Filing # 55170815 E-Filed 04/17/2017 03:58:14 PMR

EC

EIV

ED

, 04/

17/2

017

04:0

3:53

PM

, Cle

rk, S

upre

me

Cou

rt

TABLEOFCONTENTS

TABLE OF AUTHORITIES ................................................... ii

STATEMENT OF THE CASE AND FACTS ............................... 1

SUMMARY OF ARGUMENT ................ u.............................. 3

ARGUMENT.............................o...................................... 4

THE THIRD DISTRICT COURT OF APPEAL'S DECISIONDIRECTLY CONFLICTS WITH A DECISION OF THE .FIFTHDISTRICT COURT OF APPEAL IN U.S. BANK NATIONALASSOCIATION, INC. V. ELIZABETH E. ANTHONY-IRISH, ETg., 204 SO 3D. 57 (FLA. 5�442DCA 2016) ON THE SAMEQUESTION OF LAW

CONCLUSION ................................................................... 9

CERTIFICATE OF SERVICE ......... ......................... 4...... o...... 9

CERTIFICATE OF COMPLIANCE .......................................... 9

1

TABLE OF AUTHORITIES

Fla. R. App. P. 9.030,(aM2),(A),(4), p. 4

Fla. R. Civ. P. 1.110, p.7

Fla. R. Civ. P. 1.140, (h), (2), p.7

Fla. R. Civ. 1.540, (b), (4), p.5

In Re Estate ofHatcher, 439 So. 2d 977, 979 (Fla 3d DCA 1983), p.8

Carrol & Associates, P.A. v. Rafael Galindo, 864 So. 2d 24, 28 (Fla 3d DCA2003), p.8 , 9

Epic Metals Corp v. Samari Lake East Condo Ass'n, Inc., 547 So. 2d 198, 199 (Fla3d DCA 1989), p.8

Fine v. Fine, 400 So. 2d 1254, 1255 (Fla 5th DCA 1981), p.5, 6

In Re Estate ofHatcher, 439 So. 2d 977, 979 (Fla 3d DCA 1983).

Lovett v. Lovett, 112 So. 768, 775-776 ( Fla. 1927), p.5

McDonald v. McDonald, 732 So. 2d 505, 506 (Fla 4th DCA 1999)., p.9

Miller v. Rolfe, 97 So. 2d .132 (Fla. 1'' DCA 1957), p.7

Phillips v. Choate, 456 So.2d 556,557 (Fla.4th DCA 1984), p.8

Sheilds v. Barrow 58 U.S.(17 How.), 130, 130, 15 L. Ed.158, 160(1855), p.8

U.S. Bank National Association, Inc. v. Elizabeth E. Anthony-Irish, Et A1., 204 So3d. 57 (Fla. 5th DCA 2016) , p.5, 6

11

STATEMENT OF THE CASE AND FACTS

Petitioner Tender Loving Care Garden. Supply, Inc. (TLC) is a Florida

Corporation whose shares are owned by Petitioner Halioua and his spouse. TLC

formerly owned a property on which it operated its landscaping business and a

retail garden supply store. Halioua,.individually, formerly owned the abutting lot

In 2012 Halioua needed. additional density on his lot to for a redevelopment plan,

so he and TLC combined their two lots into a single development parcel ("the

property") by executing a unity of title and recording it in the public records. As a

result TLC became the owner of record of an undivided three fourths interest in the

property and Halioua became the record owner of an undivided one-fourth interest

in the property as tenants in common. In 2012 Respondent Lawyer, a real estate

agent solicited Halioua to list the property with her as his listing agent. After

obtaining the listing agreement Lawyer approached Halioua to inquire about

leasing the property. Respondents Lawyer and Jean .Bitney negotiated two leases

with Halioua under which Jeshers leased the two structures located on the unified

parcel from TLC, as Lessor, in March 2013. The leaseholds are only identified by

their street addresses (the "7435 Lease" and the "7537Lease). Halioua was not a

party to either lease, and neither makes any representations as to the ownership of

the leaseholds. Jeshers defaulted under both leases before taking possession,

1

requiring postponement of the commencement date of May 1, 2013. Both

leases required Jeshers to maintain windstorm and flood insurances on the

structures during the terms of both leases, and to obtain their own utility services,

neither of whieltthey ever did. As a consequence, Jeshers was in constant default

under both leases ab initio and remained so until the leases were terminated.

Jeshers further defaulted under the 7435 lease by never commencing to do business

thereon, depriving Appellants of percentage of sales rents required to be paid under

the 7435 lease. It was also constantly in default of both leases for failing and

refusing to account for and pay monthly percentage of sales rents throughout the

aborted terms of both leases. Jeshers also defaulted in the payment of base rents

on June 1, 2013, July 1, 2013, August 1, 2013, September 1, 2013 and January 1,

2014, and failed and refused to pay late fees and penalties required by both leases.

