IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

SECOND DISTRICT
____________________
APPEAL NO.: 2D14-1511
CASE NO.: 00- 005682-CI-78
____________________
KENNAN G. DANDAR
and DANDAR & DANDAR, P.A.,
Appellants,
versus
CHURCH OF SCIENTOLOGY
FLAG SERVICE ORGANIZATION, INC.,
Appellee.
__________________________________
Appeal from the Circuit Court in and for Pinellas County, Florida
to the Second District Court of Appeal
__________________________________
AMENDED INITIAL BRIEF OF APPELLANTS
____________________________
THOMAS JOHN DANDAR, ESQ.
Florida Bar No. 434825
DANDAR & DANDAR, P.A.
5509 West Gray Street, Suite 201
Tampa, Florida 33609 (813) 289-3858
Attorney for Appellants

INTRODUCTION
The circuit court has no jurisdiction under the Supremacy Clause of the U.S.
Constitution, the Florida Constitution, or Florida law. This is an appeal pursuant to
Rule 9.030 (b)(1)(A), Fla R. App. P., of a final judgment of the Circuit Court, entered
in the wrongful death case of The Estate of Lisa McPherson v. Church of Scientology
Flag Service Organization, Inc., after this case was settled and a Voluntary Joint
Dismissal With Prejudice pursuant to Rule 1.420(a)(1), Fla. R. Civ. P., was filed on
June 8, 2004, without a court order reserving jurisdiction.( R. 1-2)(App. 5).
In 2009, five years after dismissal, rather than file a new suit with a complaint
and process, Scientology simply handed a motion for breach of contract to the
retired judge who previously presided over this case back in 2004, seeking damages
and injunction against Appellants, Kennan G. Dandar and Dandar & Dandar, P.A.,1
who were the McPherson Estates lawyers, for his filing of a completely unrelated
federal lawsuit for the wrongful death of Kyle Brennan, a resident of Virginia. The
final judgment rendered March 17, 2014, awards Rule 1.730( c ), Fla. R. Civ. P.,
sanctions to Scientology in excess of $1 million in attorney fees and costs.2

Kennan G. Dandar and Dandar & Dandar, P.A. will be referred to Dandar.

The Global Settlement Agreement contains no attorney fee provision. (App. 4).
-i-

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. The
court 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 McPherson3 in justifying the restriction on the practice
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.

The Global Settlement Agreement specifically provides that the sum paid by Scientology
is only for the wrongful death damages of Lisa McPherson. (App.4).
-ii-

QUESTIONS PRESENTED
1.

WHETHER THERE IS COMPLETE ABSENCE OF JURISDICTION IN THE

CIRCUIT 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 RESTRICTION

ON THE PRACTICE OF LAW IS UNLAWFUL AND UNETHICAL
PURSUANT 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.

-iii-

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 SANCTIONS

PURSUANT 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 PRECLUDED

THE CIRCUIT COURT FROM AWARDING DAMAGES TO
SCIENTOLOGY AFTER IT ELECTED AN EQUITABLE REMEDY.

5.

WHETHER DUE PROCESS RIGHTS, PROPERTY RIGHTS, AND RIGHT

TO TRIAL BY JURY WERE VIOLATED.

-iv-

TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE 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.

II.

THE CIRCUIT COURT IS ACTING IN COMPLETE

ABSENCE OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A.

Subject Matter Jurisdiction is Preempted by the

U.S. Constitution as Donovan renders the State
Court Powerless . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B.

Subject Matter Jurisdiction was Not Invoked by

a Pleading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C.

Subject Matter Jurisdiction was Not Invoked by

Process and Service of Process . . . . . . . . . . . . . . . . . . . . . . . 25

D.

Voluntary Dismissal With Prejudice is a Complete

Divestiture of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

THE RESTRICTION ON THE PRACTICE OF LAW

VIOLATES 542.18 AND 542.33, FLA. STAT., AND
RULE 4-5.6(B), R. REG. FLA. BAR., RENDERING IT
UNLAWFUL, VOID, AND UNETHICAL . . . . . . . . . . . . . . . . . . . 32
-v-

III.

RULE 1.730, FLA. R. CIV. P., DOES NOT

AUTHORIZE THE SANCTIONS IMPOSED . . . . . . . . . . . . . . . . . 36
1.

The Rule only applies to a party, as recognized

by this Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

2.

