Ken Dandar v. Scientology: State Appeal 2014

8/10/2019 Ken Dandar v. Scientology: State Appeal 2014

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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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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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27/63

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


29/63

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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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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Page 20 of 47

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


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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

Documents

Ken Dandar v. Scientology: State Appeal 2014