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

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

KENNAN G. DANDAR and DANDAR & )
DANDAR, P.A., )
)
Appellants, )
)
v. ) Case No. 2D14-1511
)
CHURCH OF SCIENTOLOGY FLAG )
SERVICE ORGANIZATION, INC., )
)
Appellee. )
)

Opinion filed March 2, 2016.

Appeal from the Circuit Court for Pinellas
County; Crockett Farnell, Senior Judge.

Kennan G. Dandar, pro se; Thomas J.
Dandar of Dandar & Dandar, P.A., Tampa;
and Luke Lirot of Luke Charles Lirot, P.A.,
Clearwater, for Appellants.

F. Wallace Pope, Jr., and Robert V. Potter of
Johnson, Pope, Bokor, Ruppel & Burns,
LLP, Clearwater, for Appellee.

PER CURIAM.

Litigation between the parties to this appeal began in 1997, when Kennan

G. Dandar and the law firm of Dandar & Dandar, P.A. (collectively "Dandar"),

represented the Estate of Lisa McPherson in a wrongful death action against Church of
Scientology Flag Service Organization, Inc. (hereinafter "Scientology"). A confidential

settlement agreement was reached in that case, which Dandar signed in his individual

capacity, and the parties filed a joint stipulation of voluntary dismissal with prejudice.

Thereafter, Scientology successfully moved to enforce the agreement against Dandar

five years later in the same case and was awarded attorney's fees and costs in the

amount of $1,068,156.50, plus postjudgment interest. We conclude that the trial court

did not have jurisdiction to entertain Scientology's motion after Scientology previously

dismissed its cause of action with prejudice. Accordingly, the final judgment is

reversed.

I. PROCEDURAL HISTORY

The confidential settlement agreement was executed on May 26, 2004,

and Dandar pledged in the agreement that he would not be involved in any adversarial

proceedings against Scientology under any circumstances at any time. Following the

execution of the settlement agreement and in accordance with its terms, the parties filed

a joint stipulation of voluntary dismissal with prejudice on June 8, 2004. The dismissal

stated, "[A]ll claims that were or that could have been asserted in the above-styled

action between the parties shall be and are hereby dismissed with prejudice." No order

was entered by the trial court, either before or after the dismissal was filed, retaining

jurisdiction to enforce the settlement agreement or incorporating the settlement

agreement.

In 2009, Dandar filed a complaint on behalf of another plaintiff in a suit

against Scientology in federal court. Thereafter, Scientology sought an order enforcing

the settlement agreement and awarding damages against Dandar, alleging that his

-2-
representation of the plaintiff in the federal action was a violation of the agreement. It

appears that Scientology never filed this motion with the clerk of court but instead

handed it to the senior trial judge who had presided over the 1997 case.

On March 18, 2010, Dandar filed a notice advising the trial court that it

was proceeding without jurisdiction. At a hearing on the notice and a separate motion

for contempt filed by Scientology, the trial court asked Dandar why he did not allege a

lack of jurisdiction earlier in the proceedings. The response was twofold. First, Dandar

stated that it had fallen through the cracks; second, and more importantly, Dandar

argued that subject matter jurisdiction could be raised at any time. The trial court

rejected Dandar's argument and found that it had jurisdiction to enforce the settlement

agreement based on paragraph eight of the agreement, which provided that "[t]he circuit

court in the wrongful death action shall retain jurisdiction to enforce the executory terms

of this Confidential Settlement Agreement which shall be filed under seal if enforcement

becomes necessary." We conclude that the filing of the voluntary dismissal divested the

trial court of jurisdiction, and the parties' settlement agreement could not confer

jurisdiction on the trial court.

II. VOLUNTARY DISMISSAL

Florida Rule of Civil Procedure 1.420(a) allows for the filing of a stipulation

of dismissal signed by all parties to the action without approval of the trial court. Once a

case is voluntarily dismissed, a trial court is divested of jurisdiction to proceed in the

case in any manner. Such divestiture of jurisdiction was discussed in a recent Florida

Supreme Court opinion. In Pino v. Bank of New York, 121 So. 3d 23, 32 (Fla. 2013),

the court noted that "[t]he voluntary dismissal serves to terminate the litigation, to

-3-
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." Voluntary dismissals are acts of finality that deprive the court of

jurisdiction over the case. Id.; see also Estate of Williams v. Jursinski, 160 So. 3d 500,

501 (Fla. 2d DCA 2015) (concluding that, pursuant to Pino, the notice of voluntary

dismissal "had the effect of immediately divesting the circuit court of jurisdiction"); Kelly

v. Colston, 977 So. 2d 692, 694 (Fla. 1st DCA 2008) ("The effect of a voluntary

dismissal prior to submission is immediate, final, and irreversible. It terminates the

litigation and instantaneously divests the court of its jurisdiction to enter further orders.");

WM Specialty Mortg., LLC v. Salomon, 889 So. 2d 922, 922 (Fla. 4th DCA 2004) ("[A]n

order dismissing an action with prejudice divests the trial court of jurisdiction to preside

over the parties and their dispute." (quoting Eye & Ear Sales & Serv. Co. v. Lamela,

636 So. 2d 791, 792 (Fla. 4th DCA 1994))).

We note that an exception to this rule occurs when the parties present

their settlement to the trial court and the court incorporates or relies upon that

settlement agreement and enters an order dismissing the case based on the parties'

agreement. In that scenario, the parties "may later file a motion in the dismissed case

seeking enforcement of the settlement agreement," and the trial court has jurisdiction to

rule on the motion because the court has the inherent and continuing power to enforce

its own orders. MCR Funding v. CMG Funding Corp., 771 So. 2d 32, 34 (Fla. 4th DCA

2000).