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 the
executory requirements of a mediation agreement. . . . . . . 39

5.

Sanctions cannot be imposed for actions occurring

outside 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 be

reasonable, not excessive. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

IV.

THE DOCTRINE OF ELECTION OF REMEDIES

PRECLUDES DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

V.

THE FINAL JUDGMENT VIOLATES

DUE PROCESS RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
APPENDIX IS SEPARATELY BOUND

-vi-

TABLE OF CITATIONS
CASES

PAGE

84 Lumber Co. v. Cooper,

656 So.2d 1297 (Fla. 2nd DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Adams v. Bell South Communications, Inc.,
2001 WL 34032759 (S.D. Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 40
Albert v. Albert,
36 So.3d 143 (Fla. 3rd DCA 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Aldridge v. Peak Prop. & Cas. Ins. Corp.,
873 So. 2d 499 (Fla. 2nd DCA 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Bartolucci v. McKay,
428 So.2d 378 (Fla. 5th DCA 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B.G.H. Ins. Syndicate, Inc. v. Presidential Fire & Cas. Co.,
549 So.2d 197 (Fla. 3rd DCA 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 2nd DCA 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Carroll & Assocs., P.A. v. Galindo,
864 So.2d 24 (Fla. 3rd DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
-vii-

Cesaire v. State,
811 So.2d 816 (Fla. 4th DCA 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Chairs v. Burgess,
143 F.3d. 1432 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Chandris 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. 4th DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Coastal Caisson Drill Company, Inc.
v American Casualty Company of Redding, PA,
523 So.2d 791 (Fla. 2nd DCA 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Cole v. State,
714 So.2d 479 (Fla. 2nd DCA 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Cortina v. Cortina,
98 So. 2d 334 (Fla. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Corvette Shop & Supplies, Inc. v. Coggins,
779 So.2d 529 (Fla. 2nd DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Cox v. Great American Insurance Co.,
88 So.3d 1048 (Fla. 4th DCA 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Cox v. Louisiana,
348 F.2d 750 (5th Cir. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Cunningham v. Standard Guar. Ins. Co.,
630 So.2d 179 (Fla.1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

-viii-

Dandar v. Church of Scientology Flag Service Organization, Inc,

59 So.3d 144 (Fla. 2nd DCA 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Davidson v. Stringer,
147 So. 228 (Fla. 1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Dean v. Rutherford Mulhall, P.A.,
16 So.3d 284 (Fla. 4th DCA 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Defreitas v. Defreitas,
398 So.2d 991 (Fla. 4th DCA 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 1st DCA 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 5th DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34,40
Estate of Brennan ex rel. Britton
v. Church of Scientology Flag Service Organization, Inc.,
645 F.3d 1267 (11th Cir. 2011),
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. 4th DCA 1990) . . . . . . . . . . . . . . . . . . . . . . . . . 12,14,19
Finkelstein v. North Broward Hospital Dist.,
484 So. 2d 1241 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Fisher v. State,
840 So.2d 325 (Fla. 5th DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

-ix-

Flagship National Bank of Miami v. Gray Distribution Systems,

432 So.2d 660 (Fla. 3rd DCA 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Fla. Power & Light v. Canal Auth.,
423 So.2d 421 (Fla. 5th DCA 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Freedman v. Fraser Eng'g & Testing, Inc.,
927 So.2d 949 (Fla. 4th DCA 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Fuentes v. Shevin,
407 U.S. 67 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Garcia v. Stewart,
906 So.2d 1117 (Fla. 4th DCA 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25
General Atomic Company v. Felter,
434 U.S. 12 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,11,15,16,17,18
Gordon v. Royal Caribbean Cruises, Ltd.,
641 So.2d 515 (Fla. 3rd DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41,42
Green v. Sun Harbor Homeowners' Association, Inc.,
730 So.2d 1261 (Fla.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,24
HBA Management, Inc. v. Estate of Swartz,
693 So.2d 541 (Fla. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Hernandez v. Coopervision, Inc.,
661 So.2d 33 (Fla. 2nd DCA 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Iberiabank v. RHN Investments, Ltd.,
144 So.3d 583 (Fla. 4th DCA 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Ingram-Dekle Lbr. Co. v. Geiger,
71 Fla. 390, 71 So. 552 (1916) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
In re Elrod,
455 So.2d 1325 (Fla. 4th DCA 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
-x-

