jurisdiction of the circuit
court. Instead, they handed a mere motion, which is not a pleading, to a judge, which
was not even filed with the clerk. Lovett; Green. Trial courts lack jurisdiction until
proper pleadings are filed. Id .; Stone v. Stone, 873 So.2d 628 (Fla. 2 DCA 2004).nd
The court exceeds jurisdictional limits if it orders relief outside the scope of the
pleadings. See, Synchron, Inc. v. Kogan 757 So. 2d 564, 567 (Fla. 2 DCA 2000)nd
(it is not contempt to disobey an order entered without personal jurisdiction over the
accused); Carroll & Assocs., P.A. v. Galindo , 864 So.2d 24, 28 (Fla. 3 DCA 2003)rd
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suitor; it cannot by its own action institute a proceeding sua sponte. Theaction of a court must be called into exercise by pleading andprocess , prescribed or recognized by law, procured or obtained by somesuitor by filing a declaration, complaint, petition, cross-bill, or in some
form requesting the exercise of the power of the court. If a court shouldrender a judgment in a case where it had jurisdiction of the parties, upona matter entirely outside of the issues made, it would, of necessity, bearbitrary and unjust as being outside the jurisdiction of thesubject-matter of the particular case, and such judgment would be voidand would not withstand a collateral attack, for upon such matter a
presumption would arise that the parties had had no opportunity to beheard.
Lovett, at 775-76 (emphasis added); See Lockwood v. Pierce , 730 So.2d 1281, 1283(Fla. 4 DCA 1999); In re Estate of Hatcher .th
Pursuant to Lovett , even when a court undoubtedly has subject matter
jurisdiction and jurisdiction over the persons involved, it does not have jurisdiction
of the subject-matter and the parties unless the pleadings had properly invoked the
court's power.
A judgment entered outside the jurisdiction of the subject matter of the
pleadings renders such judgment void, and the presumption is that the parties did not
have an opportunity to be heard because the necessary pleading warranting the court
action was not of record. Krivitsky v. Nye , 155 Fla. 45, 19 So.2d 563, 568 (Fla. 1944)
(citing Ingram-Dekle Lbr. Co. v. Geiger , 71 Fla. 390, 71 So. 552 (1916); Lovett ;
State ex rel. Campbell v. Chapman , 145 Fla. 647, 1 So.2d 278 1941)).
Where a court has potential original jurisdiction of a cause, actual jurisdiction
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thereof is invoked or acquired by the proper filing by a plaintiff or petitioner of a
praecipe or petition or bill of complaint or other appropriate written instrument, upon
which process may be issued and served to acquire jurisdiction of the opposing parties to the cause. Lovett . Only after actual jurisdiction of the cause is so duly
invoked or acquired by a pleading, does the trial court have jurisdiction of the cause
of action. State v. Chillingworth , 132 Fla. 587, 181 So. 346, 348 (1938).
In Garcia v. Stewart , 906 So.2d 1117 (Fla. 4 DCA 2005), before or after itsth
dismissal from the case, the Association filed no pleading concerning its claim of
lien. The Association had the legal right to collect unpaid assessments from Garcia;
however, the Association did not file a pleading to commence a proceeding to
advance its right to recovery. The Court stated:
For subject matter jurisdiction purposes, Lovett identifies "pleadings" as
a "declaration, complaint, petition, [or] cross-bill." 112 So. at 775-76; Hatcher , 439 So.2d at 980 n. 2. Under the current rules of civil procedure, "pleadings" sufficient to invoke a court's jurisdiction includea complaint, petition, counterclaim, crossclaim, and third-partycomplaint. Fla. R. Civ. P. 1.100(a). In Green v. Sun Harbor
Homeowners' Association, Inc ., 730 So.2d 1261, 1263 (Fla.1998), thesupreme court relied upon rule 1.100(a) to hold that while "[c]omplaints,answers, and counterclaims are pleadings," a "motion to dismiss is not."
