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Filing # 42611627 E-Filed 06/10/2016 04:35:24 PM

IN THE SUPREME COURT OF FLORIDA


____________________

RECEIVED, 06/10/2016 04:38:39 PM, Clerk, Supreme Court

Supreme Court Case No.: SC16-947


L.T. Case No.: 2D14-1511
th
6 Circuit Case No.: 00- 005682-CI-78
____________________
CHURCH OF SCIENTOLOGY
FLAG SERVICE ORGANIZATION, INC.,
Petitioner,
versus
KENNAN G. DANDAR
and DANDAR & DANDAR, P.A.,
Respondents.
__________________________________
Appeal from the Second District Court of Appeal
__________________________________
JURISDICTIONAL BRIEF OF RESPONDENTS
____________________________
KENNAN GEORGE DANDAR ESQ.
Florida Bar No. 289698
THOMAS JOHN DANDAR, ESQ.
Florida Bar No. 434825
DANDAR & DANDAR, P.A.
Post Office Box 24597
Tampa, Florida 33623 (813) 289-3858
Attorney for Respondents

TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF THE CASE AND OF THE FACTS . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
There is no conflict jurisdiction, as the Petitioner never invoked the
subject matter jurisdiction of the court, Dandar was not a party in
the wrongful death case, and the voluntary dismissal with prejudice
divested the court of all jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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TABLE OF CITATIONS
CASES

PAGE

84 Lumber Co. v. Cooper,


656 So.2d 1297 (Fla. 2d DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Albert v. Albert,
36 So.3d 143 (Fla. 3d DCA 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Aguilera v. Inservices, Inc.,
905 So. 2d 84 (Fla. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Boyd v. Becker,
627 So.2d 481(Fla.1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Cunningham v. Standard Guar. Ins. Co.,
630 So.2d 179 (Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Davidson v. Stringer,
109 Fla. 238, 147 So. 228 (Fla. 1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Donovan v. City of Dallas,
377 U.S. 408 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Estate of Williams v. Jursinski,
160 So.3d 500 (Fla. 2d DCA 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Eye & Ear Sales & Serv. Co. v. Lamela,
636 So.2d 791 (Fla. 4th DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Fiocchi v. Trainello,
566 So.2d 904 (Fla. 4th DCA 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
General Atomic Co. v. Felter,
434 U.S. 12 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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Green v. Sun Harbor Homeowners' Association, Inc.,


730 So.2d 1261 (Fla.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Kelly v. Colston,
977 So.2d 692 (Fla. 1st DCA 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Lovett v. Lovett,
93 Fla. 611, 112 So. 768 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Malone v. Meres,
91 Fla. 709, 109 So. 677 (Fla. 1926) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
MCR Funding v. CMG Funding Corp,
771 So.2d 32 (Fla 4th DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,6,7,8,10
Paddock v. Chacko,
553 So. 2d 168 (Fla. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Paulucci v. General Dynamics Corp.,
842 So.2d 797 (Fla. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,6,7,8,10
Pino v. Bank of New York,
121 So.3d 23 (Fla. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,6,9,10
Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P.,
143 So.3d 1182 (Fla. 4th DCA 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Pro-Art Dental Lab, Inc v. V-Strategic Group, LLC,
986 So. 2d 1244 (Fla. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Reaves v. State,
485 So. 2d 829 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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State v. Garcia,
229 So.2d 236 (Fla. 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trans Health Mgmt. v. Nunziata,
159 So.3d 850 (Fla. 2d DCA 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9
Warren v. Southeastern Leisure Systems, Inc.,
522 So.2d 979 (Fla. 1st DCA 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
WM Specialty Mortg., LLC v. Salomon,
889 So.2d 922 (Fla. 4th DCA 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATUTES
542.18, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
542.21, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
OTHER AUTHORITIES

Fla. R. Civ. P. 1.730( c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,9


Rule 4-5.6, R. Reg. Fla. Bar, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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STATEMENT OF THE CASE AND OF THE FACTS