In re Estate of Hatcher,
439 So.2d 977 (Fla. 3rd DCA 1983) . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23,24
Instituto Patriotico Y Docente San Carlos v. Cuban Am. Nat'l Found.,
667 So. 2d 490 (Fla. 3rd DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Insua v. World Wide Air, Inc.,
582 So.2d 102 (Fla. 2nd DCA 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Izaak Walton investors, LLC v. Oesterle,
51 So.3d 612 (Fla. 1st DCA 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Jesse v. State, Dept of Revenue,
711 So.2d 1179 (Fla. 2nd DCA 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Johnson v. Bezner,
910 So. 2d 398 (Fla. 4th DCA 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 2nd DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37,38
Levine v. Gonzalez,
901 So. 2d 969 (Fla. 4th DCA 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Lockwood v. Pierce,
730 So.2d 1281 (Fla. 4th DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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
-xi-

Mayor's Jewelers, Inc. v. State of Cal. Public Employees' Retirement System,

685 So.2d 904, 908 (Fla. 4th DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 4th DCA 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 2nd DCA 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ONeal v. Florida A&M University ex rel.
Bd. of Trustees for Florida A&M University,
989 So.2d 6 (Fla. 1st DCA 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 2nd DCA 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 1st DCA 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

-xii-

Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P.,

143 So.3d 1182 (Fla. 4th DCA 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 3rd DCA 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Sabine v. Sabine,
834 So.2d 959 (Fla. 2nd DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 2nd DCA 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 2nd DCA 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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
-xiii-

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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
State 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. 2nd DCA 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Stone v. Stone,
873 So.2d 628 (Fla. 2nd DCA 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,25
Synchron, Inc. v. Kogan,
757 So. 2d 564 (Fla. 2nd DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,31
Syvrud v. Today Real Estate, Inc.
858 So.2d 1125 (Fla. 2nd DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Florida Bar v. St. Louis,
967 So.2d 108 (Fla. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Tiede v. Satterfield,
870 So.2d 225 (Fla. 2nd DCA 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Warren v. Southeastern Leisure Systems, Inc.,
522 So.2d 979 (Fla. 1st DCA 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 12,14,19
White Sands, Inc. v. Sea Club V. Condominium Ass'n, Inc.,
591 So.2d 286 (Fla. 2nd DCA 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Williams v. Starnes,
522 So.2d 469 (Fla. 2nd DCA 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

-xiv-

STATUTES
U.S. Const. art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,45
28 U.S.C. 2253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
57.105, 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

-xv-

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.4 (R.1061-64)(App. 2).
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

The other lawyer was Luke Lirot, who represented the McPherson Estate, Dell Liebreich,
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 party
defendants to the McPherson case. After a two week jury trial, Scientology lost.
Page 1 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,5 not only sought sanctions and damages
in the form of attorney fees and costs, but also specific performance of paragraph 5
5

See Docket, (App. 1), showing no filing of this initial motion.

Page 2 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 from
the Scientology parties, including no further anti-Scientology activity,
and no involvement in any adversarial proceedings of any description
against the Scientology parties under any circumstances at any time.
The Scientology parties agree to full, permanent disengagement from the
McPherson parties, including no further anti-McPherson party activity,
and no involvement in any adversarial proceedings of any description
against 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

Page 3 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 federal
court 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).
Page 4 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,6 which resulted in a May 6, 2010 order by Judge Beach to show cause
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.
6

This motion is also not filed with the clerk of court.

Page 5 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
Page 6 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
(11th Cir. 2011).
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 nonfinal order. Dandar v. Church of Scientology Flag Service Organization, Inc, 59
So.3d 144 (Fla. 2nd DCA 2011). The mandate issued on May 23, 2011.
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

Page 7 of 47

tunc to April 12, 2010. (R.1622-32).7 This eliminated the $1,000 per day fine
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 as
interpreted 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 (11th Cir. 2011)... Based on this reference to bad faith,
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

Judge Farnell correctly relied on Pettijohn v. Dade County, 446 So.2d 1143, 145 (Fla. 3d
DCA 1984) citing Milliken v. Meyer, 311 U.S. 457, 462 (1940).
Page 8 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 Schaeffers
office, 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
Page 9 of 47

Scientology entities. (R.3439-41)(App.24).

