Filing # 42239946 E-Filed 06/02/2016 12:29:38 PM

THE FLORIDA SUPREME COURT

Supreme Court Case No. SC2016-947

CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC.,
Petitioner,

RECEIVED, 06/02/2016 12:33:29 PM, Clerk, Supreme Court

vs.
KENNAN G. DANDAR and DANDAR & DANDAR, P.A.,
Respondents.

ON APPEAL FROM
THE SECOND DISTRICT COURT OF APPEAL
STATE OF FLORIDA

PETITIONERS BRIEF ON JURISDICTION

Marie Tomassi
Florida Bar No. 772062
TRENAM, KEMKER, SCHARF,
BARKIN, FRYE, ONEILL &
MULLIS, Professional Association
200 Central Avenue, Suite 1600
St. Petersburg, FL 33701
Phone: (727) 820-3952
Fax: (727) 820-3972
Attorneys for Petitioner

F. Wallace Pope, Jr.

Florida Bar No. 0124449
Robert V. Potter
Florida Bar No. 363006
JOHNSON, POPE, BOKOR,
RUPPEL & BURNS, LLP
P.O. Box 1368
Clearwater, FL 33757
Phone: (727) 461-1818
Fax: (727) 462-0365
Attorneys for Petitioner

TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................ii
STATEMENT OF THE CASE AND OF THE FACTS ........................................1
THE OPINION OF THE SECOND DISTRICT
COURT OF APPEAL ...................................................................................2
SUMMARY OF ARGUMENT ..............................................................................3
ARGUMENT ..........................................................................................................4
The decision below conflicts with the Fourth District Court of Appeals
decision in MCR Funding v. CMG Funding Corp, 771 So. 2d 32 (Fla. 4th
DCA 2000), and with this Courts decision in Paulucci v. General Dynamics
Corp., 842 So. 2d 797 (Fla. 2003).
CONCLUSION .......................................................................................................9
CERTIFICATE OF COMPLIANCE ......................................................................10
CERTIFICATE OF SERVICE ...............................................................................10

TABLE OF AUTHORITIES
Cases
84 Lumber Co. v. Cooper,
656 So. 2d 1297 (Fla. 2d DCA 1994) ......................................................... 2, 6, 9
14302 San Pablo Place SPE, L.L.C. v. VCP-San Pablo, Ltd.,
92 So. 3d 320 (Fla. 1st DCA 2012) ..................................................................... 8
Cunningham v. Std. Guar. Ins. Co.,
630 So. 2d 179 (Fla. 1994) .................................................................................. 6
Finkelstein v. N. Broward Hosp. Dist.,
484 So. 2d 1241 (Fla. 1986) ................................................................................ 7
MCR Funding v. CMG Funding Corp.,
771 So. 2d 32 (Fla. 4th DCA 2000) ............................................................passim
Paulucci v. Gen. Dynamics Corp.,
842 So. 2d 797 (Fla. 2003) ..........................................................................passim
Solmo v. Friedman,
909 So. 2d 560 (Fla. 4th DCA 2005) .................................................................. 5
T.D. v. K.D.,
747 So. 2d 456 (Fla. 4th DCA 1999) .................................................................. 8
Other
Fla. R. App. P. 9.210(a)(2) ..................................................................................... 10
Fla. R. Civ. P. 1.730(c) ..............................................................................................9

ii

STATEMENT OF THE CASE AND OF THE FACTS

On May 26, 2004, petitioner (the Church) and Kennan Dandar and his firm,
Dandar & Dandar, P.A. (collectively Dandar), entered into a settlement agreement
by which Dandar agreed that he would not be involved in any adversarial
proceedings in the future against the Church. (Appendix, p. 2). The agreement
specifically provided:
[T]he Circuit Court in the wrongful death action shall
retain jurisdiction to enforce the executory terms of the
Confidential Settlement Agreement, which shall be filed
under seal if enforcement becomes necessary.
(Appendix, p. 3, lines 11-14). The parties filed a joint stipulation of dismissal of
the case with prejudice. No dismissal order retaining jurisdiction to enforce was
entered. (Appendix, p. 2).
For a five year period, between 2004 and 2009, the parties were involved in
numerous enforcement proceedings brought by each side and regarding various
aspects of the settlement agreement, which the District Court summarized as the
parties previous pleadings relating to the enforcement of the agreement . . .
. (Appendix, p. 6, line 2).