This did not occur in the present case. As previously noted, no order was

entered by the trial court either before or after the dismissal was filed. The Third District

-4-
recently explained the distinction between simply filing a voluntary dismissal with

prejudice and the filing of an order by the trial court reserving "case" jurisdiction or

incorporating the parties' agreement:

There is a difference between presenting a settlement
agreement to the trial court for approval prior to dismissal of
an action and cases where the parties voluntarily dismiss the
action without an order of the court pursuant to Florida Rule
of Civil Procedure 1.420. A voluntary dismissal under rule
1.420(a) divests the trial court of continuing jurisdiction over
the case. However, where the parties, prior to dismissal,
present a settlement agreement to the trial court for approval
and the trial court enters an order of dismissal predicated on
the parties' settlement agreement, the trial court retains
jurisdiction to enforce the terms of the settlement agreement.

Albert v. Albert, 36 So. 3d 143, 147 (Fla. 3d DCA 2010) (citations omitted).

Because the parties in the present case did not obtain an order of

dismissal incorporating the settlement agreement or an order reserving jurisdiction to

enforce the terms of the agreement, neither party may obtain enforcement of the

settlement agreement by filing a motion in the dismissed case. See MCR Funding, 771

So. 2d at 34-35. "[T]he trial court may not rely on its inherent power to enforce its own

orders since there is no judgment or order for the court to enforce. In this instance, the

parties would ordinarily have to pursue a new breach of contract action to enforce the

settlement agreement." Id. at 35. Therefore, the trial court did not have jurisdiction to

rule on Scientology's motion to enforce the settlement agreement and, consequently, it

did not have jurisdiction to enter a final judgment requiring Dandar to pay damages for

attorney's fees and costs in the amount of $1,068,156.50.

-5-
 III. ACQUIESCENCE TO JURISDICTION

We further conclude that neither the language in the parties' settlement

agreement nor the parties' previous pleadings relating to the enforcement of the

agreement conferred jurisdiction on the trial court. This court has addressed this issue

in 84 Lumber Co. v. Cooper, 656 So. 2d 1297, 1298 (Fla. 2d DCA 1994), where a

settlement agreement was reached, a voluntary joint stipulation dismissing the case

with prejudice was filed, and the trial court entered a final order dismissing the case with

prejudice. Cooper thereafter filed a motion in the dismissed case requesting that the

trial court determine the amount due to 84 Lumber Company, which originally was not a

party in the action but later filed a motion to intervene. Id. Ultimately an award was

entered in favor of 84 Lumber Company. Id. At no time did either party claim that the

trial court lacked jurisdiction. Id.

This court reversed the monetary award and began its analysis by noting

that "[s]ubject matter jurisdiction cannot be created by waiver, acquiescence or

agreement of the parties, or by error or inadvertence of the parties or their counsel, or

by the exercise of power by the court; it is a power that arises solely by virtue of law."

Id. (alteration in original) (quoting Fla. Exp. Tobacco Co. v. Dep't of Revenue, 510 So.

2d 936, 943 (Fla. 1st DCA 1987)). This court held that the lack of jurisdiction can be

raised for the first time on appeal. Id.

This court then went on to discuss the impact of the joint stipulation for

dismissal of a case under rule 1.420(a). The effect, simply stated, is that the joint

stipulation for dismissal divested the trial court of "jurisdiction to adjudicate any future

issues arising in that case, including Cooper's motion to determine the amount 84

-6-
Lumber was entitled to be reimbursed." Id. at 1299. That is exactly what occurred in

this instance. Once the voluntary dismissal with prejudice was filed, no authority

remained for the exercise of jurisdiction, and the fact that Dandar raised this issue

almost a year after Scientology moved to enforce the settlement agreement is neither a

bar nor a waiver. See id.

Accordingly, we conclude that after the voluntary dismissal with prejudice

was filed, the trial court did not have jurisdiction to rule on any motion to enforce the

settlement agreement. All such orders entered subsequent to the dismissal are void.

IV. LAW OF THE CASE

Scientology argues that this court is precluded from examining whether

the trial court had jurisdiction based on the law of the case doctrine. We disagree. In

2010, the trial court entered an order in this matter finding Dandar in willful contempt of

court and imposing a damage award of $50,000. In its order, the trial court found that it

had jurisdiction to enforce the settlement agreement through civil contempt. Dandar

appealed the trial court's decision and argued that the trial court lacked jurisdiction

because the case had been dismissed with prejudice.