Although the lower court had previously ruled on July 16, 2012, that full faith
and credit would be given to the federal order granting Dandars motion to withdraw
nunc pro tunc to April 12, 2010, it awarded fees and costs well beyond that date.8
On December 19, 2012, Dandar filed a motion to terminate the proceedings
premised on federal preemption of jurisdiction under the Supremacy Clause as
announced in the landmark case of Donovan v. Dallas, 377 U.S. 408 (1964), and its
progeny, viz, General Atomic Company v. Felter, 434 U.S. 12 (1977), i.e., the
Donovan mandate. Judge Farnell denied the motion two days later. (R.3026-43).
Final written closing arguments were submitted to the court. (R.3244-50;
3679-3713). Thereafter, Final Judgment under seal was entered on February 10,
2014, (R.3748-71), and upon objection by Scientology, an amended recordable Final
Judgment was entered on March 17, 2014, (R.4168-69 )(App. 25), along with a
sealed order of findings of fact. (R.4177-92)(App. 26). This timely appeal followed.

In the Brennan case, Scientology had previously filed several Rule 11 motions for its
attorney fees, all of which were denied.

Page 10 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 AntiInjunction 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.9 Donovan v. Dallas,
377 U.S. 408 (1964), and its progeny, viz, General Atomic Company v. Felter, 434

The contract is the Global Settlement Agreement, which Dandar adamantly stresses does
not contain an illegal and unethical practice restriction.
Page 11 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 are
without 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. 1st DCA 1988). The final judgment was entered March 17, 2014, and the circuit
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. 4th DCA 1990). As Judge Merryday
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
Page 12 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
Page 13 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, and

Florida 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. 2nd DCA 2003). The prior non-final orders previously
appealed and affirmed must be reviewed first under the doctrine of manifest injustice.
Tiede v. Satterfield, 870 So.2d 225 (Fla. 2nd DCA 2004); White Sands, Inc. v. Sea
Club V. Condominium Ass'n, Inc., 591 So.2d 286 (Fla. 2nd DCA 1991). Secondly, the
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. 1st DCA 1988); Fiocchi v. Trainello, 566 So.2d 904
(Fla. 4th DCA 1990).
Page 14 of 47

ARGUMENT
I.

THE CIRCUIT COURT IS ACTING IN COMPLETE ABSENCE OF

JURISDICTION
A.

Subject Matter Jurisdiction is Preempted by the U.S. Constitution

as 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 FEDERALCOURT PROCEEDINGS IN IN PERSONAM ACTIONS... Id., at 413, 84
S.Ct , at 1582. Our holding was premised on the fact that the right to
litigate 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 Congress
to bring in personam actions in federal courts are not subject to
abridgment by state-court injunctions, regardless of whether the federal
litigation is pending or prospective.
General Atomic, at 17.10

10

General Atomic actually extends the rule in Donovan. Id. at 20 [dissent by Rehnquist,

J.].
Page 15 of 47

Dandars federal rights attached as soon as he filed Brennan.11 In response to

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 before
dismissal.12 The substantive right to participate in federal court and the federal rights
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.

11

The Donovan mandate applies even if there had been a prior state court order
prohibiting Dandar from filing any action.
12

It was not known then by Dandar that judge Robert E. Beach, was a co-conspirator with
Scientology and its counsel to make McPherson go away. See transcript of the statement
under oath of Mark Marty Rathbun, formerly Number 2 worldwide in all of Scientology. [App.
22][R. 2162-2217].
Page 16 of 47

The circuit court was also required to follow Flagship National Bank of Miami
v. Gray Distribution Systems, 432 So.2d 660 (Fla. 3rd DCA 1983), which recognized
the Donovan mandate.
We reverse the above injunctive order upon a holding that it is not
within the power of state courts to bar litigants from filing and
prosecuting in personam actions in the federal courts. General Atomic
Co. 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

Page 17 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 (5th Cir. 1965). It does not matter that the federal matter makes the state
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. 2nd DCA 1995). Under the
Page 18 of 47

United States Constitution's Supremacy Clause, the state cannot assert jurisdiction
where Congress clearly intended to preempt a field of law. U.S. Const. art. VI, cl. 2;
Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124,
67 L.Ed.2d 258 (1981).
The Supremacy Clause preempts the circuit court from sanctioning Dandar,
a federal litigator, for filing a federal case and obeying the orders of the federal court.
See, Chairs v. Burgess, 143 F.3d. 1432, 1438 (11th Cir. 1998)(finding no contempt
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. 1st DCA 1988). Thus, the issue of the lack of
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. 4th DCA 1990).