In 2009, after those previous enforcement

proceedings, Dandar breached the agreement by filing a federal court suit against
the Church. The Church filed a motion to enforce the settlement and for damages.
(Appendix, p. 2). In 2010, after preliminary adverse rulings, Dandar first claimed
lack of subject matter jurisdiction, which the trial court rejected. (Appendix, p. 3).
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The enforcement proceedings ultimately resulted in a judgment against Dandar for

$1,068,156.50. (Appendix, p. 2). Dandar appealed the judgment to the Second
District Court of Appeal, which reversed the judgment for lack of subject matter
jurisdiction. 1 (Appendix, p. 6). The Second District found that all of the orders
entered subsequent to the dismissal are void (Appendix, p. 7, line 8), thus
voiding numerous orders that had been entered over a period exceeding 10 years of
post- settlement litigation.
THE OPINION OF THE SECOND DISTRICT COURT OF APPEAL
The Second District held that a dismissal with prejudice with no reservation
of jurisdiction deprives a court of subject matter jurisdiction, a defense that
cannot be waived and that can be raised at any time. The Second District held that
neither the language in the settlement agreement calling for the court to reserve
jurisdiction nor the parties previous enforcement actions had conferred
jurisdiction on the trial court. The Second District based its decision in large part
on its own decision in 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA
1994), which held that a dismissal of a case with prejudice deprives a trial court of

There had been two earlier interlocutory appeals of the trial courts enforcement orders, each of
which affirmed the trial courts orders of enforcement. Dandar v. Church of Scientology Flag
Serv. Org., Inc., 25 So. 3d 1233 (Fla. 2d DCA 2009) and Dandar v. Church of Scientology Flag
Serv. Org., Inc., 59 So. 3d 144 (Fla. 2d DCA 2011). Dandar also filed a Writ of Prohibition
which the Second District denied without prejudice, allowing Dandar to raise the jurisdictional
issue in 2D10-2194 (59 So. 3d 144). Dandar v. Church of Scientology Flag Service
Organization, Inc., 39 So. 3d 1270 (table) (Fla. 2d DCA 2010) (2010 WL 3220373).
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subject matter jurisdiction that cannot be re-conferred on the court by waiver,

acquiescence or agreement of the parties, . . . . (Appendix, p. 6).
SUMMARY OF ARGUMENT
The Second District Court of Appeals conclusion in the instant opinion that
the jurisdiction at issue is subject matter, and therefore unwaivable, is in direct
conflict with the holding of the Fourth District in MCR Funding v. CMG Funding
Corp., 771 So. 2d 32 (Fla. 4th DCA 2000) and with this Courts conclusion that
such jurisdiction is not subject matter but is instead continuing jurisdiction as
explained in Paulucci v. General Dynamics Corp., 842 So. 2d 797 (Fla. 2003).
The distinctions are outcome determinative because only subject matter
jurisdiction is unwaivable. This Court should accept jurisdiction here to further
clarify and elucidate the jurisdictional issue presented to ensure uniformity among
the Districts.