Similarly, the Association's post judgment motion to disburse funds,filed after it had been dismissed as a defendant in the lawsuit, was nota pleading sufficient to invoke the jurisdiction of the court to adjudicateits right to the funds. The trial court was therefore without jurisdictionto disburse the funds so that its order disbursing the funds was void. See
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Lovett, 112 So. at 776; Defreitas v. Defreitas , 398 So.2d 991, 992 (Fla.4 DCA 1981); Bartolucci v. McKay , 428 So.2d 378, 379 (Fla. 5 DCAth th
1983).
Garcia , at 1122-23.The bare word jurisdiction has been used to mean a court's exclusive
authority to enter orders in a particular case at a particular time . It is a legal
conclusion dependent on the presence of three elements -- the familiar requirements
of subject matter and personal jurisdiction must, of course, be present in every case,
but in addition the court's legal authority must be activated according to procedural
requirements of pleading and process.
Scientology did not file a pleading. The only pleadings filed in this case to
invoke the jurisdiction of the court was the plaintiffs wrongful death complaint,
which was voluntarily dismissed on June 8, 2004, without a reservation of
jurisdiction. Motion-complaints do not invoke the jurisdiction of the courts. Stone .
C. Subject Matter Jurisdiction was Not Invoked byProcess and Service of Process
As stated in Borden v. EastEuropean Ins. Co. , 921 So.2d 587, 591 (Fla.
2006), service of process and personal jurisdiction are two distinct but related
concepts. Both are necessary before a defendant, either an individual or business
entity, may be compelled to answer a claim brought in a court of law.
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Personal jurisdiction refers to whether the actions of an individual or business
entity as set forth in the applicable statutes permit the court to exercise jurisdiction
in a lawsuit brought against the individual or business entity in this state.Service of process is the means of notifying a party of a legal claim and, when
accomplished, enables the court to exercise jurisdiction over the defendant and
proceed to judgment. Shurman v. Atlantic Mortg. & Inv. Corp., 795 So.2d 952, 953
(Fla.2001)(It is well settled that the fundamental purpose of service of process is to
give proper notice to the defendant in the case that he is answerable to the claim of
plaintiff and, therefore, to vest jurisdiction in the court entertaining the controversy.)
(quoting State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147
(Fla.1940)).
In addition to the failure to filing a pleading to invoke the courts jurisdiction,
Scientology did not have a summons issued and served on Dandar. Without process
and service of process, the jurisdiction of the circuit court was never invoked. As a
result, the orders and judgment are void.
D. Voluntary Dismissal With Prejudice is a Complete Divestiture of Jurisdiction
The Joint Voluntary Dismissal filed on June 8, 2004, after completion of all
executory terms of the Global Settlement Agreement, did not include an order of the
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court reserving jurisdiction over the subject matter, the settlement agreement, the
parties, or the parties counsel. Courts lose (are divested of) jurisdiction if a
voluntary dismissal is taken or when a judgment is entered, unless jurisdiction isspecifically reserved.
The origin of this rule is Davidson v. Stringer , 147 So. 228, 229 (Fla. 1933)
(When a judgment or decree has once been rendered, the [c]ourt loses jurisdiction
over the subject matter of the suit, other than to see that proper entry of the judgment
or decree is made and that the rights determined and fixed by it are properly
enforced). See also Finkelstein v. North Broward Hospital Dist. , 484 So. 2d 1241,
1243 (Fla. 1986).
This court in Sprague v. P.I.A. of Sarasota, Inc. , 611 So.2d 1336 (Fla. 2 DCAnd
1993), vacated a final judgment entered after a voluntary dismissal was filed, and
ordered the matter to be dismissed. See , Phillips v. Citibank, N.A., 63 So.3d 21(Fla.
