IN THE SUPREME COURT OF FLORIDA CASE # _________

CASE No. 3D02-609

From THE CIRCUIT COURT OF THE 11THJUDICIAL CIRCUIT, IN AND FORMIAMI-DADE COUNTY, FLORIDA

PROBATE DIVISION[Old File No. 63 C 12778]

CASE NO. 91-5143 (03)& 92-4412(03)]In Re: The Trusts under the Will of Albert Pollak

PATRICIA POLLAK WEISS,Defendant/Respondent, Appellant, PETITIONER

vs.PHYLLIS POLLAK BERKETT,As the Successor Interim Trustee of the Trusts Under the Will of Albert Pollak, Deceased, and the Albert Pollak Inter Vivos Trusts,Plaintiff/Petitioner, Appellee, RESPONDENT /

PETITIONER PATRICIA POLLAK WEISS’ PETITIONFOR A WRIT OF PROHIBITION RESTRAINING THECIRCUIT COURT OF THE 11TH JUDICIAL CIRCUITFROM ENTERING ANY ORDERS RELATED TO EXECUTIONOF THE $1,693,181.73 “SURCHARGE JUDGMENT”AND/OR ANY DISCOVERY IN AID OF EXECUTION

PENDING APPELLATE REVIEW

The undersigned Petitioner, PATRICIA POLLAK WEISS (“WEISS”),

appearing pro se, pursuant to the Florida Rules of Appellate

Procedure including Rule 9.100,respectfully petitions the Court

for a writ of prohibition directed to a lower tribunal as

authorized by Article V, section 3(b)(7) of the Florida

2

Constitution, or such other appropriate writ, and shows the

Court as follows:

I. BASIS FOR INVOKING JURISDICTION

Under Article V, section 3(b)(7) of the Florida

Constitution, this Court has jurisdiction to issue a writ of

prohibition to a lower court in order to restrain that lower

tribunal from acting in excess of its jurisdiction. Under the

prior constitutional provision, the Supreme Court could only

issue writs of prohibition to a trial court if the final order

would have been directly reviewable by the Supreme Court.

However, with the 1980 amendment, the Supreme Court is now

constitutionally authorized to prohibit proceedings in any court

regardless of the question of ultimate reviewability. In Moffit

v. Willis, 459 So. 2d 1018 (Fla. 1984) it held that it had

jurisdiction to prohibit a proceeding in the circuit court

because it was likely that the circuit judge would have

construed a constitutional provision. In addition, under the All

Writs provision, this Court can issue such writs in this case

because there would be a threat to the exercise of this Court’s

ultimate jurisdiction and there is likely to be at least one

independent jurisdictional basis for review by this Court.

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As explained infra, this Court’s rulings in 1996 and 2000

are logically inconsistent with the Third District’s denial of

the motions to stay enforcement and stay discovery in aid of

execution and have a direct bearing on the constitutional right

to meaningfully appeal as provided under Article V (4)(b)(1).

II. STATEMENT OF THE FACTS

This case now comes to the Supreme Court while an appeal of

two final orders in a Miami-Dade Probate Court adversary

proceeding is pending in the District Court of Appeal, Third

District, as set forth in the Notice of Appeal. [Appendix

(“A”)22-29].

Petitioner is the Appellant. The initial brief has not yet

been filed and an unopposed motion for extension of time until

June 4th has been requested. [A.114]. The record was purportedly

“certified” without any of the three volumes of the original

trial transcript of the September 20-21, 2000 trial which was

sent to and received by Deputy Clerk Peggy Guest [A. 88-99] in

December 2000 in connection with the interlocutory appeal by

WEISS that was decided in her favor. The volumes have since been

lost by the Clerk’s Office and so a motion to supplement the

record with photocopies has been made, citing case law [A.90-

4

91]. The original transcript of the October 15, 2001 post-trial

hearing was withheld from filing by BERKETT’s counsel but was

just supplied in May 2002.[A.100]

The motion to file the brief on June 4th and the motion to

supplement the record to include the transcripts (or copies

thereof whilst the originals are being located by the Clerk) are

still pending. Assuming that the motion to supplement the record

on appeal and to extend the time for filing the initial brief

are granted, the appeal should be fully briefed sometime in

August 2002. The facts and issues follow along the lines of the

interlocutory appeal. Weiss v. Berkett, 785 So. 2d 1248 (Fla. 3d

DCA 2001).

On April 4, 2002, Petitioner WEISS served a motion for a

stay of execution and a stay of discovery in aid of execution on

the “surcharge judgment” in an amount over $1.6 M, pending

appeal.