Page 19 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 commonly
stated that subject matter jurisdiction cannot be waived or conferred
upon a court by consent or agreement of the parties. Williams v.
Starnes, 522 So.2d 469, 471 (Fla. 2nd DCA 1988). A judgment of a court
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. 2nd DCA 2007).
Burke v. Esposito, 972 So.2d 1024 (Fla. 2nd DCA 2008)(J. Altenbernd, concurring
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. 2nd DCA 1989); Fla. Power & Light v. Canal Auth., 423 So.2d 421, 423 (Fla. 5th
Page 20 of 47

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. 2nd DCA 2004).
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. 2nd DCA 2000)
(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. 3rd DCA 2003)
Page 21 of 47

("`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.' " (quoting
In re Estate of Hatcher, 439 So.2d 977, 980 (Fla. 3rd DCA 1983) (footnote omitted)));
Sabine v. Sabine, 834 So.2d 959 (Fla. 2nd DCA 2003) (when "a judgment is not based
on an issue that has been framed by the pleadings, noticed for hearing, or litigated by
the parties, it may not stand"); See also, Cortina v. Cortina, 98 So. 2d 334, 337 (Fla.
1957); Aldridge v. Peak Prop. & Cas. Ins. Corp., 873 So.2d 499, 501 (Fla. 2nd DCA
2004); Instituto Patriotico Y Docente San Carlos v. Cuban Am. Nat'l Found., 667
So.2d 490, 492 (Fla. 3rd DCA 1996).
A court ruling on a matter without proper pleadings and notice is violative of
a party's due process rights. Robinson v. Malik, 135 So.2d 445 (Fla. 3rd DCA 1961)(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").
In the seminal case of Lovett, the Florida Supreme Court explained:
[B]efore this potential jurisdiction of the subject-matter-this power to
hear and determine-can be exercised, it must be lawfully invoked and
called into action; the parties and the subject-matter of the particular
case must be brought before the court in such a way that it acquires the
jurisdiction and the power to act. There must be a right in dispute
between two or more parties; a proceeding commenced under the proper
rules of law; process must be served on the opposite party or parties in
order that they may have an opportunity to be heard ... The jurisdiction
and power of a court remain at rest until called into action by some
Page 22 of 47

suitor; it cannot by its own action institute a proceeding sua sponte. The
action of a court must be called into exercise by pleading and
process, prescribed or recognized by law, procured or obtained by some
suitor by filing a declaration, complaint, petition, cross-bill, or in some
form requesting the exercise of the power of the court. If a court should
render a judgment in a case where it had jurisdiction of the parties, upon
a matter entirely outside of the issues made, it would, of necessity, be
arbitrary and unjust as being outside the jurisdiction of the
subject-matter of the particular case, and such judgment would be void
and would not withstand a collateral attack, for upon such matter a
presumption would arise that the parties had had no opportunity to be
heard.
Lovett, at 775-76 (emphasis added); See Lockwood v. Pierce, 730 So.2d 1281, 1283
(Fla. 4th DCA 1999); In re Estate of Hatcher.
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
Page 23 of 47

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. 4th DCA 2005), before or after its
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 include
a complaint, petition, counterclaim, crossclaim, and third-party
complaint. Fla. R. Civ. P. 1.100(a). In Green v. Sun Harbor
Homeowners' Association, Inc., 730 So.2d 1261, 1263 (Fla.1998), the
supreme 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 not
a pleading sufficient to invoke the jurisdiction of the court to adjudicate
its right to the funds. The trial court was therefore without jurisdiction
to disburse the funds so that its order disbursing the funds was void. See
Page 24 of 47

Lovett, 112 So. at 776; Defreitas v. Defreitas, 398 So.2d 991, 992 (Fla.
4th DCA 1981); Bartolucci v. McKay, 428 So.2d 378, 379 (Fla. 5th DCA
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 by

Process 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.