2 DCA 2011)(It is true that a judge has no jurisdiction to proceed over a case thatnd
has been dismissed with finality. See also, 84 Lumber Co. v. Cooper, 656 So.2d
1297, 1298 (Fla. 2 DCA 1994). Likewise, vacation of the judgment and dismissalnd
of this matter should be ordered here.
Recently in Pino v. Bank of New York , 121 So.3d 23 (Fla. 2013), the
unanimous Court acknowledged that dismissals are acts of finality which divests the
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court of jurisdiction. Thus, the circuit courts authority to render any orders ceased
on June 8, 2004, and all orders, proceedings, and judgments are a nullity and void.
It is well accepted that the effect of a plaintiff's voluntary dismissalunder rule 1.420(a)(1) is jurisdictional. The voluntary dismissal servesto terminate the litigation, to instantaneously divest the court of its
jurisdiction to enter or entertain further orders that would otherwisedispose of the case on the merits, and to preclude revival of the originalaction. In RandleEastern Ambulance Service, Inc. v. Vasta, 360 So.2d68 (Fla.1978), the Court embraced this principle of law, holding thatvoluntary dismissals taken pursuant to Rule 1.420 are acts of finalitythat deprive the trial court of jurisdiction over the dismissed case:
The right to dismiss one's own lawsuit during the course of trial is guaranteed by Rule 1.420(a), endowing a plaintiff with unilateral authority to block action favorable to adefendant which the trial judge might be disposed toapprove. The effect is to remove completely from thecourt's consideration the power to enter an order,equivalent in all respects to a deprivation of jurisdiction.If the trial judge loses the ability to exercise judicialdiscretion or to adjudicate the cause in any way, it follows
that he has no jurisdiction to reinstate a dismissed proceeding. The policy reasons for this consequencesupport its apparent rigidity. Id . at 69.
Pino , at 32.
In Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P. , 143
So.3d 1182 (Fla. 4 DCA 2014), the Court held:th
The trial court lacks jurisdiction to hear the pending motion for sanctions under section 57.105, Florida Statutes (2013). The motion for sanctions in this case was filed after petitioner voluntarily dismissed theaction. Generally, a voluntary dismissal under Florida Rule of CivilProcedure 1.420(a)(1) terminates a trial court's jurisdiction over a
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Snider v. Snider , 686 So. 2d 802, 804 (Fla. 4th DCA 1997). Notwithstanding this
binding precedent, on March 24, 2010, Judge Beach stated that the basis for my
invoking jurisdiction is paragraph 8 of the settlement agreement of May 26,
2004. (R.225, p.29:1-3)(App.9).
Pursuant to Rule 1.140(h), lack of subject matter jurisdiction can be raised at
any time. Jesse v. State, Dept of Revenue , 711 So.2d 1179 (Fla. 2 DCA 1998). Tond
proceed without subject matter jurisdiction is fundamental error.
Any attempt to reinstate the jurisdiction is void, particularly when there is no
court order either approving the settlement agreement or reserving jurisdiction to
enforce the settlement.
In Paulucci v. Gen. Dynamics Corp ., 842 So.2d 797 (Fla. 2003), the Florida
Supreme Court recognized that [s]ubject matter jurisdiction means no more than the
power lawfully existing to hear and determine a cause. Id . at 801 (citing
Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994)) (quoting
Malone v. Meres, 91 Fla. 709, 109 So. 677, 683 (1926)). The Court further found that
the issue presented in the certified question was really one of the trial court's
continuing jurisdiction. Paulucci, at 801. Pino makes certain that the circuit court
had no continuing jurisdiction to entertain any proceedings after June 8, 2004.
A voluntary dismissal under rule 1.420(a) divests the trial court of continuing
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jurisdiction over the case. Albert v. Albert , 36 So.3d 143 (Fla. 3 DCA 2010);rd
Randle-Eastern Ambulance Service, Inc. v. Vasta , 360 So.2d 68 (Fla. 1978); Miller
v. Fortune Ins. Co. , 484 So. 2d 1221, 1223 (Fla.1986); Piper Aircraft Corp. v.