On January 16, 2014 Jeshers attempted to exercise an option stated in both

leases for which it gave no consideration; however, the options provided they were

not exercisable while Jeshers was in default and; therefore, Jeshers attempt to

exercise the options on January 16, 2014 was ineffective because of its failure to

cure its continuing defaults and to pay the January 1,.2014 base rents under both

leases as of January 16, 2016.

TLC filed a complaint for eviction and damages under both leases, in

2

response to which Jeshers filed an answer, affirmative defenses and a

counterclaim for breach of contract damages and specific performance as to TLC

only; On May 25, 2015 the trial court rendered an "Omnibus Order" (the

"Omnibus Order") awarding Jeshers specific performance as to TLC only; and,

on April 18, 2018 the lower court rendered an enforcement "Order" ("the

enforcement "Order") compelling "the parties", including Halioua, to close the

transaction contemplated by the option contracts to which he was not a party.

Jeshers summary judgment motion did not request any affirmative relief of then

non-party Halioua, and the trial court's "Omnibus Order" did not award Jeshers

any form of affirmative relief thereunder as to then non-party Halioua.

SUMMARY OF ARGUMENT

The Third District Court of Appeal's opinion conflicts with a decision of the

Fifth District Court of Appeal on the same points of law. This Court has

jurisdiction to review this case, and it should exercise that jurisdiction here.

When Jeshers filed its original counterclaim for specific performance of the

option contracts it did not join co-owner Halioua as a necessary and indispensable

party to its claim for specific performance, without whose joinder rights with

respect to the property could not be fully adjudicated. Although Jeshers was aware

that Halioua was an indispensable to its claim and motion for summary judgment

3

for specific performance it elected to proceed with a hearing thereon without

joining him as a party. When permitted to amend its pleadings to join Halioua as a

party it did not allege a cause of action for specific performance as to.Halioua or

request that he be ordered to sell his property to Jeshers in any of its amended

counts. When the trial court rendered its enforcement "Order" compelling Halioua

to specifically perform the lease contracts and sell his property to Jeshers the trial

court was without jurisdiction to do so, since said relief was beyond the scope of

the relief requested by Jeshers of Halioua and; therefore, beyond the jurisdiction of

the trial court.

ARGUMENT

THE THIRD DISTRICT COURT OF APPEAL'S DECISION DIRECTLYCONFLICTS WITH THE RULING OF THE FIFTH DISTRICT COURT OFAPPEAL IN U.S. BANK NATIONAL ASSOCIATION, INC. V. ELIZABETH E.ANTHONY-IRISH, ET AL., 204 SO 3D. 57(FLA. 5�442DCA 2016)

This Court has discretionary jurisdiction to review a decision of a district

court that is in direct conflict with a decision of another district court of appeal on

the same question of law pursuant to Fla. R. App, P. 9.030,(a),(2),(A),(4). The sole

purpose of the lower court's enforcement "Order" was to implement its "Omnibus

Order" by compelling both TLC and Halioua to specifically perform the

transaction contemplated by the option contracts to which Halioua was not a party;

4

however, because the trial court did not have personal jurisdiction over Halioua or

subject matter jurisdiction over his property when it entered its "Omnibus Order"

said Order was void ab initio and unenforceable as to Halioua. According to Fifth

District Court of Appeal's recent decision in U.S. Bank National Association,

supra, "Ifa court enters an orderprior to thejìling ofproperpleadings, the court

is said to lackjurisdiction. " U.S. Bank National Association, Inc. v. Elizabeth E.

Anthony-Irish, Et Al., 204 So 3d. 57(Fla. 5th DCA 2016) (citing Lovett v. Lovett,

112 So. 768, 775-776 (Fla. 1927), and; that ". . . an order eniered without subject

matter jurisdiction can be attacked under Rule 1.540(b)(4) at any time (even for

the first time upon appeal) because the lack ofsubject matter jurisdiction goes to

thefoundation of the court's power to adjudicate the case presented." U.S. Bank

National Association, Inc. v. Elizabeth E. Anthony-Irish, Et Al., 204 So 3d. 57(Fla.

5th DCA 2016; Fine v. Fine, 400 So. 2d 1254, 1255 (Fla 5th DCA 1981).

Therefore, because the enforcement "Order" seeks to enforce the trial court's void

and unenforceable "Omnibus Order" as to Halioua, it was a substantial departure

from the essential requirements ofjustice for the Third District Court of Appeal to

decline its jurisdiction to review the validity and enforceability of the trial judge's

"Omnibus Order" as to Haliona. before affirming an enforcement "Order" that's

sole purpose was enforcement of the "Omnibus Order" as to both TLC and

5

Halioua, despite the fact that it was void, ab initio, as to Halioua.