Page 25 of 47

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

Page 26 of 47

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 is
specifically 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. 2nd DCA
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.
2nd DCA 2011)(It is true that a judge has no jurisdiction to proceed over a case that
has been dismissed with finality. See also, 84 Lumber Co. v. Cooper, 656 So.2d
1297, 1298 (Fla. 2nd DCA 1994). Likewise, vacation of the judgment and dismissal
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
Page 27 of 47

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 dismissal
under rule 1.420(a)(1) is jurisdictional. 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. In RandleEastern Ambulance Service, Inc. v. Vasta, 360 So.2d
68 (Fla.1978), the Court embraced this principle of law, holding that
voluntary dismissals taken pursuant to Rule 1.420 are acts of finality
that 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 a
defendant which the trial judge might be disposed to
approve. The effect is to remove completely from the
court'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 judicial
discretion 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 consequence
support 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. 4th DCA 2014), the Court held:
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 the
action. Generally, a voluntary dismissal under Florida Rule of Civil
Procedure 1.420(a)(1) terminates a trial court's jurisdiction over a
Page 28 of 47

matter. See RandleEastern Ambulance Serv., Inc. v. Vasta, 360 So.2d

68 (Fla.1978).
Pursuant to Pino v. Bank of New York, 121 So. 3d 23, 41 43 ( Fla.
2013), a trial court has continuing jurisdiction to consider a 57.105
motion for sanctions only where the motion for sanctions was filed with
the court before a voluntary dismissal.
Here, the sanctions motion was not filed until after the action was
dismissed. The voluntary dismissal ended the trial court's jurisdiction.
We therefore grant the petition as the trial court is without subject matter
jurisdiction over the motion.
Scientology handed its motion to Judge Beach nearly 5 years after the circuit
court was divested of jurisdiction. The circuit court did not have any continuing
jurisdiction to entertain the matter. In Iberiabank v. RHN Investments, Ltd., 144
So.3d 583 (Fla. 4th DCA 2014), the Court held that the trial court lost jurisdiction
when the bank voluntarily dismissed its foreclosure action.
Lovett, held that: The rule that jurisdiction of the subject-matter, in the general
abstract sense--the power of the court to adjudicate the class of cases to which the
particular case belongs--cannot be conferred by the acquiescence or consent of the
parties is so universally recognized as to require no citation of authority. Id. at 775.
Subject matter jurisdiction is conferred upon a court by a constitution or
statute, and cannot be created by waiver, acquiescence or agreement of
the parties. State 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).

Page 29 of 47

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. 2nd DCA 1998). To
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
Page 30 of 47

jurisdiction over the case. Albert v. Albert, 36 So.3d 143 (Fla. 3rd DCA 2010);
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. 1st DCA 1984); Levine v. Gonzalez, 901 So.2d 969,
973 (Fla. 4th DCA 2005). See also, Synchron, Inc. v. Kogan, 757 So.2d 564, 566 (Fla.
2nd DCA 2000) (reversing a contempt order where the trial court lacked jurisdiction
over the alleged offending corporation); Steffens v. Steffens, 593 So.2d 1156, 1158
(Fla. 2nd DCA 1992) (holding that a final judgment entered against a party not subject
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. 4th DCA 2002)(person cannot be compelled to obey a void order); In re Elrod,
455 So.2d 1325 (Fla. 4th DCA 1984)(a court does not have contempt powers to
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. 5th DCA 2003)(the order finding Fisher in contempt for not
complying with the restitution order is also void since it was based on the void
restitution order).
Page 31 of 47

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. See
Cole v. State, 714 So.2d 479, 48990 (Fla. 2nd DCA 1998) (any action taken by the
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 VIOLATES

542.18 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
Page 32 of 47

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 against
the 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, 121122 (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 that
Bell South sought a practice restriction on Plaintiffs counsel to prevent
Plaintiffs counsel from bringing future similar cases against Bell South
with the same kind of terrorist tactics used against Bell South in this
case. In short, the practice restriction was a payoff to Plaintiffs counsel
to make them go away and never come back. As I explained infra, this
type of arrangement is in violation of Rule 4-5.6 for well-grounded
public policy reasons. Second, the practice restriction was not written
to protect the clients of plaintiffs counsel, but rather to protect the
opposing 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,

Page 33 of 47

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 restriction
imposed 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. 1st DCA 1968), agreements in
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. 2nd DCA 1988) (an
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. 2nd DCA 2000), and Elser v. Law Office of James Russ, P.A., 679
So.2d 309 (Fla. 5th DCA 1996) (declaring a contract unenforceable if it is against
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 and
unethical, 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. 042, 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. 4th DCA 2009).
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 THE