Prescott , 445 So.2d 591, 594 (Fla. 1 DCA 1984); Levine v. Gonzalez, 901 So.2d 969,st
973 (Fla. 4 DCA 2005). See also , Synchron, Inc. v. Kogan , 757 So.2d 564, 566 (Fla.th
2 DCA 2000) (reversing a contempt order where the trial court lacked jurisdictionnd
over the alleged offending corporation); Steffens v. Steffens , 593 So.2d 1156, 1158
(Fla. 2 DCA 1992) (holding that a final judgment entered against a party not subjectnd
to the court's jurisdiction cannot form a basis for contempt proceedings); State ex rel.
Everette v. Petteway , 131 Fla. 516, 179 So. 666, 671 (1938) ("[D]isobedience of a
void order, judgment, or decree, or one issued by a court without jurisdiction of the
subject-matter and parties litigant, is not contempt."); Cesaire v. State , 811 So.2d 816
(Fla. 4 DCA 2002)(person cannot be compelled to obey a void order); In re Elrod ,th
455 So.2d 1325 (Fla. 4 DCA 1984)(a court does not have contempt powers toth
enforce violations of its orders if they are rendered without jurisdiction over the
subject matter or the parties or transcend its power or authority); Fisher v. State , 840
So.2d 325 (Fla. 5 DCA 2003)(the order finding Fisher in contempt for notth
complying with the restitution order is also void since it was based on the void
restitution order).
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Where a court acts beyond the court's power, its orders are void. State v.
S.M.G. , 313 So.2d 761 (Fla.1975); In re Elrod ; Miller v. Eatmon , 177 So.2d 523 (Fla.
1st DCA 1965). An order entered without subject matter jurisdiction is void. SeeCole v. State , 714 So.2d 479, 48990 (Fla. 2 DCA 1998) (any action taken by thend
juvenile court after petitioner's nineteenth birthday was void for lack of subject matter
jurisdiction).
Long standing jurisprudence renders the circuit court proceedings, order and
judgment void. When a court acts without authority, its judgments and orders are
regarded as nullities. They are not voidable, but simply void. Elliott v. Peirsol's
Lessee , 26 U.S. 328, 340 (1828). A judgment upon a matter entirely outside of the
issues made by the pleadings is void. Lovett, at 776. However, here there were no
pleadings. Thus, no issues made by pleadings rendering the judgment void.
II. THE RESTRICTION ON THE PRACTICE OF LAW VIOLATES542.18 AND 542.33, FLA. STAT ., AND RULE 4-5.6(B), R. REG. FLA.
BAR ., RENDERING IT UNLAWFUL, VOID, AND UNETHICAL
The circuit court entered orders requiring Dandar to withdraw from
representing the plaintiff in the federal court in Brennan , thereby restricting Dandars
practice of law in direct violation of Rule 4-5.6(b), R. Reg. Fla. Bar , and interfering
with the clients choice of counsel as provided by Rule 4-5.8(b), R. Reg. Fla. Bar .
However, paragraph 5 of the Global Settlement Agreement is not a restriction
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on the practice of law, but rather an agreement not to file more lawsuits which could
have been filed at that time arising from the death of Lisa McPherson and from the
collateral litigation. If paragraph 5 is a practice restriction, it would not be againstthe Estate and other non-lawyers named in the agreement. If it is a practice
restriction, it is unenforceable in violation of the public policy of Florida and the
Rules Regulating the Florida Bar. The Florida Bar v. St. Louis , 967 So.2d 108, 121-
122 (Fla. 2007); Florida Bar Ethics Opinion, No. 04-2, 2005 WL 4692972; Adams v.
Bell South Communications, Inc ., 2001 WL 34032759 (S.D. Fla. 2001) (a clause
which restricts a lawyers right to practice is unenforceable).