ARGUMENT
The decision below conflicts with the Fourth District Court of Appeals
decision in MCR Funding v. CMG Funding Corp, 771 So. 2d 32 (Fla. 4th DCA
2000), and with this Courts decision in Paulucci v. General Dynamics Corp.,
842 So. 2d 797 (Fla. 2003).
MCR Funding held that the jurisdiction at issue in the present case is not
subject matter jurisdiction, but is more properly characterized as case
jurisdiction, as to which parties may acquiesce or submit by agreement or waiver.
771 So. 2d at 35. In Paulucci, this Court expressly agreed with MCR Fundings
analysis, noting that framing the issue as one of subject matter jurisdiction is
inaccurate, and instead described the issue as whether the trial court had
continuing jurisdiction. 842 So. 2d at 801- 803.
The essential facts of the Fourth Districts decision in MCR Funding v. CMG
Funding Corp., 771 So. 2d 32 (Fla. 4th DCA 2000) are:
The parties entered into a settlement agreement that was neither filed with
nor approved by the trial court.
The parties filed a joint stipulation for dismissal that contained a reservation
of jurisdiction to enforce the settlement agreement; there was no order of
dismissal as none was required.
Shortly after the dismissal, both parties filed motions to enforce the
settlement agreement. The trial court ruled on the motions and awarded
damages to CMG Funding.
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 On appeal, for the first time, MCR Funding asserted lack of subject matter
jurisdiction.
Among other things, the Fourth District held:
Because the trial court never lost, and could not lose, subject
matter jurisdiction of this case, we reject appellants
jurisdictional argument. Id. at 33.
***
The filing of the voluntary dismissal terminated the trial
courts case jurisdiction. Case jurisdiction is the power
of the court over a particular case that is within its subject
matter jurisdiction. Id. at 35.
***
However, not only did MCR not object to the trial court
considering CMGs motion to enforce the settlement
agreement, MCR filed its own motion asking the court to
enforce the agreement. Thus, having willingly submitted itself,
and the dispute, to the courts authority, MCR may not for the
first time on appeal challenge the courts power to decide the
issue. Id. at 35 (emphasis added).
This is precisely what the parties did in the present case: they voluntarily
submitted themselves to the case jurisdiction of the trial court, just as parties
may voluntarily submit themselves to the personal jurisdiction of a court. Solmo
v. Friedman, 909 So. 2d 560 (Fla. 4th DCA 2005). The MCR Funding parties
expressly agreed to the trial courts continuing jurisdiction in their stipulation for
dismissal, as did the parties in the instant case in their settlement agreement. The
trial courts in both MCR Funding and in the instant case did not expressly retain
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jurisdiction.

And all of the parties in both cases expressly and intentionally

invoked the continuing or case jurisdiction of the trial courts to enforce their
agreements.
The Fourth District in MCR Funding expressly found that its opinion
conflicted with the Second Districts opinion in 84 Lumber Co. v. Cooper, 656 So.
2d 1297 (Fla. 2d DCA 1994), which held that this was a subject matter
jurisdiction issue that could be raised for the first time on appeal. Although the
Fourth District certified conflict with 84 Lumber, the case never reached this
Court. MCR Funding, supra. at 35 n.2. 2
Three years after the Fourth Districts MCR Funding decision, this Court
held in Paulucci v. General Dynamics Corp., 842 So. 2d 797 (Fla. 2003) that the
jurisdictional issue present in the instant case is not one of subject matter
jurisdiction but one of continuing jurisdiction:
Jurisdiction is a broad term that includes several
concepts, each with its own legal significance. In
Paulucci, the Fifth District characterized the issue before
it as one of the trial courts subject matter jurisdiction.
See 797 So. 2d at 21. We conclude that framing the issue
as one of subject matter jurisdiction is inaccurate.
Subject matter jurisdiction means no more than the
power lawfully existing to hear and determine a cause.
Cunningham v. Standard Guar. Ins. Co., 630 So. 2d 179,
181 (Fla. 1994) (quoting Malone v. Meres, 91 Fla. 709,
2

The Second Districts opinion here cites and relies on part of the language in MCR Funding, the
part that says ordinarily the parties would have to pursue a new action, omitting the
determinative qualifier in MCR Fundings discussion: if one of the other parties objects.
6

109 So. 677, 683 (1926)). It concerns the power of the

trial court to deal with a class of cases to which a
particular case belongs. Id. Rather, the issue presented
by the certified question is more aptly described as one of
the trial courts continuing jurisdiction.
Cf.
Finkelstein v. North Broward Hosp. Dist., 484 So. 2d
1241, 1243 (Fla. 1986) (trial court has continuing
jurisdiction to entertain a post-judgment motion for
attorneys fees).
Id. at 801 n.3 (emphasis added).
In Paulucci, this Court cited MCR Funding with approval. Id. at 802-803.
By agreeing with MCR Funding that the jurisdiction at issue was not subject
matter, but rather was case or continuing, this Court implicitly and effectively
resolved the conflict certified by the Fourth District as existing between its
decision in MCR Funding and the Second Districts decision in 84 Lumber Co.,
effectively rejecting the Second Districts 84 Lumber Co. analysis. Because the
facts presented in Paulucci were different, the scope of the actual holding is more
narrow. But the instant Second District opinion is in direct conflict with the
language of this Courts Paulucci decision, and this Courts explanation of the
nature of the jurisdiction at issue and rejection of it being considered as subject
matter. Plainly the Second Districts framing the issue as one of subject matter
jurisdiction is inaccurate. Paulucci, 842 So. 2d at 804 n.3.
The conflict is outcome determinative in this case, and potentially in many
others that could arise in the District Courts of Appeal. Subject matter jurisdiction
7