SANCTIONS 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 any
matter as a result of mediation, the mediator shall report the lack of an
agreement to the court without comment or recommendation. With the
consent 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 be
reduced 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 a
stipulation of dismissal shall be filed. By stipulation of the parties, the
agreement may be electronically or stenographically recorded. In such
event, the transcript may be filed with the court. The mediator shall
report the existence of the signed or transcribed agreement to the court
without comment within 10 days thereof. No agreement under this rule
shall be reported to the court except as provided herein.
Imposition of Sanctions. In the event of any breach or failure to perform
under the agreement, the court upon motion may impose sanctions,
including costs, attorneys' fees, or other appropriate remedies including
entry 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. 2nd DCA 2003), this Court acknowledged that
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 mediation
agreement.

In order to impose a sanction under rule 1.730( c ), an award of fees must

include express findings of bad faith conduct by a party. Johnson v. Bezner, 910
So. 2d 398, 401 (Fla. 4th DCA 2005); Cox v. Great American Insurance Co., 88 So.3d
1048 (Fla. 4th DCA 2012).
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 11th Circuits
opinion in Estate of Brennan ex rel. Britton v. Church of Scientology Flag Service
Organization, Inc., 645 F.3d 1267 (11th Cir. 2011), pet. denied, 132 S.Ct. 1557
(2012). However, not only are there no findings by the 11th Circuit of bad faith
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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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 specifically
set forth in the agreement.13 There was no testimony by a Scientology representative,
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. 5th DCA 1996); Adams v. Bell South Communications, Inc., 2001
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

13

The Global Settlement Agreement at 7 specifically states that the damages paid are
solely for the wrongful death of Lisa McPherson.
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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 ethical
rules 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 the

litigation.

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 party to be

enforceable

Florida courts consistently have held that a settlement agreement resulting from
mediation cannot be enforced absent the signatures of all parties. Freedman v. Fraser
Eng'g & Testing, Inc., 927 So.2d 949, 953 (Fla. 4th DCA 2006); City of Delray Beach
v. Keiser, 699 So.2d 855, 856 (Fla. 4th DCA 1997); Gordon v. Royal Caribbean
Page 41 of 47

Cruises, Ltd., 641 So.2d 515, 516 (Fla. 3rd DCA 1994). Rule 1.730 requires the
mediator to report the results of mediation. There was no mediation report filed by
the mediator with the court in 2004 while McPherson was active, because the
settlement was not a mediation.
Dandar did sign the settlement agreement as counsel for the Estate of Lisa
McPherson.

However, he never signed individually nor did he receive any

consideration to be individually bound by the Global Settlement Agreement.

Scientology refused to mediate what was court-ordered: only this wrongful death
case. Rather, Scientology insisted on a global agreement to conclude all collateral
litigation arising from this case. Mr. Pope conceded this only at the final hearing.
Rule 1.730( c ) only applies to court-ordered mediations, not a settlement conference
which includes multiple cases involving other parties. Rule 1.730 is therefore
inapplicable.
In Gordon, the court held that an attorney's signature alone, albeit in the
presence of the client, is wholly insufficient under [Rule 1.730] to bind the client,
where the client did not sign the agreement, even if the attorney executed the
document in the clients presence at the mediation. Id. at 517.
Similarly, in Dean v. Rutherford Mulhall, P.A., 16 So.3d 284, 285-286 (Fla. 4th
DCA 2009), although Deans attorney signed the settlement agreement, the settlement
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agreement did not bind Dean because he did not sign it.
Scientologys counsel prepared the settlement agreement and did not include
a personal signature block for either Kennan Dandar or Dandar & Dandar, P.A., even
though they prepared individual signatures in the Releases. (R. 923-927)(App 5).
7.

Sanctions for breaching a mediation agreement must be reasonable,

not excessive.

As this court has previously determined, excessive sanctions will be reversed.