Rather, it is clear from the record and the testimony of the lawyers thatBell South sought a practice restriction on Plaintiffs counsel to preventPlaintiffs counsel from bringing future similar cases against Bell Southwith the same kind of terrorist tactics used against Bell South in thiscase. In short, the practice restriction was a payoff to Plaintiffs counsel
to make them go away and never come back. As I explained infra, thistype of arrangement is in violation of Rule 4-5.6 for well-grounded
public policy reasons. Second, the practice restriction was not writtento protect the clients of plaintiffs counsel, but rather to protect theopposing party, Bell South.
Adams, at 6.
In both St. Louis and Adams, a practice restriction agreement, particularly one
designed to protect the opposing party, (just as imposed here), was held to violate
public policy and Rule 4-5.6(b). A practice restriction cannot be entered, and if it is,
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it is clearly unenforceable as against public policy. The attorneys seeking to enforce
a practice restriction are guilty of violating Rule 4-5.6. St. Louis ; Adams . In
Brennan , U.S. District Judge Steven Merryday determined that the practice restrictionimposed by Scientology through the circuit court was unlawful and unethical.
(R.986-89)(App.18).
In Brumby v. City of Clearwater, 108 Fla. 633, 149 So. 203 (Fla. 1933), and
Edwards v. Trullis , 212 So.2d 893, 896-897 (Fla. 1 DCA 1968), agreements inst
violation of public policy were held void because they have no legal sanction and
establish no legitimate bond between the parties. Although Dandar never agreed to
restrict his practice of law, he did not even have the freedom to do so, nor could he
waive the applicability of the Bar Rules. Coastal Caisson Drill Company, Inc. v
American Casualty Company of Redding, PA, 523 So.2d 791 (Fla. 2 DCA 1988) (annd
individual cannot waive the protection of a statute that is designed to protect both the
public and the individual). See also , Corvette Shop & Supplies, Inc. v. Coggins , 779
So.2d 529 (Fla. 2 DCA 2000), and Elser v. Law Office of James Russ, P.A. , 679nd
So.2d 309 (Fla. 5 DCA 1996) (declaring a contract unenforceable if it is againstth
public policy).
These cases are equally applicable to 542.18 and 542.33, Fla. Stat ., which
bluntly state that trade restrictions are unlawful, period. This includes restrictions on
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a profession. Scientology was the first party to present the disengagement clause
of the Global Settlement Agreement to the Brennan district court, forcing that court
to interpret the clause. The federal district court interpreted it as unlawful andunethical, which remains a decision of the district court in its final order granting
withdrawal nunc pro tunc . (R.986-89)(App.18). That decision is supported by Rule
4-5.6(b), R. Reg. Fla. Bar , and 542.18, Fla. Stat . (Every contract, combination, or
conspiracy in restraint of trade or commerce in this state is unlawful.).
The circuit court erroneously held that the Florida Bar Ethics Opinion, No. 04-
2, did not apply to void the Global Settlement Agreement because the Ethics Opinion
came after the agreement was executed. However, both cases cited therein and Rule
4-5.6(b) were authoritative years before the May 2004 Agreement, and the Ethics
Opinion still controls the Agreement even though published post mediation. Florida
Bar Ethics Opinions cannot be ignored and are controlling over appellate decisions.
HBA Management, Inc. v. Estate of Swartz , 693 So.2d 541, 543 (Fla. 1997).
Section 542.18, Fla. Stat ., prohibits any contract in restraint of trade or
commerce. The legislature set forth exceptions to this general bar in certain specified
circumstances. 542.33, Fla. Stat . Section 542.33 permits contracts in restraint of
trade only where there was a sale of a business; an employment, agency, or
independent contractor relationship; a licensing relationship; or a partnership. None
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apply here. Contracts that restrain one from exercising a lawful profession, trade, or
business, and that do not fall within these limited exceptions carved out in 542.33(2)
and (3), are void. See Spencer Pest Control Co. of Fla., Inc. v. Smith, 637 So.2d 292(Fla. 5th DCA 1994); Miller v. Preefer , 1 So.3d 1278, 1281-82 (Fla. 4 DCA 2009).th
The unlawful and unethical restraint on the practice of law must be voided by this
court.