This court reversed the order on appeal "to the extent that it awarded

$50,000 in damages against Dandar and in favor of the Church." Dandar v. Church of

Scientology Flag Serv. Org., Inc., 59 So. 3d 144, 145 (Fla. 2d DCA 2011). The opinion

of this court does not expressly pass upon the jurisdictional claim. However, following

its holding, the opinion continued by stating: "Dandar's remaining arguments are either

procedurally barred or are otherwise without merit." Id. This disposition is procedural

-7-
and not a substantive determination on the merits. Therefore, this panel may reach the

issue of jurisdiction in this appeal.

We find support for this conclusion in a similar case, Hardman v.

Koslowski, 135 So. 3d 434 (Fla. 1st DCA 2014). Addressing the law of the case

doctrine, the court stated:

The doctrine of law of the case is a doctrine of judicial
estoppel "limited to questions of law actually presented and
considered on a former appeal." Fla. Dep't of Transp. v.
Juliano, 801 So. 2d 101, 105-06 (Fla. 2001). The former
husband argued in his answer brief that subject matter
jurisdiction was actually raised and necessarily, though
implicitly, resolved by this Court in [Hardman v. Koslowski,
107 So. 3d 1246 (Fla. 1st DCA 2013)]. We disagree. In
Hardman, we reversed the trial court's order holding the
former wife in contempt for failing to abide by the terms of
the July 9, 2010, order, ruling the provisions of that order
concerning contact between the former husband and his
sons were "aspirational goals" only, relying on the well-
settled rule that " '[o]ne may not be held in contempt for
violating something that an order does not say.' " 107 So. 3d
at 1248 (quoting Keitel v. Keitel, 716 So. 2d 842, 844 (Fla.
4th DCA 1998)). Reversal in Hardman was not, on its face,
predicated on a lack of subject matter jurisdiction, and
reflects no consideration of the issue.

Id. at 436 n.3 (alteration in original).

In our former opinion, we reversed on the issue of damages, and the

opinion of the court is not based on a lack of subject matter jurisdiction and it reflects no

consideration of the issue.

Regardless, even if the law of the case doctrine applied to the issue of

jurisdiction, we conclude that this case falls under an exception to the doctrine.

[A]n appellate court should reconsider a point of law
previously decided on a former appeal only as a matter of
grace, and not as a matter of right; and . . . an exception to
the general rule binding the parties to "the law of the case" at

-8-
 the retrial and at all subsequent proceedings should not be
made except in unusual circumstances and for the most
cogent reasons—and always, of course, only where
"manifest injustice" will result from a strict and rigid
adherence to the rule.

Tiede v. Satterfield, 870 So. 2d 225, 228 (Fla. 2d DCA 2004) (alteration in original)

(quoting Strazzulla v. Hendrick, 177 So. 2d 1, 4 (Fla. 1965)); see also Fla. Diversified

Films, Inc. v. Simon Roofing & Sheet Metal Corp., 118 So. 3d 240, 242 (Fla. 3d DCA

2013). See generally Messinger v. Anderson, 225 U.S. 436, 444 (1912) ("[T]he phrase,

'law of the case,' as applied to the effect of previous orders on the later action of the

court rendering them in the same case, merely expresses the practice of courts

generally to refuse to reopen what has been decided, not a limit to their power.").

As previously observed, upon the filing of the joint stipulation of voluntary

dismissal with prejudice, jurisdiction of the court was severed from its lifeline and it

ceased to exist. Therefore, to institute a claim against Dandar, Scientology should

necessarily be required to file a new circuit court proceeding. In response to

Scientology's claim of damages, Mr. Dandar would be entitled to a trial by jury. See Art.

I, §22, Fla. Const.; Fla. R. Civ. P. 1.430(a) ("The right of trial by jury as declared by the

Constitution or by statute shall be preserved to the parties inviolate."). The procedure

followed here denied Dandar that right. See generally Petition of Sewerage & Water

Bd. of New Orleans, 278 So. 2d 81, 83 (La. 1973) ("[T]he law of the case principle is

applied merely as a discretionary guide: Argument is barred where there is merely

doubt as to the correctness of the former ruling, but not in cases of palpable former

error or so mechanically as to accomplish manifest injustice."); United States v. Curbelo,

343 F.3d 273, 278, 279 (4th Cir. 2003) (holding in the context of criminal constitutional

-9-
law, the denial of the right to trial by jury would be deemed a structural error not subject

to harmless error analysis and would require reversal of a judgment). Thus, the

improper procedure followed in this matter by the trial court deprived Dandar of the right

to a trial by jury on the issue of damages. Such errors, we conclude, constitute a

manifest injustice requiring reconsideration of the jurisdiction issue, to the extent it was

previously decided.

V. CONCLUSION

We conclude that the trial court did not have jurisdiction to entertain

Scientology's motion to enforce the settlement agreement and award damages after

Scientology previously dismissed its cause of action with prejudice. Therefore, we

reverse the final judgment and, on remand, the trial court is directed to enter an order of

dismissal.

Reversed and remanded with instructions.

CASANUEVA, SLEET, and SALARIO, JJ., Concur.

- 10 -