It seemed that for reasons of judicial economy, a stay

should be entered and that is why WEISS requested a stay once

WEISS received correspondence from Mrs. BERKETT’s counsel that

threatened to move forward with execution of the $1.6M

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“surcharge judgment” that includes, inter alia, all of the trust

expenses paid by the predecessor trustee Coconut Grove Bank

during the entire term of its sole trusteeship which began on

May 30th, 1983 and officially ended in the Fall of 1984. [A.43]

On April 8, 2002, the motion arrived at the Third District

and that same day the panel sitting denied it without

explanation or reason. [A.82]

After denial of the stay, BERKETT’s counsel escalated their

propounding of discovery requests in aid of execution.[A.120-

146]

On April 17, 2002, the Third District granted Petitioner

WEISS’ petition for a writ of prohibition in a related adversary

proceeding, finding that Judge Maria M. Korvick should have

granted the motion for her disqualification as it was legally

sufficient and timely. [A.83].

Following the Third District’s order granting the petition

for a writ of prohibition, Appellant-Petitioner WEISS timely

requested rehearing/rehearing en banc/clarification on the

denial of the requested stay of execution (and stay of discovery

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in aid of execution) [A.66] and also timely filed a verified

motion in this case for disqualification of Judge Korvick in the

lower tribunal. Both of those motions are still pending.

Judge Korvick ultimately signed an “Order of Recusal” dated

April 30, 2002 in the related case [A. 87] with the words

General Jurisdiction atop although BERKETT had filed it in the

Probate Division. Judge Korvick’s Order of Recusal does not show

any adversary proceeding caption but only has the phrase

referencing the “Estate” of Albert Pollak, which is closed.

Albert Pollak died on December 30, 1962. Judge Korvick’s Order

of Recusal has a “cc:” to most attorneys who appeared for

BERKETT in both proceedings (four law firms serve as co-

counsel).

III. THE NATURE OF THE RELIEF SOUGHT

Petitioner WEISS wants a writ of prohibition that restrains

the Circuit Court of the 11th Judicial Circuit from entering any

orders related to execution of the $1,693,181.73 “surcharge

judgment” pending appeal and/or such other writs as will

meaningfully stay or limit the lower tribunal from further

proceeding and complicating matters any further in light of the

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fact that BERKETT’s legal team is already taking steps of

enforcement by propounding an enormous amount of post-judgment

discovery [A.120-146] that is burdensome and unauthorized and

will immediately require an enormous amount of judicial

attention.

In accordance with Fla. R. App. P. 9.300(d), the undersigned

advises that she has received written communication from Mr.

Hirschhorn that essentially says that he will take legal steps

to execute on the judgment unless a stay is judicially ordered

or a bond posted. [A.34,40]. On March 25, 2002, Appellee

BERKETT’s counsel Joel Hirschhorn wrote a letter to WEISS

telling her that: “While you have filed a Notice of Appeal to

the Third District Court of Appeal, you have not posted a bond,

hence we are free to seek to execute on that surcharge.” Mr.

Hirschhorn also threatened WEISS that unless a bond is posted

she should “be prepared to suffer the consequences of execution

on the surcharge”. [A. 40].

IV. LEGAL ARGUMENTS

POINT ONE:

THE THIRD DISTRICT’S DENIAL OF A STAY OF EXECUTION (AND STAY OF

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DISCOVERY IN AID OF ENFORCEMENT) THWARTS PETITIONER”S RIGHT TO

A MEANINGFUL APPEAL UNDER FLORIDA CONSTITUTION ARTICLE V, §

4(b)(1)

BECAUSE THE ORDER GRANTING SUMMARY JUDGMENT ON THE POTENTIALLY

OFF-SETTING COUNTERCLAIM IS ENTITLED TO A DE NOVO REVIEW AND NO

ENFORCEMENT OF A $1,693,181.73 “SURCHARGE JUDGMENT” IS

APPROPRIATE UNTIL THE CASE IS FULLY ADJUDICATED AT THE APPELLATE

STAGE.

The lower tribunal signed two final orders [A.25-28] on the

same day rather than create a single Final Judgment. (The date

of November 8, 2001 [A.29] is likely incorrect as the website

docket shows entry on the same date in February 2002. [A.101].)

Isn’t enforcement of the judgment on BERKETT’s claim for a

“surcharge” logically and fundamentally premature inasmuch as

the appellate court is required to undertake a de novo review of

the potentially off-setting counterclaims that were interrelated

and were adversely decided against WEISS by oral ruling on the

morning of the first day of trial?

Whether or not there is a meaningful procedural mechanism

to stop execution of a patently erroneous “surcharge judgment”

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of over $1,600,000.00 is a matter of exceptional importance. It

goes to the very heart of the issue of the scope of the inherent

jurisdiction of the district courts of appeal. It also involves

Florida Constitution V, 4(b)(1) and the Florida Supreme Court’s

1996 Amendments which interpreted that constitutional provision

in a manner that places the Due Process Clause squarely at issue

here.