III. RULE 1.730, FLA. R. CIV. P ., DOES NOT AUTHORIZE THESANCTIONS IMPOSED
The circuit court failed to recognize that Rule 1.730( c ) sanctions can only be
imposed against a party who was court-ordered to mediate a pending case for specific
bad faith conduct occurring in the case, not outside the litigation, for that partys
failure to complete the executory requirements of the mediation agreement which that
party has signed. Absolutely none of the elements are present here. Rule 1.730, Fla.
R. Civ. P ., provides:
(a) No Agreement. If the parties do not reach an agreement as to anymatter as a result of mediation, the mediator shall report the lack of anagreement to the court without comment or recommendation. With theconsent of the parties, the mediator's report may also identify any
pending motions or outstanding legal issues, discovery process, or other
action by any party which, if resolved or completed, would facilitate the possibility of a settlement.
(b) Agreement. If a partial or final agreement is reached, it shall bereduced to writing and signed by the parties and their counsel, if any.
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The agreement shall be filed when required by law or with the parties'consent. A report of the agreement shall be submitted to the court or astipulation of dismissal shall be filed. By stipulation of the parties, theagreement may be electronically or stenographically recorded. In such
event, the transcript may be filed with the court. The mediator shallreport the existence of the signed or transcribed agreement to the courtwithout comment within 10 days thereof. No agreement under this ruleshall be reported to the court except as provided herein.
Imposition of Sanctions. In the event of any breach or failure to performunder the agreement, the court upon motion may impose sanctions,including costs, attorneys' fees, or other appropriate remedies includingentry of judgment on the agreement.
1. The Rule only applies to a party, as recognized by this Court
The pleadings were filed by Dandar as counsel for the Plaintiff, the Estate of
Lisa McPherson, as Dandar was not a party in this case. In Lazy Flamingo, USA, Inc.
v. Greenfield , 834 So. 2d 413 (Fla. 2 DCA 2003), this Court acknowledged thatnd
Rule 1.730( c ) only applies to a party who is court ordered to mediation. Dandar is
not a party in this case, the wrongful death case, and was not ordered to mediation.
2. The party must be court-ordered to mediation
Dandar was not a party and was not court-ordered to mediate. Only his client
was ordered to mediation. The Rule applies only to parties who are court-ordered to
mediation. Lazy Flamingo. Scientology, through the testimony of its counsel at the
final hearing on Scientologys post-dismissal motion, conceded that Dandar was
never court-ordered to the mediation in May 2004. The only court-ordered mediation
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concerned the named parties Dell Liebreich as the Personal Representative of the
Estate, and the Defendants. Dandar was counsel for the Estate prior to mediation, but
never a party. Dandar was sued by Scientology in other cases, but Dandar prevailed.At the time of the settlement conference, Dandar was not a party or even a partys
counsel ordered to mediation, as he had been previously removed as lead counsel by
Judge Beach at Scientologys counsels insistence, in violation of Rule 4-5.8(b), R.
Reg. Fla. Bar. Rule 1.730 can never apply to Dandar.
3. The case must be a pending case.
After all of the executory requirements of the Global Settlement Agreement
were fulfilled, (releases signed, dismissals filed in other cases), this case was closed
on June 8, 2004 when a Joint Voluntary Dismissal with Prejudice was filed by the
parties. No order was entered by the court to reserve jurisdiction, as is required to
have continuing jurisdiction. Sanctions authorized by Rule 1.730( c) can only be
imposed for failing to complete the executory requirements of a mediation
agreement. The Dismissal in this case was signed only after all of the executory
provisions were completed, i.e., releases and dismissals were signed. This case
ceased its pending status on June 8, 2004, and Rule 1.730 is inapplicable. Lazy
Flamingo.