Petitioner misrepresents the facts giving rise to the final judgment entered by
the Circuit Court and reversed by the District Court due to the complete lack of
jurisdiction. The Circuit Court case was filed in 1997 in Hillsborough County by the
Estate of Lisa McPherson for wrongful death, and transferred to Pinellas County in
2000. The case was entitled Estate of Lisa McPherson v. Church of Scienetology
Flag Service Organization, Inc, and was dismissed by the parties upon the filing of
a simple Joint Stipulation of Voluntary Dismissal with Prejudice on June 8, 2004.
The settlement agreement was not incorporated into the dismissal and the dismissal
has no mention of the court retaining jurisdiction, and no order was entered reserving
jurisdiction.
Attorney Dandar represented the Estate of Lisa McPherson, and in settling the
case, the settlement agreement included non-parties, Dandar and Religious
Technology Center, to resolve competing claims. Petitioners statement that the
settlement agreement was only between Dandar and Petitioner is false.
In 2009, Dandar did not personally sue the Petitioner. Dandar represented a
client that filed a wrongful death suit against the Petitioner in the United States
District Court for the Middle District of Florida.
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In response to the federal case, Petitioner did not file a motion in the longclosed and dismissed Circuit Court case. The true fact is that Petitioner merely
handed the motion in 2009 to a retired senior circuit court judge, and did not file it
with the clerk of the court.
Petitioner also misrepresents that the unfiled motion sought to enforce the
executory terms of the settlement agreement, as all of the executory terms of the
settlement agreement, i.e., releases and dismissals of other litigation, were completed,
as conditions precedent to the June 8, 2004 filing of the Joint Voluntary Dismissal
With Prejudice. Furthermore, Dandar was not a party in the long-closed circuit case,
but the attorney for the plaintiff for wrongful death.
Petitioners unfiled 2009 motion sought an injunction against Dandar to restrict
the practice of law in violation of Rule 4-5.6 of the Rules Regulating the Florida Bar,
and a restriction on the practice of a profession, is unlawful and void, 542.18, Fla.
Stat., and also illegal. 542.21, Fla. Stat.
In addition to objecting to the unfiled motion, upon discovering that there was
never an order entered reserving jurisdiction, Dandar filed a Notice of the Lack of
Jurisdiction in 2010.
Petitioner mis-characterizes that the unfiled motion of 2009 was an
enforcement proceeding. The unfiled motion did not seek to enforce an order of
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the circuit court, and was not directed to a party in the long-closed wrongful death
case. After first seeking the injunction, Petitioner then sought damages for breach of
contract consisting of attorney fees and costs for defending the federal court case, the
prior appeals of non-final orders entered upon the unfiled motion, and for the
proceedings in the circuit court occurring in a locked, closed courtroom,
notwithstanding that the federal court and the prior appeals of the unfiled motion, had
denied attorney fees. Because the settlement agreement did not contain an attorney
fee provision, Petitioner contended that Fla. R. Civ. P. 1.730( c) applied to the unfiled
motion.
The entry of the final judgment by the Circuit Court, empowered the District
Court to review for the first time Dandars contention that the Circuit Court was
acting with the complete absence of subject matter jurisdiction.
On page 2, Petitioner misrepresents the settlement agreement, in that there is
no language calling for the court to reserve jurisdiction for alleged breaches of the
agreement, and the opinion of the District Court does not characterize the settlement
agreement as such.
In holding that the Circuit Court did not have jurisdiction by acquiescence as
a result of the proceedings after dismissal, or by the language of the settlement
agreement, the District Court cited 84 Lumber Co. v. Cooper, 656 So.2d 1297, 1298
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(Fla. 2d DCA 1994), which holds that subject matter jurisdiction cannot be created
by waiver, acquiescence or agreement of the parties, or by error or inadvertence of the
parties or their counsel, or by the exercise of power by the court; it is a power that
arises solely by virtue of law.
Petitioner fails to mention that the District Court held that the voluntary
dismissal with prejudice divested the Circuit Court of continuing jurisdiction, citing
Pino v. Bank of New York, 121 So.3d 23, 32 (Fla. 2013). In holding that the filing of
voluntary dismissal instantaneously divested the Circuit Court of all jurisdiction, the
District Court also relied upon Estate of Williams v. Jursinski, 160 So.3d 500, 501
(Fla. 2d DCA 2015); Kelly v. Colston, 977 So.2d 692, 694 (Fla. 1st DCA 2008); WM
Specialty Mortg., LLC v. Salomon, 889 So.2d 922, 922 (Fla. 4th DCA 2004); Eye &
Ear Sales & Serv. Co. v. Lamela, 636 So.2d 791, 792 (Fla. 4th DCA 1994); and Albert
v. Albert, 36 So.3d 143, 147 (Fla. 3d DCA 2010).
In its Amended Answer Brief in the District Court, Petitioner cited MCR
Funding v. CMG Funding Corp, 771 So.2d 32 (Fla 4th DCA 2000), stating [t]he law
in Florida is that the lack of subject matter jurisdiction may be raised at any time,
and may be raised for the first time on appeal. Petitioner also cited Paulucci v.
General Dynamics Corp., 842 So.2d 797, 801 n.3 (Fla. 2003), stating [s]ubject matter
jurisdiction means the power of a trial court to adjudicate the class of cases to which
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a particular case belongs. They were not cited for continuing jurisdiction.
Now, Petitioner contends that the opinion of the District Court expressly and
directly conflict with MCR and Paulucci on the same question of law, by
presenting a new argument concerning continuing jurisdiction. As the Petitioner has
failed to show that the District Courts decision expressly and directly conflicts with
MCR or Paulucci, this Court should decline to review this case.
SUMMARY OF THE ARGUMENT
The voluntary dismissal with prejudice instantaneously divested the court of
all jurisdiction. Pino v. Bank of New York, 121 So.3d 23, 31-32 (Fla. 2013).
Unlike Paulucci and MCR, the Circuit Court never had subject matter
jurisdiction over Dandar, thus, it could not have continuing or case jurisdiction,
as Dandar was never a party in the wrongful death case, Petitioner never filed a
pleading naming Dandar as a defendant to invoke the jurisdiction of the court, and
there was no case against Dandar for the court to continue jurisdiction.
It is axiomatic that a trial court lacks jurisdiction to issue an injunction that
interferes with the rights of those who are not parties to the action. Trans Health
Mgmt. v. Nunziata, 159 So.3d 850, 857 (Fla. 2d DCA 2014).
Unlike MCR, Dandar raised the issue of the lack of subject matter jurisdiction
in the Circuit Court, and continuously objected to the unfiled motion.
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Paulucci and MCR hold that a court lacks jurisdiction to enforce a settlement
agreement where the court has not approved the agreement by order and retained
jurisdiction to enforce its terms. Without an order to enforce, when a party is
claiming a breach of an agreement and seeks general damages not specified in the
agreement, a new lawsuit must be filed against the other party.
In order for this Court to exercise its conflict jurisdiction, the conflict must be
express and direct and contained within the four corners of the opinion sought to be
reviewed. Aguilera v. Inservices, Inc., 905 So. 2d 84, 106 (Fla. 2005) (citing Reaves
v. State, 485 So. 2d 829 (Fla. 1986)). As the opinion itself, on its face, does not
directly and expressly conflict with another opinion, Paddock v. Chacko, 553 So. 2d
168 (Fla. 1989)(J. McDonald, concurring), and the facts greatly differ, this Court
should decline to accept jurisdiction.
ARGUMENT
There is no conflict jurisdiction, as the Petitioner never invoked the
subject matter jurisdiction of the court, Dandar was not a party in
the wrongful death case, and the voluntary dismissal with prejudice
divested the court of all jurisdiction
The voluntary dismissal serves to terminate the litigation, to instantaneously
divest the court of its jurisdiction to enter or entertain further orders that would
otherwise dispose of the case on the merits, and to preclude revival of the original
action. Pino, at 31-32. Petitioner avoids discussing this controlling precedent, which
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is a death knell to its petition.


