Abdo v. Abdo

313 So.3d 802

Joseph E. ABDO, Social Media Ltd. LLC, and Social Media, Inc. Ltd., Petitioners,

v.Kahlil ABDO, individually and as a Shareholder of Social Media, Inc.; Nada Abdo Quill, and Marie Abdo Silva, Respondents.

Case No. 2D20-990, 2D20-1045

District Court of Appeal of Florida, Second District.

Opinion filed January 8, 2021.

Robert E. Biasotti of Biasotti Law, St. Petersburg, for Petitioners.

Craig L. Berman of Berman Law Firm, P.A., St. Petersburg, for Respondent Kahlil Abdo.

No appearance for remaining Respondents.

LUCAS, Judge.

Joseph E. Abdo, Social Media Ltd. LLC (SMLL), and Social Media, Inc. Ltd. (SMIL) seek a writ of certiorari to quash five postjudgment orders in an ongoing dispute about ownership and income of various adult websites.¹ For the reasons below, we convert the petition to prohibition, see Gov't Employees Ins. Co. v. Arreola, 231 So. 3d 508, 512 (Fla. 2d DCA 2017) ("Under Florida Rule of Appellate Procedure 9.040(c), '[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.' "), and grant it.

This is now the third occasion this court has had to address rulings issued by the circuit court in what is admittedly a somewhat convoluted case involving foreign corporate organizations, vacillating theories of recovery, and sibling conflict. See, e.g., Abdo v. Abdo, 284 So. 3d 1101, 1102 (Fla. 2d DCA 2019) ; Abdo v. Abdo, 263 So. 3d 141, 144 (Fla. 2d DCA 2018). In our first foray, Abdo, 263 So. 3d at 144-50 ( Abdo I ), we described at length the background of this case and the various parties and entities involved and concluded that the circuit court erred when it denied SMLL and SMIL's motion to dismiss for lack of personal jurisdiction. A year later, following the conclusion of a bench trial, we reversed two postjudgment orders entered against the petitioners which had imposed a constructive trust over the disputed websites and income streams, appointed a trustee, identified trust assets, and specified powers of the trustee. See Abdo, 284 So. 3d at 1102 ( Abdo II ). As we observed in Abdo II, "the constructive trust morphed into a receivership, and it has done so without notice, hearing, or the necessary findings to support this extraordinary remedy." Id. at 1104-05.

Following our remand from Abdo II, the circuit court, for the first time, announced it would exercise in rem jurisdiction over the websites and income streams that were in dispute. The court then entered the orders before us, in which the court purported to restrain SMLL and SMIL—nonparties over whom, we held, the court had no jurisdiction—from fully utilizing property we had determined could not be subjected to a constructive trust or receivership.

Unfortunately, we must conclude that the circuit court has once again issued rulings that exceed the scope of its lawful authority to make. It did so in two ways. First and foremost, these most recent orders appear to be an attempted "end run" around our holdings in Abdo I and Abdo II. Stated plainly, the circuit court deviated from this court's mandates. See Fla. Digestive Health Specialists, LLP v. Colina, 202 So. 3d 94, 96 (Fla. 2d DCA 2016) ("No principle of appellate jurisdiction is more firmly established than the one which provides that a trial court utterly lacks the power to deviate from the terms of an appellate mandate." (quoting Mendelson v. Mendelson, 341 So. 2d 811, 813-14 (Fla. 2d DCA 1977) )). For that reason, prohibition is appropriate. See § 35.08, Fla. Stat. (2020) ; State ex rel. Archer-Daniels-Midland Co. v. Nathan, 253 So. 2d 265, 266 (Fla. 3d DCA 1971) ; King v. L & L Investors, Inc., 136 So. 2d 671, 672-74 (Fla. 3d DCA 1962) ; cf. State ex rel. Paluska v. White, 162 So. 2d 697, 699 (Fla. 2d DCA 1964) (noting that prohibition would lie in a "situation where a lower court, following an appeal, entertains proceedings inconsistent with the appellate court's mandate").²

Second, no one before the circuit court ever pled or argued or mentioned the novel theory of in rem jurisdiction the court purported to base its orders upon. See Hart Props., Inc. v. Slack, 159 So. 2d 236, 239 (Fla. 1963) ("[I]ssues in a cause are made solely by the pleadings ... [unless] tried by consent of the parties."); Tracey v. Wells Fargo Bank, N.A., 264 So. 3d 1152, 1155 (Fla. 2d DCA 2019) ("[P]leadings function as a safeguard of due process by ensuring that the parties will have prior, meaningful notice of the claims, defenses, rights, and obligations that will be at issue when they come before a court."); Derouin v. Universal Am. Mortg. Co., LLC, 254 So. 3d 595, 601 (Fla. 2d DCA 2018) ("An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the court's determination." (quoting Gordon v. Gordon, 543 So.2d 428, 429 (Fla. 2d DCA 1989) )); Bank of Am., Nat. Ass'n v. Asbury, 165 So. 3d 808, 809 (Fla. 2d DCA 2015) ("Litigants in civil controversies must state their legal positions within a particular document, a pleading, so that the parties and the court are absolutely clear what the issues to be adjudicated are."); cf. Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So. 2d 1244, 1252 (Fla. 2008) (observing in plurality opinion that "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 Carroll & Assocs., P.A. v. Galindo, 864 So. 2d 24, 28-29 (Fla. 3d DCA 2003) )). While this latter impropriety, standing alone, might not necessarily warrant a writ of prohibition, when combined with the former, we think a prohibitive writ is all the more justified.

We have no doubt the court below is endeavoring to reach what it deems a just and fitting resolution to this complicated controversy. But neither complexity nor good intentions give license for a trial court to range beyond the bounds of an appellate court's mandate or the issues the parties choose to present in a civil case.

Petition granted; orders...