It is also uncontroverted by the record that Jeshers did not request the relief

of specific performance of Halioua or request the trial court to compel him to sell

his property sell his property to Jeshers by its original counterclaim; its motion for

summary judgment; or, any count of its amended counterclaim. As a consequence,

the trial judge's April 11, 2016 enforcement "Order" directing Halioua to sell 11is

property to Jeshers is voidable as to Halioua because it awards Jeshers relief as to

Haliona that it never request by way of any pleading. It is well established under

Florida law that "ifa court grants reliefbeyond the scope of the pleadings, it is in

excess of its jurisdictîon", and, that "the jurisdiction of the Court can only be

exercised within the scope ofthe pleadings" U.S. Bank National Association, Inc.

v. Elizabeth E. Anthony-Iiish, Et Al., 204 So 3d. 57(Fla. 5* DCA 2016h Fine v.

Fine, .400 So. 2d 1254, 1255 (Fla 5* DCA 1981). Because the lower Court's

enforcement "Order" awarded Jeshers relief that it did not request of TLC that was

beyond the scope of its pleadings, and in excess of the trial court's jurisdiction,.the

enforcement "Order" is. voidable as to Halioua and subject to attack at any time;

therefore, it was a substantial departure from the essential requirements of justice

for the Third District Court of Appeal to affirm the Court's enforcement order

granting Jeshers reliefbeyond the scope of its pleadings without jurisdiction to do

6

so.

The trial judge's May 25, 2015 "Omnibus Order" and. his April 18, 2016

enforcement "Order" are voidable as to both Halioua and TLC because they are

founded upon a counterclaim that did not state a cause of action. According to the

express mandate of Fla. R. Civ. P. 1.110, "a pleading which sets forth. a claim

for relief. . . must state a cause ofaction". In addition, Fla. R. Civ. P. 1.140, (h),

(2) specifically provides that "The defense offailure to state a cause ofaction . . .

orjoin an indispensableparty . . . may be raised . . . in the answer or reply". In its

reply to Jeshers summary judgment motion TLC specifically raised the defenses of

failure to state a cause of action for failing to join Halioua as an indispensable

party the defense of impossibility of performance because TLC did not hold

sufficient title to convey the property by itself without Halioua's joinder The

remedy of specific performance is only available to the buyer if the seller holds

sufficient title to the property by itself to convey the entire interest demanded.

Miller v. Rolfe, 97 So. 2d 132 (Fla. 1" DCA 1957). Florida Courts have defined

indispensable parties as "persons who have not only an interest in the

controversy, but an interest ofsuch a nature that a final decree cannot be made

without either affecting that interest, or leaving the controversy in such a

condition that itsfinal termination may be wholly inconsistent with equity and

7

good conscience." Phillips v. Choate, 456 So.2d 556,557 (Fla.4th DCA

1984) (citing Sheilds v. Barrow 58 U.S. (17 How.), 130, 130, 15 L.

Ed.158, 160 (1855). Halioua clearly had "an interest ofsuch a nature that a

final decree cannot be made without either affecting that interest, or leaving the

controversy in such a condition that its jinal termination may be wholly

inconsistent with equity and good conscience" that required his joinder as an

indispensable to TLC's claim for specific performance. . In addition, "Florida

law clearly holds that a trial court lacks jurisdiction to hear and determine

matters which are not the subject of proper pleading and notice" Carrol &

Associates, P.A. v. Rafael Galindo, 864 So. 2d 24, 28 (Fla 3d DCA.2003); In Re

Estate ofHatcher, 439 So. 2d 977, 979 (Fla 3d DCA 1983). It is well established

under Florida law that "when an award ofrelief is not sought by the pleadings it is

reversible error to grant such relief" Florida courts have long held that "To allow

a court to rule on a matter without proper pleadings and notice is violative ofa

party's due process rights." Carrol & Associales, P,A. v. Rafael Galindo, 864 So.

2d 24, 28 (Fla. 3d DCA 2003); Epic Metals Corp v. Samari Lake East Condo

Ass'n, Inc., 547 So. 2d 198, 199 (Fla 3d DCA 1989); and, that a final judgment

that goes beyond the issues framed in the pleadings and beyond the proof adduced

is a clear departure from the requirements of due process of law. Carrol &

8

Associates, P,A. v. Rafael Galindo, 864 So. 2d 24, 28 (Fla 3d DCA 2003);

McDonald v. McDonald, 732 So. 2d 505, 506 (Fla 4th DM 1999) Thd

was a substantial departure from.the essential requirements ofJustice for the Third

District Court of Appeal to affirm the trial court's April 18, 2016 enforcement

"Order" that was founded upon the trial judge's voidable "Omnibus Order"

CONCLUSION

For all these reasons, Petitioners TLC and Halioua respëctfully request that

this Court exercise its jurisdiction in this case.

9

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and exact copy of the foregoing was

provided to John Campbell, Esq., attorney for Respondents by electronic service

directed to campbelllaw@me.com and campbelllaw@mac.com this 17* day of

April 2016.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that I have complied with the font and pica

requirements by using 14 point Times New Roman.

By:Robert . Mider, Msq.Florida Bar No. 0359173Cunningham Miller, P.A.Attorneys for Petitioners2975 Overseas HighwayMarathon, Florida 33050Telephone: (305) 743-9428Facsimile: (305) 743-8800Process: service@floridakeyslaw.com