In Pino, this Court acknowledged the long-established law that dismissals are
acts of finality which divests the court of subject matter jurisdiction. Thus, the
circuit courts authority to render any orders ceased on June 8, 2004, and all
subsequent orders, proceedings, and judgments are a nullity and void. A motion for
sanctions for the failure to perform the executory terms of a mediation agreement
must be filed before dismissal. Pomeranz & Landsman Corp. v. Miami Marlins
Baseball Club, L.P., 143 So.3d 1182 (Fla. 4th DCA 2014). The enforcement of a
settlement agreement, whether through award of damages or decree of specific
performance, is not a continuation or renewal of a dismissed suit, as it requires a new
lawsuit and its own basis for jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 378 (1994).
Petitioner misrepresents that the decision below conflicts with Paulucci and
MCR, as both cases concerned parties to the case where the subject matter jurisdiction
of the court was invoked by a proper pleading, summons, and service of process.
Petitioner failed to file any pleading against Dandar, and Dandar was never a party
in the wrongful death case.
In Paulucci and MCR, both courts recognized that once a voluntary dismissal
is filed without first presenting the settlement agreement to the judge or obtaining an
order of dismissal predicated on same, a party cannot obtain enforcement of the
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settlement agreement by simply filing a motion in the dismissed case if one of the
other parties to the agreement objects. Paulucci, at 802 (citing MCR, at 34-35).
When the Petitioner gave its unfiled motion to the senior judge, Dandar, a nonparty, objected to the motion. Both Paulucci and MCR require the Petitioner to file
a new lawsuit for breach of contract.
Petitioner contends, without citing any authority, that there is a difference
between subject matter jurisdiction and continuing jurisdiction. However,
continuing jurisdiction is subject matter jurisdiction. As this Court recognized in
Paulucci, once a case is concluded, the court loses jurisdiction over the subject
matter. Id. at 801 (citing Davidson v. Stringer, 109 Fla. 238, 147 So. 228 , 229 (Fla.
1933)). Continuing jurisdiction exists only for the court to enforce its judgments and
orders. Id. Subject matter jurisdiction means no more than the power lawfully
existing to hear and determine a cause. Id. at 801-02 n.3 (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 (Fla. 1926)).