cannot be waived, but case or continuing jurisdiction can, and the history of
the litigation between these parties shows not just the waiver by inaction, but by
express invocation of the trial courts jurisdiction.
The concurring opinion in 14302 Marina San Pablo Place SPE, LLC v.
VCP-San Pablo Ltd., 92 So. 3d 320 (Fla. 1st DCA 2012) explains further:
The type of jurisdiction the court lacked was its power
over a particular case that is within its subject matter
jurisdiction, as determined by reference to the cases
procedural posture. See T.D. v. K.D., 747 So. 2d 456,
457 n. 2 (Fla. 4th DCA 1999). This species of
jurisdiction is termed case jurisdiction or continuing
jurisdiction by some courts. It has also been referred to
as procedural jurisdiction, meaning a courts authority
to act in a particular case. While lack of subject matter
jurisdiction renders a judgment or order of a court void
ab initio, lack of case jurisdiction should merely render
the courts act voidable, and under appropriate
circumstances, subject to consent, waiver, or estoppel.
(footnotes omitted, emphasis in original).
There is a logical inconsistency in holding that when a trial court dismisses a
case, it loses subject matter jurisdiction. This Court has held that subject matter
jurisdiction simply means that a court by law has the power to hear and determine
a particular kind of cause. Paulucci, 842 So. 2d at 801n.3. A dismissal of a cause
does not deprive a court of its lawful power to hear and determine that kind of
cause, i.e., it does not convert the case into a kind of case outside the courts power
to determine. All it does is interrupt the continuing case jurisdiction of the court,

and such an interruption may be restored by agreement, acquiescence or waiver, as

can personal jurisdiction.
CONCLUSION
The definition of the kind of jurisdiction that a court loses when it dismisses
a case has vexed courts and lawyers for years, as aptly illustrated by the sharp
conflict between the instant case and the Second Districts opinion in 84 Lumber,
on the one hand, and the Fourth Districts opinion in MCR Funding as this Court
approved in Paulucci, on the other.
The instant case presents this Court with a perfect opportunity to clarify this
perplexing area of the law and to define with certainty the nature of the type of
jurisdiction that a court loses when it (or the parties by stipulation) dismisses a
case.

This is particularly important given the strong enforcement authority

bestowed on trial courts when this Court promulgated Florida Rule of Civil
Procedure 1.730(c), allowing motions for sanctions for the violation of settlement
agreements reached through court ordered mediation, as in the present case. This
Courts resolution of this conflict will greatly benefit the courts, lawyers and the
public at large and will ensure that parties are operating under the same definitions
without regard as to in which District a matter is pending.

/s/ Marie Tomassi

Marie Tomassi
Florida Bar No. 772062
TRENAM, KEMKER, SCHARF,
BARKIN, FRYE, ONEILL &
MULLIS, Professional Association
200 Central Avenue, Suite 1600
St. Petersburg, FL 33701
Phone: (727) 820-3952
Fax: (727) 820-3972
Attorneys for Petitioner

/s/ F. Wallace Pope, Jr.

F. Wallace Pope, Jr.
Florida Bar No. 0124449
Robert V. Potter
Florida Bar No. 363006
JOHNSON, POPE, BOKOR,
RUPPEL & BURNS, LLP
P.O. Box 1368
Clearwater, FL 33757
Phone: (727) 461-1818
Fax: (727) 462-0365
Attorneys for Petitioner

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the font requirements of Florida
Rule of Appellate Procedure 9.210(a)(2).
/s/ Marie Tomassi
Attorney
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
PETITIONERS

BRIEF

ON

JURISDICTION

and

APPENDIX

TO

PETITIONERS BRIEF ON JURISDICTION have been furnished by e-service to:

Kennan Dandar and Thomas J. Dandar, Dandar & Dandar, P.A., Post Office Box
24597, Tampa, FL 33623-4597 and Luke Lirot, Luke Charles Lirot, P.A., 2240
Belleair Road, Suite 190, Clearwater, FL 33764, this 2nd day of June, 2016.
/s/ Marie Tomassi
Attorney

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