Insua v. World Wide Air, Inc., 582 So.2d 102 (Fla. 2nd DCA 1991). Dandar obeyed
Judge Beach and obeyed the federal court order which denied his motion to withdraw,
fulfilled his ethical obligations in not abandoning his client, and met the requirements
of the Middle District and Florida Bar Rules; of which Scientology and its counsel
advocated and pressured Dandar to violate.
Judge Farnell recognized that he must give full faith and credit to the federal
final Order granting withdrawal from the federal case. However, in doing so, Judge
Farnell only eliminated the $1,000 day fine since the nunc pro tunc aspect of the
federal order resulted in Dandar withdrawing from the federal court on the day he
filed his motion: April 12, 2010. Judge Farnell did not give full faith and credit to the
determination that the practice restriction imposed is illegal and unethical. Since that
federal order was never appealed by Scientology, it is the first final order interpreting

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the dispute between the parties to this motion proceeding. It is the only order with
subject matter jursidiction.
The lower court erred in only giving partial full faith and credit to that order.
By giving the order the required full faith and credit, the lower court, if it had
jurisdiction, should have limited any claim for attorney fees and taxable cost is from
February 9, 2009 to April 12, 2010. However, no attorney fees and costs can be
awarded because to interpret Paragraph 5 of the agreement as a practice restriction
renders it unethical and illegal.
IV.

THE DOCTRINE OF ELECTION OF REMEDIES PRECLUDED

THE CIRCUIT COURT FROM AWARDING DAMAGES
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
prerequisites to injunctive relief, and irreparable harm is not established where
potential loss can be adequately compensated for by monetary award. B.G.H. Ins.
Syndicate, Inc. v. Presidential Fire & Cas. Co., 549 So.2d 197 (Fla. 3rd DCA 1989);
Mayor's Jewelers, Inc. v. State of Cal. Public Employees' Retirement System, 685
So.2d 904, 908 (Fla. 4th DCA 1996). However, Scientology was never required to
satisfy its burden of proof to be entitled to equitable relief, but nonetheless, it was

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awarded. Thus, the circuit court erred in awarding damages, and the Final Judgment
requires reversal.
V.

THE FINAL JUDGMENT VIOLATES DUE PROCESS RIGHTS.

Dandar has a property interest in Florida statutes, rules, procedures, and Florida

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. The
circuit court not only failed to protect Dandars protected property interests, but
violated those property interests, especially by not enforcing 542.18 and 542.33,
Fla. Stat., Rule 4-5.6(b), R. Reg. Fla. Bar., Rule 1.420(a)(1) and 1.730, Fla. R. Civ.
P., and adversely affecting employment rights and profession.
On July 26, 2012, Dandar filed a motion demanding trial by jury. (R.16411642). The motion was denied. Dandar was entitled to a jury trial, a public jury trial,
pursuant to Art. I, 22, Fla. Const., which states that [t]he right of trial by jury shall
be secure to all and remain inviolate, provides a constitutional right to a jury trial in
an action at law for damages. ONeal v. Florida A&M University ex rel. Bd. of
Trustees for Florida A&M University, 989 So.2d 6 (Fla. 1st DCA 2008); Izaak Walton
investors, LLC v. Oesterle, 51 So.3d 612 (Fla. 1st DCA 2011); and Rule 1.430(a),
Fla.R.Civ.P.
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CONCLUSION
For the foregoing reasons, the Appellants, Kennan G. Dandar and Dandar
& Dandar, P.A. respectfully request that the Final Judgment be declared void, as:
a.

The circuit court lacked subject matter jurisdiction under the Supremacy
Clause of the United States Constitution as held in Donovan v. City of
Dallas;

b.

The judgment is void for lack of subject matter jurisdiction due to the
circuit court assuming jurisdiction under the settlement agreement,
rather than a proper filing of pleading and service of process, because
the case had been dismissed with prejudice on June 8, 2004;

c.

The judgment is void for all other reasons stated above, including the
fact that this settlement agreement is not governed at all by Rule 1.730;

d.

Dandar is not subject to Rule 1.730( c ) because he was never a party

court ordered to mediation, and the breach alleged by Scientology is not
an executory provision of the agreement; and

e.

Paragraph 5 is not a practice restriction, but if it is, it is unethical,

illegal, unenforceable, and unlawful.

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CERTIFICATE OF SERVICE
I certify that the foregoing was filed with Florida Courts E-Filing Portal
this 3rd day of November, 2014, which will provide a copy to F. Wallace Pope, Jr.,
Esq. and Robert V. Potter, Jr., Esq.

/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
kgd@dandarlaw.net (Email)
EF.KGD@dandarlaw.net (Court Desig.)
EF.DMW@dandarlaw.net (2d Desig.)

CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the font requirements of the Florida Rules
of Appellate Procedure, Rule 9.210(a)(2).

/s/ Kennan G. Dandar, Esq.

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