In addition to establishing the jurisdiction of the district

courts of appeal, Article V, section 4(b)(1) of Florida’s

Constitution creates a constitutional right to appeal. Receding

from an earlier opinion to the contrary, the Florida Supreme

Court has now held that section 4(b)(1) affords every citizen

the right to appeal a final order. See Amendments to the

Florida Rules of Appellate Procedure, 696 So. 2d 1103, 1104

(Fla. 1996) Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999).

In denying BERKETT’s motion to strike the notice of appeal

[A.82], the Third District’s motion panel appeared to

acknowledge that both attached orders may now be appealed for

the reasons explained in WEISS’s memorandum of law in opposition

to the motion to strike notice. [A.105-113].

As the Florida Supreme Court has explained, “[t]he

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legislature may implement this right and place reasonable

conditions upon it so long as they do not thwart the litigant’s

legitimate appellate rights.” Amendments at 1103-1104. And while

the legislature may place “reasonable” limits on the

constitutional right to appeal a final order, the enactment of

laws and rules that tend to thwart a litigant’s constitutional

right to appeal must be judicially examined to see that such

laws do not effectively deprive an appellant of a constitutional

right to a meaningful appeal.

Appellant-Petitioner PATRICIA POLLAK WEISS had four claims

for monetary damages that were dismissed through a separate

order granting BERKETT’s motion for partial summary judgment

without BERKETT’s (or anyone’s) factual affidavit in support.

That order is attached to the notice of appeal.[A.25]

The Florida Supreme Court has held, in Volusia County v.

Aberdeen at Ormand Beach, 760 So. 2d 12 (Fla. 2000), that the

correctness of a summary judgment is a matter of law which is

subject to the de novo standard of review, assuming there is no

disputed issue of fact. It is therefore logically and

constitutionally imprudent and inconsistent to allow BERKETT to

go ahead and take steps to collect on a “surcharge judgment”

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where the entitlement to any such judgment would necessarily

have to be off-set by WEISS’s recovery on counterclaims at a

full trial if the Order granting adverse summary judgment on her

counterclaims were vacated and the case remanded.

Petitioner believes that the denial of WEISS’s motion to

stay execution is improper because the de novo standard of

appellate review applies. After Aberdeen at Ormand Beach is it

hard to see how a district court of appeal’s motion panel could

deny a stay of execution where the wisdom of the lower

tribunal’s dismissal of off-setting counterclaims must be

entirely re-evaluated using the de novo standard of review by

the panel determining the merits of the appeal, according to the

Florida Supreme Court.

While the issuance of a stay is not a legal prerequisite to

the right to appeal, as a practical matter, however, it may be

necessary to obtain a stay in order to prevent enforcement of

the order of the lower tribunal during the pendency of the

appeal. The purpose of a stay is to preserve or restore the

status quo, or to enjoin the execution of a judgment. Stays are

considered preventative in nature in that they suspend the right

of enforcement without undoing the order under review. If the

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order is ultimately affirmed, the rights and liabilities of the

parties are governed in all respects as if the stay had not been

granted.

In other words, there is no logical reason why Petitioner

should now be subjected to answering dozens of questions and

production requests (in the very period in which Petitioner

should be concentrating on preparing her initial brief) in light

of the fact that a meaningful adjudication has not been

completed because the appellate panel has a responsibility for

an unfettered de novo review of the “Order Granting Motion For

Plaintiff’s Summary Judgment” (dismissing WEISS’ counterclaims),

which may result in a remand of the entire case notwithstanding

the lower tribunal’s usage of two separate orders to accomplish

its ultimate ruling.

Petitioner shouldn’t have to endure the burden of the

enormous post-judgment discovery demands BERKETT insists upon

[A.120-146], including the deposition BERKETT scheduled for June

19th. [A.145].

The denial of stay by the Third District has the effect of

thwarting a meaningful appeal because discovery in aid of

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execution is burdensome and intrusive and may ultimately prove

to be completely unnecessary once this case is decided on the

merits of the appeal. For the reasons explained in Point Three,

it is also quite likely that BERKETT’s “surcharge judgment” will

be vacated.

POINT TWO:

IF THE DISTRICT COURT’S PANEL DENIED THE STAY ON THE BASIS THAT

SUCH A REQUEST IS MORE PROPERLY MADE TO THE LOWER TRIBUNAL

JUDGE, THEN THE DISTRICT COURT ERRED IN THIS CASE BECAUSE

PETITIONER IS NOT “REQUIRED” TO MAKE SUCH A REQUEST TO THE LOWER

COURT JUDGE AND SURELY NOT TO A JUDGE WHO SHOULD HAVE

DISQUALIFIED HERSELF FROM A RELATED PROCEEDING, ACCORDING TO

ANOTHER 3DCA PANEL.