Thus, the Circuit Court was

instantaneously divested of subject matter jurisdiction on June 8, 2004, upon the


filing of the Joint Voluntary Dismissal with Prejudice.
In MCR, the parties to the case filed a joint stipulation for dismissal which
contained a reservation of jurisdiction; MCR did not object to the post-dismissal
motion as it concerned the issues raised in the lawsuit; and MCR did not dispute the
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circuit courts jurisdiction until the appeal. None of these facts are here. Here, there
is simply a joint stipulation for dismissal with prejudice, no court order reserving any
jurisdiction, no filed stipulation for reservation of jurisdiction, and Dandar, a nonparty, objected to the unfiled motion and jurisdiction of the court. Further, as Dandar
was not a party in the wrongful death case, the Circuit Court did not have any
jurisdiction to continue over him.
The Petitioner never invoked the courts subject matter jurisdiction for breach
of contract or injunction against Dandar, as a proper pleading was never filed, nor
does a court ever have subject matter jurisdiction to enjoin a non-party. Trans Health
Mgmt. v. Nunziata, 159 So.3d 850, 857 (Fla. 2d DCA 2014) (It is axiomatic that a
trial court may not issue an injunction that interferes with the rights of those who are
not parties to the action).
The District Courts decision is not only in agreement with these cases, but also
with Pino, a case relied upon by the District Court, which is dispositive of this
frivolous appeal. Petitioner failed to distinguish Pino then and now. Black-letter law
makes certain that the Circuit Court acted in a complete absence of jurisdiction, and
there is no conflict with any district court, as confirmed by the decisions of this Court.
Petitioner contends that the mere motion it handed to Senior Judge Robert E.
Beach invoked the circuit court's jurisdiction under Fla. R. Civ. P. 1.730( c).
However, Rules of Civil Procedure do not create jurisdiction. The Florida Rules of
Page 9 of 11

Civil Procedure are limited to matters of procedure, and a rule cannot abrogate or
modify substantive law. State v. Garcia, 229 So.2d 236, 238 (Fla. 1969); Boyd v.
Becker, 627 So.2d 481, 484 (Fla.1993). Thus, the Rule does not abrogate the due
process requirements of a well-pled complaint, process, and service of process.
Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927). Petitioner fails to provide any
authority that it ever invoked the jurisdiction of the Circuit Court.
Trial courts lack jurisdiction until proper pleadings are filed. Pro-Art Dental
Lab, Inc v. V-Strategic Group, LLC, 986 So. 2d 1244 (Fla. 2008); Lovett. A motion
is not a pleading. Green v. Sun Harbor Homeowners' Association, Inc., 730 So.2d
1261, 1263 (Fla.1998).
The entry of the judgment provided the first opportunity for appellate review
as 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. 1st DCA 1988); Fiocchi v. Trainello, 566 So.2d 904 (Fla. 4th DCA 1990).
The Supremacy Clause, as utilized in Donovan v. City of Dallas, 377 U.S. 408
(1964), and its progeny, General Atomic Co. v. Felter, 434 U.S. 12 (1977), preempts
state court jurisdiction to impose sanctions against Dandar, a federal litigator.
CONCLUSION
As there is no jurisdiction post dismissal with prejudice, Pino, and there is no
conflict with Paulucci or MCR, jurisdiction should be denied.
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CERTIFICATE OF SERVICE
I certify that the foregoing was filed with Florida Courts E-Filing Portal this
10th day of June, 2016, which will provide a copy to F. Wallace Pope, Jr., Esq.;
Robert V. Potter, Jr., Esq.; and Marie Tomassi, Esq.
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the font requirements of the Fla. R. App.
P. 9.210(a)(2).

/s/ Kennan G. Dandar


KENNAN G. DANDAR, ESQ.
Florida Bar No. 289698
/s/ Thomas J. Dandar
Florida Bar No. 434825
DANDAR & DANDAR, P.A.
Post Office Box 24597
Tampa, Florida 33623-4597
813-289-3858/Fax: 813-287-0895
Attorneys for Appellants
EF.KGD@Dandarlaw.net
EF.DMW@Dandarlaw.net
EF.TJD@DandarLaw.net

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