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4. The court is required to make specific findings of bad faith by the party for not fulfilling the executory requirements of a mediationagreement.
In order to impose a sanction under rule 1.730( c ), an award of fees mustinclude express findings of bad faith conduct by a party. Johnson v. Bezner, 910
So. 2d 398, 401 (Fla. 4 DCA 2005); Cox v. Great American Insurance Co., 88 So.3dth
1048 (Fla. 4 DCA 2012) . th
Here, the circuit court did not make any findings of bad faith on a party.
Instead, the court stated that Dandars bad faith conduct is found in the 11 Circuitsth
opinion in Estate of Brennan ex rel. Britton v. Church of Scientology Flag Service
Organization, Inc ., 645 F.3d 1267 (11 Cir. 2011), pet. denied , 132 S.Ct. 1557th
(2012). However, not only are there no findings by the 11 Circuit of bad faithth
conduct of a party, clearly there is no bad faith conduct mentioned regarding Dandar.
How can Dandar act in bad faith when he is attempting to obey Judge Beach
and Judge Merryday? How can Dandar act in bad faith when the settlement
agreement he signed as co-counsel for the Estate not only fails to contain the words
practice restriction, it is uncontroverted that Dandar objected to any restriction on
the practice of law, and it was not until after Brennan was filed in 2009 that Judge
Beach interpreted the agreement as a practice restriction knowingly prohibited by
Rule 4-5.6(b), R. Reg. Fla. Bar , but nonetheless enforceable because Mr. Pope would
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The Global Settlement Agreement at 7 specifically states that the damages paid are13
solely for the wrongful death of Lisa McPherson.
Page 40 of 47
not have known its illegality because Florida Ethics Opinion, No. 04-2, 2005 WL
4692972, was not yet published, and Judge Beach wanted to assure that Scientology
had their benefit of the bargain in paying for wrongful death damages as specificallyset forth in the agreement. There was no testimony by a Scientology representative,13
or any other evidence presented, to support the courts finding.
Even if the agreement did specifically state it was a practice restriction, a
practice restriction is void, because it is illegal and against public policy. Chandris
v. Yanakakis , 668 So.2d 180, (Fla. 1995); Elser v. Law Office of James Russ, P.A.,
679 So.2d 309 (Fla. 5 DCA 1996); Adams v. Bell South Communications, Inc. , 2001th
WL 340327 (S.D. Fla. 2001); 542.18, Fla. Stat . Judge Beach ignored these
decisions even though they were all published before the settlement and dismissal.
Once Judge Beach entered his first order for Dandar to withdraw in Brennan ,
the uncontroverted evidence is that Dandar sought substitute counsel for the Brennan
estate because Dandar could not withdraw unless there was substitute counsel.
Dandar also had the Brennan case stayed while he searched for substitute counsel,
until the federal court ordered the case to proceed. Judge Beach then ordered Dandar
to file a motion to withdraw in Brennan , and Dandar once again complied and filed
8/10/2019 Ken Dandar v. Scientology: State Appeal 2014
57/63
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his motion without substitute counsel. The federal court denied the motion because
there was no substitute counsel. This cannot be evidence of Dandars bad faith, but
compliance with the federal court order, the Federal Rules, Local Rules, and ethicalrules of the Florida Bar. Dandar could not abandon his client and cause the case to
be dismissed as the rules and law require an estate to be represented by counsel.
Dandar continued in Brennan only because he was court ordered to do so as he was
under the jurisdiction of the federal court. Judge Merryday confirmed that Dandar
was powerless to withdraw.
5. Sanctions cannot be imposed for actions occurring outside of thelitigation .
The sanctions imposed by the circuit court all stem from actions occurring
outside this long-closed case, as they all arose from filing and participating in
Brennan . Further, there was no litigation pending as previously addressed due to the
dismissal on June 8, 2004.
6. The mediation agreement must be signed by the part
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