The law does not require a person to perform a completely

futile act as a prerequisite for attaining relief. It would be

pointless for Petitioner to request a stay of execution

(enforcement) from the Miami-Dade trial court for several

reasons. First, under Third District precedent, a Miami-Dade

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trial court has no authority whatsoever to grant a stay of

enforcement of a money judgment unless the appellant posts a

bond during the appeal.

If the judgment of the lower tribunal is solely for the

payment of money and may be bonded (as Mr. Hisrchhorn believes),

then the Third District precedent says that the trial judge does

not have independent authority to grant a stay of the judgment

without such a bond under this Court’s prior precedent. See

Campbell v. Jones, 648 So. 2d 208 (Fla. 3d DCA 1994) and Mellon

United National Bank v. Cochran, 776 So. 2d 964 (Fla. 3d DCA

2000).

On the other hand, if a “surcharge judgment” is judicially

deemed not to be a judgment solely for the payment of money, it

would fall outside the parameters of the automatic bond

procedures of Rule 9.310(b)(1) anyway, and it could not be

bonded at all, as precedent demonstrates. See Grabel v. Grabel,

425 So. 2d 1220 (Fla. 3d DCA 1983) (an order to pay accrued

child support); Zuckerman v. Hofrichter & Quiat, 622 So. 2d 1

(Fla. 3d DCA 1993) (an order directing the disbursement of a

specific fund); Florida Coast Bank of Pompano Beach v. Mayes,

433 So. 2d 1033 (Fla. 4th DCA 1983)(final judgment ordering

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trustee to pay accumulated trust funds); Wilson v. Woodward, 602

So. 2d 545 (Fla. 2d DCA 1991) (an order directing clerk of the

court to disburse funds held in the registry of the court).

In this case, 4 of WEISS’ 5 counterclaims were dismissed on

summary judgment without a trial although there was no sworn

affidavit to support BERKETT’s motion for summary judgment and

neither BERKETT nor anyone else gave any testimony in support of

dismissal. That premature order of dismissal is also now being

appealed. Traditionally, a stay of execution is proper where the

opposing counterclaims have yet to be determined. See Atrio

Consol. Indus., Inc. v. Southeast Bank, 434 So. 2d 349, 350 n.1

(Fla. 3d DCA 1983)(affirming stay of final foreclosure judgment

under assumption that stay will remain in effect pending

determination of counterclaim); FBA Corp. v. General Air Serv.,

Inc., 479 So. 2d 321 (Fla.3d DCA 1985)(affirming summary

judgment and remanding to direct stay of execution until

disposition of set-off claim).

Undoubtedly, there was a truncated judicial process because

the summary judgment motion dismissing 4 of the 5 counterclaims

occurred on the morning of the first day of trial, September 20,

2000, right before the trial began.

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This would be an ideal case for this Supreme Court or the

Third District to order a stay pending appeal, without the

necessity of a bond being posted, however it seems that the

motion panel swiftly denied the request, although there is

precedent for such a request under the state and federal

constitutions, as Petitioner explained to the Third District.

[A. 11-12].

The last paragraph of the Committee Notes associated with

the 1977 Amendment of Rule 9.310 provides authority for this

request by stating: “Although the normal and preferred procedure

is for the parties to seek the stay in the lower court, this

rule is not intended to limit the constitutional power of the

court to issue stay orders after its jurisdiction has been

invoked.

This Court undoubtedly has inherent authority to issue a

stay even if the issue has not been first presented in the trial

court under the procedure outlined in Rule 9.310(a). See Perez

v. Perez, 769 So. 2d 389 (Fla. 3d DCA 1999)(granting a stay

filed directly in the appellate court without mentioning the

motion and review process in Rules 9.310(a) and (f)). See also

Offerman v. Offerman, 643 So. 2d 1184 (Fla. 5th DCA 1994)

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(granting a stay of temporary custody order entered by the trial

court without notice, where the appellate court cited rule

9.310(f) as authority in support of its jurisdiction to rule on

the motion for a stay where it does not appear from the opinion

that a motion to stay was filed in the trial court.) The stay

order in the interlocutory appeal of the same case, #3D00-3066

is also precedent. That stay order was decided by another panel

(Schwartz C.J., Cope and Ramirez JJ.); the interlocutory appeal

was ultimately decided in WEISS’s favor by a different panel as

well. (Schwartz, C.J., Jorgenson, Cope, JJ.)].

