Filing # 44565988 E-Filed 07/28/2016 04:14:12 PM

IN THE SUPREME COURT OF FLORIDA

____________________

RECEIVED, 07/28/2016 04:18:29 PM, Clerk, Supreme Court

Supreme Court Case No.: SC16-947

2D DCA. Case No.: 2D14-1511
th
6 Circuit Case No.: 00- 005682-CI-78
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CHURCH OF SCIENTOLOGY
FLAG SERVICE ORGANIZATION, INC.,
Petitioner,
versus
KENNAN G. DANDAR
and DANDAR & DANDAR, P.A.,
Respondents.
__________________________________
RESPONDENTS MOTION TO DISMISS DUE TO MOOTNESS
Respondents, KENNAN GEORGE DANDAR AND DANDAR & DANDAR,
P.A., move to dismiss this appeal due to the mootness of the matter resulting from the
Circuit Court complying with the Mandate of the Second District Court of Appeal in
vacating the Final Judgment due to a complete absence of jurisdiction, and the
Petitioner failing to preserve this matter now pending before this Court by failing to
timely request a stay of the Mandate with the Second District Court of Appeal. The
grounds for this motion are as follows:
1.

The matter is a never filed, hand-delivered motion in 2009 to the last

presiding judge in a wrongful death case dismissed with prejudice by the filing of a
Page 1 of 4

stipulation of dismissal in 2004. The Respondents were the attorneys for the Estate
of Lisa McPherson in the wrongful death case, and the case was dismissed without the
entry of any order by the Circuit Court.
2.

When the Petitioner believed the Respondents breached the settlement

agreement in 2009 by filing a new wrongful death case for another client against the
Petitioner, the Petitioner simply hand delivered a motion to the retired judge who
presided in the closed case, rather than file a new suit. Petitioner did not even file the
motion with the Clerk of Court.
3.

In 2014, after a final money judgment was entered in favor of Petitioner

for the alleged violation of the settlement agreement by filing the new unrelated
wrongful death case, the Respondents appealed.
4.

The opinion of the Second District Court of Appeal finding a complete

divestiture of jurisdiction upon the filing of the Joint Voluntary Dismissal with
Prejudice in 2004 was issued on March 2, 2016.
5.

The order denying rehearing was issued on May 9, 2016.

6.

The Mandate was issued on May 25, 2016.

The Petitioner filed a Notice to Invoke this Courts jurisdiction on May

27, 2016.

Page 2 of 4

8.

On June 1, 2016, Petitioner filed a motion for stay pending appeal with

the Circuit Court, which was denied due to the lack of jurisdiction.
9.

On July 6, 2016, Petitioner filed a motion for stay with the District Court

in response to Respondents motion to compel the Circuit Court to comply with the
Mandate.
10.

The District Court denied both motions, and directed the Respondent to

file a motion with the Circuit Court to comply with the Mandate.
11.

Upon Respondents filing of the motion with the Circuit Court, the

Circuit Court granted the motion and dismissed the case on July 21, 2016 for lack of
jurisdiction, and vacated the final judgment which is the subject matter of the appeal
to this Court. The July 21, 2016 Order is attached to this motion.
MEMORANDUM OF LAW
The judgment on review is in the nature of a monetary judgment.
This court has concluded that it does not have the power to withhold
issuance of mandate in such a case when the motion to stay is filed more
than fifteen days after the issuance of the opinion and no timely motion
for rehearing has been filed pursuant to Florida Rule of Appellate
Procedure 9.330(a). See Fla. R. App. P. 9.340; State ex rel. Price v.
McCord, 380 So. 2d 1037 (Fla. 1980); see also State v. Miyasato, 805 So.
2d 818 (Fla. 2d DCA 2001). Because this court is required to issue its
mandate upon the expiration of the fifteen-day period established in rule
9.340, the court has concluded that it does not have authority thereafter
to withdraw its mandate in order to stay a judgment except perhaps upon
some extraordinary showing not present in this case.
Doyle-Vallery v. Aranibar, 838 So. 2d 1200, 1201 (Fla. 2d DCA 2003).
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Petitioner chose not to file a timely motion to stay the Mandate with the District
Court, within the time limitation of Fla. R. App. P. 9.340: within 15 days from the date
of the order denying the motion for rehearing; on or before May 24, 2016, causing the
Mandate to issue the next day. Therefore, once the Mandate issued, only the
ministerial act of dismissing the case was required to be done by the Circuit Court.
WHEREFORE, based on the above law and undisputed facts, this matter should
be dismissed due to Petitioners failure to timely file a motion with the District Court
to stay the Mandate, for lack of jurisdiction, and the vacation of final judgment on July
21, 2016.
CERTIFICATE OF SERVICE
I certify that on July 28, 2016, the foregoing was filed with the Florida Courts
E-Filing

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mariannes@jpfirm.com;

bobp@jpfirm.com; wallyp@jpfirm.com; janm@jpfirm.com; mtomassi@trenam.com;

sjohnson@trenam.com.

KENNAN GEORGE DANDAR ESQ.

Florida Bar No. 289698
THOMAS JOHN DANDAR, ESQ.
Florida Bar No. 434825
DANDAR & DANDAR, P.A.
Post Office Box 24597
Tampa, Florida 33623
(813) 289-3858
Attorneys for Respondents