Apparently, however, there is not an overwhelmingly amount

of precedent on this point of law and so Petitioner now timely

seeks a writ here from this Supreme Court because the Third

District did not grant the requested relief and there is no

indication that WEISS can obtain the requested relief elsewhere

in a timely manner.

In light of the Third District’s agreement with WEISS that

Judge Korvick ought to have granted the Verified Motion for

Disqualification, WEISS filed a follow-up motion for

disqualification in this case in the lower tribunal. Judge

Korvick presently has under consideration PATRICIA POLLAK WEISS’

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pending Petition for a writ of prohibition which seeks an order

that effectively will disqualify Judge Maria M. Korvick from

deciding any more issues. There is a firm basis for application

of the solidly well established reasoning that during the

pendency of a motion for disqualification, no other rulings

should be made by the lower court judge. It would be both

inappropriate and futile to present a motion to stay enforcement

to the trial judge, Judge Korvick. See, e.g., Loevinger v.

Northrup, 624 So. 2d 374 (Fla. 1 st DCA 1993), which held that the

trial judge’s power to rule on other motions is cut off at the

date of filing a motion for disqualification and not the date

the judge has been made aware of the fact that the motion is

pending); see also Fuster-Escalona v. Wisotsky, 781 So. 2d 1063

(Fla. 2000)(if the motion for disqualification is legally

sufficient, the trial judge must immediately enter the order of

disqualification).”

Petitioner WEISS cannot be certain as to whether the Third

District denied the motion for a stay because it had not been

first made to the lower court judge, who is Judge Korvick. The

order is silent as to the reasons for the denial. However, it

would be procedurally difficult for the undersigned to pursue

any requests concerning enforcement before Judge Korvick, who is

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a judge that the Petitioner believes would not be fair to

Petitioner in light of everything that has transpired, not the

least of which is two reversals and the Orders under review

which do not make any sense.

Even if a new judge is assigned below, that new judge would

likely not be able to enter a stay of enforcement without a bond

being posted and Petitioner does not have the money to bond

$1.6M.

Nor should Petitioner have to do so, as explained in Point

Three.

Petitioner PATRICIA POLLAK WEISS lacks the financial

wherewithal to post a bond in such an excessively high amount

and could not therefore avoid enforcement without an appellate

court order. The judgment arose from the claim for a “surcharge”

against a “testamentary trustee” and the testator’s will

specifically stated that the trustee may serve without posting

a bond (which would likely have been charged to the testamentary

trusts had it been purchased). By taking the position that a

bond for $1.6M must be posted in order to stay enforcement

because the “surcharge judgment” in a probate adversary

proceedings is nevertheless a “monetary judgment” (if, indeed,

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the Court took that position), the Court would be deliberately

disregarding the testator’s intent which made it clear to the

beneficiaries (and to BERKETT) that the (former) testamentary

trustee need not post a bond at all.

POINT THREE:

BECAUSE THE FACTS SHOW “GOOD CAUSE” FOR A VACATUR OF THE $1.6 M

“SURCHARGE JUDGMENT”, EXECUTION OF THE JUDGMENT AND RELATED

DISCOVERY SHOULD BE EFFECTIVELY STAYED DURING APPEAL AND THE

SUPREME COURT CAN DO SO BY GRANTING A WRIT THAT ORDERS

RESTRAINT.

A. Judge Korvick’s Order erroneously found that WEISS’

trusteeship began in June 1983, ignoring Judge Joseph Gersten’s

May 10, 1983 order appointing Coconut Grove Bank as trustee as

of May 30, 1983.

Judge Korvick “surcharged” PATRICIA POLLAK WEISS for the

checks written by WEISS’s predecessor (sole) trustee, Coconut

Grove Bank. Coconut Grove Bank served from June 1983 until Fall

1984. (The Order appointing PATRICIA POLLAK WEISS as trustee was

not even signed by Judge Joseph Gersten until 1984.) On May 10,

1983, Judge Joseph Gersten signed an Order Approving Joint

Petition of Trustees and Beneficiaries To Transfer Trusteeships

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which became effective 10 days later. [A copy of that Order is

attached at A. 43.]

A copy of that May 10, 1983 Order was also submitted to the

lower court and timely mailed to BERKETT’s counsel as required

by the lower tribunal’s pre-trial order. Yet on February 8,

2002, Judge Korvick signed a final Order Granting Motion For

Surcharge Against Patricia Weiss stating “For which sums let

execution issue” for a $1.6 M sum that includes the checks

written during the entire term of the trusteeship of the

judicially appointed institutional fiduciary that preceded

WEISS.

Even assuming arguendo, but not agreeing, that the Third

District were to determine that a surcharge in some amount was

not an abuse of judicial discretion, the figure of $1,693,181.73

would be excessive and a substantially lesser amount would

likely have to be re-calculated to coincide with the actual

dates of WEISS’ trusteeship.

Accordingly, a stay of enforcement of the erroneous order

would be consistent with the rules for a just, speedy and

economical resolution of the issues before the Court, as

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enforcement of a judgment that has patently been wrongfully

computed would be judicially uneconomical and lead to additional

litigation that is best avoided for now, as it would require

this Court’s review of lower court enforcement orders and denial

of protective orders. See Estate of Posner, 492 So. 2d 1093

(Fla. 3d DCA 1986) (granting certiorari to review, and quash, an

order denying petitioner’s motion for protective orders).

The determination of a “surcharge” in the amount of

$1,693,181.73 is self-evidently incorrect, as a matter of fact

and law, because the portions of the judgment refer at least

three times to “June 1983”. Judge Korvick found:

“A. The above surcharged amount is made up of the

following component assessments:

1. Trustee fees incurred for the time period of

June 1, 1983 through December 30, 1989 while Patricia

Pollak Weiss served as Trustee,...”

* * *

2. Legal fees on behalf of the trusts for the time

period of June 1, 1983 through October 1, 2001 ...

which fees were incurred ... Patricia Pollak Weiss as

trustee.

* * *

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3. Legal fees paid by Phyllis Berkett individually

on behalf of the trusts ... for time period of June 1,

1983...”

Despite such findings, it is clear that Judge Korvick’s

determinations directly conflict with Judge Gersten’s order

appointing Coconut Grove Bank as sole trustee for the period

beginning May 30, 1983.

B. Judge Korvick’s Surcharge Order lacks any legal basis.

Furthermore, rather than giving any credence to the guidance

that WEISS received from her lawyers (who were [now Judge]Judith

Kreeger, Esq. and then Holland & Knight), Judge Korvick

essentially ignored the May 2001 interlocutory decision.

Although the “accounting” count should have been finally decided

in WEISS’ favor by dismissal by the lower tribunal, Judge

Korvick nevertheless steadfastly held to her initial decision to

impose a “surcharge” against WEISS upon remand.

BERKETT’s complaints had only two counts: (1) accounting and

(2) surcharge. There was no viable claim for the “surcharge”

because: (1) the Third DCA had previously determined that the

claim for an accounting was not legally viable and (2) BERKETT’s

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counsel had already expressly withdrawn and disavowed all common

law and statutory claims saying that “Mrs. Weiss, we’re not here

on breach of trust. We’re here on a surcharge against you.” [See

A. 46, transcript 9/20/00 @ 167*, also provided with complete

transcript in Appendix for #3D00-3066]. The foregoing retraction

made it impossible as a matter of law for the Probate Court to

even consider a “surcharge” for the trust expenditures after

WEISS’ explanation of the 6 month statute of limitations. [See

A. 47, and see also Appendix for #3D00-3066 9/21/00 @15*].

Based upon Judge Korvick’s comments and the Order, it seems

that Judge Korvick totally confused the testamentary trustee’s

statutory rights to pay for services rendered without court

approval, as authorized under Fla. Stat. §§737.402(2)(y) and

(2)(z), with the personal representative’s duties under Fla.

Stat. §§737.617 and 733.6171(7) which requires pre-approval for

payment for services before a decedent’s estate has been closed.

See also Byrd v. Culver, 376 So. 2d 41 (Fla. 4th DCA 1979); Fla.

Stat. 737.402(1) and Ball v. Mills, 376 So. 2d 1174 (Fla. 1 st DCA

1979) (same). Interpretation of statutes are also reviewed de

novo.

In essence, Judge Korvick’s statement of her being “shocked”

25

makes no sense other than being made for the purpose of

gratuitously impugning WEISS’ character in an overly dramatic

way.

Apparently, the Third District agreed with WEISS’ legally

sufficient motion for disqualification based upon such

intemperate remarks.

Her Honor’s characterization of WEISS’ payment of trust

expenses as a “tragic rape” appears to be erroneously based upon

WEISS’ failure to obtain judicial pre-approval from the Probate

Court for the payment of each individual expense, including

federal taxes.

The settlement concerning WEISS’ resignation was ratified

by the General Jurisdiction Division in April 1990 and the

Probate Division should have never considered BERKETT’s waived

claims.

C. BERKETT’s claims were untimely brought under the 6 month

statute of limitations and the “surcharge judgment” is therefore

entirely inconsistent with the Third District’s 2001 decision

based upon a prior settlement.

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The Order being appealed is based upon BERKETT’s claim for

a “surcharge” that is simply not legally viable. First, there

is the issue of the untimeliness of BERKETT’s belated claims

because Fla. Stat. §737.307 establishes a 6 month statute of

limitations to initiate an action against a former trustee, once

the annual

accounting data has been provided to a beneficiary.

Then, there is the fact that BERKETT’s counsel conceded that

during WEISS’ trusteeship, WEISS “filed accountings for every

year except 1989" [A.9/20/00 @30].[A. 48. See Composite Exhibit

4].

Finally, there is the law of the case doctrine that

appertains because the Third District Court of Appeal had

previously determined [#3DC00-3066] that BERKETT was not

entitled to any further accounting from WEISS because BERKETT

received an accounting from her own accountant, which was in

1990 according to the trial testimony of BERKETT’s accountant

[A.9/21/00 @ 68 & 9/21/00 @ 146*) [A. 49, 50]. See Weiss v.

Berkett, 785 So. 2d 1248 (Fla. 3d DCA 2001) [A. 30]

In reaching its earlier decision, the Third District Court

relied upon a settlement agreement that was placed on the record

27

before “Commissioner” Herbert S. Shapiro and later ratified by

Judge Tanksley. [#3D00-3066 Appendix 101-164] Copies of relevant

pages of that settlement agreement are attached. [A. 52-65].

The “surcharge” issue had also been thoroughly discussed and

disposed of by judicial elimination, as shown by the transcript

of the December 1989 hearing, at pages 53-54 [A.62-63], which

says:

“Mr. Hirschhorn: I am talking about surcharging

fees against the beneficiaries, not sanctions

individually for a pleading filed pro se...We agreed

not to surcharge the trustee. We never agreed not to

surcharge Mr. Pollak. ..

THE MASTER: What is it? Put your cards on the

table.

Mr. Hirschhorn: They are on the table. We agreed

not to seek a surcharge against Ms. Weiss.

* * *

THE MASTER: ...[Mr. Pollak] would be entitled to

same.

* * *

Mr. Hirschhorn: “If you don’t think it’s fair – I

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will not do it.”

The “surcharge judgment”, as BERKETT calls it, followed

a trial held on September 20-21, 2000 and a trial/evidentiary

hearing(?) on October 15, 2001. It is also evident from a

portion of the October 15, 2001 hearing transcript (See 3D02-

618, Petition’s Appendix @ 64 et seq.), that Judge Korvick still

had not sufficiently familiarized herself with the meaning of

the December 1989 hearing before “Commissioner” Herbert S.

Shapiro that this Court carefully analyzed for the benefit of

the Her Honor in its May 2001 opinion in Case # 3D00-3066, which

preceded the published decision in Weiss v. Berkett, 785 So. 2d

1248 (Fla. 3d DCA 2001).

The purpose of this requested writ is to preserve the status

quo during an appellate proceeding, see Hirsch v. Hirsch, 309

So. 2d 47 (Fla. 3DCA 1975), and to enjoin the enforcement of the

judgment and discovery in aid of enforcement related thereto.

The last paragraph of the Committee Notes associated with

the 1977 Amendment of Rule 9.310 provides authority for this

request by stating: “Although the normal and preferred procedure

is for the parties to seek the stay in the lower court, this

29

rule is not intended to limit the constitutional power of the

court to issue stay orders after its jurisdiction has been

invoked.” The power also lies within the amended Constitution

Article V, since 1980.

This Court undoubtedly has inherent authority to issue a

stay even if the issue has not been first presented in the trial

court under the procedure outlined in Rule 9.310(a). See Perez

v. Perez, 769 So. 2d 389 (Fla. 3d DCA 1999)(granting a stay

filed directly in the appellate court without mentioning the

motion and review process in Rules 9.310(a) and (f)). See also

Offerman v. Offerman, 643 So. 2d 1184 (Fla. 5th DCA 1994)

(granting a stay of temporary custody order entered by the trial

court without notice, where the appellate court cited rule

9.310(f) as authority in support of its jurisdiction to rule on

the motion for a stay where it does not appear from the opinion

that a motion to stay was filed in the trial court.) The stay

order in #3D00-3066 is also precedent.

It is beyond cavil that this Court has the power to give

practical meaning to the Due Process Clause for the litigants

which appear in Florida courts. “Good cause” for a stay is

historically found in the context of execution on a judgment for

30

the payment of money in instances where there are fundamental

due process deficiencies. Fraud, mistake or surprise are

sufficient to warrant a permanent stay of execution. See Daytona

Enter., Inc. v. Wagner, 91 So. 2d 171, 173 (Fla. 1956) (citing

Kellerman v. Commercial Credit Co., 138 Fla. 133, 189 So. 689

(1939)).

Basically, “good cause” to vacate a judgment under Fla.

R.Civ.P. 1.540 is also legally sufficient “good cause” to stay

execution of a judgment. Here, the Court could vacate the

judgment for intrinsic fraud. False testimony in a court

proceeding is intrinsic fraud. See DeClaire v. Yohaman, 453 So.

2d 375, 377 (Fla. 1984). In response to the rehearsed questions

posed by BERKETT’s attorney Mr. Hirschhorn, BERKETT’s “expert

witness” accountant Ralph Maya, CPA undoubtedly presented false

and misleading testimony to the Court, by making it seem that

the accounting materials that he reviewed bore WEISS’ signature

on checks beginning in June 1983. Either Ralph Maya CPA relied

solely on check stubs rather than personally examining actual

checks (which bore the Bank Trust Department employees’

signatures) or something far more sinister occurred. In either

event, that false information led the lower tribunal to reach

31

conclusions that were incorrect as a matter of law. Such “good

cause” is also a basis for the writ.

While the trial court’s decision is entitled to a

presumption of its correctness and the burden is on the

appellant to demonstrate error, see Applegate v. Barnett Bank of

Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979), the facial

incorrectness of the “surcharge judgment” is sufficiently

rebutted by the absence of any evidence that WEISS ever issued

any checks from trust funds whilst Coconut Grove Bank served a

trustee during its trusteeship which began in June 1983. Due

Process compels a stay under such circumstances. See Morris v.

American Banker’s Ins. Co., 184 So. 2d 906, 907 )Fla. 3d DCA

1966) (execution properly stayed where service used did not

amount to due process).

The undersigned believes that the foregoing factual

information is objectively sufficient for a vacatur of the

judgment under Fla. R. Civ. P. 1.540 and is therefore legally

sufficient for the requested writs, as well, that would stay

post-trial activity as the lower tribunal.

WHEREFORE, in light of the foregoing which sufficiently

32

demonstrates “good cause”, Petitioner WEISS petitions this Court

for a writ of prohibition restraining the Circuit Court of the

11th Judicial Circuit from entering any orders related to

execution or enforcement of the $1,693,181.73 “surcharge

judgment” and/or any discovery in aid of execution pending

appellate review.

Without the issuance of an extraordinary writ from this

Court to ensure that there is a stay of enforcement activity, an

extensive amount of post-judgment motion practice will also be

required in the lower tribunal. Common sense suggests a stay is

preferable. The balance of equities tips heavily in

Petitioner’s favor and Petitioner should not have to respond to

discovery or be deposed on June 19th. [A. 145-146] as that would

violate Petitioner’s most fundamental rights to due process.

Dated: May 7th, 2002

Sag Harbor, New York

Respectfully submitted,

PATRICIA POLLAK WEISS, pro se*P.O. Box 751Sag Harbor, New York 11963(631) 725-4486

33

Sworn to me this 7th day of May, 2002

________________________Notary Public

*admitted to practice in NY (active)

and CA (inactive)

CERTIFICATE OF MAILING

I, PATRICIA POLLAK WEISS, hereby certify that a true and

correct copy of the foregoing was sent via U.S. First Class mailon

May 7, 2002 to:

1. JONATHAN C. OSTER, ESQ. (Co-Counsel for PHYLLIS POLLAK BERKETT) Jacobs Chase Frick & Kelley, LLC Independence Plaza 1050 17th Street, Suite 1500 Denver, CO 80265

2. Joel Hirschhorn, Esq. (Co-Counsel for PHYLLIS POLLAK BERKETT)

34

Hirschhorn & Bieber, P.A. 2600 Douglas Road, PH One Coral Gables, FL 33134

3. Susan E. Durre’, Esq. (Co-Counsel for PHYLLIS POLLAK BERKETT) 4675 Ponce de Leon Blvd. Suite 302 Coral Gables, FL 33146

4. Michael A. Dribin, Esq. 201 S. Biscayne Blvd. Miami Center Suite 3000 Miami, FL 33131

5. Gail Pollak Baril 909 N. Roxbury Drive Beverly Hills, CA 90210

6. Judge Maria M. Korvick Circuit Court of the 11th Judicial Circuit, Miami-Dade County - Probate Division 73 West Flagler Street Miami, Fl 33130

PATRICIA POLLAK WEISSP.O. Box 751Sag Harbor, New York 11963(631) 725-4486

CERTIFICATE OF COMPLIANCE

I, PATRICIA POLLAK WEISS, hereby certify that this motion

complies with the font requirements of Rule 9.100(l) of theFlorida

Rules of Appellate Procedure. It is 12 point New Courier.

PATRICIA POLLAK WEISSP.O. Box 751Sag Harbor, New York 11963

35

(631) 725-4486